CAUTION: READ FULL TEXT OF SECTION FOR SPECIAL NOTE
(a) (1) In this section the following words have the meanings indicated.
(2) "Design/build contract" means a contract that provides for both
architectural and engineering design services and construction services
as a part of a single contract.
(3) "Facilities construction contract" means a contract that provides
services for the construction of:
(i) Water or wastewater treatment plants;
(ii) Water or wastewater pumping stations and related force mains within the
pumping station site limits;
(iii) Water storage facilities; and
(iv) Wastewater storage facilities or buildings.
(4) "Pipeline contract" means a contract that provides services for the
construction of a pipeline.
(b) This section only applies to design/build contracts and construction
contracts.
(c) (1) Whenever the WSSC decides, after an opportunity for a hearing has been
given, to proceed with the design or construction of a water supply or
sanitary sewer system, the WSSC shall comply with the requirements of
this section.
(2) The WSSC shall advertise, by notice in newspapers and technical press
as the WSSC considers proper, for bids or proposals for the design and
construction of the system, in parts or as a whole, as the WSSC
considers advisable.
(3) Design/build contracts shall be used only for facilities construction
contracts with costs exceeding $2 million and may not be used for
pipeline contracts.
(4) The WSSC:
(i) May readvertise the work or any part of the work if the WSSC considers
that the prices quoted are unreasonable; or
(ii) Subject to paragraph (5) of this subsection, may do any part or all of
the work by day labor.
(5) Notwithstanding paragraph (6) of this subsection, at any time the WSSC
may expend $15,000 or less by day labor for construction work without
advertising or receiving bids or proposals.
(6) The WSSC shall award contracts by:
(i) Competitive sealed bids in accordance with subsection (d) of this
section; or
(ii) Competitive sealed proposals in accordance with subsection (e) of this
section.
(7) The WSSC may reject any bid or proposal.
(8) The WSSC:
(i) May adopt regulations to establish a prequalification process for
bidders or offerors; and
(ii) Shall adopt regulations to govern discussions held under subsection
(e)(3) of this section.
(9) (i) Except as prohibited under subparagraph (ii) of this paragraph, the
WSSC may enter into any type of contract under this section that
promotes the best interest of the WSSC.
(ii) The WSSC:
1. May not enter a cost-plus-percentage-of-cost contract; and
2. Shall prohibit a cost-plus-percentage-of-cost subcontract under a
WSSC contract.
(d) (1) (i) In this subsection the following words have the meanings indicated.
(ii) "Evaluated bid price" means the price of a bid after adjustment in
accordance with objective measurable criteria.
(iii) "Objective measurable criteria" means standards that enable the
WSSC to compare the economy, effectiveness, or value of the subject of
the bids.
(2) If a contract is awarded based on competitive sealed bids, the WSSC
shall seek bids by issuing an invitation to bid.
(3) Subject to paragraphs (4) through (6) of this subsection, an invitation
to bid shall:
(i) Include the specifications of the contract; and
(ii) State whether the contract will be awarded based on the lowest bid
price or the lowest evaluated bid price.
(4) If a contract will be awarded on an evaluated bid price, the invitation
to bid shall include the objective measurable criteria by which the
lowest evaluated bid price will be determined.
(5) The WSSC shall award contracts based on competitive sealed bids to the
responsible bidder who submits the lowest bid price or lowest evaluated
bid price, as appropriate.
(6) If the WSSC determines that an initial preparation of specifications
for price bids is impractical, the invitation for bids may:
(i) Include a request for unpriced technical offers or samples; and
(ii) Direct the bidder to submit a:
1. Sealed price bid with the unpriced technical offer or sample; or
2. Price bid after the WSSC evaluates the technical offer or sample and
finds that the offer or sample is acceptable under the criteria set
forth in the invitation to bid.
(7) If an invitation to bid includes a request for unpriced technical
offers or samples, the WSSC shall:
(i) Consider the price bid of a bidder whose technical offer or sample is
acceptable;
(ii) Return unopened the price bid of a bidder whose technical offer or
sample is unacceptable; and
(iii) Award the contract to the responsible bidder whose technical offer or
sample is acceptable and who submits the lowest bid or lowest evaluated
bid, as specified in the invitation to bid.
(e) (1) If a contract is awarded based on competitive sealed proposals, the
WSSC shall seek proposals by issuing a request for proposals.
(2) A request for proposals shall include:
(i) A statement describing the scope of the contract;
(ii) The factors, including price, that will be used in evaluating
proposals; and
(iii) The relative importance of each factor.
(3) After receipt of proposals, but before the contract is awarded, the
WSSC may conduct discussions with an offeror to:
(i) Obtain the best price for the WSSC; and
(ii) Ensure full understanding of the requirements of the WSSC, as set forth
in the request for proposals and in the proposal.
(4) The WSSC:
(i) Shall treat all responsible offerors fairly and equally; and
(ii) May allow each responsible offeror to revise the offeror's initial
proposal and submit a best and final offer.
(5) The WSSC shall award a contract based on competitive sealed proposals
to the responsible offeror who submits the proposal or best and final
offer that the WSSC determines is the most advantageous to the WSSC,
considering the evaluation factors set out in the request for
proposals.
(f) (1) In this subsection, "minority business enterprise" has the meaning
stated in § 14-301 of the State Finance and Procurement Article.
(2) By resolution and by implementing rules and regulations, the WSSC shall
establish a mandatory minority business utilization program to
facilitate the participation of responsible certified minority business
enterprises in contracts awarded by the WSSC in accordance with
competitive bidding or proposal procedures.
(3) The rules and regulations that establish the program under paragraph
(2) of this subsection shall include, but not be limited to, provisions
that:
(i) Recognize the certification of minority business enterprises by the
State certification agency designated under § 14-303(b) of the State
Finance and Procurement Article;
(ii) Recognize any other certification program that in the judgment of the
WSSC substantially duplicates the requirements of the State
certification agency;
(iii) Provide for an increase in minority business participation as prime
contractors and subcontractors;
(iv) Permit the waiver of all or part of the provisions of the program for a
specific contract if the WSSC determines that the application of the
program to the contract conflicts with the WSSC's overall objectives
and responsibilities; and
(v) Provide for the graduation of a minority business enterprise from the
program if the WSSC determines that the minority business enterprise no
longer requires the assistance or benefits offered by the program.
(4) Before accepting a certification program under paragraph (3)(ii) of
this subsection, the WSSC shall examine the program to ensure that it
adheres to the following guidelines:
(i) Bona fide minority group membership shall be established on the basis
of the individual's claim that the individual is a member of a
minority group and is so regarded by that particular minority
community. However, the certifying agency is not required to accept
this claim if it determines that the claim is invalid.
(ii) An eligible minority business enterprise shall be an independent
business. The ownership and control by minorities shall be real,
substantial, and continuing and shall go beyond the pro forma ownership
of the business as reflected in its ownership documents. The minority
owners shall enjoy the customary incidents of ownership and shall share
in the risks and profits commensurate with their ownership interests as
demonstrated by an examination of the substance rather than form of
arrangements. Recognition of the business as a separate entity for tax
or corporate purposes is not necessarily sufficient for recognition as
a minority business enterprise. In determining whether a potential
minority business enterprise is an independent business, the certifying
agency shall consider all relevant factors, including the date the
business was established, the adequacy of its resources for the work of
the contract, and the degree to which financial, equipment leasing, and
other relationships with nonminority businesses vary from industry
practice.
(iii) The minority owners shall also possess the power to direct or cause the
direction of the management and policies of the business and to make
the day-to-day as well as major decisions on matters of management,
policy, and operations. The business may not be subject to any formal
or informal restrictions, through bylaw provisions, partnership
agreements, or charter requirements for cumulative voting rights or
otherwise that prevent the minority owners, without the cooperation or
vote of any owner who is not a minority, from making a business
decision of the business.
(iv) If the owners of the business who are not minorities are
disproportionately responsible for the operation of the firm, the firm
is not controlled by minorities and may not be considered a minority
business enterprise within the meaning of this section. Where the
actual management of the business is contracted out to individuals
other than the owner, those persons who have the ultimate power to hire
and fire the managers may, for the purposes of this section, be
considered as controlling the business.
(v) All securities which constitute ownership or control of a corporation
for purposes of establishing it as a minority business enterprise under
this section shall be held directly by minorities. No securities held
in trust, or by any guardian for a minor, shall be considered as held
by minorities in determining the ownership or control of a corporation.
(vi) The contributions of capital or expertise by the minority owners to
acquire their interests in the business shall be real and substantial.
Insufficient contributions include a promise to contribute capital, a
note payable to the business or its owners who are not socially and
economically disadvantaged, or the mere participation as an employee,
rather than as a manager.
(vii) The certifying agency shall give special consideration to the following
additional circumstances in determining eligibility:
1. Newly formed businesses and businesses whose ownership or control has
changed since the date of the advertisement of the contract are closely
scrutinized to determine the reasons for the timing of the formation of
or change in the businesses;
2. A previous or continuing employer-employee relationship between or
among present owners is carefully reviewed to ensure that the
employee-owner has management responsibilities and capabilities
discussed in this section; and
3. Any relationship between a minority business enterprise and a business
which is not a minority business enterprise which has an interest in
the minority business enterprise is carefully reviewed to determine if
the interest of the nonminority business conflicts with the ownership
and control requirements of this section.
(5) (i) The WSSC may conduct any impartial fact-finding study in connection
with a minority business enterprise program for consistency with
applicable law.
(ii) The WSSC shall report the findings of any review completed under this
paragraph to the Montgomery County and Prince George's County
Delegations to the General Assembly.
(6) By September 15 of each year, the WSSC shall issue a report concerning
the implementation and administration of the minority business
enterprise program for the fiscal year ending on the preceding June 30,
and appropriate recommendations concerning the program, to the
Montgomery County and Prince George's County Senate and House
Delegations to the Maryland General Assembly.
(7) The provisions of this subsection shall be null and void and may not be
enforced after July 1, 2006.
(g) All contracts may be protected by bonds, penalties, and conditions
required by the WSSC, all of which are enforceable in any court that
has jurisdiction.
(h) (1) The WSSC may not award a contract to a contractor unless the contract
contains provisions obligating the contractor:
(i) Not to discriminate in any manner against an employee or an applicant
for employment on the basis of sex, race, creed, color, age, mental or
physical handicap, sexual orientation, or national origin; and
(ii) To include a similar nondiscrimination clause in all subcontracts.
(2) (i) If the nondiscrimination clause is omitted from a contract or
subcontract the WSSC shall provide a reasonable opportunity to cure the
defect, subject to the provisions of this subsection.
(ii) If the contractor fails to cure the defect, the WSSC may declare the
contract to be void, and the contractor is entitled to the reasonable
value of work that has been performed and materials that have been
provided.
(iii) If the contractor cures the defect, the contract remains in force
according to its revised terms.
(3) If a contractor willfully fails to comply with the requirements of the
nondiscrimination clause and the contract is partly executory, the WSSC
may compel the contractor to continue to perform under the contract,
but the WSSC:
(i) Is liable for no more than the reasonable value of work performed and
materials provided after the date on which the breach of contract was
or should have been discovered; and
(ii) Shall deduct any money that has been paid under the contract from the
money that comes due under item (i) of this paragraph.
(4) If a subcontractor willfully fails to comply with the requirements of a
nondiscrimination clause, the contractor may declare the subcontract to
be void. In that event, the contractor is liable for no more than the
reasonable value of work performed or materials
provided.
// SPECIAL NOTE: THE ABOVE SECTION WAS CHANGED BY CHAPTER 562
OF 2005 AND WILL REMAIN IN EFFECT UNTIL JULY 1, 2006 //
(a) (1) In this section the following words have the meanings indicated.
(2) "Design/build contract" means a contract that provides for both
architectural and engineering design services and construction services
as a part of a single contract.
(3) "Facilities construction contract" means a contract that provides
services for the construction of:
(i) Water or wastewater treatment plants;
(ii) Water or wastewater pumping stations and related force mains within the
pumping station site limits;
(iii) Water storage facilities; and
(iv) Wastewater storage facilities or buildings.
(4) "Pipeline contract" means a contract that provides services for the
construction of a pipeline.
(b) This section only applies to design/build contracts and construction
contracts.
(c) (1) Whenever the WSSC decides, after an opportunity for a hearing has been
given, to proceed with the design or construction of a water supply or
sanitary sewer system, the WSSC shall comply with the requirements of
this section.
(2) The WSSC shall advertise, by notice in newspapers and technical press
as the WSSC considers proper, for bids or proposals for the design and
construction of the system, in parts or as a whole, as the WSSC
considers advisable.
(3) Design/build contracts shall be used only for facilities construction
contracts with costs exceeding $2 million and may not be used for
pipeline contracts.
(4) The WSSC:
(i) May readvertise the work or any part of the work if the WSSC considers
that the prices quoted are unreasonable; or
(ii) Subject to paragraph (5) of this subsection, may do any part or all of
the work by day labor.
(5) Notwithstanding paragraph (6) of this subsection, at any time the WSSC
may expend $15,000 or less by day labor for construction work without
advertising or receiving bids or proposals.
(6) The WSSC shall award contracts by:
(i) Competitive sealed bids in accordance with subsection (d) of this
section; or
(ii) Competitive sealed proposals in accordance with subsection (e) of this
section.
(7) The WSSC may reject any bid or proposal.
(8) The WSSC:
(i) May adopt regulations to establish a prequalification process for
bidders or offerors; and
(ii) Shall adopt regulations to govern discussions held under subsection
(e)(3) of this section.
(9) (i) Except as prohibited under subparagraph (ii) of this paragraph, the
WSSC may enter into any type of contract under this section that
promotes the best interest of the WSSC.
(ii) The WSSC:
1. May not enter a cost-plus-percentage-of-cost contract; and
2. Shall prohibit a cost-plus-percentage-of-cost subcontract under a
WSSC contract.
(d) (1) (i) In this subsection the following words have the meanings indicated.
(ii) "Evaluated bid price" means the price of a bid after adjustment in
accordance with objective measurable criteria.
(iii) "Objective measurable criteria" means standards that enable the
WSSC to compare the economy, effectiveness, or value of the subject of
the bids.
(2) If a contract is awarded based on competitive sealed bids, the WSSC
shall seek bids by issuing an invitation to bid.
(3) Subject to paragraphs (4) through (6) of this subsection, an invitation
to bid shall:
(i) Include the specifications of the contract; and
(ii) State whether the contract will be awarded based on the lowest bid
price or the lowest evaluated bid price.
(4) If a contract will be awarded on an evaluated bid price, the invitation
to bid shall include the objective measurable criteria by which the
lowest evaluated bid price will be determined.
(5) The WSSC shall award contracts based on competitive sealed bids to the
responsible bidder who submits the lowest bid price or lowest evaluated
bid price, as appropriate.
(6) If the WSSC determines that an initial preparation of specifications
for price bids is impractical, the invitation for bids may:
(i) Include a request for unpriced technical offers or samples; and
(ii) Direct the bidder to submit a:
1. Sealed price bid with the unpriced technical offer or sample; or
2. Price bid after the WSSC evaluates the technical offer or sample and
finds that the offer or sample is acceptable under the criteria set
forth in the invitation to bid.
(7) If an invitation to bid includes a request for unpriced technical
offers or samples, the WSSC shall:
(i) Consider the price bid of a bidder whose technical offer or sample is
acceptable;
(ii) Return unopened the price bid of a bidder whose technical offer or
sample is unacceptable; and
(iii) Award the contract to the responsible bidder whose technical offer or
sample is acceptable and who submits the lowest bid or lowest evaluated
bid, as specified in the invitation to bid.
(e) (1) If a contract is awarded based on competitive sealed proposals, the
WSSC shall seek proposals by issuing a request for proposals.
(2) A request for proposals shall include:
(i) A statement describing the scope of the contract;
(ii) The factors, including price, that will be used in evaluating
proposals; and
(iii) The relative importance of each factor.
(3) After receipt of proposals, but before the contract is awarded, the
WSSC may conduct discussions with an offeror to:
(i) Obtain the best price for the WSSC; and
(ii) Ensure full understanding of the requirements of the WSSC, as set forth
in the request for proposals and in the proposal.
(4) The WSSC:
(i) Shall treat all responsible offerors fairly and equally; and
(ii) May allow each responsible offeror to revise the offeror's initial
proposal and submit a best and final offer.
(5) The WSSC shall award a contract based on competitive sealed proposals
to the responsible offeror who submits the proposal or best and final
offer that the WSSC determines is the most advantageous to the WSSC,
considering the evaluation factors set out in the request for
proposals.
(f) Expired.
(g) All contracts may be protected by bonds, penalties, and conditions
required by the WSSC, all of which are enforceable in any court that
has jurisdiction.
(h) (1) The WSSC may not award a contract to a contractor unless the contract
contains provisions obligating the contractor:
(i) Not to discriminate in any manner against an employee or an applicant
for employment on the basis of sex, race, creed, color, age, mental or
physical handicap, sexual orientation, or national origin; and
(ii) To include a similar nondiscrimination clause in all subcontracts.
(2) (i) If the nondiscrimination clause is omitted from a contract or
subcontract the WSSC shall provide a reasonable opportunity to cure the
defect, subject to the provisions of this subsection.
(ii) If the contractor fails to cure the defect, the WSSC may declare the
contract to be void, and the contractor is entitled to the reasonable
value of work that has been performed and materials that have been
provided.
(iii) If the contractor cures the defect, the contract remains in force
according to its revised terms.
(3) If a contractor willfully fails to comply with the requirements of the
nondiscrimination clause and the contract is partly executory, the WSSC
may compel the contractor to continue to perform under the contract,
but the WSSC:
(i) Is liable for no more than the reasonable value of work performed and
materials provided after the date on which the breach of contract was
or should have been discovered; and
(ii) Shall deduct any money that has been paid under the contract from the
money that comes due under item (i) of this paragraph.
(4) If a subcontractor willfully fails to comply with the requirements of a
nondiscrimination clause, the contractor may declare the subcontract to
be void. In that event, the contractor is liable for no more than the
reasonable value of work performed or materials provided.
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