§ 13-108

§13–108. IN EFFECT

(a) In this section, “emergency” means an occurrence or condition that creates an immediate and serious need for services, materials, or supplies that:

(1) cannot be met through normal procurement methods; and

(2) are required to avoid or mitigate serious damage to public health, safety, or welfare.

(b) (1) Except as provided in § 11–205 (“Collusion”), § 10–204 (“Approval for designated contracts”), § 13–219 (“Required clauses – Nondiscrimination clause”), Title 16 (“Suspension and Debarment of Contractors”), or Title 17 (“Special Provisions – State and Local Subdivisions”) of this article, with the approval of the head of a unit, its procurement officer may make an emergency procurement by any method that the procurement officer considers most appropriate to avoid or mitigate serious damage to public health, safety, or welfare.

(2) (i) Except when delaying a procurement by up to 48 hours would likely result in imminent harm, after obtaining the approval of the head of the unit and before making an emergency procurement, the procurement officer shall obtain approval of the use of emergency procurement procedures from the Chief Procurement Officer, or the Chief Procurement Officer’s designee.

(ii) Within 48 hours after receiving a request to use emergency procurement procedures, the Chief Procurement Officer or designee shall approve or disapprove the request.

(iii) If the Chief Procurement Officer or designee does not approve or disapprove the request to use emergency procurement procedures within 48 hours after receiving the request, the request shall be considered to be approved.

(3) The procurement officer shall:

(i) obtain as much competition as possible under the circumstances, including by making reasonable efforts to solicit at least three oral quotes;

(ii) limit the emergency procurement to the procurement of only those items, both in type and quantity, necessary to avoid or to mitigate serious damage to public health, safety, or welfare;

(iii) before awarding an emergency procurement contract to a prospective contractor, evaluate the contractor’s ability to perform the requirements of the contract based on:

1. the length of time the contractor has been in business;

2. the contractor’s level of experience providing the types and amounts of supplies, services, maintenance, commodities, construction, or construction–related services required under the contract; and

3. the contractor’s history of successful procurement contracts with the State and other jurisdictions;

(iv) execute a written contract with the successful contractor which includes the terms of the emergency procurement; and

(v) not more than 15 days after awarding the procurement contract, submit to the Board a written report that gives the justification for use of the emergency procurement procedure.

(4) (i) This paragraph applies only to an emergency procurement contract with a value of $1,000,000 or more.

(ii) 1. In advance of or concurrent with the execution of an emergency procurement contract that is subject to this paragraph, a unit may not pay an amount that exceeds $2,000,000, plus 30% of the contract value in excess of $2,000,000.

2. Unless authorized by the Board, the unit may not make any additional payment under the contract until at least 30 days after the execution of the contract.

(iii) Not later than 7 days after awarding an emergency procurement contract that is subject to this paragraph, a unit shall submit a copy of the contract to the Board.

(iv) The Board may:

1. review an emergency procurement contract submitted under this paragraph at a regularly scheduled meeting of the Board or at an emergency meeting called for that purpose; and

2. direct the unit or the appropriate control agency to take any action, including canceling or rescinding the contract, that the Board deems appropriate.

(5) If supplies or commodities procured under an emergency procurement contract are not delivered and used within 1 month after the date the contract is awarded, the unit shall:

(i) prepare a report describing the delivery and use status of supplies and commodities procured under the contract at least once per month until all supplies and commodities have been delivered and used; and

(ii) submit the reports prepared under this paragraph to the Board, the appropriate control agency, and, in accordance with § 2–1257 of the State Government Article, the Senate Budget and Taxation Committee, the Senate Committee on Education, Energy, and the Environment, the House Appropriations Committee, the House Health and Government Operations Committee, and the Joint Audit and Evaluation Committee.

(6) A procurement contract awarded under this subsection shall include provisions addressing the contractor’s ability to perform the requirements of the contract within the emergency time frame.

(7) Notwithstanding subsection (e) of this section, on the day of the execution and approval of a procurement contract awarded under this subsection, or as soon as practicable thereafter, a unit shall publish in eMaryland Marketplace notice of the award.

(8) (i) This paragraph applies only to the award of a contract or a contract modification made under this subsection that, with prior modifications, exceeds the small procurement amount specified in § 13–109 of this subtitle.

(ii) Within 15 days after awarding a contract or a contract modification, a unit shall submit to the Board and the appropriate control agency a report that includes:

1. the basis and justification for the emergency procurement including the date the emergency first became known;

2. a listing of supplies, services, maintenance, commodities, construction, or construction–related services procured;

3. the names of all persons solicited and a justification if the solicitation was limited to one person;

4. the prices and times of performance proposed by the persons responding to the solicitation;

5. the name of and basis for the selection of a particular contractor;

6. the amount and type of the contract or contract modification;

7. a listing of any prior or related emergency contracts, including all contract modifications, executed for the purposes of avoiding or mitigating the particular emergency, including the aggregate costs; and

8. the identification number, if any, of the contract file.

(iii) The Board may adopt regulations to carry out this paragraph.

(c) (1) Consistent with the requirements of subsection (b)(1) of this section, the State Highway Administration may enter into procurement contracts related to the pretreatment and removal of snow and ice as required or authorized under Title 8 of the Transportation Article.

(2) (i) Beginning on June 30, 2016, and no later than June 30 of each succeeding year, the State Highway Administration shall submit to the Board a written report on the operation and effectiveness of the procurement contracts entered into under this subsection during the previous year.

(ii) The report shall include:

1. the number of contracts awarded;

2. the total dollar value of the contracts awarded; and

3. the amount of contracting dollars expended with minority business enterprises, certified small businesses, and certified veteran–owned businesses, as defined under Title 14 of this article.

(3) The Board, in consultation with the State Highway Administration, may adopt regulations to carry out the requirements of this subsection.

(d) (1) Except as provided in § 11–205 (“Collusion”), § 10–204 (“Approval for designated contracts”), § 13–219 (“Required clauses – Nondiscrimination clause”), Title 16 (“Suspension and Debarment of Contractors”), or Title 17 (“Special Provisions – State and Local Subdivisions”) of this article, with the approval of the head of the unit and the Board, a unit’s procurement officer may make a procurement on an expedited basis if the head of the unit and the Board find that:

(i) urgent circumstances require prompt action;

(ii) an expedited procurement best serves the public interest; and

(iii) the need for the expedited procurement outweighs the benefits of making the procurement on the basis of competitive sealed bids or competitive sealed proposals.

(2) The procurement officer shall attempt to obtain as much competition as reasonably possible.

(e) Except as provided in subsection (b)(7) of this section, not more than 30 days after the execution and approval of a procurement contract awarded under this section, a unit shall publish in eMaryland Marketplace notice of the award.

(f) For real property leases procured under this section, the term of the lease shall be for the minimum period of time practicable.

(g) The Board may adopt regulations to carry out this section.

(h) The Special Secretary for the Office of Small, Minority, and Women Business Affairs, in consultation with the Secretary of Transportation and the Attorney General, shall establish guidelines for each unit to consider when determining the appropriate minority business enterprise participation percentage goal and outreach for an emergency procurement contract.