Commission Entrenched In Modernizing Procurement

The Commission to Modernize State Procurement met on Thursday, August 25 at 3 pm, where commissioners reported out on the Initiatives, Efficiencies and Workforce workgroups’ recommendations responding to the duties listed in Governor Larry Hogan’s Executive Order forming the Commission.

Regarding Duty (C)(1)(h), “expansion of the Small Business Reserve [(SBR)] Program to all agencies,” Special Secretary of Minority Affairs Jimmy Rhee reported recommendations by the Commission’s Initiatives Workgroup to increase the SBR goal from 10 to 15 percent, require a mandatory SBR set-aside, and brand the SBR Program as a premier diversity contracting program.

Regarding Duty (C)(1)(m) to simplify the Minority Business Enterprise (MBE) certification process, Rhee reported workgroup suggestions to improve applicants’ access to information by improving electronic communications, eliminate a requirement for applicants to release business ownership details in a public forum, and provide applicants with advanced notice of questions to be asked by the MBE Advisory Committee (MBEAC) during the evaluation process.

Regarding Duty (C)(1)(o) to establish “standards allowing the State to obtain the overall best value instead of only the lowest price,” commissioners discussed implementing additional measures in the bid evaluation process other than lowest cost, and providing procurement officers with greater discretion to determine the best procurement method on a solicitation-by-solicitation basis.

David Brinkley, Secretary, Maryland Department of Budget & Management reported that the Workforce Workgroup had met twice since the Commission’s previous meeting, and is refining its recommendations, particularly on Duty (C)(1)(d), “development of a statewide procurement training curriculum centered around a statewide procurement manual that prepares agency procurement staff to perform the procurement function at all levels of purchasing.” However, the workgroup required more information about whether the Commission would recommend centralizing procurement functions across the State to supply sufficient recommendations on this latter topic. He suggested that his workgroup favored centralization over the status quo.

In line with Duty (C)(1)(j), “simplification of the current Request for Proposal (RFP) template to make it easier for businesses to understand and respond,” the Efficiencies Workgroup is refining the State’s standardized RFP language,  and reducing the terms and conditions in line with Duty (C)(1)(l), “review the mandatory terms and conditions of procurement contracts.” The workgroup evaluated Duty (C)(1)(k), “reduction in the number of documents businesses are required to submit with proposals prior to a contract award,” but thus far has only identified two documents it could recommend eliminating. However, some reports and documents could be automated to improve efficiencies, it was reported to the Commission.

The workgroup is also evaluating existing law to see whether it accommodates existing and proposed information technology procurement, and taking a deep look into A&E processes, which were described as “broken, but not as broken as the universities’.” The workgroup’s technology subgroup is benchmarking existing state procurement programming, which was described as highly functional, but cumbersome and unintuitive. The workgroup will likely recommend that the Administration commission a more comprehensive cost-benefit analysis of existing and potential State procurement programs.

Finally, it was reported that the Efficiencies Workgroup looked into Duty (C)(1)(p), “development of a mechanism that would deter bidders from submitting frivolous protests,” and had concluded that evidence from other states did not indicate that requiring protests bonds deterred unwanted behavior significantly.

Public comment was delivered by Dr. Andrew Ross of the Children’s Guild, who requested that the Commission give attention to improving value-based (rather than cost-based) procurement of human services, and Scott Livingston, Esquire of Rifkin Weiner Livingston LLC. Livingston provided a number of recommendations, such as favoring competitive negotiations over two-step bidding, evaluating suitability and legal basis for utilizing bridge contracts in between awards, improving the speed with which agencies deliver procurement records in cases of appeal, and evaluating the appropriateness of the 30-day limitation for construction contractors to make a claim when the State requests changes in work. He also recommended that the State fund attorneys’ fees when a protester wins an appeal due to State illegal action, which engaged Commission Chair Lt. Governor Boyd Rutherford in a back-and-forth and gave attendees, including Livingston, the opportunity to appreciate the Lt. Governor’s extensive background in government procurement.

Green purchasing and veteran-owned business initiatives are among topics to be discussed at the Commission’s next meeting on Tuesday, September 20.

Minutes from previous meetings are available on the Commission’s website.

Questions, comments, or concerns about the Commission may be sent to Commission staff at