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OFFICE OF THE ATTORNEY GENERAL
OF THE STATE OF MARYLAND
REQUEST FOR PROPOSALS
TO SERVE AS SPECIAL COUNSEL IN CONNECTION WITH
THE CONSUMER PROTECTION DIVISION’S INVESTIGATION OF
OPIOID SALES, MARKETING, AND DISTRIBUTION PRACTICES
May 11, 2018
The Consumer Protection Division of the Office of the Attorney General of Maryland
(“Division”) hereby invites proposals to serve as Special Litigation Counsel to the Division, as
described below.
1. Purpose: The purpose of this Request for Proposals (“RFP”) is to obtain
proposals to serve as Special Litigation Counsel to the Division in its investigations and, if
necessary, in enforcement proceedings, including administrative hearings, against certain
manufacturers, distributors, and other entities and individuals involved in the marketing, sale,
and distribution of opioid painkillers and related products. Special Litigation Counsel will also
assist the Division in subpoena enforcement litigation.
2. Deadline: Offerors are invited to submit written proposals by Monday, June 18,
2018.
3. Procurement Officer: The exclusive contact for purposes of this RFP (the
“Procurement Officer”) is:
BRIAN T. EDMUNDS
Assistant Attorney General
Office of the Attorney General
Consumer Protection Division
200 Saint Paul Place
Baltimore, Maryland 21202
(410) 576-6300
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The Attorney General or the Division may appoint a successor Procurement Officer
during the life of any contract or contracts awarded. The Procurement Officer shall be at all
times subject to supervision by the Attorney General or any designee. The Procurement Officer
may from time to time delegate any responsibility of the Procurement Officer, including the
responsibility for oversight of any of the duties of Special Litigation Counsel under any contract
awarded, to any employee of the Office of the Attorney General.
All inquiries must be written.
4. Authority of Attorney General: Any authority of the Division or the Procurement
Officer shall ultimately be reserved to the Attorney General of Maryland, such that the Attorney
General may, in his sole discretion, exercise any right provided by any contract awarded
pursuant to this RFP.
5. Written Questions: Prospective offerors may submit written questions to the
Procurement Officer by email no later than May 25, 2018. A list of the written questions that are
submitted, and the OAG’s answers to the questions, if any, will be posted at
www.marylandattorneygeneral.gov with this RFP, on June 8, 2018.
6. Background: Maryland faces an opioid crisis that has taken the lives of thousands
of residents, left countless others with debilitating addictions, and devastated communities
throughout the State. At the direction of the Attorney General, the Division has been
investigating multiple manufacturers and distributors of opioids, along with other related parties,
since 2016 through administrative subpoenas it has issued to various targets and third-parties.
The Division has also been working with the federal government, other Maryland agencies,
agencies in other states, and local authorities. To comprehensively and timely hold responsible
parties accountable and provide relief to affected residents, the Division requires additional
resources to assist it in completing these investigations and in administrative enforcement
litigation, if necessary. These investigations may require communications with other state,
federal, and local governments and others interested in the public health.
7. Investigated Parties/Multiple Contracts: Interested Offerors shall submit
proposals for contracts to assist in one or more investigations of, and, if appropriate, in the
Division’s sole discretion, at the conclusion of the investigation, enforcement actions, including
administrative proceedings against specifically identified manufacturer or distributor targets.
Targets include, subject to a determination of appropriateness by the Division, any entity that has
self-identified as being under investigation by the Division and any entity that that is a party to
an action consolidated in multidistrict litigation in the United States District Court for the
Northern District of Ohio (Case No. 1:17-MD-2804), except that manufacturers of branded
transmucosal immediate release fentanyl products shall not be included in any contract awarded
under this RFP. Multiple contracts, covering different targets, may be awarded to multiple
Offerors, as the Division deems appropriate, but only one contract will be awarded for any
particular target. Offerors shall identify in their proposals the targets/investigations for which
they are seeking contracts. Any proposal listing multiple targets may be deemed a separate
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proposal for each proposed target, such that the Division may select and award a contract for
any, some, or all targets listed in a proposal. Offers listing multiple targets shall specify whether
the offer is contingent on the award of more than one contract, and, if so, shall indicate precisely
the minimum award upon which the offer is contingent. Offerors may suggest for the Attorney
General’s consideration additional targets that market, manufacture, distribute, and/or sell
opioids in the United States. Offerors shall provide a brief statement of the nature of the target’s
business related to opioids, the dollar-volume thereof, and the target’s conduct that the Offeror
proposes to investigate. The Attorney General retains sole discretion to determine whether
investigation of any additional targets and/or award of any contracts is appropriate.
8. Agency Discretion Not Delegated: The award of any contract under this RFP
shall not be construed as delegating authority to issue administrative subpoenas, to invoke any
right to relief or remedy available to the Division, or to compromise any claim, which shall
remain the sole prerogative of the Division and the Attorney General. Any function that
constitutes adjudication under the Administrative Procedures Act shall remain in the Division’s
sole discretion, at the recommendation of special litigation counsel or on its own initiative.
Powers not delegated include, but are not limited to, the power to issue administrative
subpoenas, the power to investigate any person or entity, the power to enforce an administrative
subpoena, the power to settle any claim, the power to waive any claim or any portion of any
claim, and the power to invoke any remedy provided by the Consumer Protection Act or other
law. The Division reserves complete discretion in any adjudicative function, which shall not be
subject to challenge by Special Litigation Counsel.
9. Scope of Services: Special Counsel’s duties will be directed by the Procurement
Officer in the Division’s sole discretion and may include assisting the Division in the following
functions:
a. Prepare and request administrative subpoenas for documents and oral
examinations under oath to investigate allegations of unfair and deceptive
practices in the sale, marketing, and distribution of opioid analgesics;
b. Review documents received in response to administrative subpoenas or by
other means;
c. Conduct witness interviews and develop expert opinions and information;
d. Prepare and litigate to conclusion administrative subpoena enforcement
actions in state courts, when necessary, as determined by the Division;
e. Engage in other activities appropriate to an administrative investigation;
f. Promptly complete investigations and prepare statements of charges to be
issued in the Division’s discretion;
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g. Conduct administrative hearings on charges and obtain recommended
decisions from the Office of Administrative Hearings.
h. Obtain a final order from the Chief of the Consumer Protection Division
or his designee;
i. Litigate to conclusion any petition for judicial review or appeal from a
final order of the Division;
j. Communicate and coordinate with other states, local governments, and the
federal government;
k. Represent the Division in any multidistrict litigation or proceeding in
which the Division is interested;
l. Engage in negotiations to resolve any claims. If a settlement is proposed,
report to the Division on the terms of any offer of settlement; a summary
of findings and significant events in the dispute; and a recommendation as
to whether Division should accept the proposed settlement, with an
explanation of reasons supporting the recommendation; and
m. Represent the Division in any appeals taken by a target and any appeals
determined by the Division to be justified.
10. Requirements for Proposals: Strict compliance with all requirements in this
RFP is mandatory.
a. The proposal shall indicate that the Offeror has reviewed and is familiar
with the Division’s Rules and Regulations and with the Rules and
Regulations of the Office of Administrative Hearings. The proposal shall
indicate the Offeror’s experience practicing before the Division or the
Office and the Office of Administrative Hearings.
b. The proposal shall not exceed 40 double-spaced, single-sided pages and
shall be printed in 12-point font. Attached resumes or lists or descriptions
of relevant experience shall be printed in 12-point font, but shall not count
toward the page limitation;
c. The proposal shall identify the entity or entities that may have violated the
Consumer Protection Act for which the Offeror is proposing to be
awarded a contract or contracts. The Division will only award a contract
to investigate entities for whom it determines, in its sole discretion, that
there is reason to believe unlawful conduct may have occurred.
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d. The proposal shall identify all personnel who will be committed to
conduct investigations and or litigations, and shall provide sufficient
staffing to complete investigation and, if necessary, litigation, within the
timeframe specified by the Offeror pursuant to paragraph (e) of this
section (reasonable substitution as a result of turnover or other events shall
be permitted);
e. The proposal shall include a timeline pursuant to which the Offeror
expects to complete the investigation and prepare a statement of charge.
f. The proposal shall include a “technical proposal” containing the following
sections, broken out separately, and the information required above;
i. A brief introduction to the Offeror;
ii. A brief summary of the qualifications of the Offeror and a specific
description of each attorney who would be assigned to this matter,
along with any relevant information about their experience in
similar matters, including especially their experience in complex
consumer protection, food and drug or other healthcare litigation
and in complex litigation generally;
iii. A list and brief description of the nature of all complex cases tried
by each proposed attorney, if any, and a brief description of the
attorney’s role.
iv. The planned division of responsibilities among the identified
counsel;
v. A brief summary of any specific issues the Offeror believes should
be considered in connection with the matter and how the Offeror
would propose to address them;
vi. A brief summary of any resources or skills that are relevant to the
capacity of the Offeror to effectively and efficiently perform the
required services;
vii. Information regarding participation, if any, of socially and
economically disadvantaged individuals and/or MBEs;
viii. The names, addresses, telephone numbers, and contact names for
three clients for whom similar services have been performed
within the last seven years;
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ix. A description of the document review platform utilized by the
Offeror, and a brief description of any other relevant technological
capability the Offeror maintains.
x. A brief statement of the financial status of the Offeror, and a
statement of the amount of monetary resources the Offeror has
available and will commit to cover the costs of investigation and, if
necessary, litigation, including the retention of expert witnesses
and consultants.
xi. Two sample briefs or memoranda of law, of not less than 25 pages
each, signed and submitted by the attorney who would serve as the
leader of the proposed team, on motions to dismiss or for summary
judgment in complex health care or other consumer litigation.
These writing samples shall be attached as an appendix and shall
not count toward the page limitation set forth in the RFP.
g. Each proposal shall also include a “Compensation Proposal,” which shall
be provided in a separate, sealed envelope. Special Litigation Counsel
will be retained on a contingent fee basis, with payment conditioned on
the recovery by the Division from any final order, including administrative
order, or authorized settlement. Costs will not be separately reimbursed.
The continent fee shall constitute the sole payment allowed under any
contract. Should the Division determine, in its sole discretion, that
administrative enforcement proceedings are not appropriate at the
conclusion of any investigation, Special Litigation Counsel shall receive
no fee and shall not receive reimbursement of any costs. Proposals shall
specifically disclaim recovery of costs or fees from the Division, including
recovery under any quantum meruit or other theory, other than recovery
on the Contract awarded for the agreed contingent fee resulting from
recovery pursuant to a final administrative order at the conclusion of all
appeals or an authorized settlement. In the event of a recovery, the
recovery of costs shall be taken from the contingent fee specified in the
Contract. In the event that an administrative or court order awards costs or
fees to be paid by the defendant in any proceeding, costs and fees
recovered as provided in the order shall be subtracted from the amount of
the contingent fee recovered, such that the contingent fee shall be the only
amount paid to the Special Litigation Counsel for compensation and
reimbursement of costs. Offerors should propose a tiered contingent fee
arrangement based on the amount of the recovery and stage of litigation.
Should the Division determine at the conclusion of an investigation to
pursue enforcement proceedings, Special Litigation Counsel shall assist
the Division in initiating and litigating enforcement actions, including
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administrative proceedings, and shall pursue all relief that the Division
believes is appropriate, including, but not limited to, monetary penalties,
restitution, disgorgement, and injunctive and other equitable relief.
Adequate injunctive and equitable relief to prevent the recurrence of any
misconduct by any target is of critical importance to the Division. While
the Division shall retain the sole discretion to determine whether any
proposed resolution is acceptable, the Division will not approve any
course of action or settlement that does not provide equitable or injunctive
relief that the Division, in its sole discretion, believes is appropriate under
the circumstances. The Division also will not approve any course of
action or settlement that does not provide monetary relief that the
Division, in its sole discretion, believes is appropriate under the
circumstances.
11. Termination: Proposals shall provide for termination by the Division for any
reason, except that the Division may not terminate any contract solely to avoid payment of any
compensation provided under the Contract. Reasons for termination by the Division may
include, without limitation, that the Division decides not to issue any administrative subpoena or
statement of charges, or to refuse to authorize any subpoena enforcement proceeding or
enforcement action, in its sole discretion. The Division may terminate the Contract if the
Division, in its sole discretion, is dissatisfied with the performance of the Contract. Contracts
may be terminated by Special Litigation Counsel in accordance with the Maryland Attorneys
Rules of Professional Conduct (“MARPC”). In the event of termination by either party, the
Division shall retain all documents, information, and work product resulting from the contract,
and the Special Litigation Counsel shall be obligated to provide assistance to the Division or to
successor counsel required by the MARPC. In the event of termination, there shall be no
compensation in the absence of a monetary recovery by the State, and offers shall disclaim any
relief in quantum merit or otherwise apart from the contingency provided in the contract
12. Disclosures: Proposals submitted in response to this RFP may be subject to
disclosure under the Maryland Public Information Act, as set forth at §§ 4-101 through 4-601 of
the General Provisions Article. Offerors must specifically identify those portions of their
proposals, if any, which they deem to contain confidential or proprietary information or trade
secrets and must provide justification why such materials should not, upon request, be disclosed
in response to any request under the Public Information Act. In the event of a request for
responses to this RFP, the Procurement Officer will determine whether the response or portions
of it must be disclosed. If Offerors fail to identify portions of their proposals as confidential,
proprietary or trade secret information, the Procurement Officer will assume that the information
may be freely disclosed to the public as otherwise required by the Public Information Act.
13. Incurred Expenses: The State of Maryland, the Attorney General of Maryland,
the Office of the Attorney General, and the Division are not responsible for any expenses that
Offerors incur in preparing and submitting proposals.
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14. Offeror’s Affidavits: Each Offeror shall complete and submit with the proposal
the Proposal Affidavit, Conflict of Interest Affidavit, and Contract Affidavit attached hereto as
Exhibits A-1, A-2, and B.
15. Procurement Regulations: This RFP and any Contract entered into as a result
hereof are not subject to the provisions of Division II of the State Finance and Procurement
Article. The appeal procedures set forth in the State Finance and Procurement Article and in the
State Procurement Regulations do not apply to this procurement.
16. Acceptance of Terms and Conditions: By submitting a proposal in response to
this RFP, the Offeror shall be deemed to have (a) accepted all of the terms, conditions and
requirements set forth in this RFP, and (b) represented that it is not in arrears in the payment of
any obligation 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 its engagement as
Special Litigation Counsel if selected.
17. Contract: Upon selection and subject to the availability of funding, the selected
Offeror will enter into a Litigation Services Contract (“Contract”) with the Division, which shall
direct all legal services to be provided as set forth in this RFP.
18. Minority Participation Policy: This RFP is designed to encourage the
participation of (1) socially and economically disadvantaged individuals (members of a group as
defined in § 14-301(i) of the Procurement Article, and (2) minority business enterprises
(“MBEs”) as defined in § 14-301(f) of the Procurement Article in their proposed provision of
legal services. MBEs are encouraged to respond to this solicitation and offerors are encouraged
to submit proposals that reflect the significant participation of socially and economically
disadvantaged individuals and/or MBEs.
19. Term of the Litigation Services Contract: The Contract term shall commence as
of the date specified in the Contract and shall end upon the earlier of: (1) any decision by the
OAG, communicated in writing by the Procurement Officer or any successor, to terminate the
Contract; or (2) the conclusion of any investigation without enforcement proceedings, or at the
conclusion of enforcement proceedings, and the exhaustion of all available judicial review and
appeals; or (3) written notice by the Division; or (4) written notice by Special Litigation Counsel
of termination in accordance with the MARPC.
20. Confidential Relations. Special Litigation Counsel will provide services under
the direction of the Division, and the Division will be responsible for oversight of Special
Litigation Counsel’s work and administration of any contract(s) awarded as a result of this RFP.
Except as may be otherwise provided from time to time by the Division, Special Litigation
Counsel’s work product and communications regarding the services to be performed under any
resulting contract shall be confidential and handled carefully to preserve the protections of the
Attorney/Client Privilege, the Deliberative Process Privilege, the Attorney Work Product
Doctrine, the protections for confidential information provided by the Public Information Act,
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and any other applicable legal privilege or confidence. Within these protections, Special
Counsel may be asked to consult with and share work with other attorneys representing the
Division in other opioid-related investigations or litigation.
21. Contacts with State. All of Special Counsel’s contacts with the State shall be
through the Procurement Officer or individuals designated by the Division. The Division’s staff
will be available to provide Special Litigation Counsel with any reasonably needed information,
and to provide reasonable assistance to Special Litigation Counsel in obtaining such data as may
be required.
22. Professional Liability Insurance: The Offeror shall agree to maintain in full force
and effect during the term of the Litigation Services Contract professional liability insurance in
an aggregate amount of not less than $10 million. In order to satisfy this requirement, the
Offeror must (1) include a statement in its Technical Proposal affirmatively responding to this
requirement, and (2) include in its Technical Proposal either (a) a certificate of insurance or letter
from its insurer demonstrating that the Offeror meets this requirement or (b) a commitment letter
or other evidence, satisfactory to the Procurement Officer, that Offeror will have such coverage
as of the date the Contract commences.
23. Conflicts of Interest: Offerors shall state precisely all individuals or entities
whom they represent in relation to opioid-related investigations, matters, or cases, and shall
specify how any conflicts of interest are to be minimized and prevented from adversely affecting
the Division’s investigations and any enforcement actions. Offerors shall not currently represent
any interests adverse to those of the Division and shall refrain from doing so during the
negotiation and performance of any contract. Each Offeror should determine whether current or
former representations would inhibit its ability to serve as Special Litigation Counsel for the
Division. If a conflict of interest arises during the course of performance, the Offeror must be
willing to continue to represent the Division and be in a position to inform other existing or
potential clients that they must find representation elsewhere in particular situations. The
MAPRC shall govern what is and is not a conflict of interest. In applying those rules and
deciding whether to waive any conflicts, the Division is conscious that an aggressive approach of
asserting conflicts may have a chilling effect on the ability of the Division to retain outside
counsel. While the Division decides these issues based upon the specific facts and circumstances
on a case by case basis, as a general matter, the Division probably will not assert that a conflict
exists, or will waive a conflict, if the subject matter of the other matter is unrelated to the subject
matter on which the lawyer has been retained by the Division. Each Offeror shall identify any
conflicts of interest which may arise if the Offeror serves as Special Litigation Counsel and shall
describe in its Technical Proposal how it proposes to deal with such conflicts. Conflicts may
arise not only from work undertaken by the attorneys named on the Litigation Services Contract
but also from work representations undertaken by any other member of the firm, regardless of
whether that attorney is in the same office or a different office of the firm. If successful, the
Offeror will be required to represent and warrant that is has no conflicts of interest arising from
the performance of the services, and will be required, during the course of the engagement, to
examine its client/matter listings carefully on a periodic basis, to notify the Division immediately
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of any potential conflict of interest and, if requested, to undertake immediate action to eliminate
the source of the potential conflict of interest.
24. Evaluation Procedure:
a. Evaluation Committee: The Division shall establish an evaluation
committee to be composed of the Attorney General or his designee and
any other individuals that the Attorney General or his designee may
appoint. The Committee shall make recommendations to the Attorney
General concerning the award of any contract or contracts.
b. Deviations and Negotiations: The Procurement Officer shall have the sole
right to determine whether any deviation from the requirements of this
RFP is substantial in nature, and the Procurement Officer may reject non-
conforming proposals. In addition, the Procurement Officer may waive
minor irregularities in proposals, allow an Offeror to correct minor
irregularities, and negotiate with responsible Offerors in any manner
deemed necessary to serve the best interests of the State
c. Proposal Classification: When more than one proposal has been received,
the Procurement Officer may initially classify the proposals as reasonably
susceptible of being selected for award, or not reasonably susceptible of
being selected for award. Offerors who are judged by the Procurement
Officer as not being reasonably susceptible of being selected for an award
and Offerors shall be so notified.
d. Oral Presentations: The Procurement Officer may request that Offerors
judged as reasonably susceptible of being selected for award present oral
presentations, either in person or telephonic, not to exceed two hours.
e. Discussions; Best and Final Offers: The evaluation committee may
recommend an Offeror for contract award based upon the Offeror’s
technical proposal and price proposal without further discussion. Should
the Committee find that further discussion would benefit the State, the
Procurement Officer shall schedule such discussions and establish
procedures for conducting them. The Procurement Officer may permit
qualified Offerors to revise their proposals by submitting best and final
offers.
f. Evaluation Considerations: The Committee shall evaluate the proposals
and make recommendations in the best interests of the State. It is
anticipated that price, technical merit, and capability of successful
performance will be the most important factors considered.
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25. ADA Compliance: Alternative forms of this document will be provided upon
request.
EXHIBITS:
Exhibit A-1 - Proposal Affidavit
Exhibit A-2 – Conflict of Interest Affidavit & Disclosure
Exhibit B - Contract Affidavit
EXHIBIT A-1
PROPOSAL AFFIDAVIT
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 vendor's, 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 Section 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, 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 §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 subsections (1)—(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;
(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 and C and subsections D(1)—(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:
(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 Sections 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 Section 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 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;
(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, 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:
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. Repealed.
O. 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)
[REMAINDER OF PAGE INTENTIONALLY BLANK]
EXHIBIT A-2
CONFLICT OF INTEREST AFFIDAVIT AND DISCLOSURE
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 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)
EXHIBIT B
CONTRACT AFFIDAVIT
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:
.
(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 acknowledgements contained in that certain Bid/Proposal Affidavit dated , 20 ,
and executed by me for the purpose of obtaining the contract to which this Exhibit is 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.
