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Request for Proposals
Evaluation of the Acquisition of Constellation Energy Group Inc. by MidAmerican Holdings Company
Solicitation No.: PSC #04-01-09
The Maryland Public Service Commission
Issue Date: October 7. 2008 (Revised 10/10/2008)
NOTICE
Prospective Offerors who have received this document from the Public Service Commission’s web site or eMarylandMarketplace.com, or who have received this document from a source other than the Procurement Officer, and who wish to assure receipt of any changed or additional materials related to this RFP, should immediately contact the Procurement Officer and provide their name and mailing address so that amendments to the RFP or other communications can be sent to them.
Minority Business Enterprises are Encouraged to Respond to this Solicitation STATE OF MARYLAND NOTICE TO OFFERORS/CONTRACTORS
To help us improve the quality of State solicitations and to make our procurement process more responsive and business friendly, we ask that you take a few minutes to complete and fax or email this form to: Donald P. Eveleth at (410) 333-3802 or [email protected]. Thank you for your assistance.
Title: Evaluation of the Acquisition of Constellation Energy Group Inc. by MidAmerican Holdings Company
Solicitation No.: PSC# 04-01-09
I. If you are not bidding, please indicate why:
( ) Other commitments preclude our participation at this time. ( ) The subject of the Contract is not in our business line. ( ) We lack experience in the work/commodities required. ( ) The scope of work is beyond our present capacity. ( ) We cannot be competitive. (Explain in REMARKS section.) ( ) The specifications are either unclear or too restrictive. (Please explain below.) ( ) Bid/Proposal requirements, other than specifications, are unreasonable or too risky. (Please explain below.). ( ) Time for completion is insufficient. ( ) Bonding/insurance requirements are prohibitive. (Please explain below.) ( ) Doing business with government is simply too complicated. (Please explain below.) ( ) Prior experience with State of Maryland Contract was unprofitable or otherwise unsatisfactory. (Please explain below.) ( ) Other:
II. Please explain your response further, offer suggestions or express your concerns.
REMARKS: ______
OPTIONAL: Vendor Name: ______Date: ______Contact Person: ______Phone (_____) ______- ______Address or email: ______Thank you
Solicitation No.: PSC# 04-01-09 Application MidAmerican KEY INFORMATION SUMMARY SHEET
STATE OF MARYLAND Request for Proposals
Evaluation of the Acquisition of Constellation Energy Group Inc. by MidAmerican Holdings Company
For The Maryland Public Service Commission PSC #04-01-09
RFP Issue Date: October 7, 2008
RFP Issuing Office: Public Service Commission
Procurement Officer: Donald P. Eveleth Office Phone: (410) 767-8057 Fax: (410) 333-3802 e-mail: [email protected]
Pre-Proposal Conference: October 24, 2008, 1:00 PM (Local Time) Public Service Commission William Donald Schaefer Tower 6 Saint Paul Street, 16th Floor Baltimore, MD 21202
Proposals are to be sent to: Public Service Commission William Donald Schaefer Tower 6 Saint Paul Street, 19th Floor Baltimore, MD 21202 Attention: Donald P. Eveleth, Deputy Executive Secretary
Closing Date and Time: October 31, 2008 at 2:00 PM (Local Time)
NOTICE
Prospective Offerors who have received this document from the Public Service Commission’s web site or eMarylandMarketplace.com, or who have received this document from a source other than the Procurement Officer, and who wish to assure receipt of any changes or additional materials related to this RFP, should immediately contact the Procurement Officer and provide their name and mailing address so that amendments to the RFP or other communications can be sent to them. TABLE OF CONTENTS
SECTION 1 - GENERAL INFORMATION...... 3
1.1 SUMMARY STATEMENT...... 3 1.2 NON-EXCLUSIVE USE...... 3 1.3 ABBREVIATIONS AND DEFINITIONS...... 3 1.4 CONTRACT TYPE...... 4 1.5 CONTRACT DURATION...... 4 1.6 PROCUREMENT OFFICER...... 4 1.7 CONTRACT MANAGER...... 4 1.8 PRE-PROPOSAL CONFERENCE...... 5 1.9 USE OF “EMARYLAND MARKETPLACE”...... 5 1.10 QUESTIONS...... 5 1.11 PROPOSAL DUE (CLOSING) DATE...... 6 1.12 DURATION OF OFFER...... 6 1.13 REVISIONS TO THE RFP...... 6 1.15 ORAL PRESENTATION...... 7 1.16 INCURRED EXPENSES...... 7 1.17 ECONOMY OF PREPARATION...... 7 1.18 PROTESTS/DISPUTES...... 7 1.19 MULTIPLE OR ALTERNATE PROPOSALS...... 7 1.20 PUBLIC INFORMATION ACT NOTICE...... 7 1.21 OFFEROR RESPONSIBILITIES...... 7 1.22 MANDATORY CONTRACTUAL TERMS...... 8 1.23 BID/PROPOSAL AFFIDAVIT...... 8 1.24 CONTRACT AFFIDAVIT...... 8 1.25 MINORITY BUSINESS ENTERPRISE SUBCONTRACT PARTICIPATION GOAL...... 8 1.26 ARREARAGES...... 9 1.27 PROCUREMENT METHOD...... 9 1.28 VERIFICATION OF REGISTRATION AND TAX PAYMENT...... 9 1.29 FALSE STATEMENTS...... 9 1.30 CONFLICT OF INTEREST...... 10 1.31 PAYMENTS BY ELECTRONIC FUNDS TRANSFER...... 10 SECTION 2 – MINIMUM QUALIFICATIONS...... 12
2.1 MINIMUM QUALIFICATIONS...... 12 SECTION 3 - SCOPE OF WORK...... 13
3.1 BACKGROUND AND PURPOSE...... 13 3.2 GENERAL SCOPE OF WORK TO BE PERFORMED...... 13 SECTION 4 – PROPOSAL FORMAT...... 17
4.1 TWO PART SUBMISSION...... 17 4.5 VOLUME II - FINANCIAL PROPOSAL...... 21 SECTION 5 – EVALUATION CRITERIA AND SELECTION PROCEDURE...... 23
5.1 EVALUATION CRITERIA...... 23 5.2 TECHNICAL PROPOSAL EVALUATION CRITERIA...... 23 5.3 FINANCIAL CRITERIA...... 23 5.4 RECIPROCAL PREFERENCE...... 23 5.5 SELECTION PROCEDURES...... 23 ATTACHMENTS...... 25 ATTACHMENT A - CONTRACT...... 26
1 ATTACHMENT B - BID/PROPOSAL AFFIDAVIT...... 39 ATTACHMENT C - CONTRACT AFFIDAVIT...... 47 ATTACHMENT D - MINORITY BUSINESS ENTERPRISE PARTICIPATION...... 49 ATTACHMENT E - FINANCIAL PROPOSAL FORM...... 60 ATTACHMENT F - CONFLICT OF INTEREST AFFIDAVIT/DISCLOSURE...... 62 ATTACHMENT G - MARYLAND STANDARD TRAVEL REGULATIONS...... 63 ATTACHMENT H – ELECTRONIC FUNDS TRANSFER (EFT) REGISTRATION REQUEST FORM...... 71 ATTACHMENT I - AFFIDAVIT OF AGREEMENT...... 24
2 SECTION 1 - GENERAL INFORMATION
1.1 Summary Statement
Through the procedures described in this RFP, the Public Service Commission (“PSC”) intends to award a contract to a qualified Offeror for expert consulting services. The consulting services would include assisting the Public Service Commission’s Technical Staff (“Staff”) in evaluation the application filed by Constellation Energy Group Inc. (“CEG”) by MidAmerican Energy Holdings Company (“MidAmerican” or “Applicant”) for approval of the acquisition of CEG by MidAmerican.
1.2 Non-exclusive Use
It is the PSC’s intention to obtain consulting services as specified in this RFP. However, this contract shall not be construed to require the Public Service Commission to use this contract exclusively. The PSC reserves the right to procure consulting services of any nature from other sources when it is in the best interest of the State to do so and without notice to the Contractor.
1.3 Abbreviations and Definitions
For the purposes of this RFP, the following abbreviations or terms have the meanings indicated below: a. COMAR – means Code of Maryland Regulations. b. Contract – means the document executed by the selected Offeror to provide the work required under Section 3 of this RFP. c. Contract Manager (CM) – means PSC representative that serves as the manager for the resulting contract. The CM monitors the activities of the contract and provides guidance to the Contractor. The PSC may change the CM at any time by written notice to the Contractor. d. Contractor – means the selected qualified Offeror. e. PSC – means the Public Service Commission of Maryland. f. MBE – means a Minority Business Enterprise that is certified by the Maryland Department of Transportation. g. Offeror – means an entity that submits a proposal for consulting services in response to this RFP. h. Procurement Officer – means the PSC representative responsible for this RFP and for the determination of contract scope issues, and the only PSC representative that can authorize changes to the contract. i. RFP – means this Request for Proposals for consulting services for the Public Service Commission, PSC # 04-01-09, dated October 7, 2008, including any amendments. j. State of Maryland Business Hours – means 8:00 A.M. to 5:00 P.M., local time, Monday – Friday, excluding State holidays.
3 1.4 Contract Type
The contract that results from this RFP is a not to exceed firm fixed price. This type of contract requires the Commission to pay invoices for work performed, including all direct and indirect cost, up-to the firm fixed price.
Under this type of contract the Contractor is obligated to complete all the work described in the Contractor’s proposal and this RFP for no more than the firm fixed price bid. Payment for all work will be based on invoices submitted and as a result the Contractor may not receive the full firm fixed price.
1.5 Contract Duration
The term of this Contract is for a period of 1 year commencing on the date of award and terminating on October 30, 2009.
1.6 Procurement Officer
The sole point-of-contact in the PSC for purposes of this RFP prior to the award of any contract is the Procurement Officer as listed below:
Donald P. Eveleth, Procurement Officer Public Service Commission William Donald Schaefer Tower 6 Saint Paul Street, 16th Floor Baltimore, Maryland 21202 Telephone #: 410-767-8057 Fax #: 410-333-3802 E-mail: [email protected]
The PSC may change the Procurement Officer at any time by written notice to the Offerors.
1.7 Contract Manager
Contract Manager – Monitors the daily activities of the contract and provides guidance to the contractor. The PSC’s Contract Manager is:
Gregory V. Carmean Public Service Commission William Donald Schaefer Tower 6 Saint Paul Street, 19th Floor Baltimore, Maryland 21202 Telephone: (410) 767-8100 Fax: (410) 333-0884 E-mail: [email protected]
The PSC may change the Contract Manager at any time by written notice to the Contractor.
4 1.8 Pre-Proposal Conference
A Pre-Proposal Conference (“Conference”) will be held on October 24, 2008 beginning at 1:00 PM, at the Public Service Commission, William Donald Schaefer Tower, 6 Saint Paul Street, 16th Floor, Baltimore, Maryland 21202. Attendance at the Conference is not mandatory, but all interested Offerors are encouraged to attend in-person in order to facilitate better preparation of their proposals. In addition, attendance may facilitate the Offeror’s understanding and ability to meet the State’s MBE goals of RFP requirements.
As promptly as is feasible subsequent to the Conference, a summary of the Conference and all questions and answers known at that time will be distributed, free of charge, to all prospective Offerors known to have received a copy of this RFP and posted on the PSC’s web page (http://www.psc.state.md.us/psc).
In addition, if there is a need for sign language interpretation and/or other special accommodations due to a disability, it is requested that at least five days advance notice be provided. The PSC will make reasonable efforts to provide any special accommodation.
1.9 Use of “eMaryland Marketplace” eMaryland Marketplace (eMM) is an electronic commerce system administered by the Maryland Department of General Services (http://www.eMarylandMarketplace.com). In addition to using the PSC web site (http://www.psc.state.md.us/psc) and other means for transmitting the RFP and associated materials, the solicitation, minutes of the pre-proposal conference, Offeror questions and PSC responses, addenda, and other solicitation related information will be provided via eMM.
A vendor must be registered on eMM in order to receive a Contract award. Registration on eMM is free; if you have questions regarding registration, please call the eMM Help Desk at 410-767-1492.
1.10 Questions
Written questions from prospective Offerors will be accepted by the Procurement Officer prior to the Pre-Proposal Conference. If possible and appropriate, such questions will be answered at the Pre-Proposal Conference. (No substantive question will be answered prior to the Pre-Proposal Conference.) Questions may be submitted by mail, facsimile, or preferably by e-mail to the Procurement Officer. Questions, both oral and written, will also be accepted from prospective Offerors attending the Pre-Proposal Conference. As reasonably possible and appropriate, these questions will be answered at the Pre-Proposal Conference, or shortly thereafter.
Questions will also be accepted subsequent to the Pre-Proposal Conference and should be submitted in writing and received by the Procurement Officer prior to the proposal due date. The Procurement Officer shall, based on the availability of time to research and communicate an answer, decide whether an answer can be given before the proposal due date. Answers to all substantive questions that have not previously been answered, and are not clearly specific only to
5 the requestor, will be distributed to all vendors who are known to have received a copy of the RFP. Additionally, all answers will be posted on the PSC’s web site.
1.11 Proposal Due (Closing) Date
An unbound original and four (4) bound copies of each proposal (technical and financial) must be received by the Procurement Officer, at the address listed in Section 1.6 and the Key Information Summary Sheet, no later than 2:00 PM (local time) on October 31, 2008, in order to be considered. An electronic version (CD) of the Technical Proposal in MS Word format must be enclosed with the original Technical Proposal. An electronic version (CD) of the Financial Proposal in MS Word or Excel format must be enclosed with the original Financial Proposal. Please ensure that the CD is labeled with the Date, RFP title, RFP number, and Offeror name and packaged with the original copy of the appropriate proposal (technical or financial).
Requests for extension of this date or time will not be granted. Offerors mailing proposals should allow sufficient mail delivery time to ensure timely receipt by the Procurement Officer. Except as provided in COMAR 21.05.02.10, proposals received by the Procurement Officer after the due date, October 31, 2008 at 2:00 PM (local time) will not be considered. Proposals may not be submitted by e-mail or facsimile. Proposals will not be opened publicly.
1.12 Duration of Offer
Proposals submitted in response to this RFP are irrevocable for 120 days following the closing date of proposals or of Best and Final Offers (BAFOs), if requested. This period may be extended at the Procurement Officer’s request only with the Offeror’s written agreement.
1.13 Revisions to the RFP
If it becomes necessary to revise this RFP before the due date for proposals, amendments will be provided to all prospective Offerors who were sent this RFP or otherwise are known by the Procurement Officer to have obtained this RFP. In addition, amendments to the RFP will be posted on the PSC Procurement web page and through eMM. Amendments made after the due date for proposals will be sent only to those Offerors who submitted a timely proposal.
Acknowledgment of the receipt of all amendments to this RFP issued before the proposal due date must accompany the Offeror’s proposal in the transmittal letter accompanying the Technical Proposal submittal. Acknowledgement of the receipt of amendments to the RFP issued after the proposal due date shall be in the manner specified in the amendment notice. Failure to acknowledge receipt of amendments does not relieve the Offeror from complying with all terms of any such amendment.
1.14 Cancellations/Discussions
The PSC reserves the right to cancel this RFP, accept or reject any and all proposals, in whole or in part, received in response to this RFP, to waive or permit cure of minor irregularities, and to conduct discussions with all qualified or potentially qualified Offerors in any manner necessary to serve the best interests of the State of Maryland. The PSC also reserves the right, in its sole
6 discretion, to award a contract based upon the written proposals received without prior discussions or negotiations.
1.15 Oral Presentation
Offerors may be required to make oral presentations to PSC representatives. Significant representations made by an Offeror during the oral presentation must be reduced to writing. All written representations will become part of the Offeror’s proposal and are binding if the contract is awarded. The Procurement Officer will notify Offerors of the time and place of oral presentations.
1.16 Incurred Expenses
The PSC will not be responsible for any costs incurred by an Offeror in preparing and submitting a proposal, in making an oral presentation, in providing a demonstration, or in performing any other activities relative to preparing a proposal for this RFP.
1.17 Economy of Preparation
Proposals should be prepared simply and economically, providing a straightforward, concise description of the Offeror’s proposals to meet the requirements of this RFP.
1.18 Protests/Disputes
Any protest or dispute related respectively to this RFP or the resulting contract shall be subject to the provisions of COMAR 21.10 (Administrative and Civil Remedies).
1.19 Multiple or Alternate Proposals
Multiple and alternate proposals will not be accepted.
1.20 Public Information Act Notice
An Offeror should give specific attention to the clear identification of those portions of its proposal that it considers confidential, proprietary commercial information or trade secrets, and provide justification why such materials, upon request, should not be disclosed by the PSC under Access to Public Records Act, Title 10, Subtitle 6, of the State Government Article of the Annotated Code of Maryland. (See Section 4.4.2.1)
Offerors are advised that, upon request for this information from a third party, the Procurement Officer is required to make an independent determination whether the information can be disclosed. (See COMAR 21.05.08.01)
1.21 Offeror Responsibilities
The selected Offeror shall be responsible for all products and services required by this RFP. Subcontractors must be identified and as complete a description of their role relative to the
7 proposal as are feasible for Contract awards must be included in the Offeror’s proposal. Additional information regarding MBE subcontractors is provided in Section 1.25 below and Attachment D.
If an Offeror that seeks to perform or provide the services required by this RFP is the subsidiary of another entity, all information submitted by the Offeror such as, but not limited to, proposed services, description of the Offeror’s ability to perform the scope of work, references and financial reports, shall pertain exclusively to the Offeror, unless the parent organization will guarantee the performance of the subsidiary. If applicable, the Offeror’s proposal must contain an explicit statement that the parent organization will guarantee the performance of the subsidiary.
1.22 Mandatory Contractual Terms
By submitting an offer in response to this RFP, an Offeror, if selected for award, shall be deemed to have accepted the terms of this RFP and the Contract, included as Attachment A. Any exceptions to this RFP or the Contract must be clearly identified in the Executive Summary of the Technical Proposal; exceptions to the required format, terms and conditions of the Financial Proposal must also be clearly identified in the Executive Summary, without disclosure of any pricing information. A proposal that takes exception to these terms may be rejected. (See Section 4.4.2.2)
1.23 Bid/Proposal Affidavit
A completed Bid/Proposal Affidavit must accompany the proposal submitted by an Offeror. A copy of this Affidavit is included as Attachment B of this RFP.
1.24 Contract Affidavit
All Offerors are advised that if a contract is awarded as a result of this RFP, the successful Offeror will be required to complete a Contract Affidavit. A copy of this Affidavit is included for informational purposes as Attachment C of this RFP. This Affidavit must be provided within five (5) business days of notification of proposed contract award.
1.25 Minority Business Enterprise Subcontract Participation Goal
An MBE subcontractor participation goal of 25% of the amount of all payments by the State to the Contractor is established for this solicitation. The Contractor shall structure its awards of subcontracts under the contract in a good faith effort to achieve the MBE goals with businesses certified by the State of Maryland as minority owned and controlled. MBE requirements are specified in Attachment D of this RFP. If, for any reason, the apparent successful offeror is unable to achieve the contract goal for certified MBE participation, the Offeror may request, in writing, an exception to the goal with justification. See COMAR 21.11.03.11 for waiver requirement details. MBE participation in work performed under this contract will be monitored by the State. See Attachment D for MBE details.
8 A current directory of MBEs is available through the Maryland State Department of Transportation, Office of Minority Business Enterprise, P. O. Box 8755, B.W.I. Airport, Maryland 21240-0755. The phone number is 410-865-1269.
The directory is also available at http://www.mdot.state.md.us. Select the MBE Program label at the left side of the web site, half way down. The most current and up-to-date information on MBEs is available via this web site.
1.26 Arrearages
By submitting a response to this RFP, each Offeror represents that it is not in arrears in the payment of any obligations due and owing the State of Maryland, including the payment of taxes and employee benefits, and that it shall not become so in arrears during the term of the contract if selected for contract award.
1.27 Procurement Method
This contract will be awarded in accordance with the Emergency Procurement process under COMAR 21.05.06.
1.28 Verification of Registration and Tax Payment
Before a corporation can do business in the State of Maryland it must be registered with the Department of Assessments and Taxation, State Office Building, Room 803, 301 West Preston Street, Baltimore, Maryland 21201. It is strongly recommended that any potential Offeror complete registration prior to the due date for receipt of proposals. An Offeror’s failure to complete registration with the Department of Assessments and Taxation may disqualify an otherwise successful Offeror from final consideration and recommendation for contract award.
1.29 False Statements
Offerors are advised that §11-205.1 of the State Finance and Procurement Article of the Annotated Code of Maryland provides as follows: a. In connection with a procurement contract, a person may not willfully: Falsify, conceal, or suppress a material fact by any scheme or device; Make a false or fraudulent statement or representation of a material fact; or Use a false writing or document that contains a false or fraudulent statement or entry of a material fact. b. A person may not aid or conspire with another person to commit an act under subsection a. of this section. c. A person who violates any provision of this section is guilty of a felony and on conviction is subject to a fine not exceeding $20,000 or imprisonment not exceeding five (5) years or both.
9 1.30 Conflict of Interest
The successful Offeror will provide consulting services for the Public Service Commission and must do so impartially and without any conflict of interest. The Contractor will be required to complete a Conflict of Interest Affidavit and submit the affidavit as part of its Technical Proposal. A copy of this Affidavit is included as Attachment F of this RFP. If the Procurement Officer makes a determination before award that facts or circumstances exist that give rise to or could in the future give rise to a conflict of interest within the meaning of COMAR 21.05.08.08A, the Procurement Officer may reject the Proposal under COMAR 21.06.02.03B.
Potential Offerors should be aware that the State Ethics Law, State Government Article, §15- 508, might limit the selected Contractor’s ability to respond to this solicitation, depending upon specific circumstances.
In addition to the Affidavit required by this Section, Offerors must identify any relationship with the Applicant, CEG and any of their affiliates within the last two (2) years and provide a list of the relationships with the Technical Proposal.
1.31 Payments by Electronic Funds Transfer
By submitting a response to this solicitation, the Offeror agrees to accept payments by electronic funds transfer unless the State Comptroller’s Office grants an exemption. The selected Offeror shall register using the form COT/GAD X-10 Vendor Electronic Funds (EFT) Registration Request Form included as Attachment H. Any request for exemption must be submitted to the State Comptroller’s Office for approval at the address specified on the COT/GAD X-10 form and must include the business identification information as stated on the form and include the reason for the exemption. The COT/GAD X-10 form can be downloaded at: http://compnet.comp.state.md.us/General_Accounting_Division/Static_Files/gadx-10.pdf.
1.32 Living Wage Requirements
A solicitation for services under a State contract valued at $100,000 or more may be subject to Title 18, State Finance and Procurement (SFP) Article, Annotated Code of Maryland. Additional information regarding the State’s Living Wage requirement is contained in this solicitation (see Attachment I entitled Living Wage Requirements for Service Contracts). If the Offeror fails to submit and complete the Affidavit of Agreement, the State may determine an Offeror to be not responsible.
Contractors and Subcontractors subject to the Living Wage Law shall pay each covered employee at least $11.30 per hour, if State contract services, valued at 50% or more of the total value of the contract, are performed in the Tier 1 Area. If State contract services, valued at 50% or more of the total contract value, are performed in the Tier 2 Area, an Offeror shall pay each covered employee at least $8.50 per hour. The specific Living Wage rate is determined by whether a majority of services take place in a Tier 1 Area or Tier 2 Area of the State. The Tier 1 Area includes Montgomery, Prince George’s, Howard, Anne Arundel, and Baltimore Counties, and Baltimore City. The Tier 2 Area includes any county in the State not included in the Tier 1
10 Area. In the event that the employees who perform the services are not located in the State, the head of the unit responsible for a State contract pursuant to §18-102 (d) shall assign the tier based upon where the recipients of the services are located.
The contract resulting from this solicitation has been deemed to be a Tier 1 contract.
1.33 Prompt Pay Requirements
This procurement and the contract to be awarded pursuant to this solicitation are subject to the Prompt Payment Policy Directive (“Directive”) issued by the Governor’s Office of Minority Affairs (“GOMA”) and dated August 1, 2008. Promulgated pursuant to Sections 11-201, 13- 205(a), and Title 14, Subtitle 3 of the State Finance and Procurement Article (SFP), and Code of Maryland Regulations (COMAR) 21.01.01.03 and 21.11.03.01 et seq., the Directive seeks to ensure the prompt payment of all subcontractors on non-construction procurement contracts. The successful Offeror who is awarded a contract must comply with the prompt payment requirements outlined in the Contract, Article 32 (see Attachment A). Additional information is available on the GOMA website at www.mdminoritybusiness.com.
11 SECTION 2 – MINIMUM QUALIFICATIONS
2.1 Minimum Qualifications
To be considered for selection and award of a contract, the Offeror and its proposed team must have actively participated in a merger/acquisition involving two large corporate entities within the last five years. “Actively participated” means, without limitation, the conduct of a due diligence review, financial review, accounting review and legal review. Each Offeror is required to submit evidence satisfying these requirements in the proposal submission.
12 SECTION 3 - SCOPE OF WORK
3.1 Background and Purpose
The Commission is required by Public Utility Companies Article, §6-105, Annotated Code of Maryland, to undertake proceedings as are necessary to fully examine and investigate an application involving any acquisition, directly or indirectly, of the power to exercise substantial influence over the policies and actions of the Baltimore Gas and Electric Company (“BGE”) a Maryland public service company and wholly owned subsidiary of CEG. MidAmerican Energy Holdings Company (“MidAmerican” or “Applicant”) is expected to file, on or about October 17, 2008, an application that will involve: (1) the acquisition of more than 20% of the outstanding voting interests of CEG, a company that owns BGE; and (2) the right to designate more than 20% of the Board of Directors of Constellation. If approved, the application will, according to PUC §6-105, give MidAmerican “the power to exercise substantial influence over the policies and actions” of BGE. The information to be provided by the Applicant as required by Public Utility Companies Article, §6-105(f),Annotated Code of Maryland , includes: Applicant’s financial ability; Background of key personnel associated with the Applicant; Source and amounts of funds or other consideration to be used in the acquisition; Applicant’s compliance with federal law in carrying out the acquisition; Whether Applicant or the key personnel associated with it have violated any state or federal statutes regulating the activities of BGE; All documents relating to the transaction giving rise to the application; Applicant’s experience in operating public service companies providing electricity; Applicant’s plan for operating BGE; and How the proposed acquisition will serve the customers of BGE in the public interest, convenience, and necessity.
3.2 General Scope of Work to be Performed
3.2.1 The Contractor will provide the following services:
Assist Staff in drafting discovery to Applicant consistent with factors established in Public Utility Companies Article §6-105(g)(2), Annotated Code of Maryland; Review and analyze transaction documents relevant to Staff’s evaluation of the proposed acquisition; Analyze whether Staff should request the PSC to use its authority under Public Utility Companies Article §3-109(d) Annotated Code of Maryland, to obtain records not already provided, and if so, assist in drafting data requests; Evaluate potential impact of the proposed acquisition on rates and charges paid by BGE customers, including the effect of the proposed acquisition on the rate base for BGE;
13 Evaluate potential impact of the Proposed Acquisition on services provided by and conditions of operation of BGE; Evaluate whether the capital structure of the proposed acquisition, including allocation of earnings from BGE is consistent with the public interest, convenience and necessity, including benefits and no harm to consumers; Evaluate the potential effects of the Proposed Acquisition on employment by BGE, including evaluation of compensation; Evaluate the proposed acquisition’s effect on community investment, including but not limited to any effect on charitable contributions historically made by BGE and its affiliates, the Maryland housing market, and businesses surrounding BGE’s and/or its affiliates’ Maryland headquarters; Evaluate how any savings expected will be allocated between stockholders and rate payers; Evaluate Applicant’s operational plan for BGE after consummation of the proposed acquisition, and whether it is consistent with the public interest, convenience and necessity, including benefits and no harm to consumers; Evaluate the potential impact of the proposed acquisition on continuing investment needs for maintenance of utility services, plant and related infrastructure; Evaluate the effect of the proposed acquisition on reliability of electric or gas service; Evaluate any affiliate and cross-subsidization issues in connection with or as a result of the proposed acquisition, including but not limited to valuation of assets and attribution of debt and the issuance of preferred equity to the Applicant; Evaluate whether BGE assets will be used or pledged to benefit affiliates in connection with or as a result of the proposed acquisition; Evaluate the proposed acquisition’s effect on the debt or other ratings of BGE and BGE’s expected cost of capital; Evaluate whether it is necessary to revise the PSC’s ring fencing and code of conduct regulations; Evaluate possible conditions or alternatives to the proposed transaction that may be raised in the course of the proceeding;1 and Prepare written report(s) and/or testimony regarding the issues above for submission to and consideration by the Commission; and
1 Alternatives or issues that have been raised to date include potential bankruptcy (see, e.g., http://research.tdameritrade.com/public/markets/news/story.asp?docKey=4018- 845BB957ED8B4586AAE83DCD145A4757- 2RVC0NR8ITKT0C2MFLELSDL5P4&clauses=B64ENCeyJOZXdzU291cmNlIjoibWFya2V0d2F0Y2giLCJT ZWN0b3JzSW5kdXN0cmllcyI6Ik9pbCBhbmQgR2FzIn0= ); the potential return of generation assets to public service company (see, e.g., E.J. Pipken and Jim Rosapepe, “Let’s Get a Better Deal,” http://www.baltimoresun.com/news/opinion/oped/bal-op.constellation23sep23,0,3573806.story); and potential restrictions on “golden parachutes” or other issues related to senior executive compensation (see, e.g., “State lawmaker blasts Constellation, Shattuck for ‘highway robbery,’ Baltimore Business Journal, http://baltimore.bizjournals.com/baltimore/stories/2008/09/22/daily11.html. The fact that the Commission anticipates the possibility of these issues being raised should not be read as anything more than an effort to anticipate the range of issues that may be raised in the forthcoming proceeding.
14 Provide oral testimony regarding the issues above in proceedings before the Commission regarding the proposed acquisition.
3.2.2 The Contractor will be expected to assemble the staff necessary to professionally perform all of the following functions for each identified task. The Offeror must submit a proposal for each of the tasks.
3.3 Commencement of Work
Work shall be initiated only upon issuance of a Notice-to-Proceed authorized by the Contract Manager.
3.4 Personnel
3.4.1 The Offeror shall provide personnel to satisfy the requirements of Sections 3.2.1 and provide the resume for each individual submitted.
3.4.2 Substitution of Personnel
a. Individuals proposed and accepted as personnel for this Contract are expected to remain dedicated throughout the contract period. Substitutions will be allowed only when the PSC specifically agrees to the substitution in writing or due to an emergency circumstance as described in paragraph b. All proposed substitutes of personnel must have qualifications at least equal to that of the person initially proposed and evaluated and accepted in the Contract. The burden of illustrating this comparison shall be the Contractor’s. The resumes of the initially proposed personnel shall become the minimum requirement for qualifications for successor personnel for the duration of the total Contract term. If one or more of the personnel are unavailable for work under a Contract for a continuous period exceeding 15 calendar days, the Contractor shall immediately notify the PSC and propose to replace personnel with personnel of equal or better qualifications within 15 calendar days of notification to the PSC. All substitutions shall be made in accordance with this provision. b. During the Contract performance period, no substitutions of personnel will be permitted unless such substitutions are necessitated by an individual’s sudden illness, death, or as otherwise approved by the PSC. In any of these events, the Contractor shall promptly notify the PSC and provide the information required by paragraph c. All proposed substitutions of personnel for other than emergency situations must be submitted in writing, at least 15 business days in advance of the proposed substitution, to the PSC, with the information required in paragraph c. The PSC must agree to the substitution in writing before such substitution shall become effective. c. All requests for substitutions must provide a detailed explanation of the circumstances necessitating the proposed substitutions, a resume of the proposed substitute (see paragraph d), and any other information requested by the PSC to make a determination as to the appropriateness of the proposed substitution. All
15 proposed substitutes must have educational qualifications and work experience equal to or better than the resume initially proposed for personnel; the burden of illustrating this comparison shall be the Contractor’s. d. Resumes shall be signed by all substituting individuals and their formal supervisor, and the official resume of the previous employee shall be provided for comparison purposes.
3.5 Security and Confidentiality
The PSC may require Contractors to sign confidentiality agreements or comply with security policies or practices.
3.6 Invoice/Payments
Invoices and payments shall be provided in accordance with the terms of the Contract. (Attachment A).
16 SECTION 4 – PROPOSAL FORMAT
4.1 Two Part Submission
Offerors must submit proposals in two separate volumes:
Volume I - TECHNICAL PROPOSAL Volume II - FINANCIAL PROPOSAL
Offerors must prepare separate volumes for the Technical and Financial Proposals. Offerors must propose all services identified within the RFP. Offerors who fail to propose all services or all prices shall be deemed as not reasonably susceptible of being selected for award. Technical Proposals will be evaluated separately from the Financial Proposals.
4.2 Proposals
Volume I - Technical Proposal, must be sealed separately from Volume II - Financial Proposal, but submitted simultaneously to the Procurement Officer (address listed in Section 1.6 of this RFP and the Key Information Summary). An unbound original, so identified, and four (4) copies of each volume are to be submitted. An electronic version of both the Volume I - Technical Proposal in MS Word format and the Volume II - Financial Proposal in MS Word or Excel format must also be submitted with the unbound original technical and financial volumes, as appropriate. Electronic media shall be CD and shall bear the RFP number and name, name of the Offeror and the technical or financial volume number.
4.3 Submission
Each Offeror is required to submit a separate sealed package for each “Volume”. Each Volume and each separately sealed package are to be labeled either Volume I - Technical Proposals – PSC# 04-01-09 Evaluation of the Acquisition of Constellation Energy Group Inc. by MidAmerican Holdings Company or Volume II - Financial Proposals – PSC # 04-01-09 Evaluation of the Acquisition of Constellation Energy Group Inc. by MidAmerican Holdings Company. Additionally, on the outside of each sealed package the Offeror must include the name and address of the Offeror, and the closing date and time for receipt of the proposals.
All pages of both proposal volumes must be consecutively numbered from beginning (Page 1) to end (Page “x”).
4.4 Volume I – Technical Proposal
4.4.1 Transmittal Letter: A transmittal letter must accompany the Technical Proposal. The purpose of this letter is to transmit the proposal and acknowledge the receipt of any addenda. The transmittal letter should be brief and signed by an individual who is authorized to commit the Offeror to the services and requirements as stated in this RFP. Only one transmittal letter is needed and it does not need to be bound with the Technical Proposal. (See Offeror Responsibilities in Section 1.21.)
17 4.4.2 Format of Technical Proposal: The Technical Proposal shall not include any references to prices proposed by the Offeror. Inside the sealed package described in Sections 4.2 and 4.3, above, an unbound original, to be so labeled, four (4) paper copies and one electronic version shall be enclosed. Section 2 of this RFP provides Minimum Requirements, Section 3 provides the Scope of Work and Section 4 provides reply instructions. The paragraphs in these RFP sections are numbered for ease of reference. In addition to the instructions below, the Offeror’s Technical Proposals should be organized and numbered in the same order as this RFP. This proposal organization will allow PSC officials and the Evaluation Committee to “map” Offeror responses directly to RFP requirements by paragraph number. The Technical Proposal shall include:
4.4.2.1 Title and Table of Contents: The Technical Proposal should begin with a title page bearing the name and address of the Offeror and the name and number of this RFP. A table of contents for the Technical Proposal should follow the title page. Information that is claimed to be confidential is to be placed after the Title Page and before the Table of Contents in the Offeror’s Technical Proposal, and if applicable, also in its Financial Proposal. An entire proposal should not be labeled confidential; only those portions of the proposal that can reasonably be shown to be proprietary or confidential should be so labeled.
4.4.2.2 Executive Summary: The Offeror shall condense and highlight the contents of the Technical Proposal in a separate section titled “Executive Summary.” The summary shall identify any exceptions the Offeror has taken to the requirements of this RFP, the Contract (Attachment A), or any other attachments.
Warning: Exceptions to terms and conditions may result in having the proposal deemed unacceptable or classified as not reasonably susceptible of being selected for award. If an Offeror takes no exception to State terms and conditions, the Executive Summary should so state.
4.4.2.3 Minimum Requirements: The Offeror shall provide proof that it meets or exceeds the minimum requirements contained in Section 2.
4.4.2.4 Offeror Experience and Capabilities: Offerors shall include information on past experience with similar projects. Offerors shall describe their experience and capabilities through a response to the following:
4.4.2.4.1 Offeror’s Organization
An organization chart of the Offeror showing all major component units, which component(s) will perform the requirements of this contract, and where the management of this contract will fall within the organization. What corporate resources will be available to support this contract in both primary and secondary, or back-up roles? Also, provide the names and titles of any key management personnel who will be involved with supervising the services rendered under this contract, along with their resumes. (The personnel to be
18 identified here should not include the Program Manager required in the response to Section 4.4.2.6.)
4.4.2.4.2 Offeror’s Capabilities
An overview of the Offeror’s experience providing consulting services projects. This description shall include a general summary of the services offered in terms of: o The extent of similar services to those required under this RFP; o The number of years the Offeror has provided these services; and o The number of clients and geographic locations the Offeror currently serves.
References. Provide all or a reasonable number of specific references who are capable of documenting: o The Offeror’s ability to manage services of the type described in this RFP; o The quality and breadth of services provided by the Offeror; and o Each client reference must include the following information: - Name of client organization. - Name, title, and telephone number of point-of-contact for client organization. - Value, type, and duration of contract(s) supporting client organization. - The services provided, scope of the contract, geographic area being supported, performance objectives satisfied, and improvements made for the client (e.g. reduction in operation/maintenance costs while maintaining or improving current performance levels). - An explanation of why the Offeror is no longer providing the services to the client organization, should that be the case.
Offerors shall provide a list of all contracts with any entity of the State of Maryland that it is currently performing or which has been completed within the last 5 years. For each identified contract the Offeror is to provide in its Technical Proposal: o The State contracting entity; o A brief description of the services/goods provided; o The term of the contract; o The employee contact person (name, title, telephone number and if possible the e-mail address); and o Whether the contract was terminated before the end of the term specified in the original contract, including whether any available renewal option was not exercised.
19 Note: (1) The Procurement Officer or a designee will contact the identified State agencies or the most appropriate ones, if many contracts are involved, to ascertain the Offeror’s level of performance of State contracts. Information obtained regarding the Offeror’s level of performance on State contracts will be considered as part of the experience and past performance evaluation criteria of the RFP. (2) The PSC shall have the right to contact any reference as part of the evaluation and selection process. The PSC also reserves the right to request site visits to the Offeror’s offices for the purpose of evaluating proposals.
4.4.2.5 Proposed Services - Work Plan
4.4.2.5.1 The Offeror shall provide a detailed discussion of its service capabilities and approaches to address the requirements outlined in Section 3 of this RFP. Offerors should fully explain how the proposed services will satisfy the requirements of the RFP and indicate all significant capabilities or issues that should be considered to fulfill the scope of work. In addition, Offerors must also submit an actual or redacted work plan for a project that was conducted by the Offeror, preferably for one of the references that was provided.
4.4.2.5.2 In its proposal the Offeror should describe its overall approach for managing a Contract and satisfying the requirements of this RFP. Topics to be addressed include: A. Understanding - The Offeror’s understanding of the consulting services to be provided. This should demonstrate an understanding of the services expected under this Contract. B. Project Management Methodology - The Offeror’s approach to managing the overall project identified in this RFP. The overall Project Management approach should include the following items: Project Organization (including identification and role of subcontractors; Offeror Support Resources that will be available, including Personnel and Technology Resources; Project Management Planning and Tracking System; Project Reporting Methodologies; The personnel who will participate in periodic, scheduled meetings with PSC personnel and the manner in which the Offeror will provide updates/progress reports; and The availability of the Offeror to perform this Contract, including the flexibility to dedicate staff to these efforts.
4.4.2.6 Personnel
A. Identify all proposed personnel by task and the Contractor’s Program Manager. Provide a resume for all proposed personnel.
20 B. Provide an estimate of hours for each individual by task.
4.4.2.7 Economic Benefit to Maryland
Offeror shall submit with the proposals a narrative describing benefits that will accrue to the Maryland economy as a direct or indirect result of the performance of this contract. Proposals will be evaluated to assess the following economic benefit factors. A. Percentage of contract dollars to be recycled into Maryland’s economy in support of the contract, through the use of Maryland subcontractors, suppliers and joint venture partners. Be as specific as possible. B. The number and types of jobs for Maryland residents resulting from the contract. Indicate job classifications, number of employees in each classification and the aggregate payroll to which the Offeror has committed at both prime and, if applicable, subcontract levels. C. Tax revenues to be generated for Maryland and its political subdivisions as a result of the contract. Indicate tax category (sales taxes, payroll taxes, inventory taxes and estimated personal income taxes for new employees). Provide a forecast of the total tax revenues resulting from the contract. D. Other benefits to the Maryland economy, which the Offeror promises, will result from awarding to the Offeror. Describe the benefit, its value to the Maryland economy and how it will result from the contract award.
4.4.2.8 Subcontractors: Offerors must identify subcontractors, if any, excluding those used solely to meet MBE participation goals, and the role these subcontractors will have in the performance of the contract. Subcontractors retained for the sole purpose of meeting the established MBE participation goal for this solicitation must be identified as provided in Attachment D of this RFP.
4.4.2.9 Required Submissions to be submitted by Offeror in the original Technical Proposal only: o Completed Bid/Proposal Affidavit (Attachment B); o MBE form D-1 and D-2 (in Attachment D); o Conflict of Interest Affidavit (in Attachment F); and o Living Wage Affidavit (in Attachment I).
4.5 Volume II - Financial Proposal
4.5.1 Under separate sealed cover from the Technical Proposal and clearly identified with the same information noted on the Technical Proposal, the Offeror must submit an unbound original, four (4) copies, and an electronic version in Microsoft Word or Excel of the Financial Proposal. The Financial Proposal must contain all cost information in the format specified on the Financial
21 Proposal Form. (See Attachment E.) The Financial Proposal Form must be submitted and completely filled in (no blanks or omissions) and signed by an individual who is authorized to commit the Offeror to the prices, services and requirements as stated in this RFP. (See Offeror Responsibilities in Section 1.21.)
4.5.2 In order to assist Offerors in the preparation of their financial proposals, Attachment E - Financial Proposal Form has been provided. Offerors must submit their financial proposal on this form in accordance with the instructions on the form and as specified herein. Do not change or alter this form.
4.5.3 Nothing shall be entered on the Financial Proposal Form that alters or proposes conditions or contingencies on the proposed prices or offer.
22 SECTION 5 – EVALUATION CRITERIA AND SELECTION PROCEDURE
5.1 Evaluation Criteria
Evaluation of proposals for the Evaluation of the Acquisition of Constellation Energy Group Inc. by MidAmerican Holdings Company will be performed by a committee established for that purpose and will be based on the criteria set forth below. The State reserves the right to utilize the services of individuals outside the established committee for technical advice, as deemed necessary.
5.2 Technical Proposal Evaluation Criteria
The criteria to be applied to each Technical Proposal are listed in descending order of importance: A. Offeror Experience, Capabilities, and References (Ref. Sections 4.4.2.4, 4.4.2.4.1 and 4.4.2.4.2) B. Proposed Services - Work Plan (Ref. Section 4.4.2.5, 4.4.2.5.1 and 4.4.2.5.2) D. Personnel (Ref. Section 4.4.2.6 and 4.4.2.8) C. Economic Benefit to Maryland (Ref. Section 4.4.2.7)
5.3 Financial Criteria
All qualified Offeror’s Financial Proposals will be ranked from the lowest to the highest price proposed.
5.4 Reciprocal Preference
Although Maryland law does not authorize procuring agencies to favor resident Offerors in awarding procurement contracts, many other states do grant their resident businesses preferences over Maryland contractors. Therefore, as described in COMAR 21.05.01.04, a resident business preference will be given if: a responsible Offeror whose headquarters, principal base of operations, or principal site that will primarily provide the services required under this RFP is in another state submits the most advantageous offer; the other state gives a preference to its residents through law, policy, or practice; and, the preference does not conflict with a Federal law or grant affecting the procurement contract. The preference given shall be identical to the preference that the other state, through law, policy or practice, gives to its residents.
5.5 Selection Procedures
5.5.1 General Selection Process
The contract will be awarded in accordance with the competitive sealed proposals procurement method under Code of Maryland Regulations 21.05.03. The competitive sealed proposals process is based on discussions and revision of proposals during or after these discussions.
23 Accordingly, the PSC may hold discussions with all Offerors judged reasonably susceptible of being selected for award, or potentially so. However, the PSC also reserves the right to make an award without holding discussions. In either case of holding discussions or not doing so, the PSC may determine an Offeror to be not responsible and/or an Offeror’s proposal to be not reasonably susceptible of being selected for award, at any time after the initial closing date for receipt of proposals and the review of those proposals. If the PSC finds an Offeror to be not responsible and/or an Offeror’s proposal to be not reasonably susceptible of being selected for award, an Offeror’s Financial Proposal will be returned unopened.
5.5.2 Selection Process Sequence
The first level of review will be an evaluation for technical merit. During this review, oral presentations and discussions may be held. The purpose of such discussions will be to assure a full understanding of the PSC’s requirements and the Offeror’s ability to perform, and to facilitate arrival at a contract that will be most advantageous to the State. For scheduling purposes Offerors should be prepared to make an oral presentation and participate in discussions approximately two weeks after delivery of proposals to the State. The Procurement Officer will contact Offerors when the schedule is set by the State. Offerors must confirm in writing any substantive oral clarification of, or change in, their proposals made in the course of discussions. Any such written clarification or change then becomes part of the Offeror’s proposal. The Financial Proposal of each Offeror will be evaluated separately from the Technical Proposal evaluation. After a review of the Financial Proposals of Offerors, the Procurement Officer may again conduct discussions. When in the best interest of the State, the Procurement Officer may permit Offerors who have submitted acceptable proposals to revise their initial proposals and submit, in writing, best and final offers (BAFOs).
5.5.3 Award Determination
Upon completion of all discussions and negotiations, reference checks, and site visits, if any, the Procurement Officer will recommend award of a Contract to a responsible Offeror whose proposal is determined to be the most advantageous to the State considering technical evaluation factors and price factors as set forth in this RFP. In making the most advantageous determination, technical factors will be given greater weight than price factors.
24 ATTACHMENTS
In accordance with State Procurement Regulations:
ATTACHMENT A – The PSC’s Contract. It is provided with the RFP for informational purposes and is not required at proposal submission time. However, it must be completed, signed and returned by the selected Offeror to the Procurement Officer upon notification of proposed contract award.
ATTACHMENT B – Bid/Proposal Affidavit. This form must be completed and submitted with the Offeror’s Technical Proposal.
ATTACHMENT C – Contract Affidavit. This form is not required at proposal submission time. Each selected Offeror must submit this form to the Procurement Officer within 5 working days of notification of proposed contract award.
ATTACHMENT D – Minority Business Enterprise Instructions/Forms. Attachments D-1 and D- 2 must be submitted with Offeror’s Technical Proposal. Attachment D-3 and D-4 must be submitted within 10 days of notification of proposed contract award.
ATTACHMENT E – Financial Proposal Form. This form is to be completed by the Offeror and included in the Offeror’s Volume II – Financial Proposal only.
ATTACHMENT F – Conflict of Interest Affidavit/Disclosure. This form must be submitted with a Contractor’s Technical Proposal only.
ATTACHMENT G – Maryland Standard Travel Regulations.
ATTACHMENT H – State Comptroller’s Electronic Funds Transfer Form COT/GAD X-10.
ATTACHMENT I – Living Wage Information.
25 ATTACHMENT A - CONTRACT
PUBLIC SERVICE COMMISSION PSC # 04-01-09
THIS CONTRACT is made this ______day of ______, 20__ by and between ______and the STATE OF MARYLAND, acting through the MARYLAND PUBLIC SERVICE COMMISSION. In consideration of the premises and the covenants herein contained, the parties agree as follows:
1. Definitions
In this Contract, the following words have the meanings indicated:
1.1 “Bid Proposal” means the Contractor’s Bid Proposal, dated ______.
1.2 “Contractor” means ______whose principal business address is ______and whose principal office in Maryland is ______.
1.3 “Procurement Officer” means Donald P. Eveleth, Deputy Executive Secretary.
1.4 “PSC” or “Commission” means the Public Service Commission of Maryland.
1.5 “RFP” means the Request for Proposals for Review and Analysis of an Application by MidAmerican Holdings Company for Approval to Acquire Constellation Energy Group Inc. PSC # 04-01-09, dated October 7, 2008, including any amendments
1.6 “State” means the State of Maryland.
2. Scope of Work
2.1 The Contractor shall assist the PSC Technical Staff in the review and analysis of an application by MidAmerican Holdings Company for approval to acquire Constellation Energy Group Inc. as required under the RFP, PSC# 04-01-09, dated October 7, 2008.
These services shall be provided in accordance with this Contract and the following exhibits, which are attached and incorporated herein by reference. If there is any conflict between this Contract and the Exhibits, the terms of the Contract shall govern. If there is any conflict among the Exhibits, the following order of precedence shall determine the prevailing provision:
Exhibit A – Request for Proposals dated October 7, 2008.
26 Exhibit B - Contractor’s Technical Proposal and Financial Proposal dated ______. Exhibit C - State Contract Affidavit dated ______. Exhibit D - Living Wage Affidavit dated ______
The Procurement Officer may, at any time, by written order, make changes in the work within the general scope of the Contract. No other order, statement or conduct of the Procurement Officer or any other person shall be treated as a change or entitle the Contractor to an equitable adjustment under this section. Except as otherwise provided in this Contract, if any change under this section causes an increase or decrease in the Contractor’s cost of, or the time required for, the performance of any part of the work, an equitable adjustment in the Contract price shall be made and the Contract modified in writing accordingly.
3. Time for Performance.
Unless terminated earlier as provided in this Contract, the Contractor shall provide the services described in Contractor’s Proposal in accordance with the RFP. The term of this Contract is for a period of 1 year commencing on date of award and terminating on ______. The Contractor shall provide the services upon receipt of a Notice to Proceed from the Procurement Office.
4. Consideration and Payment
4.1 The services set for the above shall be performed during the term of the contract as stated herein at prices not to exceed those contained in the Contractor’s Financial Proposal Form dated______. This type of contract requires the Commission to pay invoices for work performed, including all direct and indirect cost, up-to the firm fixed price.
Under this type of contract the Contractor is obligated to complete all the work described in the Contractor’s proposal and this RFP for no more than the firm fixed price bid. Payment for all work will be based on invoices submitted and as a result the Contractor may not receive the full firm fixed price.
5. Rights to Records
5.1 The Contractor agrees that all documents and materials including but not limited to, software, reports, drawings, studies, specifications, estimates, tests, maps, photographs, designs, graphics, mechanical, artwork, computations and data prepared by the Contractor, solely for purposes of this Contract with the State of Maryland shall be the sole property of the PSC and shall be available to the Department at any time. The PSC shall have the right to use the same without restriction and without compensation to the Contractor other than that specifically provided by this Contract.
5.2 The Contractor agrees that at all times during the term of this Contract and thereafter, works created as a deliverable under this contract, and services performed under this Contract shall be “works made for hire” as that term is interpreted under U.S. copyright law. To the
27 extent that any products created as a deliverable under this Contract are not works for hire for the PSC, the Contractor hereby relinquishes, transfers, and assigns to the State all of its rights, title, and interest (including all intellectual property rights) to all such products created under this Contract, and will cooperate reasonably with the State in effectuating and registering any necessary assignments.
5.3 The Contractor shall report to the Procurement Officer, promptly and in written detail, each notice or claim of copyright infringement received by the Contractor with respect to all data delivered under this agreement.
5.4 The Contractor shall not affix any restrictive markings upon any data and if such markings are affixed, the PSC shall have the right at any time to modify, remove, obliterate, or ignore such warnings.
6. Patents, Copyrights, Intellectual Property
6.1 If the Contractor furnishes any design, device, material, process, or other item, which is covered by a patent or copyright or which is proprietary to or a trade secret of another, the Contractor shall obtain the necessary permission or license to permit the State to use such item or items.
6.2 The Contractor will defend or settle, at its own expense, any claim or suit against the State alleging that any such item furnished by the Contractor infringes any patent, trademark, copyright, or trade secret. If a third party claims that a Product infringes that party’s patent or copyright, the Contractor will defend the PSC against that claim at Contractor’s expense and will pay all damages, costs and attorney fees that a Court finally awards, provided the PSC (i) promptly notifies the Contractor in writing of the claim; and (ii) allows Contractor to control and cooperates with Contractor in, the defense and any related settlement negotiations. The obligations of this paragraph are in addition to those stated in section 6.3 below.
6.3 If any products furnished by the Contractor become, or in the Contractor's opinion are likely to become, the subject of a claim of infringement, the Contractor will, at its option and expense: a) procure for the State the right to continue using the applicable item, b) replace the product with a non-infringing product substantially complying with the item's specifications, or c) modify the item so that it becomes non-infringing and performs in a substantially similar manner to the original item.
7. Confidentiality
Subject to the Maryland Public Information Act and any other applicable laws, all confidential or proprietary information and documentation relating to either party (including without limitation, any information or data stored within the Contractor’s computer systems) shall be held in absolute confidence by the other party. Each party shall, however, be permitted to disclose relevant confidential information to its officers, agents and employees to the extent that such disclosure is necessary for the performance of their duties under this Contract, provided that the data may be collected, used, disclosed, stored and disseminated only as provided by and
28 consistent with the law. The provisions of this section shall not apply to information that (a) is lawfully in the public domain; (b) has been independently developed by the other party without violation of this Contract; (c) was already in the possession of such party, (d) was supplied to such party by a third party lawfully in possession thereof and legally permitted to further disclose the information or (e) which such party is required to disclose by law.
8. Loss of Data
In the event of loss of any State data or records held or maintained by the Contractor in the performance of the services under this contract where such loss is due to the intentional act or omission or negligence of the contractor or any of its subcontractors or agents, the Contractor shall be responsible for recreating such lost data, in the manner and on the schedule set by the Procurement Officer. The Contractor shall ensure that all data is backed up, and is recoverable by the Contractor. This paragraph does not apply to data lost in transmission within or across the Contractor’s network, except when such a loss of data in transmission is due to the gross negligence or intentional act of Contractor, its agents, servants, employees, or its subcontractors.
9. Indemnification
9.1 The Contractor shall indemnify the State against liability for any costs, expenses, loss, suits, actions, or claims of any character arising from or relating to the performance of the Contractor or its subcontractors under this Contract.
9.2 The State of Maryland has no obligation to provide legal counsel or defense to the Contractor or its subcontractors in the event that a suit, claim or action of any character is brought by any person not party to this Contract against the Contractor or its subcontractors as a result of or relating to the Contractor’s obligations under this Contract.
9.3 The State has no obligation for the payment of any judgments or the settlements of any claims against the Contractor of its subcontractors as a result of or relating to the Contractor’s obligations under this Contract.
9.4 The Contractor shall immediately notify the Procurement Officer of any claim or suit made or filed against the Contractor or its subcontractors regarding any matter resulting from, or relating to, the Contractor’s obligations under the Contract, and will cooperate, assist and consult with the State in the defense or investigation of any claim, suit, or action made or filed against the State as a result of, or relating to, the Contractor’s performance under this Contract.
10. Non-Hiring of Employees
No official or employee of the State of Maryland, as defined under State Government Article, §15-102, Annotated Code of Maryland, whose duties as such official or employee include matters relating to or affecting the subject matter of this Contract, shall, during the pendency and term of this contract and while serving as an official or employee of the State, become or be an employee of the Contractor or any entity that is a subcontractor on this Contract.
29 11. Disputes
This Contract shall be subject to the provisions of Title 15, Subtitle 2, of the State Finance and Procurement Article, Annotated Code of Maryland, as from time to time amended, and COMAR 21.10 (Administrative and Civil Remedies). Pending resolution of a claim, the Contractor shall proceed diligently with the performance of the Contract in accordance with the Contract Officer’s decision. Unless a lesser period is provided by applicable statute, regulation, or the Contract, the Contractor must file a written notice of claim with the Procurement Officer within 30 days after the basis for the claim is known or should have been known, whichever is earlier. Contemporaneously with or within 30 days of the filing of a notice of claim, but no later than the date of final payment under the Contract, the Contractor must submit to the Procurement Officer its written claim containing the information specified in COMAR 21.10.04.02.
12. Maryland Law
This Contract shall be construed, interpreted, and enforced according to the laws of the State of Maryland.
13. Nondiscrimination in Employment
The Contractor agrees: (a) not to discriminate in any manner against an employee or applicant for employment because of race, color, religion, creed, age, sex, marital status, national origin, ancestry, or disability of a qualified individual with a disability; (b) to include a provision similar to that contained in subsection (a), above, in any underlying subcontract except a subcontract for standard commercial supplies or raw materials; and (c) to post and to cause subcontractors to post in conspicuous places available to employees and applicants for employment, notices setting forth the substance of this clause.
14. Contingent Fee Prohibition
The Contractor warrants that it has not employed or retained any person, partnership, corporation, or other entity, other than a bona fide employee or agent working for the Contractor to solicit or secure this Agreement, and that it has not paid or agreed to pay any person, partnership, corporation or other entity, other than a bona fide employee or agent, any fee or other consideration contingent on the making of this Agreement.
15. Non-Availability of Funding
If the General Assembly fails to appropriate funds or if funds are not otherwise made available for continued performance for any fiscal period of this Contract succeeding the first fiscal period, this Contract shall be canceled automatically as of the beginning of the fiscal year for which funds were not appropriated or otherwise made available; provided, however, that this will not affect either the State’s rights or the Contractor’s rights under any termination clause in this Contract. The effect of termination of the Contract hereunder will be to discharge both the Contractor and the State of Maryland from future performance of the Contract, but not from their rights and obligations existing at the time of termination. The Contractor shall be reimbursed for
30 the reasonable value of any nonrecurring costs incurred but not amortized in the price of the Contract. The State shall notify the Contractor as soon as it has knowledge that funds may not be available for the continuation of this Contract for each succeeding fiscal period beyond the first.
16. Termination for Cause
If the Contractor fails to fulfill its obligations under this Contract properly and on time, or otherwise violates any provision of the Contract, the State may terminate the Contract by written notice to the Contractor. The notice shall specify the acts or omissions relied upon as cause for termination. All finished or unfinished work provided by the Contractor shall, at the State’s option, become the State’s property. The State of Maryland shall pay the Contractor fair and equitable compensation for satisfactory performance prior to receipt of notice of termination, less the amount of damages caused by the Contractor’s breach. If the damages are more than the compensation payable to the Contractor, the Contractor will remain liable after termination and the State can affirmatively collect damages. Termination hereunder, including the termination of the rights and obligations of the parties, shall be governed by the provisions of COMAR 21.07.01.11B.
17. Termination for Convenience
The performance of work under this Contract may be terminated by the State in accordance with this clause in whole, or from time to time in part, whenever the State shall determine that such termination is in the best interest of the State. The State will pay all reasonable costs associated with this Contract that the Contractor has incurred up to the date of termination, and all reasonable costs associated with termination of the Contract; provided, however, the Contractor shall not be reimbursed for any anticipatory profits that have not been earned up to the date of termination. Termination hereunder, including the determination of the rights and obligations of the parties, shall be governed by the provisions of COMAR 21.07.01.12 (A)(2).
18. Delays and Extensions of Time
The Contractor agrees to perform this agreement continuously and diligently. No charges or claims for damages shall be made by the Contractor for any delays or hindrances, regardless of cause, in the performance of services under this Contract. Time extensions will be granted only for excusable delays that arise from unforeseeable causes beyond the control and without the fault or negligence of the Contractor, including but not restricted to acts of God, acts of the public enemy, acts of the State in either its sovereign or contractual capacity, acts of another contractor in the performance of a contract with the State, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, or delays of subcontractors or suppliers arising from unforeseeable causes beyond the control and without the fault or negligence of either the Contractor or the subcontractors or suppliers.
31 19. Suspension of Work
The State unilaterally may order the Contractor in writing to suspend, delay, or interrupt all or any part of its performance for such period of time as the Procurement Officer may determine to be appropriate for the convenience of the State.
20. Pre-Existing Regulations
In accordance with the provisions of the State Finance and Procurement Article, §11-206, Annotated Code of Maryland, as from time to time amended, the regulations set forth in Title 21 of the Code of Maryland Regulations (COMAR 21) in effect on the date of execution of this Contract are applicable to this Contract.
21. Financial Disclosure
The Contractor shall comply with the provisions of the State Finance and Procurement Article, §13-221, Annotated Code of Maryland, which requires that every person that enters into contracts, leases, or other agreements with the State of Maryland or its agencies during a calendar year under which the business is to receive in the aggregate, $100,000 or more, shall within 30 days of the time when the aggregate value of these contracts, leases or other agreements reaches $100,000, file with the Secretary of the State of Maryland certain specified information to include disclosure of beneficial ownership of the business.
22. Political Contribution Disclosure
The Contractor shall comply with Election Law Article, §§14-101 – 14-108, Annotated Code of Maryland, which requires that every person that enters into contracts, leases, or other agreements with the State, a county, or an incorporated municipality, or their agencies, during a calendar year in which the person receives in the aggregate $100,000 or more, shall, file with the State Board of Elections a statement disclosing contributions in excess of $500 made during the reporting period to a candidate for elective office in any primary or general election. The statement shall be filed with the State Board of Elections: (1) before a purchase or execution of a lease or contract by the State, a county, an incorporated municipality, or their agencies, and shall cover the preceding two calendar years; and (2) if the contribution is made after the execution of a lease or contract, then twice a year, throughout the contract term, on: (a) February 5, to cover the 6-month period ending January 31; and (b) August 5, to cover the 6-month period ending July 31.
23. Retention of Records
The Contractor shall retain and maintain all records and documents in any way relating to this Contract for three years after final payment by the State of Maryland under this Contract or any applicable statute of limitations, whichever is longer, and shall make them available for inspection and audit by authorized representatives of the State, including the Procurement Officer or the Procurement Officer’s designee, at all reasonable times. All records related in any way to the Contract are to be retained for the entire time provided under this section.
32 24. Representations and Warranties
The Contractor hereby represents and warrants that:
A. It is qualified to do business in the State of Maryland and that it will take such action as, from time to time hereafter, may be necessary to remain so qualified;
B. It is not in arrears with respect to the payment of any monies due and owing the State of Maryland, or any department or unit thereof, including but not limited to the payment of taxes and employee benefits, and that it shall not become so in arrears during the term of this Contract;
C. It shall comply with all federal, State and local laws, regulations, and ordinances applicable to its activities and obligations under this Contract; and,
D. It shall obtain, at its expense, all licenses, permits, insurance, and governmental approvals, if any, necessary to the performance of its obligations under this Contract.
25. Costs and Price Certification
By submitting cost or price information, the Contractor certifies to the best of its knowledge that the information submitted is accurate, complete, and current as of the date of its bid or offer.
The price under this Contract and any change order or modification hereunder, including profit or fee, shall be adjusted to exclude any significant price increases occurring because the Contractor furnished cost or price information which, as of the date of its bid or offer, was inaccurate, incomplete, or not current.
26. Subcontracting; Assignment
The Contractor may not subcontract any portion of the services provided under this Contract without obtaining the prior written approval of the Commission, nor may the Contractor assign this Contract or any of its rights or obligations hereunder, without the prior written approval of the Commission. Any such subcontract or assignment shall include the terms of Sections 10 and 12 through 25 of this Contract and any other terms and conditions that the Commission deems necessary to protect its interests. The Commission shall not be responsible for the fulfillment of the Contractor’s obligations to the subcontractors.
27. Liability
27.1 For breach of this Agreement, negligence, misrepresentation or any other contract or tort claim, Contractor shall be liable as follows:
A. For infringement of patents and copyrights as provided in Section 6 of this Contract;
33 B. Without limitation for damages for bodily injury (including death) and damage to real property and tangible personal property;
C. For all other claims, damages, loss, costs, expenses, suits or actions in any way related to this Contract, regardless of the form, Contractor’s liability shall be limited to one (1) times the total dollar amount invoiced under this Contract up to the date of settlement or final award of any such claim. Third party claims arising under Section (9) “Indemnification”, of this Contract are included in this limitation of liability only if the Commission is immune from liability. Contractor’s liability for third party claims arising under Section 9 of this Contract shall be unlimited if the Commission is not immune from liability for claims arising under Section 9.
27.2 As provided in this section, the limitations contained in this section are the maximum for which the Contractor and its subcontractors are collectively responsible for damages arising as a result of this contract.
28. Administrative
28.1 Procurement Officer. The work to be accomplished under this Contract shall be performed under the direction of the Procurement Officer or the Procurement Officer’s designee. All matters relating to the interpretation of this Agreement shall be referred to the Procurement Officer for determination.
28.2 Notices. All notices hereunder shall be in writing and either delivered personally or sent by certified or registered mail, postage prepaid as follows:
If to the State: Donald P. Eveleth, Deputy Executive Secretary Maryland Public Service Commission William Donald Schaefer Tower 6 Saint Paul Street, 16th floor Baltimore, Maryland 21202 Telephone: (410) 767-8057 Fax: (410) 333-3802 E-mail: [email protected]
If to the Contractor: ______
30. Commercial Nondiscrimination
A. As a condition of entering into this Agreement, Contractor represents and warrants that it will comply with the State’s Commercial Nondiscrimination Policy, as described under Title 19 of the State Finance and Procurement Article of the Annotated Code of Maryland. As
34 part of such compliance, Contractor may not discriminate on the basis of race, color, religion, ancestry or national origin, sex, age, marital status, sexual orientation, or on the basis of disability or other unlawful forms of discrimination in the solicitation, selection, hiring, or commercial treatment of subcontractors, vendors, suppliers, or commercial customers, nor shall Contractor retaliate against any person for reporting instances of such discrimination. Contractor shall provide equal opportunity for subcontractors, vendors, and suppliers to participate in all of its public sector and private sector subcontracting and supply opportunities, provided that this clause does not prohibit or limit lawful efforts to remedy the effects of marketplace discrimination that have occurred or are occurring in the marketplace. Contractor understands that a material violation of this clause shall be considered a material breach of this Agreement and may result in termination of this Agreement, disqualification of Contractor from participating in State contracts, or other sanctions. This clause is not enforceable by or for the benefit of, and creates no obligation to, any third party.
B. The contractor shall include the above Commercial Nondiscrimination clauses, or similar clauses approved by the Commission, in all sub-contracts.
C. As a condition of entering into this Agreement, upon the Maryland Human Relations Commission’s request, and only after the filing of a complaint against Contractor under Title 19 of the State Finance and Procurement Article, as amended from time to time, Contractor agrees to provide within 60 days after the request a complete list of the names of all subcontractors, vendors, and suppliers that Contractor has used in the past 4 years on any of its contracts that were undertaken within the state of Maryland, including the total dollar amount paid by Contractor on each subcontract or supply contract. Contractor further agrees to cooperate in any investigation conducted by the State pursuant to the State’s Commercial Nondiscrimination Policy as set forth under Title 19 of the State Finance and Procurement Article of the Annotated Code of Maryland, and to provide any documents relevant to any investigation that is requested by the State. Contractor understands that violation of this clause is a material breach of this Agreement and may result in contract termination, disqualification by the State from participating in State contracts, and other sanctions
31. Living Wage Requirements
A solicitation for services under a State contract valued at $100,000 or more may be subject to Title 18, State Finance and Procurement (SFP) Article, Annotated Code of Maryland. Additional information regarding the State’s Living Wage requirement is contained in this solicitation (see Attachment E entitled Living Wage Requirements for Service Contracts). If the Offeror fails to submit and complete the Affidavit of Agreement, the State may determine an Offeror to be not responsible.
Contractors and Subcontractors subject to the Living Wage Law shall pay each covered employee at least $11.30 per hour, if State contract services valued at 50% or more of the total value of the contract are performed in the Tier 1 Area. If State contract services valued at 50% or more of the total contract value are performed in the Tier 2 Area, an Offeror shall pay each covered employee at least $8.50 per hour. The specific Living Wage rate is determined by whether a majority of services take place in a Tier 1 Area or Tier 2 Area of the State. The Tier 1
35 Area includes Montgomery, Prince George’s, Howard, Anne Arundel, and Baltimore Counties, and Baltimore City. The Tier 2 Area includes any county in the State not included in the Tier 1 Area. In the event that the employees who perform the services are not located in the State, the head of the unit responsible for a State contract pursuant to §18-102 (d) shall assign the tier based upon where the recipients of the services are located.
This contract is a Tier 1 contract.
32. Prompt Pay Requirements
32.1. If a contractor withholds payment of an undisputed amount to its subcontractor, the Agency, at its option and in its sole discretion, may take one or more of the following actions: 32.1.1 Not process further payments to the contractor until payment to the subcontractor is verified; 32.1.2 Suspend all or some of the contract work without affecting the completion date(s) for the contract work; 32.1.3 Pay or cause payment of the undisputed amount to the subcontractor from monies otherwise due or that may become due; 32.1.4 Place a payment for an undisputed amount in an interest-bearing escrow account; or 32.1.5 Take other or further actions as appropriate to resolve the withheld payment. 32.2. An “undisputed amount” means an amount owed by a contractor to a subcontractor for which there is no good faith dispute, including any retainage withheld, and includes an amount withheld because of issues arising out of an agreement or occurrence unrelated to the agreement under which the amount is withheld. 32.3. An act, failure to act, or decision of a procurement officer or a representative of the Agency, concerning a withheld payment between a contractor and subcontractor under this policy directive, may not: 32.3.1 Affect the rights of the contracting parties under any other provision of law; 32.3.2 Be used as evidence on the merits of a dispute between the Agency and the contractor in any other proceeding; or 32.3.3 Result in liability against or prejudice the rights of the Agency. 32.4 The remedies enumerated above are in addition to those provided under COMAR 21.11.03.13 with respect to subcontractors that have contracted pursuant to the Minority Business Enterprise program. 32.5 To ensure compliance with certified MBE subcontract participation goals, the Agency may, consistent with COMAR 21.11.03.13, take the following measures: 32.5.1 Verify that the certified MBEs listed in the MBE participation schedule actually are performing work and receiving compensation as set forth in the MBE participation schedule.
36 32.5.2 This verification may include, as appropriate: 32.5.2.1 Inspecting any relevant records of the contractor; 32.5.2.2 Inspecting the jobsite; and 32.5.2.3 Interviewing subcontractors and workers. 32.5.2.4 Verification shall include a review of: 32.5.2.4.1 The contractor’s monthly report listing unpaid invoices over 30 days old from certified MBE subcontractors and the reason for nonpayment; and 32.5.2.4.2 The monthly report of each certified MBE subcontractor, which lists payments received from the contractor in the preceding 30 days and invoices for which the subcontractor has not been paid. 32.5.3 If the Agency determines that a contractor is in noncompliance with certified MBE participation goals, then the Agency will notify the contractor in writing of its findings, and will require the contractor to take appropriate corrective action. 32.5.3.1 Corrective action may include, but is not limited to, requiring the contractor to compensate the MBE for work performed as set forth in the MBE participation schedule. 32.5.4 If the Agency determines that a contractor is in material noncompliance with MBE contract provisions and refuses or fails to take the corrective action that the Agency requires, then the Agency may: 32.5.4.1 Terminate the contract; 32.5.4.2 Refer the matter to the Office of the Attorney General for appropriate action; or 32.5.4.3 Initiate any other specific remedy identified by the contract, including the contractual remedies required by this Directive regarding the payment of undisputed amounts. 32.5.5 Upon completion of the contract, but before final payment or release of retainage or both, the contractor shall submit a final report, in affidavit form under the penalty of perjury, of all payments made to, or withheld from MBE subcontractors.
37 IN WITNESS THEREOF, the parties have executed this Contract as of the date hereinabove set forth.
CONTRACTOR
By: Date:
PUBLIC SERVICE COMMISSION OF MARYLAND
By: Date:
Approved for form and legal sufficiency this ______day of ______, ______.
______Heather H. Polzin General Counsel
38 ATTACHMENT B - BID/PROPOSAL AFFIDAVIT (PSC# 04-01-09)
A. AUTHORIZED REPRESENTATIVE
I HEREBY AFFIRM THAT:
I am the (title) and the duly authorized representative of (business) and that I possess the legal authority to make this Affidavit on behalf of myself and the business for which I am acting.
B. CERTIFICATION REGARDING COMMERCIAL NONDISCRIMINATION
The undersigned bidder hereby certifies and agrees that the following information is correct: In preparing its bid on this project, the bidder has considered all proposals submitted from qualified, potential subcontractors and suppliers, and has not engaged in “discrimination” as defined in §19-103 of the State Finance and Procurement Article of the Annotated Code of Maryland. “Discrimination” means any disadvantage, difference, distinction, or preference in the solicitation, selection, hiring, or commercial treatment of a vendor, subcontractor, or commercial customer on the basis of race, color, religion, ancestry, or national origin, sex, age, marital status, sexual orientation, or on the basis of disability or any otherwise unlawful use of characteristics regarding the vendors, supplier’s or commercial customer’s employees or owners. “Discrimination” also includes retaliating against any person or other entity for reporting any incident of “discrimination”. Without limiting any other provision of the solicitation on this project, it is understood that, if the certification is false, such false certification constitutes grounds for the State to reject the bid submitted by the bidder on this project, and terminate any contract awarded based on the bid. As part of its bid or proposal, the bidder herewith submits a list of all instances within the past 4 years where there has been a final adjudicated determination in a legal or administrative proceeding in the state of Maryland that the bidder discriminated against subcontractors, vendors, suppliers, or commercial customers, and a description of the status or resolution of that determination, including any remedial action taken. Bidder agrees to comply in all respects with the State’s Commercial Nondiscrimination Policy as described under Title 19 of the State Finance and Procurement Article of the Annotated Code of Maryland.
C. AFFIRMATION REGARDING BRIBERY CONVICTIONS
I FURTHER AFFIRM THAT: Neither I, nor to the best of my knowledge, information, and belief, the above business (as is defined in §16-101(b) of the State Finance and Procurement Article of the Annotated Code of Maryland), or any of its officers, directors, partners, controlling stockholders, or any of its employees directly involved in the business’s contracting activities including obtaining or performing contracts with public bodies, has been convicted of, or has had probation before judgment imposed pursuant to Criminal Procedure Article, §6-220, Annotated Code of Maryland, or has pleaded nolo contendere to a charge of, bribery, attempted bribery, or conspiracy to bribe in violation of Maryland law, or of the law of any other state or federal law,
39 except as follows (indicate the reasons why the affirmation cannot be given and list any conviction, plea, or imposition of probation before judgment with the date, court, official or administrative body, the sentence or disposition, the name(s) of person(s) involved, and their current positions and responsibilities with the business):
D. AFFIRMATION REGARDING OTHER CONVICTIONS
I FURTHER AFFIRM THAT:
Neither I, nor to the best of my knowledge, information, and belief, the above business, or any of its officers, directors, partners, controlling stockholders, or any of its employees directly involved in the business’s contracting activities including obtaining or performing contracts with public bodies, has: (1) Been convicted under state or federal statute of: (a) a criminal offense incident to obtaining, attempting to obtain, or performing a public or private contract; or (b) fraud, embezzlement, theft, forgery, falsification or destruction of records, or receiving stolen property; (2) Been convicted of any criminal violation of a state or federal antitrust statute; (3) Been convicted under the provisions of Title 18 of the United States Code for violation of the Racketeer Influenced and Corrupt Organization Act, 18 U.S.C. §1961, et seq., or the Mail Fraud Act, 18 U.S.C. §1341, et seq., for acts in connection with the submission of bids or proposals for a public or private contract; (4) Been convicted of a violation of the State Minority Business Enterprise Law, §14-308 of the State Finance and Procurement Article of the Annotated Code of Maryland; (5) Been convicted of a violation of the §11-205.1 of the State Finance and Procurement Article of the Annotated Code of Maryland; (6) Been convicted of conspiracy to commit any act or omission that would constitute grounds for conviction or liability under any law or statute described in subsection (1) through (5) above; (7) Been found civilly liable under a state or federal antitrust statute for acts or omissions in connection with the submission of bids or proposals for a public or private contract; or
40 (8) Been found in a final adjudicated decision to have violated the Commercial Nondiscrimination Policy under Title 19 of the State Finance and Procurement Article of the Annotated Code of Maryland with regard to a public or private contract; or (9) Admitted in writing or under oath, during the course of an official investigation or other proceedings, acts or omissions that would constitute grounds for conviction or liability under any law or statute described in §§B — C and subsections (1) through (8) above, except as follows (indicate reasons why the affirmations cannot be given, and list any conviction, plea, or imposition of probation before judgment with the date, court, official or administrative body, the sentence or disposition, the name(s) of the person(s) involved and their current positions and responsibilities with the business, and the status of any debarment):
E. AFFIRMATION REGARDING DEBARMENT
I FURTHER AFFIRM THAT:
Neither I, nor to the best of my knowledge, information, and belief, the above business, or any of its officers, directors, partners, controlling stockholders, or any of its employees directly involved in the business’s contracting activities including obtaining or performing contracts with public bodies, has ever been suspended or debarred (including being issued a limited denial of participation) by any public entity, except as follows (list each debarment or suspension providing the dates of the suspension or debarment, the name of the public entity and the status of the proceedings, the name(s) of the person(s) involved and their current positions and responsibilities with the business, the grounds of the debarment or suspension, and the details of each person’s involvement in any activity that formed the grounds of the debarment or suspension):
F. AFFIRMATION REGARDING DEBARMENT OF RELATED ENTITIES
I FURTHER AFFIRM THAT:
41 (1) The business was not established and it does not operate in a manner designed to evade the application of or defeat the purpose of debarment pursuant to §16-101, et seq., of the State Finance and Procurement Article of the Annotated Code of Maryland; and
(2) The business is not a successor, assignee, subsidiary, or affiliate of a suspended or debarred business, except as follows (you must indicate the reasons why the affirmations cannot be given without qualification):
G. SUB-CONTRACT AFFIRMATION
I FURTHER AFFIRM THAT:
Neither I, nor to the best of my knowledge, information, and belief, the above business, has knowingly entered into a contract with a public body under which a person debarred or suspended under Title 16 of the State Finance and Procurement Article of the Annotated Code of Maryland will provide, directly or indirectly, supplies, services, architectural services, construction related services, leases of real property, or construction.
H. AFFIRMATION REGARDING COLLUSION
I FURTHER AFFIRM THAT:
Neither I, nor to the best of my knowledge, information, and belief, the above business has:
(1) Agreed, conspired, connived, or colluded to produce a deceptive show of competition in the compilation of the accompanying bid or offer that is being submitted;
(2) In any manner, directly or indirectly, entered into any agreement of any kind to fix the bid price or price proposal of the bidder or offeror or of any competitor, or otherwise taken any action in restraint of free competitive bidding in connection with the contract for which the accompanying bid or offer is submitted.
I. FINANCIAL DISCLOSURE AFFIRMATION
I FURTHER AFFIRM THAT:
I am aware of, and the above business will comply with, the provisions of §13-221 of the State Finance and Procurement Article of the Annotated Code of Maryland, which require that every business that enters into contracts, leases, or other agreements with the State of Maryland or its agencies during a calendar year under which the business is to receive in the aggregate $100,000
42 or more shall, within 30 days of the time when the aggregate value of the contracts, leases, or other agreements reaches $100,000, file with the Secretary of State of Maryland certain specified information to include disclosure of beneficial ownership of the business.
J. POLITICAL CONTRIBUTION DISCLOSURE AFFIRMATION
I FURTHER AFFIRM THAT:
I am aware of, and the above business will comply with, Election Law Article, §§14-101—14- 108, Annotated Code of Maryland, which requires that every person that enters into contracts, leases, or other agreements with the State of Maryland, including its agencies or a political subdivision of the State, during a calendar year in which the person receives in the aggregate $100,000 or more shall file with the State Board of Elections a statement disclosing contributions in excess of $500 made during the reporting period to a candidate for elective office in any primary or general election.
K. DRUG AND ALCOHOL FREE WORKPLACE
(Applicable to all contracts unless the contract is for a law enforcement agency and the agency head or the agency head’s designee has determined that application of COMAR 21.11.08 and this certification would be inappropriate in connection with the law enforcement agency’s undercover operations.)
I CERTIFY THAT:
(1) Terms defined in COMAR 21.11.08 shall have the same meanings when used in this certification.
(2) By submission of its bid or offer, the business, if other than an individual, certifies and agrees that, with respect to its employees to be employed under a contract resulting from this solicitation, the business shall:
(a) Maintain a workplace free of drug and alcohol abuse during the term of the contract;
(b) Publish a statement notifying its employees that the unlawful manufacture, distribution, dispensing, possession, or use of drugs, and the abuse of drugs or alcohol is prohibited in the business’ workplace and specifying the actions that will be taken against employees for violation of these prohibitions;
(c) Prohibit its employees from working under the influence of drugs or alcohol;
(d) Not hire or assign to work on the contract anyone whom the business knows, or in the exercise of due diligence should know, currently abuses drugs or alcohol and is not actively engaged in a bona fide drug or alcohol abuse assistance or rehabilitation program;
43 (e) Promptly inform the appropriate law enforcement agency of every drug-related crime that occurs in its workplace if the business has observed the violation or otherwise has reliable information that a violation has occurred;
(f) Establish drug and alcohol abuse awareness programs to inform its employees about:
(i) The dangers of drug and alcohol abuse in the workplace;
(ii) The business’ policy of maintaining a drug and alcohol free workplace;
(iii) Any available drug and alcohol counseling, rehabilitation, and employee assistance programs; and
(iv) The penalties that may be imposed upon employees who abuse drugs and alcohol in the workplace;
(g) Provide all employees engaged in the performance of the contract with a copy of the statement required by §K(2)(b), above;
(h) Notify its employees in the statement required by §K(2)(b), above, that as a condition of continued employment on the contract, the employee shall:
(i) Abide by the terms of the statement; and
(ii) Notify the employer of any criminal drug or alcohol abuse conviction for an offense occurring in the workplace not later than 5 days after a conviction;
(i) Notify the procurement officer within 10 days after receiving notice under §K(2) (h)(ii), above, or otherwise receiving actual notice of a conviction;
(j) Within 30 days after receiving notice under §K(2)(h)(ii), above, or otherwise receiving actual notice of a conviction, impose either of the following sanctions or remedial measures on any employee who is convicted of a drug or alcohol abuse offense occurring in the workplace:
(i) Take appropriate personnel action against an employee, up to and including termination; or
(ii) Require an employee to satisfactorily participate in a bona fide drug or alcohol abuse assistance or rehabilitation program; and
(k) Make a good faith effort to maintain a drug and alcohol free workplace through implementation of §K(2)(a)—(j), above.
(3) If the business is an individual, the individual shall certify and agree as set forth in §K(4), below, that the individual shall not engage in the unlawful manufacture, distribution,
44 dispensing, possession, or use of drugs or the abuse of drugs or alcohol in the performance of the contract.
(4) I acknowledge and agree that:
(a) The award of the contract is conditional upon compliance with COMAR 21.11.08 and this certification;
(b) The violation of the provisions of COMAR 21.11.08 or this certification shall be cause to suspend payments under, or terminate the contract for default under COMAR 21.07.01.11 or 21.07.03.15, as applicable; and
(c) The violation of the provisions of COMAR 21.11.08 or this certification in connection with the contract may, in the exercise of the discretion of the Board of Public Works, result in suspension and debarment of the business under COMAR 21.08.03.
L. CERTIFICATION OF CORPORATION REGISTRATION AND TAX PAYMENT
I FURTHER AFFIRM THAT:
(1) The business named above is a (domestic ___) (foreign __) corporation registered in accordance with the Corporations and Associations Article, Annotated Code of Maryland, and that it is in good standing and has filed all of its annual reports, together with filing fees, with the Maryland State Department of Assessments and Taxation, and that the name and address of its resident agent filed with the State Department of Assessments and Taxation is:
Name:
Address:
(If not applicable, so state).
(2) Except as validly contested, the business has paid, or has arranged for payment of, all taxes due the State of Maryland and has filed all required returns and reports with the Comptroller of the Treasury, the State Department of Assessments and Taxation, and the Department of Labor, Licensing, and Regulation, as applicable, and will have paid all withholding taxes due the State of Maryland prior to final settlement.
M. CONTINGENT FEES
I FURTHER AFFIRM THAT:
45 The business has not employed or retained any person, partnership, corporation, or other entity, other than a bona fide employee, bona fide agent, bona fide salesperson, or commercial selling agency working for the business, to solicit or secure the Contract, and that the business has not paid or agreed to pay any person, partnership, corporation, or other entity, other than a bona fide employee, bona fide agent, bona fide salesperson, or commercial selling agency, any fee or any other consideration contingent on the making of the Contract.
N. ACKNOWLEDGEMENT
I ACKNOWLEDGE THAT this Affidavit is to be furnished to the Procurement Officer and may be distributed to units of: (1) the State of Maryland; (2) counties or other subdivisions of the State of Maryland; (3) other states; and (4) the federal government. I further acknowledge that this Affidavit is subject to applicable laws of the United States and the State of Maryland, both criminal and civil, and that nothing in this Affidavit or any contract resulting from the submission of this bid or proposal shall be construed to supersede, amend, modify or waive, on behalf of the State of Maryland, or any unit of the State of Maryland having jurisdiction, the exercise of any statutory right or remedy conferred by the Constitution and the laws of Maryland with respect to any misrepresentation made or any violation of the obligations, terms and covenants undertaken by the above business with respect to (1) this Affidavit, (2) the contract, and (3) other Affidavits comprising part of the contract.
I DO SOLEMNLY DECLARE AND AFFIRM UNDER THE PENALTIES OF PERJURY THAT THE CONTENTS OF THIS AFFIDAVIT ARE TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE, INFORMATION, AND BELIEF.
Date: By: (Authorized Representative and Affiant)
46 ATTACHMENT C - CONTRACT AFFIDAVIT
(PSC# 04-01-09) (COMAR 21.07.01.25)
A. AUTHORIZED REPRESENTATIVE
I HEREBY AFFIRM THAT:
I am the (title) and the duly authorized representative of (business) and that I possess the legal authority to make this Affidavit on behalf of myself and the business for which I am acting.
B. CERTIFICATION OF CORPORATION REGISTRATION AND TAX PAYMENT
I FURTHER AFFIRM THAT:
(1) The business named above is a (domestic ___) (foreign __) corporation registered in accordance with the Corporations and Associations Article, Annotated Code of Maryland, and that it is in good standing and has filed all of its annual reports, together with filing fees, with the Maryland State Department of Assessments and Taxation, and that the name and address of its resident agent filed with the State Department of Assessments and Taxation is:
Name:
Address:
(If not applicable, so state).
(2) Except as validly contested, the business has paid, or has arranged for payment of, all taxes due the State of Maryland and has filed all required returns and reports with the Comptroller of the Treasury, the State Department of Assessments and Taxation, and the Department of Labor, Licensing, and Regulation, as applicable, and will have paid all withholding taxes due the State of Maryland prior to final settlement.
C. CERTAIN AFFIRMATIONS VALID
I FURTHER AFFIRM THAT:
To the best of my knowledge, information, and belief, each of the affirmations, certifications, or acknowledgments contained in that certain Bid/Proposals Affidavit dated______, 20____, and executed by me for the purposed of obtaining the contract to which this Exhibit is
47 attached remains true and correct in all respects as if made as of the date of this Contract Affidavit and as if fully set forth herein.
I DO SOLEMNLY DECLARE AND AFFIRM UNDER THE PENALTIES OF PERJURY THAT THE CONTENTS OF THIS AFFIDAVIT ARE TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE, INFORMATION, AND BELIEF.
Date: By: (Authorized Representative and Affiant)
48 ATTACHMENT D - MINORITY BUSINESS ENTERPRISE PARTICIPATION State of Maryland MARLAND PUBLIC SERVICE COMMISSION
PURPOSE
COMAR 21.11.03 Provide maximum contracting opportunities be extended to certified minority business enterprises, and establishes.
The Prime Contractor shall structure its procedures for the performance of the work required in this contract to attempt to achieve the Minority Business Enterprise (MBE) goal stated in the Invitation for Bids (IFB) or Request for Proposals (RFP). MBE performance must be in accordance with this Exhibit, as authorized by Minority Business Enterprise Policies as set forth by 21.11.03 of the Code of Maryland Regulations (COMAR). Accordingly, the Contractor agrees to exercise all good faith efforts to carry out the requirements set forth in this Exhibit.
To meet the goal using MBE subcontractors, all Prime Contractors must:
Identify work areas for subcontracting Solicit minority business enterprises through written notice or personal contact Help minority businesses meet bonding requirements or grant them a waiver of bonding requirements Identify their MBE subcontractors at the time they submit their bids or proposals
MBE GOALS AND SUB GOALS
An MBE subcontract participation goal of 25% percent of the total contract dollar amount has been established for this procurement. By submitting a response to this solicitation, the bidder or Offeror agrees that this dollar amount of the contract will be performed by certified minority business enterprises
SOLICITATION AND CONTRACT FORMATION
A bidder or Offeror must include with its bid or offer:
(1) A completed Certified MBE Utilization and Fair Solicitation Affidavit (Attachment D-1) whereby the bidder or Offeror acknowledges the certified MBE participation goal or requests a waiver, commits to make a good faith effort to achieve the goal, and affirms that MBE subcontractors were treated fairly in the solicitation process.
(2) A completed MBE Participation Schedule (Attachment D-2) whereby the bidder or Offeror responds to the expected degree of Minority Business Enterprise participation as stated in the solicitation, by identifying the specific commitment of certified Minority Business Enterprises at the time of submission. The bidder or Offeror shall specify the percentage of contract value associated with each MBE subcontractor identified on the MBE Participation Schedule.
a. COMAR 21.11.03.09C(5). The failure of a bidder to complete and submit the MBE utilization affidavit and the MBE participation schedule shall result in a determination that the bid is not responsive.
b. COMAR 21.11.03.09C(6). The failure of an Offeror to complete and submit the MBE utilization affidavit and the MBE participation
49 schedule shall result in a determination that the proposal is not susceptible of being selected for award.
Within 10 working days from notification that it is the apparent awardee or from the date of the actual award, whichever is earlier, the apparent awardee must provide the following documentation to the Procurement Officer.
(1) Outreach Efforts Compliance Statement ( Attachment D-3)
(2) Subcontractor Project Participation Statement ( Attachment D-4)
(3) If the apparent awardee has requested a waiver (in whole or in part) of the overall MBE goal or of any sub-goal as part of the previously submitted Attachment D-1, it must submit documentation supporting the waiver request that complies with COMAR 21.11.03.11.
(4) Any other documentation required by the Procurement Officer to ascertain bidder or Offeror responsibility in connection with the certified MBE participation goal.
NOTE: If the apparent awardee fails to return each completed document within the required time, the Procurement Officer may determine that the apparent awardee is not responsible and therefore not eligible for contract award. If the contract has already been awarded, the award is voidable.
MBE REPORTING INSTRUCTIONS
Prime Contractor shall:
1. Submit by the 15th of each month to the Department a separate report for each (Attachment D- 5) Subcontractor. The report shall lists:
a) all payments made to the MBE subcontractor during the previous 30 days
b) any unpaid invoices over 30 days old received from any certified MBE subcontractor, the amount of each invoice and the reason payment has not been made.
2. Include in its written agreements with the MBE subcontractors as listed on the MBE Participation Schedule a requirement that those subcontractors submit monthly to the Department a report (Attachment D-6) that identifies the prime contract. The D-6 report shall lists:
a) all payments received from the Prime Contractor during the previous 30 days
b) any outstanding invoices to include number and date, and the invoice amount
3. Maintain such records as are necessary to confirm compliance with its MBE participation obligations. These records must indicate the identity of certified minority and non-minority subcontractors employed on the contract, the type of work performed by each, and the actual dollar value of work performed. Subcontract agreements documenting the work
50 performed by all MBE participants must be retained by the Contractor and furnished to the Procurement Officer on request.
4. Consent to provide such documentation as reasonably requested and to provide right-of-entry at reasonable times for purposes of the State’s representatives verifying compliance with the MBE participation obligations. Contractor must retain all records concerning MBE participation and make them available for State inspection for three years after final completion of the contract.
5. At the option of the Procurement Agency, upon completion of the contract and before final payment and/or release of retainage, submit a final report in affidavit form and under penalty of perjury, of all payments made to, or withheld from MBE subcontractors.
Attachments
D-1 Certified MBE Utilization and Fair Solicitation Affidavit (must be submitted with bid or offer)
D-2 MBE Participation Schedule (must be submitted with bid or offer)
D-3 Outreach Efforts Compliance Statement (must be submitted within 10 working days of notification of apparent award or actual award, whichever is earlier)
D-4 Subcontractor Project Participation Statement (must be submitted within 10 working days of notification of apparent award or actual award, whichever is earlier)
D-5 Prime Contractor Paid/Unpaid MBE Invoice Report (must be submitted monthly by the Prime Contractor)
D-6 Subcontractor Paid/Unpaid MBE Invoice Report (must be submitted monthly by the MBE subcontractor)
51 Attachment D-1 Certified MBE Utilization and Fair Solicitation Affidavit
This document shall be included with the submittal of the bid or offer. If the bidder or Offeror fails to submit this form with the bid or offer, the Procurement Officer shall deem the bid non- responsive or shall determine that the offer is not reasonably susceptible of being selected for award. (COMARS 21.11.03.09C(5) and 21.11.03.09C(6) )
In conjunction with the bid or offer submitted in response to Solicitation No. PSC # 02-01-09, I affirm the following:
1. I acknowledge the overall certified Minority Business Enterprise (MBE) participation goal of 25% percent and, if specified in the solicitation, sub-goals of 0 percent for MBEs classified as African American-owned and 0 percent for MBEs classified as women-owned. I have made a good faith effort to achieve this goal.
OR
After having made a good faith effort to achieve the MBE participation goal, I conclude I am unable to achieve it. Instead, I intend to achieve an MBE goal of ______% and request a waiver of the remainder of the goal. If I submit the apparent low bid or am selected as the apparent awardee (competitive sealed proposals), I will submit written waiver documentation that complies with COMAR 21.11.03.11 within 10 business days of receiving notification that our firm is the apparent low bidder or the apparent awardee.
2. I have identified the specific commitment of certified Minority Business Enterprises by completing and submitting an MBE Participation Schedule (Attachment D-2) with the bid or proposal.
3. I acknowledge that the MBE subcontractors/suppliers listed in the MBE Participation Schedule will be used to accomplish the percentage of MBE participation that I intend to achieve.
4. I understand that if I am notified that I am the apparent awardee, I must submit the following documentation within 10 working days of receiving notice of the potential award or from the date of conditional award (per COMAR 21.11.03.10), whichever is earlier.
(a) Outreach Efforts Compliance Statement ( Attachment D-3 )
(b) Subcontractor Project Participation Statement ( Attachment D-4)
(c) MBE Waiver Documentation per COMAR 21.11.03.11 (if applicable)
(d) Any other documentation required by the Procurement Officer to ascertain bidder or Offeror responsibility in connection with the certified MBE participation goal.
If I am the apparent awardee, I acknowledge that if I fail to return each completed document within the required time, the Procurement Officer may determine that I am not responsible and therefore not eligible for contract award. If the contract has already been awarded, the award is voidable.
5. In the solicitation of subcontract quotations or offers, MBE subcontractors were provided not less than the same information and amount of time to respond as were non-MBE subcontractors.
52 I solemnly affirm under the penalties of perjury that the contents of this paper are true to the best of my knowledge, information, and belief.
______Bidder/Offeror Name Signature of Affiant
______Address Printed Name, Title ______
______Date
Submit This Affidavit with Bid/Proposal
53 Attachment D-2 MBE Participation Schedule (For submission with bid or proposal)
This document shall be included with the submittal of the bid or offer. If the bidder or Offeror fails to submit this form with the bid or offer, the procurement officer shall deem the bid non-responsive or shall determine that the offer is not reasonably susceptible of being selected for award.
Prime Contractor (Firm Name, Address, Phone) Project Description
Project Number
List Information For Each Certified MBE Subcontractor On This Project Minority Firm Name MBE Certification Number
Work To Be Performed/NAICS
Percentage of Total Contract Minority Firm Name MBE Certification Number
Work To Be Performed/NAICS
Percentage of Total Contract Minority Firm Name MBE Certification Number
Work To Be Performed/NAICS
Percentage of Total Contract USE ATTACHMENT D-2 CONTINUATION PAGE AS NEEDED
SUMMARY
TOTAL MBE PARTICIPATION: % TOTAL WOMAN-OWNED MBE PARTICIPATION: % TOTAL AFRICAN AMERICAN-OWNED MBE PARTICIPATION: %
Document Prepared By: (please print or type)
Name:______Title:______
54 ATTACHMENT D-2 MBE Participation Schedule (continued)
List Information For Each Certified MBE Subcontractor On This Project Minority Firm Name MBE Certification Number
Work To Be Performed/NAICS
Percentage of Total Contract Minority Firm Name MBE Certification Number
Work To Be Performed/NAICS
Percentage of Total Contract Minority Firm Name MBE Certification Number
Work To Be Performed/NAICS
Percentage of Total Contract Minority Firm Name MBE Certification Number
Work To Be Performed/NAICS
Percentage of Total Contract Minority Firm Name MBE Certification Number
Work To Be Performed/NAICS
Percentage of Total Contract Minority Firm Name MBE Certification Number
Work To Be Performed/NAICS
Percentage of Total Contract Minority Firm Name MBE Certification Number
Work To Be Performed/NAICS
Percentage of Total Contract
55 Attachment D-3 Outreach Efforts Compliance Statement
In conjunction with the bid or offer submitted in response to Solicitation No. PSC # 02-01-09, I state the following:
1. Bidder/ Offeror took the following efforts to identify subcontracting opportunities in these specific work categories:
2. Attached to this form are copies of written solicitations (with bidding instructions) used to solicit certified MBEs for these subcontract opportunities.
3. Bidder/Offeror made the following attempts to contact personally the solicited MBEs:
4. ¨ Bidder/Offeror assisted MBEs to fulfill or to seek waiver of bonding requirements. (DESCRIBE EFFORTS)
¨ This project does not involve bonding requirements.
5. ¨ Bidder/Offeror did/did not attend the pre-bid/proposal conference ¨ No pre-bid/proposal conference was held.
______By: ______Bidder/Offeror Name Name
______Address Title
______Date
56 ATTACHMENT D-4 Subcontractor Project Participation Statement
Submit one form for each MBE listed on the MBE Participation Schedule
Provided that ______is awarded the State contract in conjunction with (Prime Contractor Name)
Solicitation No. PSC # 04-01-09, it and ______, (Subcontractor Name)
MDOT Certification No.______, intend to enter into a contract by which subcontractor shall:
(describe work)______
______
______
______
______
¨ No bonds are required of Subcontractor
¨ The following amount and type of bonds are required of Subcontractor:
By: By:
______Prime Contractor Signature Subcontractor Signature
______Name Name
______Title Title
______Date Date
57 ATTACHMENT D-5 This form is to be completed monthly by the prime contractor. Maryland Department of Budget and Management Minority Business Enterprise Participation Prime Contractor Paid/Unpaid MBE Invoice Report Report #: ______Contract #: Contracting Unit: Reporting Period (Month/Year): ______Contract Amount: MBE Subcontract Amt: Report is due by the 15th of the month following the month the Project Begin Date: services were provided. Project End Date: Services Provided:
Prime Contractor: Contact Person:
Address:
City: State: Zip:
Phone: Fax:
Subcontractor Name: Contact Person:
Phone: Fax:
Subcontractor Services Provided: List all payments made to MBE subcontractor List dates and amounts of any outstanding invoices: named above during this reporting period: Invoice # Amount Invoice# Amount 1. 1. 2. 2. 3. 3.
Total Dollars Paid: $______Total Dollars Unpaid: $______
**If more than one MBE subcontractor is used for this contract, you must use separate D-5 forms. **Return one copy (hard or electronic) of this form to the following address (electronic copy with signature and date is preferred):
Donald P. Eveleth, Deputy Executive Secretary Maryland Public Service Commission 6 St. Paul Street, 16th Floor Baltimore, MD 21202 [email protected]
Signature:______Date:______
58 ATTACHMENT D-6 Minority Business Enterprise Participation Subcontractor Paid/Unpaid MBE Invoice Report
Report#: ____ Contract # Contracting Unit: Reporting Period (Month/Year): ______MBE Subcontract Amount: Project Begin Date: Report is due by the 15th of the month following the month the Project End Date: services were performed. Services Provided:
MBE Subcontractor Name:
MDOT Certification #:
Contact Person:
Address:
City: State: Maryland Zip:
Phone: Fax:
Subcontractor Services Provided: List all payments received from Prime Contractor during List dates and amounts of any unpaid invoices over 30 days reporting period indicated above. old. Invoice Amt Date Invoice Amt Date 1. 1.
2. 2.
3. 3.
Total Dollars Paid: $______Total Dollars Unpaid: $______
Prime Contractor: Contact Person
**Return one copy (hard or electronic) of this form to the following address (electronic copy with signature and date is preferred):
Donald P. Eveleth, Deputy Executive Secretary Maryland Public Service Commission 6 St. Paul Street, 16th Floor Baltimore, MD 21202 [email protected] ______
Signature:______Date:______
59 ATTACHMENT E - Financial Proposal Form PSC #04-01-09
PROPOSAL OF: (name)
(address)
(city, state, zip) By submitting a Technical Proposal and this Price Proposal, the undersigned hereby declares to have carefully examined all documents, attachments and reference materials described within this RFP and Contract document. The undersigned further proposes and agrees to furnish all services necessary for the performance of the above referenced Contract for the Public Service Commission in accordance with the RFP and all other documents referenced by the RFP including all attachments and Addenda issued by PSC.
The Labor Rates (hourly rates) submitted by the Offeror via this Price Proposal shall be firm for the two (2) year term of the Contract. Reimbursement of expenses will be limited to direct out- of-pocket travel, express mail charges, necessary courier expenses and other extraordinary expenses incurred at the direction of the PSC. Travel expenses will be reimbursed in accordance with the State’s standard travel regulations.
Using the personnel identified in the Technical Proposal, Section 3.7.; provide the hourly rates for each individual:
A. Hourly rates for assigned personnel A B C Labor Rate Name(s) Title (Rate per hour) $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $
60 TOTAL OFFER PRICE: $
______DOLLARS AND ___/100 (write out price in words)
Authorized Signature
Printed Name & Title:
Company Name:
Address:
Office Telephone: Office Fax No.:
FEIN: Email:
61 ATTACHMENT F - Conflict of Interest Affidavit/Disclosure
PSC #04-01-09
A. “Conflict of interest” means that because of other activities or relationships with other persons, a person is unable or potentially unable to render impartial assistance or advice to the State, or the person’s objectivity in performing the contract work is or might be otherwise impaired, or a person has an unfair competitive advantage.
B. “Person” has the meaning stated in COMAR 21.01.02.01B(64) and includes a bidder, Offeror, Contractor, consultant, or subcontractor or subconsultant at any tier, and also includes an employee or agent of any of them if the employee or agent has or will have the authority to control or supervise all or a portion of the work for which a bid or offer is made.
C. The bidder or Offeror warrants that, except as disclosed in §D, below, there are no relevant facts or circumstances now giving rise or which could, in the future, give rise to a conflict of interest.
D. The following facts or circumstances give rise or could in the future give rise to a conflict of interest (explain in detail—attach additional sheets if necessary):
E. The bidder or Offeror agrees that if an actual or potential conflict of interest arises after the date of this affidavit, the bidder or Offeror shall immediately make a full disclosure in writing to the procurement officer of all relevant facts and circumstances. This disclosure shall include a description of actions which the bidder or Offeror has taken and proposes to take to avoid, mitigate, or neutralize the actual or potential conflict of interest. If the contract has been awarded and performance of the contract has begun, the Contractor shall continue performance until notified by the procurement officer of any contrary action to be taken.
I DO SOLEMNLY DECLARE AND AFFIRM UNDER THE PENALTIES OF PERJURY THAT THE CONTENTS OF THIS AFFIDAVIT ARE TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE, INFORMATION, AND BELIEF.
Date: By: (Authorized Representative and Affiant)
62 ATTACHMENT G - MARYLAND STANDARD TRAVEL REGULATIONS (COMAR 23.02.01)
Authority: State Finance and Procurement Article, § 10-203; Education Article, §§ 14-104 and 14-404; Annotated Code of Maryland
.01 Scope.
A. Unless otherwise provided by law, these regulations apply to all travel for official business undertaken by officials and employees of units of the Executive Branch of the State government, except elected officials and officials and employees of the University of Maryland System, Morgan State University, and St. Mary’s College of Maryland. B. If a contract specifically provides for their application, these regulations may apply to official business travel of persons performing a State contract. C. These regulations do not apply: (1) When a line item in the annual State budget specifically identifies an item and amount for exemption. (2) To State-owned, State-leased, or privately owned motor vehicles. Reimbursement to employees or officials who use State-owned, State-leased, or privately owned motor vehicles to conduct official business for the State is within the jurisdiction of the State Fleet Administrator, Department of Budget and Management, and subject to policies issued by the Secretary of Budget and Management.
.02 Definitions.
A. In this chapter, the following terms have the meanings indicated. B. Terms Defined. (1) “Board” means the Board of Public Works. (2) “Conferences, conventions, and seminars” means non-routine official business meetings for the purpose of discussing or deciding matters related to the accomplishment of position responsibilities. (3) “Credit services contractor” means a private entity under contract with the State to extend the State credit for purposes of charging business travel expenses. (4) “Department” means the Department of Budget and Management. (5) Employee. (a) “Employee” means an employee or official of a unit of the Executive Branch of State government. (b) “Employee” does not mean elected officials and officials and employees of the University of Maryland System, Morgan State University, and St. Mary’s College of Maryland.
63 (6) “In-State travel” means travel to destinations inside the boundaries of Maryland, and includes the Washington, D.C. area, and travel to attend meetings with the employee’s federal regional counterpart in that federal regional district. (7) “Official business” means the authorized duties performed by an employee or official of the State in the employee’s or officer’s defined capacity under the duties and responsibilities prescribed by the employment or office. (8) “Out-of-country travel” means travel to destinations outside the United States, its territories, and Canada. (9) Out-of-State travel. (a) “Out-of-State travel” means travel to destinations outside Maryland and the Washington, D.C. area. (b) “Out-of-State travel” does not mean travel to meetings with federal regional counterparts in that federal regional district. (10) “Routine business travel” means authorized travel on a daily basis or periodic basis to a jobsite other than the employee’s assigned office for official business. (11) “Secretary” means the Secretary of Budget and Management. (12) “Training” means the same as provided under COMAR 17.04.10.01. (13) “Travel services contractor” means a private business entity under contract with the State to serve as a travel agency for purposes of State employee business travel. (14) “Travel status” means the condition of a State employee while traveling on State business. An employee is not in travel status while commuting from home to the employee’s assigned office, regardless of the length of time of that commute. (15) “Unit” means any department or independent agency within the Executive Branch of State government.
.03 Policy.
A. These regulations establish a State Travel Management Program, under the jurisdiction of the Secretary, Budget and Management, to help ensure fairness in the application and administration of travel expense reimbursement and to reduce and control the State’s costs related to travel. B. An employee traveling on official business is expected to exercise the same care incurring expenses as would a prudent person traveling for personal reasons. Travel for business should be conducted at a minimum cost for achieving the success of the mission. Travelers shall request reservations as far in advance as possible and shall utilize the lowest logical air/rail fares available. Subject to approval by the unit head, use of business class is allowable when traveling to destinations outside North America, the Caribbean Islands, and the Hawaiian Islands. Travel in first class is not allowable unless documented evidence clearly indicates the travel is in the best interest of the State. An employee may not participate in any promotional plan, such as a frequent flyer program, when this participation entails foregoing a more favorable fare rate. Travel awards accrued under a promotional plan as a result of State business travel should be
64 applied to State business travel expenses, whenever feasible. Baltimore/Washington International Airport, as the State’s preferred airport, should be used whenever convenient and cost effective. C. State facilities shall be used for in-State meetings whenever available, unless the use of outside facilities is more cost effective, or the agency head certifies that the outside facility is more appropriate to completing the business mission. D. The Secretary shall establish reimbursement rates, subject to the approval of the Board of Public Works. Expenditures for official travel may be considered as reimbursable only if incurred in accordance with these regulations. The Department shall make reimbursement rates available online wherever practicable.
.04 Travel Management Office.
A. The State Travel Management Office is established in the Department of Budget and Management to administer the State Travel Management Program. B. The State travel manager shall: (1) Oversee the operations of the Travel Management Office; (2) Monitor contractor performance and unit compliance; and (3) Work with State units to ensure the effective and efficient operation of the Travel Management Program.
.05 Unit Heads.
A. Unit heads shall: (1) Be responsible for ensuring compliance with this chapter by providing adequate internal control over employee travel; (2) Designate an existing employee or employees to serve in a subsidiary capacity as an agency travel coordinator or coordinators within their organization for the purpose of monitoring employee compliance with these regulations and performing other duties listed in Regulation .06. B. Exceptions to using the travel and credit service contractor or contractors shall be approved by the unit head or designee in accordance with Regulation .08B, documented by the unit, and forwarded to the Department’s Travel Management Office by January 15th and July 15th of each year. Reporting is to cover the periods of July 1 through December 31, and January 1 through June 30, respectively. This section shall be effective upon written notification of the Secretary to the unit head.
.06 State Agency Travel Coordinators.
The agency travel coordinators shall be responsible for: A. Monitoring employee compliance in accordance with this chapter; B. Providing assistance to employees concerning questions and problems with travel;
65 C. Serving as liaison with the Department’s Travel Management Office and the travel and credit service contractors.
.07 Secretary.
The Secretary shall be responsible for the: A. Development and promulgation of the regulations in this chapter, including travel reimbursement rates, with the approval of the Board; B. Procurement of travel and credit service contracts and rate agreements; C. Development and administration of travel and credit service contracts and rate agreements; D. Program monitoring, evaluation, and guidance; E. Liaison with State units to ensure the effective and efficient operation of the travel management program and compliance with this chapter. This shall include resolving problems and complaints of the units and travel and credit service contractors and providing educational material to agency travel coordinators and employees.
.08 Travel Services Contractor.
A. The Secretary may contract with travel service providers, or with a single provider, to acquire travel services for State employees traveling on official business. B. Upon written notification of the Secretary to the unit head, employees shall book all airline, railway, and ship travel, all car rentals, and all lodging reservations through the State travel service contractor, except under the following circumstances: (1) An unusual situation makes it impractical or impossible to use the services of the State travel services contractor; (2) The State travel services contractor does not serve the area where the employee is located; (3) Travel arrangements are to be made for the employee by the organizer of a planned conference, convention, or seminar in order to obtain special discounts not available through the travel services contractor. C. When changes in travel planning require cancellation or revision of common carrier tickets, or car rental or lodging arrangements, the employee shall notify the travel services contractor as soon as possible so that the necessary changes can be made.
.09 Air Travel Accident Insurance.
Air travel insurance is provided through the State Treasurer’s Office. Beneficiaries are those designated with the Maryland State Retirement and Pension System. Questions concerning policy coverage or the designation of beneficiaries shall be directed to the State Treasurer’s Office.
66 .10 Travel Authorization.
A. In-State Business Travel. Subject to appropriated funds, routine business travel may be authorized in accordance with appropriate internal approval procedures of the unit responsible for the official State business. B. Out-of-State or Out-of-Country Business Travel. Subject to appropriated funds, a unit head or designee may authorize out-of-State and out-of-country travel for official business. Requests for authorization shall be submitted on the Comptroller of the Treasury’s GAD Form X-3A, “Individual Request for Out-of-State Travel.” C. Conventions, Conferences, Seminars, or Training Travel. (1) Subject to appropriated funds, a unit head or designee may authorize in-State travel to conventions, conferences, seminars, or training in accordance with appropriate internal approval procedures. A unit head or designee may authorize out-of-State travel for these purposes using the Comptroller of the Treasury’s GAD Form X-3A, “Individual Request for Out-of-State Travel.” (2) Travel out-of-country to conventions, conferences, seminars, or training shall be reported to the Board of Public Works. Requests for authorization for this travel shall be submitted to the Secretary. The Secretary shall submit reports of this travel to the Board of Public Works every 3 months.
.11 Travel Payment and Reimbursement.
A. Each employee’s reimbursement request shall include: (1) The Comptroller of the Treasury’s GAD Form X-3A, “Individual Request for Out-of-State Travel,” in accordance with Regulation .10 of this chapter; (2) The Comptroller of the Treasury’s GAD Form X-5, “State of Maryland Expense Account”; (3) Itemized receipted bills and such other supporting documentation of expenses as may be required by the Comptroller. B. Payment for Airline and Rail Tickets (Common Carrier). The following conditions shall be effective upon written notification of the Secretary to the unit head: (1) Units shall pay for employee common carrier tickets issued by the contractor travel service using the credit account number provided by the contractor selected for that purpose. Each unit or appropriate unit division shall be issued one account number and shall be centrally billed by the contractor for all charges. The identity of and access to all unit account numbers shall be restricted by the unit to the essential personnel. (2) Each unit shall have a written policy and assigned responsibility for obtaining and controlling common carrier tickets. (3) Wholly unused, fully refundable tickets shall be returned by the employee to the designated unit official to obtain credit. The unit official immediately shall return any unused portions of tickets to the contractual travel agency for credit to be applied.
67 .12 Reimbursable Expenses.
A. General. The State shall reimburse employees for authorized necessary travel and related expenses incurred by the employee. The State may not reimburse an employee for transportation, lodging, meal expense, or any other costs incurred by a spouse, child, or other person not essential to the business mission, who accompanies the employee on an official business trip. B. Taxi, Bus, and Airport Limousine. Taxi, bus, and airport limousine fares incurred while on travel status are reimbursable when traveling to and from the airport, train station, or bus station, or when otherwise incurred while conducting official business. Employees shall use the mode of public transportation that results in the lowest logical cost to the State. C. Rental Cars. (1) Subject to approval by the unit head or designee, employees may rent cars while on travel status when other means of transportation are unavailable, more costly, or impractical. The lowest cost vehicle necessary to achieve the traveler’s mission shall be reserved. Upon written notification to the unit head, all car rental reservations shall be made through the State travel services contractor, except as provided in Regulation .08B. (2) In addition to the cost of the rental, the employee shall be reimbursed for necessary and reasonable expenses incurred for the following items: (a) Gasoline, oil, and emergency repairs; (b) Parking; (c) Toll charges. D. Lodging. (1) This section shall be effective upon written notification by the Secretary to the unit head. Employees shall make all lodging reservations through the State travel services contractor, except as provided in Regulation .08B, when official business requires the employee to remain away from home overnight. Field staff employees shall make in-State lodging reservations through the State travel services contractor whenever practical. (2) Reimbursement shall be in an amount equal to the actual cost of the least expensive available rate for reasonable accommodations based on single occupancy. (3) In cases of double occupancy by two State employees, each employee shall be reimbursed 50 percent of the total room charge. (4) In cases of double occupancy when one of the occupants is not on State business, lodging reimbursement shall be on the basis of the least expensive available rate for reasonable accommodations based on single occupancy. E. Meals. (1) Meal allowances for employees while in travel status are reimbursable at the rates established by the Secretary. (2) When an employee is in travel status involving absence from home overnight, all meals are reimbursable. (3) Reimbursement may not be made for the cost of alcoholic beverages.
68 (4) The cost of breakfast is reimbursable when an employee in travel status has to leave home on official business 2 hours or more before the beginning time of the employee’s place of business. The cost of dinner is reimbursable when an employee in travel status cannot get home within 2 hours after the employee’s normal quitting time. In both cases, the 2 hours are in addition to the normal commuting time. (5) In cases when an employee meets both of the conditions of § E(4) and is in travel status for the entire day, but not overnight, the employee’s lunch also is reimbursable. (6) Reimbursement for either breakfast or dinner may not be made because of the hour at which an employee is required to leave home, or at which the employee returns home, because of commuting to and from the employee’s normal place or places of employment. (7) When a State institution, as a matter of practice, charges an employee for meals regardless of whether the employee eats a particular meal, and the employee is required to be absent from the institution on official business at mealtime, the employee shall be reimbursed to the extent of the cost of the meal charged to the employee by the institution. (8) Except as provided in §E(2), (4), (5), and (7), above, an employee may not be reimbursed for the cost of lunch. (9) If the registration fee for a conference, convention, seminar, or training meeting includes the cost of meals, the State shall reimburse the employee for the full registration fee. For this meeting, the employee may not request reimbursement for the included meals. (10) Members of boards and commissions established by statute who do not receive compensation from the State may be reimbursed for actual and necessary meal expenses incurred while on official State business. Reimbursable meal expenses including tips may not exceed amounts established by the Secretary. (11) Meal reimbursement above the standard limits is allowable for employees conducting business in high cost areas designated by the Secretary. Employees shall be reimbursed for actual amounts based on receipts, not to exceed limits set by the Secretary. (12) Meal reimbursement above the standard limits is allowable for employees on travel status outside the United States and its territories upon submission of itemized receipts approved by the unit head or the unit head’s designee. F. Conference Registration Fees. When a registration fee is charged, participating State officials or employees shall be reimbursed upon submission of a receipt. G. Porter Fees and Hotel Tips. (1) Porter fees and hotel tips per each bag carried at common carrier depots and hotels respectively are reimbursable at the rates established by the Secretary. (2) The same per bag tip is reimbursable when checking into and checking out of a hotel. H. Telephone and Postage Expenses. Telephone and postage expenses incurred in the performance of official duties are allowable.
69 I. Cleaning Expenses. When an official or employee is required to be on travel status for a period exceeding 5 working days, the cost of necessary laundry, cleaning, and pressing is reimbursable. J. Expenses for Passports, Visas, and Traveler’s Checks. If incurred as a result of the performance of official duties, fees for passports, visas, and traveler’s checks are reimbursable upon submission of a receipt.
70 ATTACHMENT H – ELECTRONIC FUNDS TRANSFER (EFT) REGISTRATION REQUEST FORM
State of Maryland Comptroller of Maryland
Date of request ______Business identification information (Address to be used in case of default to check): Business name______Address line 1______Address line 2______City ______State ______Zip code Taxpayer identification number:
Federal Employer Identification Number:
(or) Social Security Number:
Business contact name, title, e-mail and phone number including area code. (And address if different from above): ______Financial institution information: Name and address ______Contact name, phone number (include area code), ______ABA number
Account number
Account type Checking Money Market Savings Format Desired: ______CCD ______CCD+ _____CTX* (Check one.) *Note – There may be a charge to you by your bank with this format.
A VOIDED CHECK from the bank account shall be attached.
(OVER)
71 Transaction requested: 1. ___ Initiate all disbursements via EFT to the above account. 2. ___ Discontinue disbursements via EFT, effective ______3. ___ Change the bank account to above information – a copy of the approved Registration Form for the previous bank account shall be attached.
I am authorized by *______(hereinafter Company) to make the representations contained in this paragraph. Company authorizes the Comptroller and the Treasurer of Maryland to register it for electronic funds transfer (EFT) using the information contained in this registration form. Company agrees to receive all funds from the State of Maryland by electronic funds transfer according to the terms of the EFT program. Company agrees to return to the State of Maryland any EFT payment incorrectly disbursed by the State of Maryland to the Company’s account. Company agrees to hold harmless the State of Maryland and its agencies and departments for any delays or errors caused by inaccurate or outdated registration information or by the financial institution listed above. *Name of registering business entity ______Signature of company treasurer, controller, or chief financial officer and date Completed by GAD/STO Date Received ______GAD registration information verified ______Date to STO______STO registration information verified ______Date to GAD______
R*STARS Vendor No. and Mail Code Assigned:
______
______State Treasurer’s Office approval date General Accounting Division approval date
To Requestor:
Please retain a copy of this form for your records. Please allow approximately 30 days from the date of your request for the Comptroller’s and Treasurer’s Offices to process your request. Failure to maintain current information with this office could result in errors in payment processing. If you have any questions, please call the EFT registration desk at 410-260-7375.
Please submit form to: EFT Registration, General Accounting Division Room 205, P.O. Box 746 Annapolis, Maryland 21404-0746 Instructions: Electronic Funds Transfer instructions are located: http://compnet.comp.state.md.us/gad. Questions may be requested by email, [email protected]. Or call 1-888-784-0144. COT/GAD X-10
72 ATTACHMENT I - Affidavit of Agreement
PSC #04-01-09
Maryland Living Wage Requirements-Service Contracts Contract No.______
Name of Contractor______
Address______
City ______State ______Zip Code______
If the Contract is Exempt from the Living Wage Law
The Undersigned, being an authorized representative of the above named Contractor, hereby affirms that the Contract is exempt from Maryland’s Living Wage Law for the following reasons (check all that apply):
____ Bidder/Offeror is a nonprofit organization ____ Bidder/Offeror is a public service company ____ Bidder/Offeror employs 10 or fewer employees and the proposed contract value is less than $500,000 ____ Bidder/Offeror employs more than 10 employees and the proposed contract value is less than $100,000
If the Contract is a Living Wage Contract
A. The Undersigned, being an authorized representative of the above named Contractor, hereby affirms our commitment to comply with Title18, State Finance and Procurement Article, Annotated Code of Maryland and, if required, to submit all payroll reports to the Commissioner of Labor and Industry with regard to the above stated contract. The Bidder/Offeror agrees to pay covered employees who are subject to living wage at least the living rate in effect at the time service is provided for hours spent on State contract activities, and to ensure that its Subcontractors who are not exempt also pay the required living wage rate to their covered employees who are subject to the living wage for hours spent on a State contract for services. The Contractor agrees to comply with, and ensure its Subcontractors comply with, the rate requirements during the initial term of the contract and all subsequent renewal periods, including any increases in the wage rate established by the Commissioner of Labor and Industry, automatically upon the effective date of the revised wage rate.
B. ______(initial here if applicable) The Bidder/Offeror affirms it has no covered employees for the following reasons: (check all that apply):
____ All employee(s) proposed to work on the contract will spend less than one-half of the employee’s time during every work week on the State contract;
24 ____ All employee(s) proposed to work on the contract will be 17 years of age or younger during the duration of the contract; or ____ All employee(s) proposed to work on the contract will work less than 13 consecutive weeks on the State contract.
The Commissioner of Labor and Industry reserves the right to request payroll records and other data that the Commissioner deems sufficient to confirm these affirmations at any time.
Name of Authorized Representative:______
______Signature of Authorized Representative Date
Title
Witness Name (Typed or Printed)
______Witness Signature Date
25