Following the 2017 Legislative Session, Governor Larry Hogan signed a bill into law that will significantly change the procurement requirements for architects and engineers on State projects. The new law, which goes into effect on October 1, 2017, is found in Section 13-112 of the State Finance and Procurement Article of the Maryland Code and permits the Department of General Services (“DGS”) and Department of Transportation (“MDOT”), in certain circumstances, to use a “Qualification Based Selection” system to award contracts to architects and engineers.
Section 13-112(B) of the new law specifies the circumstances in which the Qualification Based Selection system can be used. Specifically, DGS and MDOT can rely on the system if the procurement involves architectural or engineering services, is made on a competitive basis, includes an evaluation of the technical proposals and qualifications of at least two persons, and it is not feasible or economical for DGS or MDOT to utilize in-house personnel.
Under Section 13-112(C) of the new statute, the Qualification Based Selection system is commenced by the procurement officer’s issuance of a Request for Architectural Services or Engineering Services, which includes a statement that describes the services sought and indicates how interested parties can obtain information, including a detailed description of the nature and scope of the services.
After the notice of procurement is published in the eMaryland Marketplace, the DGS or MDOT is required to evaluate the technical proposals and qualifications of the architects/engineers that have submitted the proposals, and then the procurement agency is required under Section 13-112(E) of the new statute to determine an order of priority based on its evaluations of the proposals. In essence, the agency will rank the responding architects/engineers from most qualified to least qualified, and use that ranking as a basis to determine to order in which it will attempt to negotiate a contract.
Once the DGS or MDOT has designated the order of candidates, the agency is required to begin negotiations with the architect/engineer that it deems to be the most qualified based on the proposals submitted. If the agency is able to negotiate a procurement contract with the most qualified architect/engineer at a cost that is “fair, competitive, and reasonable” based on the scope and complexity of the services required, then the process ends there. If, however, the agency is unable to negotiate a contract at a cost that is “fair, competitive, and reasonable” based on the scope and complexity of the services required, then Section 13-112(G) of the new statute requires the agency to end negotiations with the most qualified architect/engineer, and negotiate in the same manner with the next most qualified architect/engineer. The new statute requires the agency to continue this process and to continue down the list of qualified candidates until it is able to negotiate a contract that the agency deems to be “fair, competitive, and reasonable”.