(A) Sole source.
(1) Sole source or single source procurement may be utilized only when no reasonable alternative sources exist. A record of sole source procurements will be maintained as a public record.
(2) When the County requires supplies, materials, or equipment which are produced by only one manufacturer, the Director of P&C may specify one manufacturer's make or brand in the solicitation and obtain competitive pricing from the authorized dealers or distributors of the manufacturer. If the manufacturer is the sole Bidder and sole source of supply, the Director of P&C is authorized to negotiate an open market purchase order or contract with the manufacturer at prices and on terms most advantageous to the County.
(3) When the County requires supplies, materials, or equipment which are patented or proprietary and which are obtainable in two (2) or more equally satisfactory and competitive makes, brands, or types, the Director of P&C will identify all acceptable and competitive makes, brands, or types in the solicitation. Unless a prequalification process has been completed or the item has been "standardized" such lists will also include the phrase "or equal to".
(4) When the County requests an estimate for repair of equipment and the cost to obtain the estimate is significant, the Director of P&C is authorized to negotiate price, delivery, and terms for the repair to be completed by the Contractor that provided the estimate, in lieu of expending additional funds to obtain multiple estimates.
(5) The Director of P&C may accept bids which contain alternate or additional makes, brands, or types. The bidder has the burden to prove to the satisfaction of the County that the alternate or additional make, brand, or type is equal in quality and performance to those listed in the solicitation.
(6) A contract may be awarded without competition when, after conducting a good faith review of available sources or in the event competition was insufficient or no bids, proposals, or submissions were received, or the goods are used/refurbished, the Director of P&C determines in writing that there is only one responsible source for the required material, service, or construction item. If a sole source award is requested by an Agency, written evidence to support a sole source award must accompany the request. The Director of P&C may require that negotiations are conducted as to price, delivery, and terms. The Director of P&C may require the submission of cost or pricing data in connection with an award under this section.
(7) Miscellaneous exemptions - a contract for materials, professional services, or services may be awarded without competition if the Director of P&C determines in writing that one (1) or more of the following conditions exists:
(a) Although there exists more than one (1) responsible source, a competitive process cannot reasonably be used or, if used, will result in a substantially higher cost to the County, will otherwise injure the County's financial interests, or will substantially impede the County's administrative functions or the delivery of services to the public.
(b) A particular material or service is required to maintain interchangeability or compatibility as a part of an existing integrated system.
(c) A particular material, professional service, or service is required in order to standardize or maintain standardization for the purpose of reducing financial investment or simplifying administration.
(d) The material is perishable.
(e) The material qualifies as an object of fine art.
(f) A particular material is required to match materials in use, so as to produce visual harmony.
(g) The material, professional service, or service is the subject of a change order.
(h) The contract is for electricity or utilities.
(i) The contract is with another governmental, quasi-governmental agency, or Frederick County affiliated entity as determined at the sole discretion of the Director of P&C.
(j) The contract is for high technology, online subscriptions, or software purchases wherein competitive sealed bidding is not practicable or advantageous to the County.
(8) A construction change order which authorizes a new scope of work under a construction contract may be executed without competition when:
(a) The new scope of work is required for the completion of the improvement under construction pursuant to a competitive bidding or competitive proposal process;
(b) The new scope of work results from the discovery of differing or unforeseen physical conditions at the site of the improvement under construction and is required for the completion of the improvement under construction; and
(c) An administrative finding has been made by the Director of P&C that it would be in the County's best interest to negotiate with the on-site contractor for the new scope of work.
(9) The requirements of any procurement using Federal or State of Maryland bid processes or funds take precedence over the County's requirements.
(B) Emergency.
(1) An emergency will be deemed to exist when a threat to the health, safety, or welfare exists, when a breakdown of equipment or of an essential service occurs, or when unforeseen circumstances arise, which may include delays by contractors, transportation delays or failures, or when a revenue source may be compromised.
(2) Upon receipt of notice of an emergency situation, the Agency Director(s) will take immediate action to mitigate or remediate the emergency situation.
(3) Agency Directors are responsible for making all reasonable efforts to avoid the need for emergency procurements.
(4) If an emergency occurs during regular business hours, the Agency Director will immediately notify the Director of P&C, who will either purchase the required commodity or service or authorize the Agency Director to do so.
(5) If an emergency occurs at times other than regular business hours, the Agency Director may purchase the commodity or service required. The Agency Director will, whenever possible, secure competitive telephone bids and purchase from the lowest responsible bidder.
(6) The Agency Director must submit to the Director of P&C a complete explanation of the circumstances of the emergency.
(a) If the emergency required expenditure(s) of less than $50,000, the explanation may be provided via email from the Agency Director to the Director of P&C.
(b) If the emergency required expenditure(s) of $50,000 or more, the explanation shall be provided by a memorandum from the Agency Director to the Director of P&C.
(7) The Director of P&C shall submit to the County Executive, as required, a tabulation of all emergency purchases in the amount of $50,000 or more, with an explanation of the circumstances of each emergency purchase.
(C) Riding a competitively bid solicitation.
(1) The County may ride or "piggyback" the competitively bid solicitation of another jurisdiction or entity so long as the following conditions exist:
(2) The solicitation must be active and not expired.
(3) The County's award must be in accordance with terms and conditions, prices, time frames, and other criteria included in the solicitation. Changes to terms and conditions are not allowable except those driven by locale, application of Maryland law, public disclosure policy, or delivery costs. Addition of items or like services required to meet the intended use by the County are permitted if provided under the same discount pricing structure, and shall be included in the County's Agreement.
(a) Determination of the eligibility to ride another jurisdiction's contract and acceptance of the supporting price and documentation is at the sole discretion of the Director of P&C.
(b) The supporting documentation supplied shall include the original solicitation, the contractor's response, and indication that the County is eligible to ride the contract.
(D) Cooperative purchasing.
(1) The County may participate in public cooperative purchasing when a cooperative purchasing agreement between public entities has been executed between the parties, or the parties are members of a cooperative purchasing group or authority that permits cooperative use among its membership.
(2) The County may participate in or sponsor cooperative purchasing for the procurement of goods, services, or construction.
(3) The County may choose to purchase, cooperatively utilize, and provide personnel or other internal resources, as requested and deemed necessary, to support the cooperative purchasing effort.
(4) Independent fire and rescue companies authorized to operate in the County may participate through the County in piggyback, joint, or cooperative purchases.
(E) Competitive negotiation.
(1) Procurement of goods, services, products for resale or redistribution, distribution services, and competitive business arrangements related to the establishment of strategic business plans or relationships of any County utility or agency in a competitive market environment or failed competitive procurement process are eligible for award by competitive negotiation under this Section provided the following conditions are met:
(a) The Agency Director has identified potential qualified vendors of the goods or services to be procured, and investigated and researched the market for such goods or services, and provides detailed information and justification in a memorandum to P&C.
(b) The Director of P&C concurs with the Agency Director's memorandum and determines in writing that the use of competitive sealed bidding or competitive sealed proposal processes are either not practicable or not advantageous to the County; and
(c) A minimum of two (2) offerors are willing and able to provide the goods, services, or products to be procured and to participate in a competitive negotiation process.
(2) The Director of P&C, working with the Agency Director, may contact identified offerors and may consider qualified offerors that have initiated contact with the County, provided that the criteria for identifying offerors is applied consistently.
(3) P&C shall be responsible for soliciting and receiving all offers.
(4) Each offeror participating in a competitive negotiation will be accorded a fair and reasonable opportunity to present and explain the goods or services to be provided.
(5) The basis for the final selection of a contractor under the competitive negotiation process, and the final terms of the contract for the goods or services to be procured will be subject to the review and approval of the Director of P&C.
(6) Prior to the renewal or extension of any contract for goods or services procured by competitive negotiations beyond the original term, the Director of P&C will assess the contractor's performance and the benefits to the County of continuing under the terms of the contract.
(F) Expedited procurements.
(1) The Director of P&C may authorize the use of an expedited procurement when the amount of the procurement is estimated to exceed $50,000, no emergency exists, and prompt procurement action best serves the public interest, for example to avoid the loss of Federal or State funding or to avoid adverse impact on the economic welfare or economic development of the County.
(2) Agencies are required to use all reasonable efforts to avoid the need for expedited procurements.
(3) To the extent practicable, the procedures for competitive sealed bidding and competitive sealed proposals shall be used for expedited procurements.
(4) The Director of P&C will document in writing the circumstances that cause there to be insufficient time for a standard competitive solicitation to be completed.
(G) Reverse auction procurements.
(1) Bids may be solicited through an invitation for reverse auction bids. The solicitation will include specifications and applicable evaluation criteria.
(2) Notice of the invitation for reverse auction bids will be electronically posted and the solicitation available for public inspection prior to the date set forth therein for the close of the auction. The public notice will identify the location of the internet website hosting the reverse auction.
(3) The Director of P&C will document in writing a decision to allow the correction of inadvertently erroneous bids before auction closing, the withdrawal of inadvertently erroneous bids after auction closing, or the cancellation of awards or contracts based on bid mistakes.
(4) The contract will be awarded to the lowest responsive and responsible bidder whose bid conforms in all material respects to requirements and criteria set forth in the solicitation.
(Bill No. 22-20, 10-25-2022)