Regulations Update on MBE & VSBE Programs

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COMPLIANCE BULLETIN

 

Governor's Office of
Small, Minority & Women
Business Affairs

 

 

July, 2019


Minority Business Enterprise (MBE) Program

On July 15, 2019, the following MBE Program regulations (COMAR 21.11.03) .09 (Procurement Solicitations), .10 (Contract Award), and .11 (Waiver) went into effect:


Waive or Cure Minor Irregularities

Under revised COMAR 21.11.03.09(5) and (6), the failure of a bidder or offeror to accurately complete and submit the MBE utilization affidavit and the MBE participation schedule shall result in a determination that the bid is not responsive or the proposal is not susceptible of being selected for award unless the inaccuracy is determined to be the result of a minor irregularity that is waived or cured in accordance with COMAR 21.06.02.04. As a result of the new language, some inaccuracies on the forms may be determined to be “the result of a minor irregularity” that may be waived or cured. 

While an error discovered in an apparent successful bidder’s or offeror’s MBE utilization affidavit or participation schedule may not automatically render the bid non-responsive or a proposal not reasonably susceptible for award, the procurement officer will still need to make a determination as to whether the error meets the definition of a “minor irregularity” per COMAR 21.06.02.04. Generally, a minor irregularity is defined as “a matter of form and not of substance or pertain[ing] to some immaterial or inconsequential defect or variation in a bid or proposal from the exact requirement of the solicitation, the correction of which would not be prejudicial to other bidders or offerors.”

Implied Waivers

Additionally, any MBE utilization affidavit or MBE participation schedule submitted by an apparent successful bidder or offeror that does not include a commitment to achieve the contract goal and any subgoals for MBE participation is now construed under the revised regulation as an implied request for a full or partial waiver of the remainder of the contract goal or subgoals, as applicable. The apparent successful bidder or offeror would then be required to submit documentation supporting that waiver request as provided in Regulation .11.

Please remember to confer with your agency’s MBE liaison officer and legal counsel on minor irregularity determinations and waiver issues prior to seeking GOSBA’s weigh in.


Veteran-Owned Small Business Enterprise (VSBE) Program