§ 10A-101. Definitions.

(a)

The words defined in this Section shall have the meanings set forth below whenever they appear in this Subtitle unless the context in which they are used clearly requires a different meaning or a different definition is prescribed for a particular provision.

(1)

Agency means any department, agency, board, commission, or any other unit of the County government or any agency which:

(A)

Receives funding from County funds; or

(B)

Is made subject to County procurement law by any local, State, or Federal law.

(2)

Award means the decision by the Purchasing Agent or the Purchasing Agent's designee to execute a purchase agreement or contract after all necessary approvals have been obtained.

(2.1)

Best value means the basis for awarding contracts for services which optimizes weighted factors such as quality, cost, diversity, and performance, among responsive and responsible offerors. Such basis shall reflect, wherever possible, objective and quantifiable analysis and "best value" criteria shall be prescribed and predetermined in the Request for Proposals or Invitation for Bids.

(3)

Broker means generally a person or business entity that operates predominantly as a middle man and sells goods and services on a pass-through basis, as set forth in the regulations.

(4)

Business means any association, corporation, partnership, individual, sole proprietorship, joint stock company, joint venture, or any other legal entity through which business is conducted.

(4.1)

Certified County-based business participation means the percentage of the total contract dollars paid to businesses certified as County-based businesses.

(4.2)

Certified County-based minority business enterprise participation means the percentage of total contract dollars paid to County-based businesses certified as minority business enterprises by the Supplier Development and Diversity Division.

(4.3)

Certified County-based small business participation means the percentage of total contract dollars paid to businesses certified as County-based small businesses.

(4.4)

Certified County-located business participation means the percentage of total contract dollars paid to businesses certified as County-located businesses.

(4.5)

Certified minority business enterprise participation means the percentage of total contract dollars paid to businesses certified as minority business enterprises by the Supplier Development and Diversity Division.

(4.6)

Certified sheltered workshop means an agency that is:

(A)

Organized under the laws of the United States or the State of Maryland;

(B)

Certified as a sheltered workshop by the Wage and Hour Division of the United States Department of Labor;

(C)

Accredited by the Division of Vocational Rehabilitation of the Maryland Department of Education;

(D)

Operated in the interest of individuals who have a mental or physical disability, including blindness, that constitutes a substantial handicap to employment and prevents the individual from engaging in normal competitive employment; and

(E)

The net income of which does not inure wholly or partially to the benefit of any shareholder or other non-disabled individual.

(5)

Change order means a written order signed by the Purchasing Agent or the Purchasing Agent's designee, directing the contractor to make changes which the Changes Clause of the contract authorizes the Purchasing Agent to order without the consent of the contractor.

(6)

Commission means the Minority Business Opportunities Commission.

(6.1)

Commodity means any equipment, materials, or supplies. It does not include services, including, but not limited to, construction and professional services.

(7)

Conditional suspension means an administrative action by the Purchasing Agent disqualifying a person for reasons of unsatisfactory performance or default on County contracts from either bidding or submitting proposals on County contracts, acting as a supplier of goods or services on procurement, or acting as a subcontractor on a County contract until the disqualified person:

(A)

Complies with specified conditions;

(B)

Corrects specified defects affecting performance or ability to perform; or

(C)

Takes action to cure the conditions leading to the conditional suspension.

(8)

Construction means the process of building, altering, or improving any public road, bridge, structure, building, or other public improvements of any kind to any public real property. It does not include the routine operation, repair, or maintenance of existing structures or buildings.

(9)

Construction management services means services performed by a person who is experienced in construction and has the ability to evaluate and to implement plans and specifications as they affect time, cost, and quality of construction and the ability to coordinate the design and construction of a project, including the administration of change orders.

(10)

Contract means any written agreement or order for the purchase or disposal of supplies, services, construction, insurance, or any other item. It includes, but is not limited to, contracts of a fixed price, cost reimbursement, cost plus a fixed fee, or incentive type; contracts providing for the issuance of job or task orders; grants; leases; letter contracts; and purchase orders. It also includes supplemental agreements with respect to any of the foregoing.

(11)

Contract modification means any written alteration in the specifications, delivery point, rate of 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 includes bilateral actions, such as supplemental agreements, and unilateral actions, such as change orders, administrative changes, notices of termination, and notices of the exercise of a contract option.

(12)

Contractor means any business or person having a written contract with the County.

(13)

County-based business means a business whose principal place of operation is located within Prince George's County, that meets the requirements of Section 10A-163(a), and whose application for certification as a County-based business is approved by the Purchasing Agent. Principal place of operation shall be determined by factors as set forth in the regulations. County-based small businesses and County-based minority business enterprises are County-based businesses in accordance with Section 10A-163 of this Subtitle.

Editor's note— CR-123-2013 allows businesses to register temporarily until July 1, 2015, to obtain certification as a County-based business if the business domicile and principal place of operation is located in Prince George's County, MD, as determined by the Director of Central Services, and is (a) certified as a minority business enterprise pursuant to Section 10A-101(a)(26); (b) certified as a socially or economically disadvantaged business pursuant to 13 CFR Part 124-8(a) by the Small Business Administration; or (c) certified as a HUBZone small business concern pursuant to 13 CFR 126 by the Small Business Administration.

(13.1)

County-based business preference means a business preference given to a bid or proposal pursuant to Section 10A-160.

(13.2)

County-based minority business enterprise means a business that is both:

(A)

a minority business enterprise as certified by the Supplier Development and Diversity Division; and

(B)

a County-based business in accordance with Section 10A-163 of this Subtitle.

(13.3)

County-based small business means a business that:

(A)

(i)

meets the requirements of Section 10A-163(b) of this Subtitle and

(ii)

whose application for certification as a County-based small business is approved by the Purchasing Agent; or

(B)

is a County-based minority business enterprise that meets the requirements of Section 10A-163(g) of this Subtitle.

(13.4)

County-located business means a business, subject to certification by the Prince George's County Office of Central Services in accordance with Section 10A-174, that:

(A)

has a County Office, but is not a County-based business; and

(B)

either:

(i)

has at least five (5) FTE ("full-time equivalent") employees in the County Office for the full duration of the County Office's lease; or

(ii)

has at least three (3) FTE employees in the County Office, with at least two (2) of the FTE employees being County Residents, for the full duration of the County Office's lease; or

(iii)

if such business has an ownership interest in the building containing the County Office, has at least three (3) FTE employees in the County Office for the full duration of the business's ownership interest in the building.

(13.5)

County or the County means Prince George's County, Maryland.

(13.6)

County agency means any department, office, division, administrative unit, or agency of the Prince George's County government or any other entity created or authorized to be created, whether expressed or implied, by the Charter or the Code, including any council, board, bureau, commission, institution, tribunal, government corporation, public authority, or other instrumentality thereof or thereunder.

(14)

County funds means any monies received by the County or appropriated or approved by the Council or to which the County may at any time have legal or equitable title.

(14.1)

County Office means a place of operation of a business physically located within the County that:

(a)

has a lease in which the business is obligated for at least three (3) years; or

(b)

has a lease in which the business is obligated for at least one (1) year and the place of operation is at least three thousand (3,000) square feet in size; or

(c)

has an ownership interest in such place of operation.

(14.2)

County resident means a person whose domicile is located in Prince George's County, Maryland, as determined by standards set forth by the Purchasing Agent, and who either:

(A)

Filed a Maryland state income tax return that establishes a Prince George's County domicile for the most recent full calendar year;

(B)

Is claimed as a dependent on a Maryland state income tax return that establishes a Prince George's County domicile for the most recent full calendar year filed by the person's parent, legal guardian, or spouse; or

(C)

Was not required to file a federal or Maryland state income tax return for the most recent calendar year because the person was not legally liable for income tax pursuant to Section 10-809, Tax-General Article, Annotated Code of Maryland, but was legally domiciled in Prince George's County for the most recent full calendar year, and signs an attestation under oath to this effect on a form provided by the Purchasing Agent.

The County Executive, the County Executive's designee, and the Purchasing Agent are authorized to verify a person's County residency status pursuant to this definition in relation to Division 7 of this Subtitle.

(15)

Debarment means the action whereby a prospective bidder or offeror or contractor is barred from participating in County procurement-related activities for a specified period of time pursuant to the requirements of this Subtitle.

(16)

Designee means a duly authorized representative of a person holding a specified position. Such authorization shall be in writing.

(16.1)

Disadvantaged business means a for-profit small business concern: (A) that is at least 51 percent owned by one or more individuals who are both socially and economically disadvantaged or, in the case of a corporation, in which 51 percent of the stock is owned by one or more such individuals; and (B) whose management and daily business operations are controlled by one or more of the socially and economically disadvantaged individuals who own it.

(16.2)

Domicile means the place of a person's true, fixed, permanent home, without any present intention of completely abandoning that home, and to which the person has the intention of returning whenever absent. Domicile does not include a temporary dwelling unless there is a present intention to abandon permanently or indefinitely the former domicile.

(17)

Emergency shall mean a situation resulting from unexpected or unanticipated events which requires immediate action to maintain or restore existing levels of essential public services; to preserve or prevent further deterioration of public property; to provide temporary food, clothing, or shelter to disaster victims; or to prevent damage to property or preserve life or safety.

(18)

Employee means any classified or exempt service employee of the County and any County elected official.

(19)

Established catalog or market price means the price included in the most current catalog, price list, schedule, or other form that:

(A)

Is regularly maintained by the manufacturer or vendor of an item;

(B)

Is either published or otherwise available for inspection by customers; and

(C)

(i)

States prices at which sales are currently or were last made to a significant number of buyers constituting the general buying public for that time; or

(ii)

States discounted prices at which sales are currently or were last made to local, state, or Federal agencies.

(20)

Evaluated bid price means the dollar amount of a bid, after bid adjustments are made pursuant to the evaluation factors set forth in the Invitation For Bids, which measures the effective price to the County. Such price shall take into account factors which contribute to economy and effectiveness in the operation or use of the item being purchased, such as reliability, maintainability, useful life, and residual value.

(21)

Executive Director means the Executive Director of the Supplier Development and Diversity Division.

(22)

Improper conduct includes, by way of example and not limitation, intentional billing irregularities, allocating costs from firm fixed-price contracts to cost-reimbursement contracts, submitting false claims, causing competition to be restrained or limited, misrepresentation, involving falsely claiming to be a minority business enterprise, indictment for any of the above causes, or indictment for offenses specified in Division 6, Subdivision 8, when the indictment is the result of alleged misconduct in connection with a County bid, proposal, or contract.

(23)

Invitation for Bids means all documents, whether attached or incorporated by reference, utilized for soliciting bids in accordance with the procedures set forth in Section 10A-112 of this Subtitle.

(23.1)

Labor organization means an organization, as defined under federal labor law, 29 U.S.C. § 152(5), which represents employees in the construction trades for purposes of collective bargaining and has the present ability to refer and supply trained, qualified construction craft personnel in sufficient numbers to adequately staff construction projects.

(24)

Letter contract means the written preliminary contractual document that authorizes the contractor to begin a portion of the agreed-upon services immediately. A letter contract is always associated with a definitive contract and can never be the sole document used to complete a procurement.

(25)

Maryland-based business means a business whose principal place of operation is located within the State of Maryland. Principal place of operation shall be determined by factors as set forth in the regulations.

(26)

Minority business enterprise means any business enterprise:

(A)

Which is at least fifty-one percent (51%) owned by one or more minority individuals, or, in the case of any publicly-owned corporation, at least fifty-one percent (51%) of the stock of which is owned by one or more minority individuals; and

(B)

Whose general management and daily business affairs and essential productive operations are controlled by one or more minority individuals; and

(C)

Which has been certified by the Supplier Development and Diversity Division as a Minority Business Enterprise pursuant to Division 6 of this Subtitle.

(27)

Minority individuals are those who have been subjected to prejudice or cultural bias because of their identity as a member of a group in terms of race, color, ethnic origin, or gender, without regard to their individual capabilities. Minority individuals are limited to members of the following groups:

(A)

African Americans (Black Americans), which includes persons having origins in any of the Black racial groups of Africa;

(B)

Asian-Pacific Americans, which includes persons whose origins are from Japan, China, Taiwan, Korea, Burma (Myanmar), Vietnam, Laos, Cambodia (Kampuchea), Thailand, Malaysia, Indonesia, the Philippines, Brunei, Samoa, Guam, the U.S. Trust Territories of the Pacific Islands (Republic of Palau), the Commonwealth of the Northern Marianas Islands, Macao, Fiji, Tonga, Kiribati, Tuvalu, Nauru, Federated States of Micronesia, or Hong Kong;

(C)

Subcontinent Asian Americans, which includes persons whose origins are from India, Pakistan, Bangladesh, Bhutan, the Maldives Islands, Nepal or Sri Lanka;

(D)

Hispanic Americans, which includes persons of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish or Portuguese culture or origin, regardless of race;

(E)

Native Americans, which includes persons who are American Indians, Eskimos, Aleuts, or Native Hawaiians;

(F)

Females, regardless of race, ethnicity or origin; and

(G)

Veterans and Service Disabled Veterans.

(28)

Negotiation means contracting by any of the methods set forth in Sections 10A-113, 10A-114, and 10A-115.

(28.1)

Open market means an unrestricted competitive market in which any buyer and seller is free to participate, which shall include, but not limited to, direct relationship purposes.

(29)

Participation Agreement means an agreement entered by the County and a developer pursuant to Section 10A-141 of this Subtitle wherein the County contributes funds for the construction of regional stormwater management facilities or road improvements to be constructed by or contracted by the developer.

(29.1)

Performance-Based Contracting means utilizing objective criteria or measurements, as determined by the Purchasing Agent, for determining whether a contractor is adequately performing the requirements and specifications of the contract, in accordance with the authority granted to the Purchasing Agent under 10A-103 of this Subtitle.

(30)

Procure means to buy, rent, lease, lease-purchase, or otherwise obtain any supplies, services, or construction. Procurement (or a procurement) is the noun form of this term. It includes all functions that pertain to the obtaining of any public procurement, including description of requirements, selection and solicitation of sources, and preparation, award and execution of contract. The term does not include the making of any grant or donation.

(30)

Procure means to buy, rent, lease, lease-purchase, or otherwise obtain any supplies, services, or construction. It includes all functions that pertain to the obtaining of any public procurement, including description of requirements, selection and solicitation of sources, and preparation and award of contract. The term does not include the making of any grant or donation.

(31)

Procurement Officer means any person authorized by the Director of the Office of Central Services, as Purchasing Agent, in accordance with procedures prescribed by regulations, to enter into and administer contracts and make determinations and findings with respect thereto. The term shall also include individuals subordinate to the Purchasing Agent acting within the limits of their delegated procurement authority. This authority shall be designated in writing by the County's Director of Central Services, in his/her capacity as Purchasing Agent, for such period of time as shall be stated in the written designation.

(31.1)

Project Labor Agreement means a pre-hire collective bargaining agreement with labor organizations that includes the minimum contract terms and conditions of employment for a construction project in excess of One Million Dollars ($1,000,000).

(32)

Proposal Analysis Group (PAG) is an issue specific group which is responsible for the defining and drafting of Requests For Proposals, soliciting responses, evaluating responses, and recommending the top three evaluated providers to the Director of Central Services, as Purchasing Agent, for contracts for which competitive bidding is inappropriate.

(32.1)

Public benefit means contracts, grants, conditional loans, tax abatements, land transfers for public redevelopment, or tax increment financing from a County agency or the County government. This definition also includes grants or conditional loans from a third party that receives more than 50% of its annual budget in the most recent fiscal year from funds received from or administered by a County agency or the County government and indirect grants or conditional loans from a County agency or the County government that are facilitated by a third party. This definition does not include funds from the Community Development Block Grant ("CDBG") program or tax credits awarded under Subtitle 10 of the Code. The application of this definition is subject to the restrictions of federal and state law.

(33)

Purchase request means that mechanism whereby an agency requests that a contract be obtained for a specified need, and may include, but is not limited to, the technical description of the requested item, delivery schedule, transportation, criteria for evaluation of solicitation, suggested sources of supply, and information supplied for the making of any determination and finding required pursuant to any applicable provision of this Subtitle.

(34)

Purchased item means any supply, service, printing, insurance policy or coverage, construction, or any other item purchased by this County.

(35)

Purchasing Agent means the Director of Central Services.

(36)

Request for Proposals means all documents, whether attached or incorporated by reference, utilized for soliciting proposals in accordance with the procedures set forth in Section 10A-113 of this Subtitle.

(37)

Responsible bidder or offeror means a person who has the capability in all respects to perform fully the contract requirements and the integrity and reliability which will assure good-faith performance.

(38)

Responsive bidder means one who has submitted a bid under Section 10A-112 of this Subtitle which conforms in all material respects to the Invitation For Bid and whose bid complies with the applicable provisions of Division 7 of this Subtitle.

(39)

Services means the rendering, by a contractor, of time and effort rather than the furnishing of a specific end product, other than reports which are merely incidental to the required performance of services. It includes, but is not limited to, the services provided by architects, engineers, accountants, physicians, consultants, and other professional persons.

(39)

Services means the rendering, by a contractor, of time and effort rather than the furnishing of a specific end product, other than reports which are merely incidental to the required performance of services. It includes, but is not limited to, the services provided by architects, engineers, accountants, physicians, consultants, and other professional persons.

(39.1)

Sheltered market program means a program under which certain contracts are designated by the County Purchasing Agent for procurement from one or more classes of vendors.

(39.2)

Small business concern means a small business concern as defined pursuant to Section 3 of the Small Business Act and United States Small Business Administration regulations implementing it at 13 CFR Part 12.1, that also does not exceed the cap on average annual gross receipts specified in United States Department of Transportation Regulations 49 at CFR 26.65(b).

(39.3)

Socially and economically disadvantaged individual means any individual who is a citizen (or lawfully admitted permanent resident) of the United States and who is—

(A)

Any individual who the Purchasing Agent finds to be a socially and economically disadvantaged individual on a case-by-case basis.

(B)

Any individual in the following groups, members of which are rebuttably presumed to be socially and economically disadvantaged:

(C)

"Black Americans," which includes persons having origins in any of the Black racial groups of Africa;

(D)

"Hispanic Americans," which includes persons of Mexican, Puerto Rican, Cuban, Dominican, Central or South American, or other Spanish or Portuguese culture or origin, regardless of race;

(E)

"Native Americans," which includes persons who are American Indians, Eskimos, Aleuts, or Native Hawaiians;

(F)

"Asian-Pacific Americans," which includes persons whose origins are from Japan, China, Taiwan, Korea, Burma (Myanmar), Vietnam, Laos, Cambodia (Kampuchea), Thailand, Malaysia, Indonesia, the Philippines, Brunei, Samoa, Guam, the U.S. Trust Territories of the Pacific Islands (Republic of Palau), the Commonwealth of the Northern Marianas Islands, Macao, Fiji, Tonga, Kiribati, Tuvalu, Nauru, Federated States of Micronesia, or Hong Kong;

(G)

"Subcontinent Asian Americans," which includes persons whose origins are from India, Pakistan, Bangladesh, Bhutan, the Maldives Islands, Nepal or Sri Lanka;

(H)

Women;

(I)

Any additional groups whose members are designated as socially and economically disadvantaged by the United States Small Business Administration, at such time as the United States Small Business Administration designation becomes effective.

(40)

Solicitation means any request of the County to enter into a contract.

(41)

Supplemental agreement means any contract modification which is accomplished by the mutual action of the parties.

(41.1)

Supplier Development and Diversity Division means the Supplier Development and Diversity Division of the Office of Central Services or its designee as determined by the Purchasing Agent.

(42)

Supplies means all tangible and intellectual property except real property or any interest in real property.

(43)

Unsatisfactory performance means establishing a record of poor performance or default on one or more contracts for construction, services, supplies, architectural and engineering services, construction-related services, or maintenance, including, but not limited to, overshipments, undershipments, providing damaged or defective goods, making unauthorized substitutions, billing errors, or service deficiencies. The term includes intentional failure, without good cause, to perform in accordance with the specifications or time limits provided in a contract, or a record of failure to perform, or of poor performance in accordance with the terms of one or more contracts, unless the failure to perform or the poor performance was caused by acts beyond the control of the person.

(44)

Using agency means any County agency which utilizes any supplies, services, or construction procured under this Subtitle.

(CB-1-1992; CB-23-2005; CB-28-2007; CB-2-2008; CB-16-2011; CB-17-2011; CB-43-2011; CB-33-2012; CB-62-2012; CB-68-2012; CB-67-2014; CB-74-2016; CB-115-2017)

Editor's note— Section 4 of CB-16-2011 provides that the County shall have a goal of at least one (1) Project Labor Agreement project in FY 2012 and shall have a goal of at least two (2) Project Labor Agreement projects beginning FY 2013 and in each fiscal year thereafter. The Office of Central Services shall track the data and provide quarterly reports to the County Council on the Project Labor Agreement program to include but is not limited to the average number of local residents hired on projects currently and the local residents hired under Project Labor Agreement projects.

Section 4 of CB-33-2014 provides that the provisions of CB-33-2012 shall be abrogated and be of no further force and effect after June 30, 2015.