§ 10A-114. Contract negotiation.

(a)

A contract may be made by negotiation under the following circumstances:

(1)

If it is determined that competitive sealed bidding or competitive sealed proposal cannot be used in awarding a contract because there is only one available or practical source for the subject of the contract, the Purchasing Agent is authorized to award a contract by noncompetitive negotiation. The following circumstances shall be sufficient to determine that only one source for the contract is available or practical:

(A)

When competition is precluded because of the existence of patent rights, copyrights, secret processes, control of basic raw material, or similar circumstances where competition is impractical; or

(B)

When the contemplated procurement is for technical, nonpersonal services in connection with the assembly, installation, or servicing (or the instruction of personnel therein) of equipment of a highly technical or specialized nature; or

(C)

When the contemplated procurement is for parts or components being procured as replacement parts in support of equipment specially designed by the same manufacturer, and where the Purchasing Agent determines that a substitute part or component of another manufacturer will not perform the same function in the equipment as the part or component it is to replace; or

(D)

When the contemplated procurement involves construction where a contractor or group of contractors are already at work on the site and it would not be practicable to allow another contractor or an additional contractor to work on the same site, or when the amount and value of the work is too small to interest other contractors to mobilize and demobilize; or

(E)

When property is required for experiment, test, development, or research in conjunction with determining the relative merits of the product or property for subsequent buys; or

(F)

When only one product will meet the technical and performance requirements for the procurement.

(2)

If it is determined in writing that competitive sealed bidding or competitive sealed proposal cannot be used in awarding a contract because an unanticipated emergency leaves insufficient time to use either of these methods, the Purchasing Agent is authorized to contract pursuant to emergency procedures established by regulations issued by the Purchasing agent. The duration of any contract entered into under this Section shall not exceed the period of time necessary to abate the emergency.

(3)

Upon written certification by the using agency that any of the following circumstances exists, the Purchasing Agent or the Purchasing Agent's designee may negotiate a contract:

(A)

A public exigency will not permit a delay incident to advertising; or

(B)

Services or goods are to be provided by or under contract with another government agency or government.

(4)

Authority to negotiate a contract under any provision of this Subtitle does not excuse compliance with the basic policy of obtaining maximum competition consistent with the needs of the occasion, to the end that all purchases will be made to the best interest of the County, Minority Business Opportunities Program price and other factors considered. The authority to negotiate contracts in no way eliminates the need of the Purchasing Agent to exert reasonable efforts to obtain the most favorable prices possible.

(b)

Any contract authorized under this Section shall be awarded (including at renewal or extension) with at least forty percent (40%)certified County-based small business participation or the procurement shall be rendered void and illegal, unless the Purchasing Agent exercises the waiver determination and procedure set forth in Section 10A-161 and 10A-159.01. Contracts authorized under this Section are subject to the same provisions of Section 10A-164 applicable to contracts subject to County-based small business participation requirements under Section 10A-161.

(c)

The purchase of goods or services through a contract between the County and a third party fiscal agent, such as an escrow agent, is a public procurement subject to the requirements of this Subtitle.

(d)

A procurement contract deemed necessary by the Purchasing Agent in writing, with notice to the County Executive and Clerk of the County Council, due to a temporary public emergency or other liability exposure may be awarded under this Section and shall not be subject to the requirements of Subsection (b), above, or Division 7 of this Subtitle, provided that the duration of the contract does not exceed one year and is not eligible for renewal or extension. A "temporary public emergency" in this Section is "an unforeseen occurrence or condition of limited duration that requires immediate action to protect public health, safety, or welfare from actual or threatened harm." A "liability exposure" in this Section is an action or inaction that exposes Prince George's County to greater liability.

(CB-1-1992; CB-67-2014; CB-74-2016; CB-115-2017)