EXPLANATION: CAPITALS INDICATE MAT TER ADDED TO EXISTIN G LAW.
[Brackets] indicate matter deleted from existing law.
*hb0304*
HOUSE BILL 304
P2 5lr1614
By: Delegate Kerr
Introduced and read first time: January 9, 2025
Assigned to: Health and Government Operations
A BILL ENTITLED
AN ACT concerning 1
State Procurement – Transparency and Procedures 2
FOR the purpose of requiring a unit of State government to provide a certain debriefing of 3
a contract award to certain persons on request; adding an exemption to the 4
prohibition on an individual who assists in the drafting of specifications, an 5
invitation for bids, or a request for proposals from submitting a bid or proposal or 6
assisting in the submission of a bid or proposal; requiring a procurement contract to 7
include a certain clause pertaining to change orders related to changes in law; 8
altering the required contents of a certain change order; altering the time within 9
which a procurement officer shall make a decision after receiving a certain protest; 10
specifying that certain decisions or failure to reach a decision may be considered a 11
denial of a certain protest; altering the time within which a written notice of a claim 12
relating to a certain procurement contract shall be made; applying certain provisions 13
related to a contract claim that applied to construction contracts to certain other 14
procurement contracts; requiring a contractor, on request of a procurement officer, 15
to provide certain information prior to receiving payment on a claim; authorizing the 16
Maryland State Board of Contract Appeals to award a contractor certain costs of 17
defending certain claims; specifying that an appeal from a final decision of the 18
Appeals Board may be appealed to the Appellate Court of Maryland; and generally 19
relating to State procurement procedures. 20
BY repealing and reenacting, with amendments, 21
Article – State Finance and Procurement 22
Section 11–101, 13–201, 13–212.1(b), 13–218(a), 15–112(b)(1), 15–218, 15–219(a) 23
through (c) and (h), 15–221.2, and 15–223(a) 24
Annotated Code of Maryland 25
(2021 Replacement Volume and 2024 Supplement) 26
BY adding to 27
Article – State Finance and Procurement 28
Section 13–104(h) and 15–219(h) 29 2 HOUSE BILL 304
Annotated Code of Maryland 1
(2021 Replacement Volume and 2024 Supplement) 2
SECTION 1. BE IT ENACTED BY THE GENERAL ASSEMBLY OF MARYLAND, 3
That the Laws of Maryland read as follows: 4
Article – State Finance and Procurement 5
11–101. 6
(a) In this Division II the following words have the meanings indicated unless: 7
(1) the context clearly requires a different meaning; or 8
(2) a different definition is provided for a particular title or provision. 9
(b) (1) “Architectural services” means professional or creative work that: 10
(i) is performed in connection with the design and supervision of 11
construction or landscaping; and 12
(ii) requires architectural education, training, and experience. 13
(2) “Architectural services” includes consultation, research, investigation, 14
evaluation, planning, architectural design and preparation of related documents, and 15
coordination of services that structural, civil, mechanical, and electrical engineers and 16
other consultants provide. 17
(3) “Architectural services” does not include construction inspection 18
services, services provided in connection with an energy performance contract, or 19
structural, mechanical, plumbing, or electrical engineering. 20
(c) “Bid” means a response to an invitation for bids under § 13–103 of this article. 21
(d) “Board” means the Board of Public Works. 22
(e) “CHANGE ORDER ” MEANS A WRITTEN ORDE R THAT: 23
(1) IS SIGNED BY THE PR OCUREMENT OFFICER ; AND 24
(2) DIRECTS THE CONTRACT OR TO MAKE CHANGES T HAT ARE 25
REQUIRED BY A CHANGE IN LAW OR THAT THE PROCUREMENT CONT RACT 26
AUTHORIZES THE PROCU REMENT OFFICER TO OR DER WITHOUT THE CONS ENT OF 27
THE CONTRACTOR . 28
HOUSE BILL 304 3
(F) “Chief Procurement Officer” means an official of the Department of General 1
Services who: 2
(1) shall be appointed by the Governor with the advice and consent of the 3
Senate; 4
(2) except for procurement activity by a primary procurement unit other 5
than the Department of General Services, is the head of all procurement activity for the 6
Executive Branch of State government; and 7
(3) may engage in or control procurement for the Department of General 8
Services in accordance with § 12–107(b)(2) of this article. 9
[(f)] (G) (1) “Construction” means the process of building, altering, 10
improving, or demolishing an improvement to real property. 11
(2) “Construction” includes any major work necessary to repair, prevent 12
damage to, or sustain existing components of an improvement to real property. 13
(3) “Construction” does not include the maintenance or routine operation 14
of an existing improvement to real property, or activities related to an energy performance 15
contract. 16
[(g)] (H) (1) “Construction related services” means feasibility studies, 17
surveys, construction management, construction inspection, and similar efforts associated 18
with construction or the acquisition of public improvements as defined in § 4–401(d) of this 19
article. 20
(2) “Construction related services” does not include services provided in 21
connection with an energy performance contract. 22
(I) “CONTRACT MODIFICATION ” MEANS A WRITTEN ALTE RATION THAT: 23
(1) AFFECTS SPECIFICATIO NS, DELIVERY POINT , DATE OF DELIVERY , 24
PERIOD OF PERFORMANC E, PRICE, QUANTITY, OR OTHER PROVISIONS OF A 25
PROCUREMENT CONTRACT , INCLUDING MODIFICATI ONS REQUIRED DUE TO 26
CHANGES IN LAW OR RE GULATION THAT INCREA SE THE CONTRACTOR ’S COST OF OR 27
TIME FOR PERFORMANCE OF THE CONTRACT ; AND 28
(2) IS ACCOMPLISHED BY M UTUAL ACTION OF THE PARTIES TO THE 29
PROCUREMENT CO NTRACT. 30
[(h)] (J) “County” means a county of the State and, unless expressly provided 31
otherwise, Baltimore City. 32
4 HOUSE BILL 304
[(i)] (K) “Energy performance contract” means an agreement for the provision 1
of energy services, including electricity, heating, ventilation, cooling, steam, or hot water, 2
in which a person agrees to design, install, finance, maintain, or manage energy systems 3
or equipment to improve the energy efficiency of a building or facility in exchange for a 4
portion of the energy savings. 5
[(j)] (L) (1) “Engineering services” means professional or creative work that: 6
(i) is performed in connection with any utility, structure, building, 7
machine, equipment, or process, including structural, mechanical, plumbing, electrical, 8
geotechnical, and environmental engineering; and 9
(ii) requires engineering education, training, and experience in the 10
application of special knowledge of the mathematical, physical, and engineering sciences. 11
(2) “Engineering services” includes consultation, investigation, evaluation, 12
planning, design, and inspection of construction to interpret and ensure compliance with 13
specifications and design within the scope of inspection services. 14
(3) “Engineering services” does not include services provided in connection 15
with an energy performance contract. 16
[(k)] (M) “Invitation for bids” means any document used for soliciting bids under 17
§ 13–103 of this article. 18
[(l)] (N) “Person” means an individual, receiver, trustee, guardian, personal 19
representative, fiduciary, or representative of any kind and any partnership, firm, 20
association, corporation, or other entity. 21
[(m)] (O) “Primary procurement units” means: 22
(1) the State Treasurer; 23
(2) the Department of General Services; 24
(3) the Department of Transportation; 25
(4) the University System of Maryland; 26
(5) the Maryland Port Commission; 27
(6) the Morgan State University; and 28
(7) the St. Mary’s College of Maryland. 29
[(n)] (P) (1) “Procurement” means the process of: 30 HOUSE BILL 304 5
(i) leasing real or personal property as lessee; or 1
(ii) buying or otherwise obtaining supplies, services, construction, 2
construction related services, architectural services, engineering services, or services 3
provided under an energy performance contract. 4
(2) “Procurement” includes the solicitation and award of procurement 5
contracts and all phases of procurement contract administration. 6
[(o)] (Q) (1) “Procurement contract” means an agreement in any form entered 7
into by a unit for procurement. 8
(2) “Procurement contract” does not include: 9
(i) a collective bargaining agreement with an employee 10
organization; 11
(ii) an agreement with a contractual employee, as defined in § 12
1–101(d) of the State Personnel and Pensions Article; 13
(iii) a Medicaid, Judicare, or similar reimbursement contract for 14
which law sets: 15
1. user or recipient eligibility; and 16
2. price payable by the State; or 17
(iv) a Medicaid contract with a managed care organization, as 18
defined in § 15–101(e) of the Health – General Article as to which regulations adopted by 19
the Department establish: 20
1. recipient eligibility; 21
2. minimum qualifications for managed care organizations; 22
and 23
3. criteria for enrolling recipients in managed care 24
organizations. 25
[(p)] (R) “Procurement officer” means an individual authorized by a unit to: 26
(1) enter into a procurement contract; 27
(2) administer a procurement contract; or 28
6 HOUSE BILL 304
(3) make determinations and findings with respect to a procurement 1
contract. 2
[(q)] (S) “Proposal” means a response to any solicitation other than an invitation 3
for bids. 4
[(r)] (T) “Request for proposals” means any document used for soliciting 5
proposals. 6
[(s)] (U) “Responsible bidder or offeror” means a person who: 7
(1) has the capability in all respects to perform fully the requirements for 8
a procurement contract; and 9
(2) possesses the integrity and reliability that will ensure good faith 10
performance. 11
[(t)] (V) “Responsive bid” means a bid that: 12
(1) is submitted under § 13–103 of this article; and 13
(2) conforms in all material respects to the invitation for bids. 14
[(u)] (W) (1) Except as provided in paragraph (3) of this subsection, “services” 15
means: 16
(i) the labor, time, or effort of a contractor; and 17
(ii) any product or report necessarily associated with the rendering 18
of a service. 19
(2) “Services” includes services provided by attorneys, accountants, 20
physicians, consultants, and other professionals who are independent contractors. 21
(3) “Services” does not include: 22
(i) construction related services; 23
(ii) architectural services; 24
(iii) engineering services; or 25
(iv) energy performance contract services. 26
[(v)] (X) “State” means: 27
HOUSE BILL 304 7
(1) a state, possession, territory, or commonwealth of the United States; or 1
(2) the District of Columbia. 2
[(w)] (Y) (1) “State correctional facilities” means correctional institutions, 3
and all places of correctional confinement, that are located within the State of Maryland 4
and are primarily operated by the Maryland State government. 5
(2) “State correctional facilities” includes Patuxent Institution. 6
[(x)] (Z) (1) “Supplies” means: 7
(i) insurance; 8
(ii) tangible personal property; 9
(iii) printing; and 10
(iv) services necessarily associated with insurance or tangible 11
personal property. 12
(2) “Supplies” does not include: 13
(i) an interest in real property; or 14
(ii) tangible personal property acquired or used in connection with 15
an energy performance contract. 16
[(y)] (AA) (1) “Unit” means an officer or other entity that is in the Executive 17
Branch of the State government and is authorized by law to enter into a procurement 18
contract. 19
(2) “Unit” does not include: 20
(i) a bistate, multistate, bicounty, or multicounty governmental 21
agency; or 22
(ii) a special tax district, sanitary district, drainage district, soil 23
conservation district, water supply district, or other political subdivision of the State. 24
13–104. 25
(H) (1) ON REQUEST OF AN UNSU CCESSFUL OFFEROR , THE 26
PROCUREMENT OFFICE O F A UNIT SHALL PROVI DE A DEBRIEFING OF A CONTRACT 27
AWARD. 28
8 HOUSE BILL 304
(2) EXCEPT FOR INFORMATIO N SUBJECT TO A CONFI DENTIALITY 1
AGREEMENT , A DEBRIEFING REQUIRE D UNDER PARAGRAPH (1) OF THIS 2
SUBSECTION SHALL INCLUDE ALL RELEVANT INFORMA TION OBTAINED FROM A 3
PROPOSAL BY , OR DISCUSSIONS WITH , A COMPETING OFFEROR THAT IS 4
REASONABLY NECESSARY TO DETERMINE : 5
(I) WHETHER ALL EVALUATION PROCE DURES REQUIRED BY 6
LAW HAVE BEEN PROPER LY INTERPRETED AND P ERFORMED ; 7
(II) WHETHER THE PROCUREMENT ADVA NCES THE PURPOSES 8
AND POLICIES ESTABLI SHED UNDER § 11–201 OF THIS ARTICLE; 9
(III) WHETHER THE CONDUCT OF UNIT PERSONNEL WAS BIASED , 10
IN BAD FAITH, OR WITHOUT SUBSTANTI AL JUSTIFICATION ; OR 11
(IV) WHETHER THE UNIT FAILED TO P RODUCE ANY DOCUMENT 12
REQUIRED BY LAW OR REGULATION . 13
(3) A PROCUREMENT OFFICER ’S FAILURE TO COMPLY WITH THIS 14
SUBSECTION MAY BE RE MEDIED BY ORDER OF T HE MARYLAND STATE BOARD OF 15
CONTRACT APPEALS. 16
13–201. 17
[(a) In this subtitle the following words have the meanings indicated. 18
(b) “Change order” means a written order that: 19
(1) is signed by the procurement officer; and 20
(2) directs the contractor to make changes that the procurement contract 21
authorizes the procurement officer to order without the consent of the contractor. 22
(c) “Contract modification” means a written alteration that: 23
(1) affects specifications, delivery point, date of delivery, period of 24
performance, price, quantity, or other provisions of a procurement contract; and 25
(2) is accomplished by mutual action of the parties to the procurement 26
contract. 27
(d) “Cost–reimbursement] IN THIS SUBTITLE, “COST–REIMBURSEMENT 28
contract” means a procurement contract under which the State reimburses a contractor for 29
fees and other costs that are: 30
HOUSE BILL 304 9
(1) recognized as allowable and allocable under the regulations of the 1
Board on price and cost principles; and 2
(2) within a stated ceiling. 3
13–212.1. 4
(b) For purposes of subsection (a) of this section, assisting in the drafting of 5
specifications, an invitation for bids, or a request for proposals for a procurement does not 6
include: 7
(1) providing descriptive literature, such as catalogue sheets, brochures, 8
technical data sheets, or standard specification “samples”, whether requested by an 9
executive unit or provided unsolicited; 10
(2) submitting written or oral comments on a specification prepared by an 11
executive unit or on a solicitation for a bid or proposal when comments are solicited from 12
two or more persons as part of a request for information or a prebid or preproposal process; 13
(3) providing specifications for a sole source procurement made in 14
accordance with § 13–107 of this title; 15
(4) providing architectural and engineering services for: 16
(i) programming, master planning, or other project planning 17
services; or 18
(ii) the design of a construction project if: 19
1. the design services do not involve lead or prime design 20
responsibilities or construction phase responsibilities on behalf of the State; and 21
2. A. the anticipated value of the procurement contract at 22
the time of advertisement is at least $2,500,000 and not more than $100,000,000; or 23
B. regardless of the amount of the procurement contract, the 24
payment to the individual or person for the design services does not exceed $500,000; [or] 25
(5) for a procurement of health, human, social, or educational services, 26
comments solicited from two or more persons as part of a request for information, including 27
written or oral comments on a draft specification, an invitation for bids, or a request for 28
proposals; OR 29
(6) RECEIVING INFORMATIO N FROM VENDORS THAT DOES NOT 30
PROVIDE AN UNFAIR CO MPETITIVE ADVANTAGE FOR ANY BIDDER OR OFFEROR . 31
13–218. 32 10 HOUSE BILL 304
(a) Each procurement contract shall include clauses covering: 1
(1) termination for default; 2
(2) termination wholly or partly by the State for its convenience if the head 3
of the primary procurement unit determines that termination is appropriate; 4
(3) variations that occur between estimated and actual quantities of work 5
in a procurement contract; 6
(4) liquidated damages, as appropriate; 7
(5) specified excuses for nonperformance; 8
(6) except for real property leases, the unilateral right of the State to order 9
in writing: 10
(i) changes in the work, if the changes are within the scope of the 11
procurement contract; and 12
(ii) a temporary stop or delay in performance; 13
(7) the obligation of the contractor to comply with the political contribution 14
reporting requirements under Title 14 of the Election Law Article, to which the contractor 15
may be subject as required under § 17–402 of this article; [and] 16
(8) nonvisual access for information technology as required under § 17
3A–312 of this article; AND 18
(9) A REQUIREMENT FOR A CHANGE ORDER TO COMP ENSATE THE 19
CONTRACTOR FOR INCRE ASES IN THE COST OF AND TIME FOR CONTRAC T 20
PERFORMANCE DUE TO C HANGES IN LAW . 21
15–112. 22
(b) (1) Except as provided in paragraphs (2) and (3) of this subsection, a unit 23
may not require a prime contractor and a prime contractor may not require a subcontractor 24
to begin change order work under a contract until the procurement officer for the unit issues 25
a written change order that specifies whether the work is to proceed, in compliance WITH 26
ANY CHANGES IN LAW O R REGULATION OR with the terms of the contract, on: 27
(i) an agreed–to price which may include a preestablished catalog 28
or unit prices based on local prevailing wage rates and equipment and material costs for 29
each task required for the change order as included in the bid documents at the time of bid; 30
HOUSE BILL 304 11
(ii) a force account; 1
(iii) a construction change directive; or 2
(iv) a time and materials basis. 3
15–218. 4
(a) Except as provided under § 15–219 of this subtitle, a procurement officer who 5
receives a protest [or a contract claim from a contractor] shall comply with this section. 6
(b) (1) On receipt of a protest [or contract claim from a contractor], a 7
procurement officer: 8
(i) shall review the substance of the protest [or contract claim]; 9
(ii) may request additional information or substantiation through an 10
appropriate procedure; 11
(iii) may discuss with interested parties and, if appropriate, may 12
conduct negotiations with the person initiating the protest [or contract claim]; and 13
(iv) shall comply with any applicable regulations. 14
(2) Unless clearly inappropriate, the procurement officer shall seek the 15
advice of the Office of the Attorney General. 16
(c) (1) Subject to subsection (b) of this section and consistent with the State 17
budget and other applicable laws, the procurement officer shall: 18
(i) resolve the protest [or contract claim] by agreement of the 19
parties; 20
(ii) wholly or partly deny the protest [or contract claim]; or 21
(iii) wholly or partly grant the relief sought by the person who 22
submitted the protest [or contract claim]. 23
(2) The procurement officer promptly shall send the decision in writing to 24
the reviewing authority. 25
(d) Unless otherwise provided by regulation, the decision of the procurement 26
officer shall be reviewed promptly by: 27
(1) the head of the unit; and 28
12 HOUSE BILL 304
(2) the head of the principal department or other equivalent unit of which 1
the unit is a part. 2
(e) (1) Except as provided under paragraph (3) of this subsection, the 3
reviewing authority shall approve, disapprove, or modify the decision of the procurement 4
officer [within 180 days after receiving the contract claim] WITHIN 45 DAYS AFTER 5
RECEIVING THE PROTES T or a longer period to which the parties agree. 6
(2) The action of the reviewing authority under this subsection shall be the 7
final action of the unit. 8
(3) The reviewing authority may remand the proceeding with instructions 9
to the procurement officer. 10
(4) On remand, the procurement officer shall proceed under subsection (b) 11
of this section in accordance with those instructions. 12
(f) (1) A decision [not to pay a contract claim] TO DENY A PROTEST is a final 13
action for the purpose of appeal to the Appeals Board. 14
(2) The failure to reach a decision within the time required under 15
subsection (e) of this section may be deemed, at the option of the [contractor, to be a decision 16
not to pay the contract claim] BIDDER OR OFFEROR TO BE A DECISION TO DEN Y THE 17
PROTEST. 18
15–219. 19
(a) [Except to the extent a shorter period is prescribed by regulation governing 20
differing site conditions, a] A contractor shall file a written notice of a claim relating to a 21
procurement contract [for construction] within [30] 90 days after [the basis for the claim 22
is known or should have been known] THE EARLIER OF : 23
(1) A UNIT DENYING A REQUEST FOR EQUITA BLE ADJUSTMENT; OR 24
(2) THE PARTIES REACH ING AN IMPASSE IN DISCUS SIONS 25
ATTEMPTING TO RESOLV E THEIR DISAGREEMENT REGARDING THE REQUES T. 26
(b) Unless extended by the unit, within 90 days after submitting a notice of a 27
contract claim under a procurement contract [for construction], a contractor shall submit 28
to the unit a written explanation that states: 29
(1) the amount of the contract claim; 30
(2) the facts on which the contract claim is based; and 31
HOUSE BILL 304 13
(3) all relevant data and correspondence that may substantiate the 1
contract claim. 2
(c) (1) Subject to paragraph (2) of this subsection, the head of the unit engaged 3
in procurement [of the construction] shall review the contract claim. 4
(2) If the unit is part of a principal department or other equivalent unit, 5
the Secretary of the principal department or the equivalent official shall review the contract 6
claim, unless review has been delegated by regulation to the head of the unit. 7
(H) AT ANY TIME PRIOR TO RECEIVING PAYMENT ON A CLAIM, ON WRITTEN 8
REQUEST BY THE PROCUREMENT OFFICER , THE CONTRACTOR SHALL PROVIDE THE 9
UNIT WITH A CERTIFIC ATION BY A SENIOR OF FICER OR GENERAL PAR TNER OF THE 10
CONTRACTOR OR THE SU BCONTRACTOR , AS APPLICABLE , THAT, TO THE BEST OF 11
THAT PERSON ’S KNOWLEDGE AND BELIEF : 12
(1) THE CLAIM IS MADE IN GOOD FAITH; 13
(2) ALL SUPPORTING DATA IS ACCURATE AND COMPLET E; AND 14
(3) THE AMOUNT REQUESTED ACCURATELY REFLECTS THE 15
CONTRACT CLAIM FOR WHICH THE PERSON BELIEVES THE PROCURE MENT AGENCY 16
IS LIABLE. 17
[(h)] (I) At the time of final payment, the unit shall: 18
(1) release the retainage due to the contractor; and 19
(2) pay any interest that: 20
(i) has accrued on the retainage from the time of payment of the 21
semifinal estimate; and 22
(ii) is due and payable to the contractor. 23
15–221.2. 24
(a) This section applies to a claim resulting under a contract. 25
(b) The Appeals Board may award to a contractor the reasonable costs of filing 26
and pursuing a claim OR DEFENDING AGAINST A CLAIM UNDER § 15–219.1 OF THIS 27
SUBTITLE, including reasonable attorney’s fees, if the Appeals Board finds that the conduct 28
of the unit in processing a contract claim is in bad faith, without substantial justification, 29
or in violation of law. 30
(c) The Appeals Board shall adopt regulations to implement this section. 31 14 HOUSE BILL 304
15–223. 1
(a) (1) A decision of the Appeals Board is subject to judicial review in 2
accordance with Title 10, Subtitle 2 of the State Government Article. 3
(2) Any party to an Appeals Board decision, including a unit, may appeal a 4
final decision of the Appeals Board to [a court of competent jurisdiction] THE APPELLATE 5
COURT OF MARYLAND. 6
SECTION 2. AND BE IT FURTHER ENACTED, That this Act shall take effect 7
October 1, 2025. 8