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The Director must not issue a solicitation for a service contract under this Article unless the Chief Administrative Officer has certified that the contract complies with Section 11B-74. (2006 L.M.C., ch. 28, § 1.)
(a) The Chief Administrative Officer may certify that the Director may solicit a service contract under this Article if the using department has:
(1) taken steps to consider alternatives to the service contract, including reorganization, reevaluation of service, and reevaluation of performance;
(2) consulted with the certified representative of public employees who will be adversely affected if the County enters into the service contract; and
(3) demonstrated, based on a cost comparison analysis, that the County will save, over the term of the contract, at least 25 percent of the value of the contract.
(b) The using department must compare at least the following items in its cost analysis:
(1) direct costs, including fringe benefits, and an assumption that the contractor will meet the wage requirements of Section 11B-33A for the employees who perform work under the contract;
(2) indirect overhead costs, including a proportional share of administrative salaries and benefits, rent, equipment costs, utilities, and materials; and
(3) any continuing or transitional costs directly related to contracting for the service, including unemployment compensation and the cost of transitional services.
(c) (1) The using department must develop a plan of assistance for each public employee who will be adversely affected by the service contract. The plan of assistance must include:
(A) efforts to place each adversely affected public employee in a vacant County position;
(B) inclusion in the service contract, if feasible, of a requirement that the contractor must:
(i) notify the County of any vacant position for which displaced County employees may apply; and
(ii) consider hiring displaced public employees; and
(C) written notice of the anticipated adverse effect to each adversely affected public employee and the certified bargaining representative 120 days before the anticipated adverse effect will occur.
(2) The using department must bargain with the certified representative before adopting a final plan of assistance. (2006 L.M.C., ch. 28, § 1.)
(a) Noncompliance with this Article does not invalidate a contract award or proposed contract award that the County has otherwise validly awarded or issued.
(b) A public employee who is adversely affected by noncompliance with this Article may file an action in the Circuit Court for the County or the District Court of Maryland, depending on the amount in controversy. If the Court enters a judgment in favor of the employee, the County must reimburse the employee for any actual loss the employee incurred. (2006 L.M.C., ch. 28, § 1.)
The certified representative of an adversely affected employee may submit an offer in response to a solicitation, under applicable procurement regulations, to have bargaining unit employees perform the services while achieving the targeted savings. (2006 L.M.C., ch. 28, § 1.)
(a) Definitions. In this Article the following terms have the following meanings:
Certified Small Business With Health Insurance means a business certified by the Director as meeting the standards established by regulation for a Small Business With Health Insurance.
Contract means a contract for procurement services subject to the Wage Requirements Law in Section 11B-33A.
Director means the Director of the Department of Health and Human Services or the Director’s designee.
Health insurance means insurance coverage that pays for medical expenses incurred by an employee and an employee’s family either by reimbursing the employee or by paying the care provider directly and provides the minimum essential health benefits required under the Patient Protection and Affordable Care Act, 26 U.S.C. §5000A, as amended.
Health insurance evaluation factor means an evaluation factor in a request for proposals that gives an offeror credit for being a certified Business With Health Insurance.
Percentage price preference means the percent by which a responsive bid from a responsible bidder who is a certified Business With Health Insurance may exceed the lowest responsive bid submitted by a responsible bidder who is not a certified Business With Health Insurance.
Small Business With Health Insurance means a business that:
(1) has 50 or fewer full-time equivalent employees; and
(2) provides an employer benefit package that includes health insurance for each employee who provides services to the County under a contract; or
(3) demonstrates that each employee who provides services to the County has health insurance from another source.
(b) Regulation. The County Executive must adopt a regulation under Method 2 that establishes:
(1) an application process for a business to be certified as a Small Business With Health Insurance;
(2) standards for a business to meet to be certified as a Small Business With Health Insurance;
(3) the amount of a percentage price preference for a Small Business With Health Insurance under a solicitation for competitive sealed bidding; and
(4) a Small Business With Health Insurance evaluation factor for use in a request for proposals.
(c) Certification. The Director must certify a business that meets the standards established by regulation as a Small Business With Health Insurance. A false statement on an application for certification is a Class A violation.
(d) Role of Office of Procurement and Department of Health and Human Services.
(1) The Office of Procurement must review all specifications of each using department to assure compliance with this Section, appropriate use of a percentage price preference or an evaluation factor, and consistency among using departments procuring similar services.
(2) The Department of Health and Human Services must:
(A) operate the certification process;
(B) permit pre-certification as a Small Business With Health Insurance; and
(C) maintain a list of businesses that have been certified as a Small Business With Health Insurance.
(e) Denial or revocation of certification. The Director may refuse to certify a business under this Section, and may suspend or revoke a certification issued under this Section, after a hearing for which reasonable notice has been given, if the business or applicant does not meet the standards for certification as a Small Business With Health Insurance.
(f) Notice and opportunity for hearing.
(1) Notice. After finding that one or more grounds for denial, suspension, or revocation of a certification could exist, the Director may serve a written notice on the business or applicant in person or by regular mail, postage prepaid, addressed to the person’s last known address as maintained in the Director’s file. Service on that person by mail is effective 3 days after mailing. The written notice must, at a minimum:
(A) state that the Director has found that the business or applicant may be subject to denial, suspension, or revocation of the certification;
(B) identity the specific grounds for the Director’s findings; and
(C) set a date for a hearing on denial of the application or suspension or revocation of the certification.
(2) Hearing. The Director or a designee may conduct the hearing. At the hearing, the business or applicant may present evidence and witnesses to refute the grounds cited by the Director for denying the application or suspending or revoking the certification, and the County and any other person may submit relevant evidence. The relevant records of the Office are part of the hearing record. The person conducting the hearing must render a decision in writing, giving the reasons for the decision. That decision is final, subject to judicial review under the Maryland Rules for review of administrative decisions in the Circuit Court and the Court of Special Appeals.
(3) Failure to appear. A business or applicant who after notice does not appear at a hearing waives the right to a hearing and consents to the action that the Director proposed in the notice. The Director may deny the application or suspend or revoke the certification as proposed in the notice.
(g) Appeals. Any person aggrieved by the denial, suspension, or revocation of any certification under this Section may seek judicial review under the Maryland Rules for review of administrative decisions in the Circuit Court and the Court of Special Appeals.
(h) Report by Office of Procurement. The Director of the Office of Procurement, after consulting with the Director of Health and Human Services, must submit a report to the County Council and County Executive by September 30 each year after implementation of this Section for the prior fiscal year. The report should include:
(1) the dollar value of services purchased from a certified Small Business With Health Insurance;
(2) the dollar value of services purchased from a business that is not a certified Small Business With Health Insurance;
(3) to the extent ascertainable, the additional cost of any contracts awarded to a certified Small Business With Health Insurance under a percentage price preference;
(4) a summary of applications for certification as a Small Business With Health Insurance made during the year, including the results of each application;
(5) a list of certified Small Businesses With Health Insurance;
(6) suggested legislative or administrative changes; and
(7) any other relevant information. (2015 L.M.C., ch. 43, § 1.)
Editor’s note—2015 L.M.C., ch. 43, § 2, states, in part: “...and applies to any solicitation issued on or after July 1, 2016.”
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*Editor’s note—2017 L.M.C., ch. 12, § 2, states: Article XVII of Chapter 11B, as added by Chapter 16 of the 2016 Laws of Montgomery County, is renumbered as follows: Article XVIII. Local Business Subcontracting Program.
2016 L.M.C., ch. 16, § 2, states: This Act takes effect on January 1, 2017 and applies to any High Dollar Value Contract arising from a solicitation issued on or after January 1, 2017.
In this Section, the following words have the meanings indicated:
Broker means a person that provides goods or services (other than real estate, investment, or insurance sales) on a pass-through basis as follows:
(1) a supplier of goods who:
(A) does not own, operate, or maintain a place of business in which goods of the general character required under the contract are kept in stock in the regular course of business;
(B) does not regularly assume physical custody or possession of goods of comparable character to those offered to the County, or
(C) exclusively acts as a middleman in the sale of goods to the County; or
(2) a supplier of services who does not regularly maintain the capability, capacity, training, experience, and applicable regulatory licensing to directly perform the principal tasks of a contract with the County and must provide the principal tasks through a subcontract with a third party.
Contract Award means the delivery by the County of a fully executed contract to an offeror.
High Dollar Value Contract means an initial Contract Award that is estimated to exceed $10 million.
Local Business means a for-profit business other than a broker that has its principal place of business in the County, as further defined by Executive Regulation, and that is certified by the Director as a Local Business under the provisions of this Article.
Local Business Program Manager means a person designated by the Director to administer and monitor the Local Business Subcontracting Program.
Local Business Subcontractor means a Local Business that enters into a contract with a Contractor to perform work related to a High Dollar Value Contract for that Contractor. (2016 L.M.C., ch. 16, § 1.)
(a) Local Business Subcontracting Goals. This subsection establishes the following Local Small Business subcontracting goals:
(1) at least 10% of the contract dollars awarded for each High Dollar Value Contract should be awarded to a Local Business; and
(2) at least 10% of the total dollar value of all High Dollar Value Contracts in the aggregate should be awarded to Local Businesses.
(b) Applicability. The Local Business Subcontracting Program goals apply to each High Dollar Value Contract except:
(1) grants or appropriations under Section 11B-14 (a)(3) and (4);
(2) cooperative procurements under Section 11B-40;
(3) public entity contracts under Section 11B-41:
(4) emergency procurements under Section 11B-16; or
(5) bridge contracts, under Section 11B-42, if the Director determines in writing that compliance with this Article is impractical or is outweighed by the benefits to the County of entering into a bridge contract. (2016 L.M.C., ch. 16, § 1.)
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