2.1 The words defined in this section have the meaning set forth below whenever they appear, unless:
2.1.1 The context in which they are used clearly requires a different meaning; or
2.1.2 A different definition is prescribed for a particular section of the regulations.
2.2 Any definition for words contained in this section is to be construed in a manner that is consistent with and supplementary to any definition contained in Chapter 11B, Montgomery County Code.
2.3 These definitions contain substantive material. These defined terms must be interpreted to include all the substantive provisions contained in the definition.
2.4 Terms and Definitions
2.4.1 Acceptance of Goods or Services: Acceptance constitutes a determination by an authorized government official that goods or services conforming to the requirements of a contract have been furnished by a contractor. With respect to goods, acceptance is deemed to occur if, after a reasonable opportunity to inspect the goods, an effective rejection is not made within a commercially reasonable time. Acceptance of goods may be revoked where: there is an acceptance on a reasonable assumption that a non-conformity would be cured and it is not later timely cured; or acceptance has taken place without discovery of a non-conformity where the acceptance was induced either by the difficulty of discovery before acceptance of the non-conformity or by the contractor's assurances with respect to conformity of the goods. Revocation of acceptance must occur within a reasonable time after the government official discovers or should have discovered the grounds for it.
2.4.2 Acceptance of Offer: The communication of acceptance of an offer must be made within the time specified for acceptance in the solicitation or authorized extension in order for the acceptance to be binding on the offeror; however, a communication of an acceptance of an offer made after the time specified in the solicitation may be accepted by an offeror. In order for acceptance to become binding on the County, a fully executed contract must be delivered.
2.4.3 Advance payment: A payment to the contractor prior to performance of the work for which the payment is made.
2.4.4 Assignment: The transfer of a contract right or obligation by a contractor to another party. A payment assignment is the assignment of a right to payment under a contract to a party designated by the contractor who has a right to that payment. A performance assignment is the assignment by a prime contractor to a third party of the obligation to perform a prime contract in accordance with its terms and conditions. Assignments must be made through a contract modification and specifically accepted and approved by the contracting officer in order to be effective. An assignment, unless it specifically provides otherwise, does not relieve the prime contractor of its obligations to the County.
2.4.5 Authorized Government Official: A person granted specific authority to do a particular act by law, by delegation of authority, by official job description, by the law of agency or pursuant to contract provisions.
2.4.6 Bid: An offer to furnish goods, services, or construction in conformity with the specifications, delivery terms and conditions, and other requirements included in an invitation for bids or other solicitation of a bid.
2.4.7 Bid Bond: An undertaking, in a form satisfactory to the County, by which a third party agrees to be liable to pay the County a certain amount of money in the event a bidder fails to sign a contract as bid.
2.4.8 Bid Security: A cashier's check, certified check, bank letter of credit, or bid bond, deposited with, and at the request of, the County, to guarantee that the bidder will, if selected, sign the contract as bid or mutually agreed, upon presentation of that contract to the bidder. If the bidder does not sign the contract as bid, the deposit may be retained by the County.
2.4.9 Bidder: An Offeror.
2.4.10 Bidder’s List: A current file of vendors and other sources for various categories of goods, services, or construction purchased by the County and maintained and used by the Director.
2.4.11 CAO: The Chief Administrative Officer for Montgomery County.
2.4.12 Certification of Funds: A written or electronic certification by the Director of Finance that funds are available to pay the cost of a specific contract or the cost of the first period of a multi-term contract, as required by Chapter 11B, Montgomery County Code.
2.4.13 Change Order: A type of contract modification authorized by the contracting officer directing the contractor to make changes within the scope of the contract, pursuant to contract provisions for such changes, with or without the consent of the contractor.
2.4.14 Competition: The process by which more than one valid source of supply for goods, services, or construction is solicited.
2.4.15 Competitive Negotiation: A process by which the County and one or more prospective suppliers communicate successive respective positions with respect to price, specifications, and other relevant terms and conditions in order to arrive at a contract for procurement of goods, services, or construction.
2.4.16 Confidential Information: Any information that is not a matter of public knowledge or available to the public on request.
2.4.17 Construction: The process of building, altering, repairing, improving, or demolishing any structure or building, or other improvements of any kind to any real property. Construction does not include the routine operation, repair, or maintenance of existing structures, buildings, or real property.
2.4.18 Contract: Any agreement to which the County is a party for the procurement or disposal of goods, services, or construction, including any contract modification. Unless specifically prohibited by Chapter 11B, contract types include: fixed-price, cost, cost-plus-a-fixed-fee, cost reimbursement or incentive. Contracts may provide for the issuance of job orders, task orders, or task letters. Contracts also include letter contracts, grants, and purchase orders. All contracts must be in writing unless otherwise authorized by these regulations. A contract must include mandatory clauses.
2.4.19 Contract Award: The delivery by the County of a fully executed contract to an offeror.
2.4.20 Contract Administrator: An authorized government official responsible for administering a contract.
2.4.21 Contract Amendment: A type of contract modification signed by the contractor and the contracting officer that provides for a change of contract provisions, including additional work outside the scope of the original contract.
2.4.22 Contract Modification: Any documented alteration in the specifications, delivery, contract period, price, quantity, or other contract provisions of any existing contract, whether accomplished by unilateral action in accordance with a contract provision or by mutual action of the parties to the contract. It also includes administrative changes, notices of termination, field orders, and notices of exercise of a contract option and contract extensions. Unless expressly authorized by contract and these regulations, a contract modification must be written if the contract to be modified is written.
2.4.23 Contract Review Committee (CRC): A standing committee established for purposes specified in law or these regulations.
2.4.24 Contracting Officer: The CAO, Director, others delegated by these officials to act within their authority, and other officials specifically authorized by these regulations to enter into a contract on behalf of the County. Only contracting officers may execute contracts or contract modifications on behalf of the County.
2.4.25 Contractor: Any person obligated by contract under the County procurement law, to provide goods, services, or construction to the County.
2.4.26 Cooperative Purchasing: The combining of requirements of two or more public entities to obtain the benefits of volume purchases, reduction in administrative expenses, or some other public purpose.
2.4.27 Cost Analysis: The review and evaluation of the separate cost elements and proposed profit of an offeror's or contractor's cost or pricing data and an offeror's or contractor's assumptions and judgments in estimating costs.
2.4.28 Cost or Pricing Data: All facts as of the time of price agreement that buyers and sellers would reasonably expect to affect price negotiations significantly. Cost or pricing data are factual, not judgmental, and are independently verifiable.
2.4.29 Cost Reimbursement Contract: A contract under which a contractor is reimbursed for costs that are allowable, and a fee, if any.
2.4.30 County: Montgomery County, Maryland, a body corporate and politic and a local subdivision of the State of Maryland.
2.4.31 County Department, Office, and/or Agency: An officially designated unit of the County (including the County Council) subject to the procurement law and regulations of Montgomery County, and certain entities required or allowed to follow County procurement law; including the County Board of Supervisors of Elections, the State Attorney's Office, the Sheriff's Office, the County Board of License Commissioners, and the Circuit Court (not including the Office of Clerk of the Court).
2.4.32 CRC: The Contract Review Committee.
2.4.33 Debarment: A disqualification of a potential offeror from participating in the procurement process, including being awarded contracts, during a pre-determined period of time.
2.4.34 Delivery Order: A document or other action which initiates a delivery of goods, services, or construction authorized by a contracting officer or other authorized government official, under an existing contract that establishes terms, price and source of supply.
2.4.35 Determination and Finding: A document prepared by an authorized government official that states the facts and reasons for a particular decision.
2.4.36 Direct Purchase: An informal procurement of goods, services, or construction under the direct authority of the Using Department Head. Competition should be preserved with this method to the extent practical. Contracting with MFD firms is encouraged.
2.4.37 Director: Director of the Department of General Services or the Director’s designee.
2.4.38 Dispute: A timely complaint filed by a contractor disagreeing with a decision made by an authorized government official regarding a contract.
2.4.39 Emergency: Any dangerous condition or unforeseen curtailment, diminution or termination of an essential service which poses an immediate danger to health, life or property.
2.4.40 Emergency Procurement: An emergency procurement is an informal procurement of goods, construction, or services required as a result of an emergency.
2.4.41 Encumbrance: The recorded reservation of appropriated funds to provide for payment of County contract obligations, which reduces remaining spending authority under an appropriation by that amount. A certification of funds from the Department of Finance constitutes sufficient evidence that there is a sufficient unencumbered balance in an appropriation to cover the County’s contract obligations, or the County’s obligations under the first period of a multi-term contract, as required by Chapter 11B, Montgomery County Code.
2.4.42 Equal ("or Equal"): Substitute products of similar or superior function, purpose, design, or performance characteristics.
2.4.43 Evaluation Criteria: Standards, factors, or elements set forth in a solicitation document that specify the basis for evaluation of the solicitation.
2.4.44 Field Order: A limited and specific written order usually used in construction contract situations where the authority to direct timely limited change to contract work has been specifically delegated by the contract to the authorized government official at the place of performance.
2.4.45 Fixed Price Contract: A contract that provides for a firm price under which a contractor bears the full responsibility for profit or loss. This does not include a cost reimbursement contract.
2.4.46 Formal Solicitations: Invitation for Bid, Request for Proposals and Request for Expressions of Interest.
2.4.47 Goods: All supplies, equipment, materials, and all property, except real property.
2.4.48 Government: Government of Montgomery County, Maryland, unless the context indicates otherwise.
2.4.49 Grant: An action by a public or private entity which directs funds on a non-competitive basis to a specific entity. A grant must be implemented by a contract.
2.4.50 Informal Solicitation: Any solicitation that is accomplished without a formal solicitation.
2.4.51 Inspection: Examination and testing of goods, services, and construction to determine whether they conform to contract requirements. Inspection does not constitute acceptance.
2.4.52 Invitation for Bids (IFB): A formal solicitation in which competitive sealed bids are invited through a public notice procedure requiring that bids be received by a specified time, opened publicly, and are evaluated solely in terms of responsiveness, price, and bidder responsibility.
2.4.53 Labor and Material Bond: See Payment Bond.
2.4.54 Late Response: A response to a formal solicitation received at the place designated in the solicitation after the deadline established by the solicitation.
2.4.55 Liquidated Damages: A sum agreed to in the contract to be paid as ascertained damages by the party who breaches the contract, and not as a penalty, where actual damages may be difficult to determine at the time of the breach.
2.4.56 Mandatory Clauses: Clauses prepared by the Office of the County Attorney that must be used in solicitations and contracts unless explicitly waived by the Office of the County Attorney.
2.4.57 Mandatory IFB Requirements: Specific requirements that may not be waived.
2.4.58 Mini-Contract: A contract valued within certain monetary thresholds for professional services, and under special circumstances, non-professional services, goods, or construction.
2.4.59 Minor Irregularity: A failure to meet a requirement in a solicitation that is merely a matter of form (not substance) or is an immaterial or inconsequential provision in the solicitation. The Director may determine the defect or variation in the bid to be immaterial or inconsequential when the significance of the defect or variation as to price, quantity, quality, or delivery is trivial or negligible when contrasted with the total cost or scope of the procurement.
2.4.60 Minority Owned Business (MFD): Minority owned business as defined in Chapter 11B of the County Code.
2.4.61 Minority Contracting: Montgomery County contracting policies and procedures in accordance with the provisions of Chapter 11B of the County Code.
2.4.62 Minority Person: A member of a socially or economically disadvantaged group which includes African Americans, Hispanic Americans, Native Americans, Asian Americans, women, and persons with a disability as defined in Chapter 11B of the County Code.
2.4.63 Multiple Award: The award of separate contracts to two or more offerors for the same or related goods or services in situations where the award of a single contract would be impractical or would not meet the total County requirements.
2.4.64 Notice to Proceed: A written notice to the contractor issued by an authorized government official directing commencement of contract performance.
2.4.65 Offer: A timely response to a solicitation that is binding upon the offeror during the period of time in which the offer is to remain open under the solicitation. An offer is not binding on the County until the award of a contract. An offer also includes a non-binding response to an REOI.
2.4.66 Offeror: A person that makes an offer in response to a solicitation or makes an unsolicited proposal.
2.4.67 Payment Bond: A bond issued by a surety that guarantees payment to suppliers and subcontractors of a prime contractor.
2.4.68 Performance Bond: A bond issued by a surety that guarantees full performance of a contract by a contractor.
2.4.69 Person: Means any business, individual, union, committee, club, organization, group of individuals, firm, association, corporation, partnership (of any kind), sole proprietorship, limited liability company, or other entity.
2.4.70 Pre-Bid/Pre-Proposal Conference: An optional meeting open to all prospective offerors prior to submittal of bids or proposals to discuss matters germane to the solicitation.
2.4.71 Price Analysis: An analysis used to determine that a price submitted by an offeror is fair and reasonable.
2.4.72 Principal Place of Business in the County: A regular course of business commerce in the County by a business, along with any of the following:
(1) The business has its physical business location(s) only in the County; or
(2) The business has physical business locations both in and outside of the County, and the County-based location(s) account for over 50% of the business’s total number of employees, or over 50% of the business’s gross sales.
2.4.73 Procurement: Buying, purchasing, leasing, or otherwise acquiring any goods, services, or construction. It also includes all functions that pertain to the obtaining of any goods, service, or construction, including description of requirements, selection and solicitation of sources, evaluation of offers, preparation and award of contract, dispute and claim resolution and all phases of contract administration.
2.4.74 Professional Services: The services of attorneys, physicians, architects, engineers, consultants, and other recognized professional individuals, associations, corporations, and groups whose services are customarily negotiated because of the individuality of those services and level of expertise involved.
2.4.75 Proposal: An offer binding on the offeror in response to an RFP and non-binding in response to an REOI.
2.4.76 Proposed Award: A decision of the Director that a specific offeror is the successful offeror after the evaluation of offers and the completion of any negotiations. This decision must be made in accordance with these regulations and initiates the process by which a contract award may be made to the offeror. A proposed award is not binding on the County.
2.4.77 Protest: A timely-filed challenge by an aggrieved offeror in connection with a decision regarding a formal solicitation in accordance with Section 11B-36 of the Montgomery County Code and these regulations A protest must be filed, in writing, with the Director.
2.4.78 Public Entity: (1) the federal government; (2) a state government and any of its agencies; (3) any political subdivision of a state government and any of its agencies; (4) any board, commission, or committee established by federal, state, or local law; (5) any organization or association of the federal government, state governments, or political subdivisions of state governments; and (6) any other entity that is: (A) qualified as a non-taxable corporation under the United States Internal Revenue Code, as amended; and (B) incorporated by an entity under paragraphs (1) through (5) for the exclusive purpose of supporting or benefitting an entity under paragraphs (1) through (5).
2.4.79 Public Notice: Posting information for public inspection during regular business hours. In addition, public notice may, as determined by the Director, also include other means reasonably calculated to notify the public and promote adequate competition, such as advertisement, mailings, placing notices in newsletters, and inclusion of public notice on the RAPID system or other electronic media determined by the Director.
2.4.80 Qualification and Selection Committee (QSC): A committee established by a Using Department for the purpose of evaluating responses submitted by offerors in connection with an RFP or an REOI.
2.4.81 Regular Course of Business Commerce: The on-going and continuous exchange of goods or services for money between two or more businesses or between a business and consumers.
2.4.82 Request for Expressions of Interest (REOI): A solicitation to prospective offerors, the response to which is to be analyzed in accordance with evaluation criteria set forth in the solicitation. The REOI is used to develop a shortlist of prospective offerors who are eligible to receive a subsequent solicitation such as an RFP or an IFB. Requests for Expressions of Interest are generally made where specifications cannot be prepared or the availability of vendors for the goods, services, or construction involved is uncertain or unknown.
2.4.83 Request for Proposals (RFP) - Best Value Procurement: A solicitation to prospective offerors, the response to which is analyzed in accordance with evaluation criteria set forth in the solicitation for the purpose of ranking the proposals received in order to obtain the best value for the County.
2.4.84 Requirements Contract: A contract for goods, services, or construction covering long-term requirements (usually twelve months or more), used when the total quantity required cannot be definitely fixed, but may be stated as an estimate or within maximum and minimum limits. Delivery of goods, services, or construction are made upon issuance of a delivery order. A requirements contract may be exclusive, in which case all orders of goods, services, or construction covered by the contract must be made pursuant to it. In the alternative, a requirements contract may be non-exclusive, in which case the contract is not the only source of goods, services, or construction covered by it. Unless a requirements contract, and the solicitation for it, states that it is an exclusive contract, it is a non-exclusive contract. A requirements contract may not be used to unduly restrict competition and may not normally be used for large construction contracts.
2.4.85 Responsibility: A determination, based on characteristics of an offeror, that demonstrate that the offeror is capable of satisfying the County's needs and requirements for a specific contract.
2.4.86 Responsible Offeror: A person the Director has determined under section 6.3 to be capable of satisfying the County’s needs and requirements for a specific contract.
2.4.87 Responsive Offeror: An offeror who has submitted a bid that conforms in all material respects to the requirements of an IFB or a small purchase.
2.4.88 Responsiveness: A determination that a bid complies with the material requirements of an IFB or a small purchase. The Director determines if a bid is responsive. See Responsive Offeror.
2.4.89 Retention (Retainage): The withholding of a part of the payment due to the contractor until the time of final acceptance according to the terms of the contract. The amount retained (also known as retainage), as well as the period of retention, is determined by the terms of the contract. Retention, as a method of payment administration, is usually associated with construction contracts.
2.4.90 Services: The performance of an identifiable task by furnishing labor, time or effort by a contractor, not involving the delivery of a specific end product other than reports which are merely incidental to the required performance.
2.4.91 Shortlist: A list of offerors who, through a pre-qualification process, are eligible (usually through an REOI) to participate in a further process for award of one or more contracts.
2.4.92 Small Purchase: An informal solicitation of goods, construction or non-professional services valued below a certain monetary threshold.
2.4.93 Sole Source: A noncompetitive procurement in which goods, services, or construction necessary to meet minimum valid needs of the County are available from only one person as provided in Chapter 11B of the County Code including those having the exclusive right to manufacture, sell or otherwise market certain goods or services.
2.4.94 Solicitation: A request for offers through either a formal communication or an informal communication, with potential offerors in accordance with these regulations. A solicitation may only be made by a contracting officer or an authorized government official.
2.4.95 Specification: A set of requirements for goods, services, or construction that the County wishes to acquire. A specification must indicate, whenever appropriate, the procedure by which requirements are determined to be satisfied. As far as practicable, it is desirable that the requirements be expressed in numerical or other objective terms, together with their ranges or limits. A specification may be a standard, a part of a standard, or independent of a standard. It may also be expressed as an end result. Specifications should be contained in solicitations as well as contracts. Specifications should not be overly restrictive or prejudicial to competition beyond that justified by minimum valid needs of the County.
2.4.96 Standardized Procurements: A standardized procurement is a purchase of equipment or parts for which the CRC determines standardization and interchangeability of parts is necessary or is in the public interest. A standardized procurement should include competition when reasonably available. Standardization approval must be for a stated period which bears a reasonable relationship to the life of the equipment and the specialized training or specialized equipment necessary to maintain the standardized item. A standardization decision includes the decision to procure compatible parts, equipment, services, and training.
2.4.97 Termination for Convenience: A termination of all or part of a contract by a contracting officer if the contracting officer determines that termination is in the best interest of the County.
2.4.98 Termination for Default: A termination in whole or in part of a contract, at the option of the County, because of the contractor's failure to perform.
2.4.99 Unsolicited Proposal: A proposal to render services or construction or deliver goods to the County outside of a solicitation by the County. Unsolicited proposals should be evaluated by an appropriate Using Department in terms of need, price, and funds available. If funds are available and need is present, the Using Department may initiate an appropriate solicitation as provided by these regulations, based upon the unsolicited proposal.
2.4.100 Using Department: Any department, office, agency, or other person subject to the procurement requirements imposed under Chapter 11B, Montgomery County Code.