107oag003 ( 2022 )

COLLEGES AND UNIVERSITIES
PROCUREMENT – STATE PERSONNEL – SERVICE CONTRACTS –
PREFERENCE FOR STATE EMPLOYEES – MEANING OF A
PROVISION REQUIRING CERTAIN UNIVERSITIES TO HAVE
POLICIES THAT PROMOTE THE PURPOSES OF § 13-402 OF
THE STATE PERSONNEL & PENSIONS ARTICLE AND THAT
ARE, TO THE MAXIMUM EXTENT PRACTICABLE, SIMILAR
TO § 13-218.1 OF THE STATE FINANCE & PROCUREMENT
ARTICLE
January 11, 2022
The Honorable Maggie McIntosh
Maryland House of Delegates
You have requested our opinion on two questions related to
Senate Bill 342 of 2016 (“S.B. 342”). See 2016 Md. Laws, ch. 65,
codified at Md. Code Ann., State Fin. & Proc. (“SFP”) § 11-
203(e)(4). That legislation imposed two requirements on the
University System of Maryland (“USM”), Morgan State University
(“Morgan State”), and St. Mary’s College of Maryland (“St.
Mary’s College”) (collectively, “the Universities”). First, it
required the Universities to have certain policies that “promote the
purposes” of § 13-402 of the State Personnel and Pensions Article
(“SPP”), a provision which establishes a preference for using State
employees, rather than private contractors, to perform certain
services in State-operated facilities. Second, it required that the
Universities’ policies must, “to the maximum extent practicable, be
similar” to § 13-218.1 of the State Finance and Procurement
Article, which establishes a notice-and-conferral requirement
before the issuance of a solicitation for certain service contracts. In
light of those requirements, you asked about what obligations S.B.
342 places on the Universities with respect to their procurement
policies. You also asked whether, and to what extent, the
Universities’ current policies comply with S.B. 342’s requirements.
As to your first question, there are both procedural and
substantive requirements that the Universities must meet.
Procedurally, S.B. 342 requires the Universities to amend their
procurement policies—not implement the necessary changes
through some other means—and have those amendments approved
by the Board of Public Works (“BPW”). See SFP § 11-203(e)(3).
Substantively, the Universities’ amended policies must
“promote the purposes” of SPP § 13-402 by implementing a
process for evaluating service contracts that is sufficiently
3
4 [107 Op. Att’y
similar—as determined by the BPW—to the process that most
other units of State government use to implement the preference
for State employees articulated in SPP § 13-402. That process,
codified at SPP § 13-405, generally requires other units of State
government to consider alternatives to a proposed service contract,
to compare the cost of the contract with the cost of using State
employees and show savings over a threshold amount, to prepare a
plan of assistance for affected employees, and to make the contract
subject to an audit. To be clear, however, the Universities have
flexibility to develop a process that is not identical to SPP § 13-405
and that meets each of their unique needs, so long as that process
is similar enough to SPP § 13-405 to promote the same purposes,
namely, to protect State employees from layoffs associated with
outsourcing when feasible and cost-efficient to do so, as well as to
prevent the State from paying more for services that State
employees are available to perform. In addition, under S.B. 342,
the Universities’ policies must, “to the maximum extent
practicable, be similar” to SFP § 13-218.1 by providing affected
employees with advance written notice of a proposed service
contract and a reasonable opportunity to meet and discuss
alternatives to the contract.
As to your second question, although USM addressed S.B.
342 in a separate non-procurement policy and Morgan State and St.
Mary’s College did so in their respective collective bargaining
agreements with their employees, none of the Universities
amended their procurement policies and submitted them to the
BPW for approval. As a procedural matter, then, our opinion is
that none of their current policies comply with S.B. 342. As a
substantive matter, the BPW is the proper entity to evaluate, in the
first instance, whether a particular policy complies with S.B. 342,
but we can nonetheless provide some general observations below
in response to your request.
I
Background
A. University Procurements
USM, Morgan State, and St. Mary’s College are generally
exempt from Division II of the State Finance and Procurement
Article—the State’s general procurement law. See SFP § 11-
203(e)(2); see also Md. Code Ann., Educ. (“ED”) §§ 12-112(a)
(establishing exemption for USM), 14-109(b) (same for Morgan
Gen. 3] 5
State), 14-405(f) (same for St. Mary’s College).1 Their procurements
instead must “comply with the policies and procedures developed
by the University or Baltimore City Community College and
approved by the Board of Public Works and the Administrative,
Executive, and Legislative Review Committee of the General
Assembly.” SFP § 11-203(e)(3).2 Still, the Universities’ policies
are expected to align with the general procurement law in certain
respects. More specifically, their policies shall:
(i) to the maximum extent practicable, require
the purchasing of supplies and services in
accordance with Title 14, Subtitle 1 of [the
State Finance and Procurement Article];
(ii) promote the purposes of the regulations
adopted by the Department of General
Services governing the procurement of
architectural and engineering services;
(iii) promote the purposes of § 13-402 of the
State Personnel and Pensions Article;
(iv) to the maximum extent practicable, be
similar to § 13-218.1 of [the State Finance
and Procurement Article]; and
1
The General Assembly recently exempted Baltimore City
Community College (“BCCC”) from the general procurement law as
well. See 2021 Md. Laws, ch. 732, codified at ED § 16-505.3. In doing
so, the General Assembly required BCCC, like the Universities, to adopt
policies that reflect the provisions cross-referenced in SFP § 11-
203(e)(4), including policies that promote the purposes of SPP § 13-402
and are similar, to the maximum extent practicable, to SFP § 13-218.1.
Because BCCC is not part of your request, however, we do not address
it further.
2
As our Office has previously advised, to the extent State law makes
the Universities’ procurement policies contingent on approval by the
Administrative, Executive, and Legislative Review (“AELR”)
Committee, that would likely constitute an impermissible legislative
veto. See, e.g., Letter of Attorney General J. Joseph Curran, Jr. to
Governor Parris N. Glendening (May 11, 1999) (bill review letter
associated with USM’s exemption from procurement law); Letter of
Attorney General J. Joseph Curran, Jr. to Governor Robert L. Ehrlich, Jr.
(May 4, 2004) (same for Morgan State); Letter of Attorney General J.
Joseph Curran, Jr. to Governor Robert L. Ehrlich, Jr. (April 20, 2006)
(same for St. Mary’s College). Thus, although both the BPW and the
AELR Committee may be required to review the Universities’
procurement policies, only the BPW can be required to approve them.
6 [107 Op. Att’y
(v) to the maximum extent practicable, require
the procurement of food in accordance with
Title 14, Subtitle 7 of [the State Finance and
Procurement Article].
SFP § 11-203(e)(4) (emphases added).3 Because the third and
fourth items on that list were added by S.B. 342, they are the focus
of this opinion. See 2016 Md. Laws, ch. 65. We will address the
cross-referenced provisions in each of those two items in turn.
1. Section 13-402 of the State Personnel and Pensions
Article
S.B. 342 requires the Universities’ policies to “promote the
purposes of § 13-402 of the State Personnel and Pensions Article.”
SFP § 11-203(e)(4)(iii). Section 13-402 creates a statutory
preference for using State employees, rather than private
contractors, to perform certain services in State-operated facilities.
That is, it declares that “[t]he policy of this State is to use State
employees to perform all State functions in State-operated facilities
in preference to contracting with the private sector to perform those
functions.” SPP § 13-402. For those units of State government
that are subject to SPP § 13-402, the preference for State employees
is implemented through a set of procedures for the evaluation,
certification, and approval of service contracts. A “service
contract” is defined by the statute as “a procurement contract for
services that: (1) will be provided to a unit in the Executive Branch
of State government; (2) will be performed within a State-operated
facility; and (3) in the estimation of the procurement officer, will
exceed an annual cost of $100,000.” SPP § 13-401(b).4
Under those procedures, “[a] service contract,” as defined,
“may be entered into only as approved by the Board of Public
Works.” SPP § 13-403(a). The BPW, in turn, may only approve a
service contract if it receives certification from the Department of
3
For the sake of completeness, we note that the Universities’
procurement policies must also “promote the purposes of the State
procurement law as set forth in § 11-201 of the State Finance and
Procurement Article.” ED §§ 12-112(a)(2)(ii), 14-109(b)(2)(ii), 14-
405(f)(2)(ii). We do not address those more generalized purposes here.
4
To be clear, not all contracts for services will qualify as “service
contracts” under this definition. Given that the preference for State
employees is “to use State employees to perform all State functions in
State-operated facilities,” SPP § 13-402 (emphasis added), the statutory
scheme applies only to contracts for services that will be performed
within State-operated facilities.
Gen. 3] 7
Budget and Management (“DBM”)5 that either the contract is
exempt from the general preference for State employees stated in
SPP § 13-402 or the unit seeking to enter into the contract has
complied with the requirements set forth in SPP § 13-404(c), which
include following the process for evaluating service contracts in
SPP § 13-405. See SPP § 13-403(b). A service contract is exempt
from the general preference for State employees if:
(1) State employees are not available to
perform the services;
(2) a conflict of interest would result if a State
employee were to perform the services;
(3) the nature of the services meets the
standards set by [DBM] for emergency
appointments;
(4) the services are incidental to the purchase
or lease of personal property or real property,
such as a service agreement that is part of the
purchase or rental of computers or office
equipment; or
(5) a clear need exists to obtain an unbiased
finding or opinion, such as an expert witness
in litigation.
SPP § 13-404(b). In addition, “[i]f the General Assembly
authorizes or requires that certain services be performed by an
independent contractor, the Board of Public Works may approve a
service contract for those services without the certification” from
DBM that is ordinarily required. SPP § 13-403(c).
For service contracts that are not exempt from the preference
for State employees, a unit must comply with the process in SPP
§ 13-405 by submitting three pieces of information to DBM. See
SPP § 13-404(c)(1). The first is “a demonstration that the unit has
5
As a result of procurement reform, as of October 1, 2019, the
Department of General Services replaced the Department of Budget and
Management as the control agency for the procurement of service
contracts. See 2017 Md. Laws, ch. 590, codified at SFP § 12-107(b)(2).
It is our understanding, however, that DBM still handles certification of
service contracts for compliance with Title 13, Subtitle 4 of the State
Personnel and Pensions Article. See SPP §§ 13-404 (requiring the
“Department” to certify service contracts), 1-101(f) (“Unless expressly
provided otherwise, ‘Department’ means the Department of Budget and
Management.”).
8 [107 Op. Att’y
taken formal and positive steps to consider alternatives to the service
contract, including reorganization, reevaluation of service, and
reevaluation of performance.” SPP § 13-405(b). The second is a
calculation that “compare[s] the cost of the service contract with
the cost of using State employees” and “show[s] savings to this
State, over the duration of the service contract, of 20% of the
contract or $200,000, whichever is less.” SPP § 13-405(c)(1). The
third is “a formal plan of assistance for all State employees who
will be adversely affected by the service contract.” SPP § 13-
405(d)(1). That plan of assistance must include: “(i) efforts to place
affected employees in vacant positions in the unit or in another unit;
(ii) provisions in the service contract, if feasible, for the hiring by
the contractor of displaced employees; and (iii) prior notification
to affected employees in accordance with [SFP] § 13-218.1,” a
provision that we will discuss in more detail in the next section.
SPP § 13-405(d)(2). Finally, if the unit complies with this process
and the service contract is certified by DBM6 and approved by the
BPW, the contract is then “subject to a legislative audit to
determine compliance with projected cost savings.” SPP § 13-
405(e).
2. Section 13-218.1 of the State Finance and
Procurement Article
S.B. 342 also provides that the Universities’ policies must, “to
the maximum extent practicable, be similar to § 13-218.1 of [the
State Finance and Procurement Article].” SFP § 11-203(e)(4)(iv).
Section 13-218.1, for its part, sets a notice-and-conferral
requirement. More specifically, it requires that “[a]t least 60 days
before the issuance of a solicitation for a service contract that is not
exempt [from the preference for State employees stated in SPP
§ 13-402], the unit shall provide the exclusive representative of the
employees who may be affected by the service contract with . . .
written notice” and “a reasonable opportunity to meet and discuss
alternatives to the proposed service contract.” SFP § 13-218.1(b).
The written notice must identify the “work that is being proposed
for contracting” and the “contracting procedures, requirements,
timetables, and employee rights as provided in Title 13, Subtitle 4
6
DBM may certify a service contract only if DBM also finds that: (i)
the potential economic advantage of entering into the contract is not
outweighed by the preference stated in SPP § 13-402; (ii) the contract
does not adversely affect the affirmative action efforts of the State; (iii)
the contract includes adequate control mechanisms to ensure that the
services will be performed in accordance with the service contract; and
(iv) the contract complies with all of the requirements of Division II of
the State Finance and Procurement Article. SPP § 13-404(c)(2).
Gen. 3] 9
of the State Personnel and Pensions Article,” SFP § 13-
218.1(b)(1)(i), i.e., the provisions that we just discussed in the prior
section.
B. Legislative History of S.B. 342
S.B. 342 was introduced in 2016 after the General Assembly
was advised that a similar bill enacted the prior year might not have
applied to the Universities, despite at least some legislators’
apparent expectation that it would. See Floor Report, House Health
& Gov’t Operations Comm., S.B. 342, 2016 Leg., Reg. Sess.
During the prior year, the General Assembly had passed House Bill
158 (“H.B. 158”), which added the requirement (now codified at
SFP § 13-218.1(b)(1)) that a unit of State government seeking to
enter into a service contract that is not exempt from the preference
for State employees must provide the exclusive representative of
employees who may be affected by the service contract with “a
reasonable opportunity to meet and discuss alternatives to the
proposed service contract.” 2015 Md. Laws, ch. 403. Section 13-
218.1 had already required the unit to provide written notice at least
60 days before the issuance of a solicitation for a service contract.
But, with H.B. 158, the General Assembly repealed and reenacted
subsection (b)(1), thus requiring notice and conferral. Id.
H.B. 158 also amended SPP § 13-405. At the time, that
provision already required, among other things, that units calculate
the cost of a proposed service contract, compare it to the cost of
using State employees, and show savings to the State over the
duration of the contract of 20 percent of the contract or $200,000,
whichever is less. SPP § 13-405(c)(1). The new addition under
H.B. 158 made service contracts entered into after that comparison
of costs “subject to a legislative audit to determine compliance with
[those] projected cost savings.” 2015 Md. Laws, ch. 403, codified
at SPP § 13-405(e). In making that addition, the General Assembly
repealed and reenacted the entirety of SPP § 13-405, adding the
audit provision to the existing prerequisites for certification by
DBM, that is, the requirement to consider alternatives to a proposed
service contract, to compare the cost of the contract with the cost
of using State employees and show specified savings over a
threshold amount, and to include a plan of assistance for State
employees affected by the contract. See SPP § 13-405(b), (c), (d).
Of particular relevance here, H.B. 158 also included an
uncodified provision requiring that “any unit in the Executive
Branch of State government with an independent personnel system
shall adopt rules or regulations similar to the provisions of Section
10 [107 Op. Att’y
1 of this Act,” which had repealed and reenacted, with
amendments, parts of SFP § 13-218.1 and the entirety of SPP § 13-
405. 2015 Md. Laws, ch. 403, § 2. Because the Universities have
independent personnel systems, see ED §§ 12-111(a) (USM), 14-
104(h)(2) (Morgan State), 14-408(a)(1) (St. Mary’s College), that
uncodified provision was understood by many to apply to them. At
some point after H.B. 158’s passage, however, questions arose as
to whether the bill in fact applied to the Universities. That is
because St. Mary’s College took the position that, based on the
general autonomy granted to the Universities by statute, a specific
reference to the Universities was necessary to make them subject
to the bill. See Floor Report, House Health & Gov’t Operations
Comm., S.B. 342, 2016 Leg., Reg. Sess.; see also ED §§ 12-104
(providing USM authority over its own management, subject to
“restriction[s] imposed by law by specific reference to [USM]”)
(emphasis added), 14-104 (same for Morgan State), 14-404 (same
for St. Mary’s College).7 Thus, S.B. 342 was introduced the next
year—and made specific reference to the Universities—to “remove
all doubt.” Floor Report, House Health & Gov’t Operations
Comm., S.B. 342, 2016 Leg., Reg. Sess.
C. The Universities’ Current Policies
USM adopted procurement policies and procedures in 1999,
with the approval of the BPW, and revised those policies in 2016.
See University System of Maryland Procurement Policies and
Procedures (July 1, 2016). Although its revisions did not address
S.B. 342, USM recently adopted a separate policy that incorporates
elements of S.B. 342. See University of Maryland Board of
Regents, VIII-22.00 Policy on Service Contracts (May 1, 2020).
The purpose of that policy is to “[a]rticulate the USM’s preference
to use institution employees to continue providing institution
services, unless the use of an external service contract is justified
by cost or other reasons that cannot be addressed through
alternative means.” Id. The policy states that a USM institution
will “[a]t least 60 days before advertisement of a solicitation for a
service contract . . . share a written proposal to use a service
contract with . . . [p]otentially affected employees, including the
exclusive representative as appropriate” as well as with “[t]he
7
Attorneys in our Office weighed in at the time on these issues, and
there was some uncertainty expressed about whether H.B. 158 in fact
applied to the Universities. But we have not analyzed any further the
question of whether H.B. 158 would have applied to the Universities on
its own and reach no conclusion on the matter here, because such an
analysis is unnecessary to respond to your request regarding S.B. 342.
Gen. 3] 11
[USM] Chancellor.” Id.8 The institution will then, “[a]t the request
of the Chancellor or the employees . . . meet to discuss the
proposal.” Id. Under USM’s policy, each such proposal must
include:
(1) A description of the work to be done under
the service contract;
(2) The justification for proposing a service
contract, including, as appropriate:
(a) Reasons why the Services cannot
reasonably be performed effectively by
institution employees (e.g., conflict of
interest, emergency need, services incidental
to a real or personal property acquisition);
(b) Estimated cost savings, including a
comparison of the costs of using USM
employees versus entering into a service
contract[; and]
(c) Other benefits of the service contract,
including the business needs that the service
contract will meet.
(3) An explanation of the steps that the
institution has taken to consider alternatives to
the service contract.
(4) The institution’s plan of assistance for
employees affected by the service contract,
including:
(a) Efforts to place employees within the
institution or USM;
(b) Service contractor provisions for hiring
displaced employees; and
(c) Other measures to minimize the impact
of the service contract on affected employees.
8
USM is made up of twelve constituent institutions: Bowie State
University; Coppin State University; Frostburg State University;
Salisbury University; Towson University; University of Baltimore;
University of Maryland, Baltimore; University of Maryland, Baltimore
County; University of Maryland, College Park; University of Maryland
Eastern Shore; University of Maryland Global Campus; and University
of Maryland Center for Environmental Science.
12 [107 Op. Att’y
Id. Lastly, the policy states that “[t]he Chancellor will develop
procedures for the review of service contract proposals.” Id.
The Chancellor’s procedures, in turn, state that, “[d]epending
on the circumstances as assessed by the Chancellor,” a decision as
to whether the proposal will be submitted to the Board of Regents
will be communicated at least 30 days before a solicitation for a
service contract. Procedures for Satisfying the Requirements of
Board of Regents Policy VIII-22.00 Policy on Service Contracts.
If the decision is made to submit the proposal to the Board of
Regents, the proposal will be “shared with the Committee on
Finance initially, which will make a recommendation to the full
Board of Regents for a decision as to whether to proceed or not.”
Id.
Morgan State adopted procurement policies and procedures in
2005, with approval from the BPW. See Morgan State University
Procurement Policies and Procedures (Sept. 21, 2005). Although
its policies have not been revised since then, and no separate policy
has been promulgated, Morgan State has incorporated elements of
S.B. 342 into its collective bargaining agreement with its
employees. See Memorandum of Understanding between American
Federation of State, County, and Municipal Employees (AFSCME)
and Morgan State University (Mar. 1, 2018 to June 30, 2020)
(“Morgan State MOU”). That agreement reads, in pertinent part:
Article XXIV – Contracting Out
The University recognizes the integrity of the
bargaining unit and shall make good faith
efforts to use bargaining unit employees to
perform non-exempt job functions in
preference to contracting out with the private
sector . . . . Where the University decides to
contract out for services the University will,
to the maximum extent practicable, provide
the Union with written notice of the proposed
outsourcing at least sixty (60) days before the
issuance of a solicitation for the service
contract and will be available to meet upon
written request from the Union within a
reasonable time after the request is made, to
discuss the impact on the bargaining unit and
to discuss alternatives to the service contract.
The notice shall include a statement of the
scope of work to be included in the service
contract and identify which employees, if any
Gen. 3] 13
are known, who will have their employment
materially affected as a result of the
contracting out of services. Employees who
are laid off are subject to Article XXI – Layoff
and Recall.
Id. at 30.
St. Mary’s College adopted procurement policies and
procedures in 2006, with the approval of the BPW, and revised
those policies in 2018. St. Mary’s College of Maryland
Procurement Policies and Procedures (May 3, 2018). Although its
revisions did not address S.B. 342, St. Mary’s College took a
similar approach to Morgan State and incorporated elements of
S.B. 342 into its collective bargaining agreement. See
Memorandum of Understanding between St. Mary’s College of
Maryland and American Federation of State, County, and
Municipal Employees (Mar. 26, 2019 through Mar. 26, 2022) (“St.
Mary’s College MOU”). That agreement reads, in pertinent part:
Section 8.01: Integrity of the Bargaining Unit:
Unless otherwise provided by law, the
College recognizes the integrity of the
bargaining unit and will act consistently with
the current statutory policy to use State
Employees to perform all State functions in
State operated facilities in preference to
contracting out with the private sector. In the
event the College proposes to use non-
bargaining unit individuals to displace
continuing bargaining unit Positions, it will
provide the Union with notice at the earliest
opportunity, but normally at least sixty (60)
days in advance and will be available to meet
upon written request from the union within ten
(10) days after the request is made. For the
purpose of this Section, the College shall be
considered a State-operated facility.
Section 8.02: Contracting Out/Outsourcing:
A: Notification
If the College proposes to layoff or
otherwise displace employees in the
bargaining unit by outsourcing to the private
sector a function currently performed by
14 [107 Op. Att’y
employees in the bargaining unit, the College
shall provide the union with written notice at
its earliest opportunity, but normally no later
than sixty (60) days in advance of the
publication of the RFP [request for proposals]
and IFB [invitation for bids], unless
circumstances require shorter notice.
Emergency procurements shall be subject to
these same notifications.
This notice shall contain:
(1) an explanation of the College’s
reason(s) for its outsourcing proposal,
(2) a listing of the number of
employees, department(s), location(s),
position(s), and names of employees that the
College anticipates its outsourcing proposal
would affect upon implementation[,] and
(3) an accounting of the projected cost of
the service contract as opposed to the cost of
using College employees.
The College shall send [a] copy of the RFP
or IFB prior to publication.
B: Meeting to Discuss the Union’s Proposal
The union may make a written Request to
the Director of Human Resources to meet to
discuss the reasons for outsourcing (the
“Request”). Within seven (7) calendar days
of receipt of the Request, the Vice President
of the affected department or his or her
designee (the “VP”) shall meet with the union
in order to discuss the reasons for outsourcing.
Following that meeting, the union may
request a meeting with the VP to present a
written proposal to the College detailing the
specific benefits associated with the continued
employment of the current College employees
rather than outsourcing, improvements that
could be realized by changing existing
practices or methods, and the union’s and the
affected employees’ commitment to
demonstrating the benefits and putting into
practice these improvements cited in the
union’s proposal. If the union requests such a
Gen. 3] 15
meeting, it shall occur within three (3) weeks
of the meeting referred to in the above
paragraph.
Id. at 10-11.
II
Analysis
A. The Universities’ Obligations Under S.B. 342
Your first question is what obligations S.B. 342 places on
USM, Morgan State, and St. Mary’s College. To answer that
question, “we look first to the language of the statute, giving it its
natural and ordinary meaning. We do so on the tacit theory that the
General Assembly is presumed to have meant what it said and said
what it meant.” Sabisch v. Moyer, 466 Md. 327, 350 (2019)
(citation omitted). Of course, “[t]he plain language of a provision
is not interpreted in isolation. Rather, we analyze the statutory
scheme as a whole and attempt to harmonize provisions dealing
with the same subject so that each may be given effect.” Chow v.
State, 393 Md. 431, 448 (2006) (citations omitted). We may rely
on legislative history to resolve any ambiguities in the statute, see,
e.g., Blackstone v. Sharma, 461 Md. 87, 119-20 (2018), but even
in the absence of ambiguous language, we may look to the
legislative history in order to confirm an interpretation of the
statute’s text, see, e.g., Neal v. Baltimore City Bd. of Sch. Comm’rs,
467 Md. 399, 415-16, 424 (2020).
1. Procedural Obligations
We first consider the Universities’ procedural obligations
under S.B. 342. The text of the statute is clear, at least as to its
directive that the Universities must adopt certain policies and
procedures. The statute first provides that “[a] procurement by a
University . . . shall comply with the policies and procedures
developed by the University . . . and approved by the Board of
Public Works and the Administrative, Executive, and Legislative
Review Committee of the General Assembly.” SFP § 11-203(e)(3)
(emphasis added).9 The statute then provides later in the very same
Although SFP § 11-203(e)(3) seemingly makes the Universities’
9
procurement policies subject to approval by both the BPW and the AELR
Committee, only the BPW can be required to approve those policies. See
footnote 2, supra. That said, the Universities must still submit their
policies to the AELR Committee for review and comment, even if
approval is not required.
16 [107 Op. Att’y
subsection that “[t]he policies of a University . . . shall,” among
other things, “promote the purposes” of SPP § 13-402 and “to the
maximum extent practicable, be similar” to SFP § 13-218.1. SFP
§ 11-203(e)(4) (emphasis added). On the statute’s face, therefore,
the “policies” referenced in SFP § 11-203(e)(4) appear to be the
same as the procurement “policies” mentioned earlier in the same
subsection that must be approved by the BPW. See, e.g., Whack v.
State, 338 Md. 665, 673 (1995) (“When a word susceptible of more
than one meaning is repeated in the same statute or sections of a
statute, it is presumed that it is used in the same sense.” (emphasis
added)).
We recognize that, at the time S.B. 342 was enacted, this
provision read slightly differently, stating that “[a] University’s
policies shall” reflect the cross-referenced provisions, rather than
that “the policies” of a University must do so. 2016 Md. Laws, ch.
65. Although the phrase “a University’s policies,” when read in
isolation, may seem less specific than “the policies of a
University,” such that any policy adopted by the University might
suffice, the statute’s context and legislative history make clear that
the statute, even at that time, referred to the procurement policies
that have to be approved by the BPW.10 For example, the other
items that were listed in SFP § 11-203(e)(4) at the time and that
were required to be reflected in the Universities’ “policies”—i.e.,
the purchasing of supplies and services and the procurement of
architectural and engineering services—unquestionably related to
procurement and clearly needed to be in the procurement policies
submitted to the BPW for approval. In fact, those requirements
were enacted at the same time USM received its exemption from
the general procurement law. See 1999 Md. Laws, ch. 515. That
reinforces our sense that the relevant “policies” referred to in SFP
§ 11-203(e)(4) are the procurement policies the Universities must
submit to the BPW for approval. After all, if the General Assembly
intended for the Universities to adopt a separate set of policies to
comply with the new requirements under S.B. 342, without
oversight from the BPW, the Legislature presumably would have
codified that requirement elsewhere, rather than as part of a list of
other items that unquestionably had to be included in the
Universities’ procurement policies. See State v. Bricker, 321 Md.
86, 93 (1990) (“It is presumed that the General Assembly acted
The current language, which provides that “[t]he policies of a
10
University or Baltimore City Community College shall” reflect the cross-
referenced provisions, appears to be nothing more than a grammatical
change made to accommodate the addition of BCCC. 2021 Md. Laws,
ch. 732 (emphasis added). We therefore read the 2016 and 2021
language the same way.
Gen. 3] 17
with full knowledge of prior legislation and intended statutes that
affect the same subject matter to blend into a consistent and
harmonious body of law.”).
Indeed, the legislative history of S.B. 342, as reflected in the
floor report for the bill, confirms that the law was intended to
“require[] that the procurement policies adopted by [the
Universities] reflect provisions in State law related to the use of
State employees rather than outside contractors.” Floor Report,
House Health & Gov’t Operations Comm., S.B. 342, 2016 Leg.,
Reg. Sess. (emphasis added). The clear text of S.B. 342, read in
context and in conjunction with the legislative history, thus
obligates the Universities to amend their procurement policies to
reflect the two items added by S.B. 342 and submit those policies
to the BPW for approval.
From a policy perspective, we also doubt that the General
Assembly intended to treat the two items S.B. 342 added to SFP
§ 11-203(e)(4) differently from the other items that are required to
be reflected in the Universities’ procurement policies. See Frost v.
State, 336 Md. 125, 137 (1994) (recognizing that statutes should be
analyzed “to avoid constructions that are illogical, unreasonable, or
inconsistent with common sense”). It makes little sense to require
some parts of SFP § 11-203(e)(4) to be reflected in the Universities’
BPW-approved policies and not others. Although S.B. 342 in some
respects deals with personnel matters, which the Universities might
understandably have viewed as more appropriate for a separate
personnel policy, the legislation establishes prerequisites to enter
into a “service contract,” that is, “a procurement contract for
services,” SPP § 13-401(b) (emphasis added), and thus effectively
adds new steps to the Universities’ procurement procedures.11
11
In fact, the preference for State employees stated in SPP § 13-402
was originally codified in the State’s general procurement law. 1984
Md. Laws, ch. 566. Then, a year after its enactment, it was transferred
to Division II of the new State Finance and Procurement Article, 1985
Md. Laws, ch. 12, only to be transferred to “Article 64A – Merit System”
the following year, 1986 Md. Laws, ch. 840. Finally, in 1993, it was
transferred to the new State Personnel and Pensions Article, 1993 Md.
Laws, ch. 10, where it has remained ever since, although it was
renumbered once, 1996 Md. Laws, ch. 347. In each instance, we have
found no indication of a substantive change, and thus the provision
appears to have a deep connection to procurement even though it resides
in the State Personnel and Pensions Article. In fact, for those units of
State government subject to SPP § 13-402, the provisions of that subtitle
are essentially treated as steps in the procurement process. See SPP § 13-
18 [107 Op. Att’y
To be sure, if H.B. 158—enacted in 2015—had applied to
USM, Morgan State, and St. Mary’s College, the Universities
likely would not have had to revise their BPW-approved policies.
Instead, they would simply have had to “adopt rules or regulations”
that were “similar” to what H.B. 158 required, presumably without
any involvement by the AELR Committee or the BPW. 2015 Md.
Laws, ch. 403, § 2; see also ED §§ 12-104(j)(2) (providing USM a
general exemption from the Administrative Procedure Act,
including the procedure for adoption of regulations), 14-104(d)(3)
(same for Morgan State), 14-404(c)(2) (same for St. Mary’s
College). It is also true that when S.B. 342 was enacted in 2016,
its lead sponsor described it to committee members as merely a
“corrective bill that explicitly includes what we thought was in last
year’s bill,” that is, H.B. 158. Hearing on S.B. 342 Before the
Senate Educ., Health, and Envtl. Affairs Comm., 2016 Leg., Reg.
Sess. (Feb. 16, 2016) (statement of Sen. Feldman).
But while the primary intent of the 2016 legislation may have
been to codify the substantive requirements of the uncodified
language from 2015, the language of the 2016 legislation makes
clear that the General Assembly also intended to add a new
procedural requirement—the BPW’s approval. And even if the
language were not clear, there are other indications that confirm the
intent to require the BPW’s approval for the Universities’ amended
policies. For instance, one of the floor reports explained that, under
current law, the Universities are “required to develop procurement
policies that are approved by the Board of Public Works,” and that
S.B. 342 added requirements to the “procurement policies
developed by [the Universities].” Floor Report, Senate Educ.,
Health, and Envtl. Affairs Comm., S.B. 342, 2016 Leg., Reg. Sess.
(emphases added). Similarly, the title of the 2016 bill also stated
that the bill “requir[es] that certain policies of public senior higher
education institutions promote certain purposes and be similar to
certain provisions,” not that the institutions adopt rules or
regulations, as had been the expectation under H.B. 158. S.B. 342,
2016 Leg., Reg. Sess. (emphasis added). In light of these written
statements, legislators voting on the bill would likely have
understood that it required new items to be added to the
procurement policies that the BPW must approve. For all of these
reasons, our opinion is that S.B. 342 obligates the Universities to
404(c)(2) (providing that DBM may certify a service contract subject to
SPP § 13-402 only if, among other things, the unit has complied with
SPP § 13-405 and “the service contract complies with all of the
requirements of Division II of the State Finance and Procurement
Article”).
Gen. 3] 19
update their procurement policies and submit them to the BPW for
approval.
2. Substantive Obligations
Of course, S.B. 342 does not merely require the Universities
to develop procurement policies; it specifies where, and to what
extent, those policies must reflect other provisions of law. We next
consider, therefore, the Universities’ substantive obligations under
S.B. 342. As discussed above, under that legislation, the
Universities’ procurement policies must “promote the purposes” of
SPP § 13-402 and “to the maximum extent practicable, be similar”
to SFP § 13-218.1. SFP § 11-203(e)(4). Notably, that language
does not make the Universities “subject to” those two cross-
referenced provisions. Compare SFP § 11-203(e)(5) (listing
several provisions of the general procurement law that “apply” to
the Universities, and not listing SPP § 13-402 or SFP § 13-218.1),
with SFP § 11-203(e)(4). Instead, it gives them discretion to
develop procurement policies, subject to the BPW’s approval, that
meet their unique needs while also meeting S.B. 342’s objectives.
We thus focus on what guideposts can be gleaned from the
language and legislative history of the statute to determine how
much discretion the Universities have in satisfying their statutory
obligations.
a. Section 13-402 of the State Personnel and
Pensions Article
We start with what it means to “promote the purposes” of SPP
§ 13-402. That provision declares that “[t]he policy of this State is
to use State employees to perform all State functions in State-
operated facilities in preference to contracting with the private
sector to perform those functions.” SPP § 13-402. Before we can
determine what sort of policies might “promote the purposes” of
SPP § 13-402, however, we must identify those purposes. We will
thus trace the origins of this provision.
Section 13-402 of the State Personnel and Pensions Article
dates back nearly forty years, see 1984 Md. Laws, ch. 566, and the
text of the provision has remained essentially unchanged since
then. Enacted in 1984, the provision was just one part of a broader
bill codifying the recommendations of the Governor’s Committee
on Contracting for Services. See Report of House Committee on
Appropriations, S.B. 781, 1984 Leg., Reg. Sess. (Apr. 6, 1984).
The bill not only established the preference for State employees
codified in SPP § 13-402 but also implemented that preference with
20 [107 Op. Att’y
a detailed statutory scheme that had “[v]arious exemptions and
safeguards” built into it, id., namely, the remainder of Title 13,
Subtitle 4 of the State Personnel and Pensions Article.
As for exemptions, the bill provided that the BPW could
approve a service contract without regard to the preference for State
employees if, for example, State employees were “not available to
perform the necessary services.” Report of Senate Constitutional
& Public Law Comm., S.B. 781, 1984 Leg., Reg. Sess. As for
safeguards, the bill required a unit seeking to enter into a service
contract to submit “data showing that the services provided under
the contract will be less costly than if performed by State
employees” and “a formal plan for assisting State employees who
will be affected adversely by the service contract.” Id. The stated
purpose of the bill, as a whole, was “to insure that the services of
State employees are used whenever feasible and cost-efficient.” Id.
When viewed in its historical context, the preference for State
employees in SPP § 13-402 and the related statutory scheme were
intended to give “consistent guidance to the various segments of
State Government in their approach to and evaluation of the
process of contracting out services.” S.B. 781, 1984 Leg., Reg.
Sess. (written testimony of the Department of Budget and Fiscal
Planning). Representatives of State employees testified in favor of
the preference, explaining that, in the short run, “contracting out
. . . resulted in the layoff” of State employees and, in the long run,
using private contractors cost taxpayers as much or more than using
State employees because “[o]nce contractors are ‘in solid’, they
frequently raise their prices and the State is stuck as it no longer is
equipped to perform the service.” S.B. 781, 1984 Leg., Reg. Sess.
(Feb. 21, 1984) (written testimony of the Maryland Classified
Employees Association). The preference for State employees
stated in SPP § 13-402 thus appears to have two related purposes:
to protect current State employees from layoffs associated with
outsourcing when it is feasible and cost-efficient to do so and also
to prevent the State from paying more for services that its
employees are available to perform.
We return now to the text of S.B. 342, which requires the
Universities’ procurement policies to “promote the purposes” of
SPP § 13-402. Because the purposes of that provision could be
promoted in any number of ways, the text of S.B. 342 is ambiguous
as to what precisely is required to be included in the Universities’
policies. Such broad language provides the Universities a fair
amount of discretion. But that discretion is not unlimited, and we
rely on the legislative history to identify, with more specificity,
Gen. 3] 21
how the Universities are supposed to “promote the purposes” of
SPP § 13-402.
As discussed above, the lead sponsor of S.B. 342 described
the bill as a “corrective bill that explicitly includes what we thought
was in” H.B. 158. Hearing on S.B. 342 Before the Senate Educ.,
Health, and Envtl. Affairs Comm., 2016 Leg., Reg. Sess. (Feb. 16,
2016) (statement of Sen. Feldman); see also Floor Report, House
Health & Gov’t Operations Comm., S.B. 342, 2016 Leg., Reg.
Sess. (observing that H.B 158, enacted the prior year, was “clearly
intended to direct [the Universities] to do the same things” that S.B.
342 does). For its part, H.B. 158 would have required the
Universities to “adopt rules or regulations similar to the provisions
of Section 1 of this Act.” 2015 Md. Laws, ch. 403, § 2. Section 1
of H.B. 158, in turn, repealed and reenacted (with amendments)
parts of SFP § 13-218.1, which establishes a notice-and-conferral
requirement before the issuance of a solicitation for a service
contract, and the entirety of SPP § 13-405, which sets forth the
process used by most other units of State government to evaluate
service contracts. 2015 Md. Laws, ch. 403, § 1. So H.B. 158,
assuming it had applied to the Universities, would essentially have
required them to adopt rules “similar” to those in SFP § 13-218.1
and SPP § 13-405. See Floor Report, House Appropriations
Comm., H.B. 158, 2015 Leg., Reg. Sess. (describing the process
for evaluation of service contracts and noting that the Universities
“will have to adopt similar procedures as those for other Executive
Branch agencies”).
Given that the apparent purpose of S.B. 342 was to include
what had been in the prior year’s H.B. 158 (and given that the
requirement in H.B. 158 for the Universities to have procedures
similar to SFP § 13-218.1 was separately carried over to S.B. 342),
this history suggests that what it means to “promote the purposes”
of SPP § 13-402 must be informed by SPP § 13-405—the other
provision to which the Universities’ procedures would have needed
to be “similar” under H.B. 158. In other words, the General
Assembly apparently expected that the Universities would
“promote the purposes” of SPP § 13-402 by adopting policies and
procedures that are generally similar to those in SPP § 13-405, the
provision that implements the preference for State employees
articulated in SPP § 13-402.
In fact, much of the lead sponsor’s explanation of S.B. 342
was spent summarizing SPP § 13-405. In addition to describing
22 [107 Op. Att’y
how the General Assembly had sought to have the Universities
adopt “similar” provisions to H.B. 158 a year earlier, he stated:
Under current law if you want to outsource . . .
you’ve got to meet with the representative of
the affected employees, you’ve got to
consider alternatives to the outsourcing,
you’ve got to actually calculate the savings,
there’s got to be 20 percent or $200,000 in
savings that can be demonstrated, and then if
it’s outsourced, and this was something that
was added last year, the contract is subject to
being audited to make sure that in fact the
savings that are being represented on the front
end actually are realized.
Hearing on S.B. 342 Before the Senate Educ., Health, and Envtl.
Affairs Comm., 2016 Leg., Reg. Sess. (Feb. 16, 2016) (testimony
of Sen. Feldman). That statement describes several of the core
“safeguards”12 that are included in SPP § 13-405 and that operate
together “to insure that the services of State employees are used
whenever feasible and cost-efficient.”13 As such, in our view, S.B.
342 seems to require the Universities to “promote the purposes” of
SPP § 13-402 by implementing a process for evaluating service
contracts that is generally similar to SPP § 13-405.
We recognize, of course, that the language of S.B. 342 as
enacted does not expressly reference SPP § 13-405. It is also true
that the General Assembly knew how to require the Universities’
procurement policies to be “similar” to another provision of law,
see, e.g., SFP § 11-203(e)(4)(iv); H.B. 158, 2015 Leg., Reg. Sess.,
and did not expressly do so here. The legislative history does not
indicate why the General Assembly chose the language it did—
why it chose to require the Universities’ policies to “promote the
purposes” of SPP § 13-402, rather than to simply be “similar” to
SPP § 13-405.14 Whatever the reason, the legislative history of
12
Report of House Committee on Appropriations, S.B. 781, 1984
Leg., Reg. Sess. (Apr. 6, 1984).
13
Report of Senate Constitutional & Public Law Comm., S.B. 781,
1984 Leg., Reg. Sess.
14
One possible explanation is that the bill drafter, in an attempt to
make clear that the Universities were covered by the bill (thus remedying
the issue that arose with H.B. 158 a year earlier), borrowed existing
language from SFP § 11-203(e)(4). That is, in the very same subsection
Gen. 3] 23
S.B. 342 is clear that SPP § 13-405 was intended as a guide for how
the Universities would “promote the purposes” of the preference
for State employees. But the language of the statute, which focuses
on the purposes behind the preference, also makes it clear that each
University has flexibility to develop its own process that departs
from SPP § 13-405 in some ways so long as the process is similar
enough to promote the same purposes.15
We thus turn to SPP § 13-405 for guidance as to when the
Universities’ policies might sufficiently “promote the purposes” of
the statutory preference for State employees. As a preliminary
matter, SPP § 13-405 applies only to “service contracts,” as defined
in that subtitle. See SPP § 13-401(b) (defining “service contracts”
to exclude contracts for services that are not performed within a
State-operated facility and that will not exceed an annual cost of
$100,000). Because we doubt that the General Assembly—in
requiring only policies that “promote the purposes” of SPP § 13-
402—intended to impose stricter requirements on the Universities
than on units of State government that are actually subject to SPP
§ 13-402, the Universities’ policies would not need to apply to
contracts for services that will not be performed within State-
operated facilities or that will cost $100,000 or less.
Similarly, SPP § 13-405 outlines a process only for evaluating
service contracts that are “not exempt” from the preference for
State employees. See SPP § 13-405(a) (referring to the exemptions
that was amended by S.B. 342, the Universities’ procurement policies
had already been required to “promote the purposes of the regulations
adopted by the Department of General Services governing the
procurement of architectural and engineering services.” SFP § 11-
203(e)(4)(ii) (emphasis added). The law also already required the
Universities’ procurement policies more generally to “promote the
purposes” of the State’s procurement law. ED §§ 12-112(a)(2)(ii)
(USM), 14-109(b)(2)(ii) (Morgan State), 14-405(f)(2)(ii) (St. Mary’s
College). In light of the unique history of the requirement in S.B. 342,
we do not decide whether “promote the purposes” has exactly the same
meaning in those other related contexts as it has in this context.
15
Indeed, for what it is worth, that is how representatives from the
American Federation of State, County, and Municipal Employees
(“AFSCME”) described S.B. 342 when testifying alongside the lead
sponsor in support of the bill. See Hearing on S.B. 342 Before the House
Gov’t Operations Comm., 2016 Leg., Reg. Sess. (Mar. 30, 2016) (written
testimony of AFSCME) (explaining that S.B. 342 “directs the
universities to adopt policies similar to provisions that every other
agency must comply with while still maintaining flexibility to adopt a
policy that fits the needs of each institution”).
24 [107 Op. Att’y
in SPP §§ 13-403(c) and 13-404(b)). Section 13-405 thus recognizes
that its safeguards do not apply under some circumstances, such as
when “State employees are not available to perform the services.”
SPP § 13-404(b). Again, because we doubt that the General
Assembly intended to impose stricter requirements on the
Universities than on units of State government that are subject to
SPP § 13-402, the Universities can likely include similar types of
exemptions in their procurement policies. Cf. SPP §§ 13-403(c)
and 13-404(b). With that in mind, we now turn to the process for
evaluating service contracts that are not exempt.
Before entering into a non-exempt service contract, units of
State government that are subject to the statutory preference for
State employees must comply with the four core elements of SPP
§ 13-405. First, units must demonstrate that they have considered
alternatives to the service contract. SPP § 13-405(b). This element
advances the purposes of the statutory preference by ensuring that
feasible and cost-efficient ways to use State employees are
explored before outsourcing occurs. Second, units must compare
the cost of the service contract with the cost of using State
employees and show specified savings to the State. SPP § 13-
405(c). This element not only prevents the State from paying more
for services that its employees are available to perform but also
requires a level of savings that would justify departing from the
statutory preference for State employees (and thereby protects
State employees from layoffs when feasible and cost-efficient).
Third, units must prepare a formal plan of assistance for State
employees who will be adversely affected by the service contract.
SPP § 13-405(d). This element advances the purposes of the
statutory preference by identifying feasible and cost-efficient ways
that State employees could be used even if outsourcing occurs.
Fourth, units must make the service contract subject to an audit to
determine compliance with projected cost savings. SPP § 13-
405(e). This element operates as a check on whether a service
contract that displaced State employees was actually cost-efficient,
as is required to overcome the statutory preference. Once units
have complied with this process, DBM decides whether to certify
the contract, and if the contract is certified by DBM, it is then
submitted to the BPW for final approval. See SPP § 13-403.
For the Universities, the question is how similar their
procurement policies should be to that process. On one end of the
spectrum, if the Universities’ policies include provisions largely
similar to each of the four core elements of SPP § 13-405, their
policies are very likely to “promote the purposes” of SPP § 13-402.
After all, the core elements of SPP § 13-405 were presumably
Gen. 3] 25
designed by the Legislature to promote what it saw as the purposes
behind the preference for State employees. But the Universities’
policies need not be identical to SPP § 13-405, and whether they
are similar enough to that provision so as to promote the purposes
of SPP § 13-402 is ultimately a decision for the BPW. Again,
although the legislative history of S.B. 342 suggests that the
Universities are required to implement a process for evaluating
service contracts that is generally similar to SPP § 13-405, the
Universities retain discretion to depart from the process in SPP
§ 13-405 so long as the process remains similar enough to promote
the underlying purposes of the preference for State employees.
That is, the elements of the process must operate together to ensure
that State employees are used, rather than outside contractors, when
feasible and cost-efficient for the Universities, considering the
Universities’ unique needs. Ultimately, though, it is up to the BPW
to decide what is sufficiently similar to promote the purposes of
SPP § 13-402.
b. Section 13-218.1 of the State Finance and
Procurement Article
We now turn to the additional requirement in S.B. 342 that
the Universities’ policies must, “to the maximum extent
practicable, be similar” to § 13-218.1 of the State Finance and
Procurement Article. SFP § 11-203(e)(4)(iv). The word “similar”
is ordinarily understood to mean “having a likeness or
resemblance, esp[ecially] in a general way.” Webster’s New
Universal Unabridged Dictionary 1782 (2003); see also Seipp v.
Baltimore City Bd. of Elections, 377 Md. 362, 373-74 (2003) (“The
word ‘similar’ does not mean identical but that which resembles.”).
As with SPP § 13-402, therefore, S.B. 342 gives the Universities
some discretion to develop procurement policies of their own that
resemble SFP § 13-218.1. But the word “similar” in the statute is
also qualified by the phrase “to the maximum extent practicable,”
which limits that discretion to a significant degree. See Fund for
Animals v. Babbitt, 903 F. Supp. 96, 107 (D.D.C. 1995)
(“Obviously, the phrase ‘to the maximum extent practicable’ does
not permit an agency unbridled discretion. It imposes a clear duty
on the agency to fulfill the statutory command to the extent that it
is feasible or possible.”).16 As a result, the Universities have less
discretion when developing policies that are, “to the maximum
extent practicable,” similar to SFP § 13-218.1 than when
developing processes for evaluating service contracts that are
16
But see Maryland Dep’t of the Env’t v. County Comm’rs of Carroll
County, 465 Md. 169, 211 & n. 38 (2019) (recognizing that the phrase
can be a “term of art” in some contexts).
26 [107 Op. Att’y
similar enough to SPP § 13-405 to promote the purposes of SPP
§ 13-402.
Although the Maryland courts have not interpreted the phrase
“to the maximum extent practicable” in this context, what is
“practicable” varies with the circumstances. See, e.g., State v.
Peterson, 315 Md. 73, 88 (1989) (“[T]he phrase ‘whenever
practicable’ is flexible and depends upon the particular
circumstances pertinent to the case.”); Robey v. Broersma, 181 Md.
325, 341 (1943) (“But these words, ‘as soon thereafter as
practicable,’ are of a relative and dependent character, to be
controlled more or less by the circumstances of the case, and by no
means furnish a definite and fixed rule.” (citation omitted)); see
also Black’s Law Dictionary (11th ed. 2019) (defining
“practicable” as “reasonably capable of being accomplished;
feasible in a particular situation”). Here, however, the General
Assembly has required the Universities’ policies to be similar to
SFP § 13-218.1 “to the maximum extent practicable,” SFP § 11-
203(e)(4)(iv) (emphasis added), which leaves relatively little
discretion. This aspect of S.B. 342 thus provides the Universities
with some flexibility to meet their unique needs but requires them
to align their procurement policies with SFP § 13-218.1 to the
extent that doing so is at all practicable.
To understand what that means requires a brief overview of
SFP § 13-218.1. The crux of that provision is the requirement that
a unit of State government that is subject to the general
procurement law must communicate with its employees’ collective
bargaining unit. More specifically, at least 60 days before the
issuance of a solicitation for a service contract, the unit must
provide the exclusive representative of the employees who may be
affected by the service contract with written notice and, since the
enactment of H.B. 158, a reasonable opportunity to meet and
discuss alternatives to the service contract. SFP § 13-218.1(b)(1).
It is clear, then, that the Universities must similarly give affected
employees advance written notice and a reasonable opportunity to
meet and discuss alternatives. Although the timeline need not
necessarily be identical (i.e., 60 days), S.B. 342 obligates the
Universities to include in their procurement policies a notice-and-
conferral requirement that resembles this statutory timeline if at all
practicable. That is, if the Universities depart from that timeline in
their policies, they must be able to explain why there was no
practicable way to provide 60 days’ notice.
Section 13-218.1 also requires the written notice to identify
the “work that is being proposed for contracting” and the
Gen. 3] 27
“contracting procedures, requirements, timetables, and employee
rights as provided in Title 13, Subtitle 4 of the State Personnel and
Pensions Article.”17 The Universities’ policies must therefore
provide for a similar notice. Although the second part of this notice
provision raises the question of how the Universities’ policies must
reflect Title 13, Subtitle 4 of the State Finance and Procurement
Article, that question was answered in Part II.A.2.a above: the
written notice under SFP § 13-218.1 must identify the University’s
process for evaluating service contracts, a process that must
generally be similar (but need not be identical) to the one in SPP
§ 13-405. Indeed, the statutory language of SFP § 13-218.1 (and
its express cross-reference to Title 13, Subtitle 4 of the State
Personnel and Pensions Article) reinforces our conclusion above
that the General Assembly intended the Universities’ policies
under S.B. 342 to be generally similar to those in SPP § 13-405.
B. The Universities’ Compliance with S.B. 342
Your second question is whether the Universities’ current
policies comply with S.B. 342’s requirements. As a procedural
matter, given our conclusion that S.B. 342 requires the Universities
to update their procurement policies and submit them to the BPW
for approval, none of the Universities’ current policies fully
comply with S.B. 342. Although each of the Universities took
action in response to S.B. 342, the statute requires them to develop
procurement policies that reflect each of the items required by SFP
§ 11-203(e)(4) and then to submit those policies to the BPW for
approval.18 But none of the Universities updated their procurement
17
We recognize that, under the rule of the last antecedent, there is an
argument that this provision is referring only to the “employee rights as
provided in Title 13, Subtitle 4 of the State Personnel and Pensions
Article,” and that the “contracting procedures, requirements, [and]
timetables” to which it refers might be located elsewhere in the Maryland
Code. See, e.g., United Bank v. Buckingham, 472 Md. 407, 425-26
(2021) (“[A] qualifying clause ordinarily is confined to the immediately
preceding words or phrase—particularly in the absence of a comma
before the qualifying phrase.”). But in this context—where Title 13,
Subtitle 4 of the State Personnel and Pensions Article governs more than
just employee rights—it seems more likely that the qualifying clause
modifies every element in the list.
18
Earlier this year, the General Assembly added another item that the
Universities must incorporate into their procurement policies. See 2021
Md. Laws, ch. 32. Their policies must now, “to the maximum extent
practicable, require the procurement of food in accordance with Title 14,
Subtitle 7 of [the State Finance and Procurement Article].” SFP § 11-
28 [107 Op. Att’y
policies in that manner. Instead, USM adopted a separate policy
approved only by the Board of Regents, while Morgan State and
St. Mary’s College incorporated elements of S.B. 342 into their
respective collective bargaining agreements.
As for the substance of the Universities’ current policies, the
BPW is the proper entity to evaluate, in the first instance, whether
a particular policy complies with S.B. 342. But we can nonetheless
provide some general observations in response to your request. As
an initial matter, it appears that each of the Universities has at least
articulated a preference for State employees. USM, for example,
has expressed a “preference to use institution employees to
continue providing institution services, unless the use of an
external service contract is justified by cost or other reasons that
cannot be addressed through an alternative means.” University of
Maryland Board of Regents, VIII-22.00 Policy on Service
Contracts (May 1, 2020). Meanwhile, Morgan State has agreed to
“make good faith efforts to use bargaining unit employees to
perform non-exempt job functions in preference to contracting out
with the private sector.” Morgan State MOU at 30. And St. Mary’s
College has similarly agreed to “act consistently with the current
statutory policy to use State Employees to perform all State
functions in State operated facilities in preference to contracting
out with the private sector.” St. Mary’s College MOU at 10.
The extent to which the Universities have implemented a
process for evaluating service contracts that is similar to SPP § 13-
405, however, is mixed. Morgan State’s collective bargaining
agreement, for example, does not appear to incorporate any of the
core elements of SPP § 13-405 that would ordinarily “promote the
purposes” of SPP § 13-402, except that—as separately required by
S.B. 342’s cross-reference to SFP § 13-218.1—the University “will
be available to meet upon written request . . . to discuss alternatives
to the contract.” Morgan State MOU at 30. St. Mary’s College,
for its part, requires “an accounting of the projected cost of the
service contract as opposed to the cost of using College
employees,” though its agreement does not explain how to
determine whether the service contract justifies departing from the
ordinary preference for State employees and does not appear to
203(e)(4)(v). That subtitle establishes the Certified Local Farm
Enterprise Program in the Department of Agriculture. Although this new
requirement is not part of your request, our conclusion that updates to
the Universities’ procurement policies under SFP § 11-203(e)(4) must
be submitted to the BPW for approval would apply with equal force to
this new provision.
Gen. 3] 29
explicitly incorporate any other elements that might be similar to
those in SPP § 13-405. St. Mary’s College MOU at 11.
USM’s policy sets forth the most detailed process and
explicitly incorporates many of the core elements of SPP § 13-405.
See University of Maryland Board of Regents, VIII-22.00 Policy
on Service Contracts (May 1, 2020). For example, for those
contracts that are covered by the policy, USM requires “[a]n
explanation of the steps that the institution has taken to consider
alternatives to the service contract” and a “justification” for the
service contract that contains “[e]stimated cost savings, including
a comparison of the costs of using USM employees versus entering
into a service contract,” as well as a “plan of assistance for
employees affected by the service contract.” Id.
In your request, you suggested three specific ways that a
University’s policy might not sufficiently “promote the purposes”
of SPP § 13-402, using USM’s policy as an example. First, you
suggested that the Universities might be required not only to
articulate a preference for using State employees for services that
State employees are currently performing but also for services that
were already contracted out in the past or for new services that no
contractor or employee is yet performing. More specifically, you
stated that USM’s policy to “use institution employees to continue
providing institution services” might have created an exemption
that does not exist in SPP § 13-402, which provides more broadly
that “[t]he policy of this State is to use State employees to perform
all State functions in State-operated facilities in preference to
contracting with the private sector to perform those functions.”
To be clear, for those units that are subject to SPP § 13-402,
although there does not appear to be any categorical exception from
the preference for contracting out entirely new services or for the
renewal of contracts for services that have already been outsourced,
the preference does not always apply to such contracts. Rather, the
applicability of the preference in those circumstances depends on
the specific facts. For example, for those agencies subject to SPP
§ 13-402, there is usually a threshold question as to whether State
employees are available to perform the service; if they are not
(which we suspect would often be the case in these situations), then
the contract is exempt from the preference. See SPP § 13-404(b).
The Universities would, at the very least, be entitled to have a
similar exemption in their policies, and the way that USM worded
its preference might have been intended to incorporate that type of
exemption. To the extent, however, that there are some situations
at the Universities when State employees are available to perform
30 [107 Op. Att’y
the services covered by either an existing service contract that is up
for renewal or a contract for entirely new services, it will be up to
the BPW to decide whether application of the statutory preference
for State employees in those situations would be necessary to
“promote the purposes” of SPP § 13-402.
Second, you suggested that the Universities might need to
require that their service contracts show cost savings over the same
specific threshold mandated by SPP § 13-405 (which USM’s
policy, for example, does not currently do). That provision requires
most other units of State government to “show savings to this State,
over the duration of the service contract, of 20% of the contract or
$200,000, whichever is less.” SPP § 13-405(c)(1)(ii). It is clear to
us that the Universities need not mirror that exact cost-savings
threshold, because S.B. 342 does not require strict compliance with
SPP § 13-405. It is also clear that the Universities, at the very least,
need to have some sort of process to evaluate whether departing
from the ordinary preference for State employees is justified in
light of the purposes behind the statute, including the goal of
protecting State employees from layoffs when feasible and cost-
efficient. It is somewhat less clear, however, whether each
University would, as part of that evaluation, need to adopt a
specific cost-savings threshold that is similar to the one in SPP
§ 13-405, even if it differs in some respects. The statute ultimately
charges the BPW with deciding such questions.
Third, you suggested that the Universities might need to
provide for review of service contracts for compliance with S.B.
342. To the extent that you are asking about review of a proposed
service contract before it is signed, USM indeed requires the
submission of each proposal to the USM Chancellor, who then
decides whether to submit the proposal to the Board of Regents
and, if so, shares the proposal with the Committee on Finance, for
it to make a recommendation to the full Board of Regents. See
Procedures for Satisfying the Requirements of Board of Regents
Policy VIII-22.00 Policy on Service Contracts. To the extent that
you are asking about an after-the-fact review of the resulting
service contract, however, the USM policy and the Chancellor’s
procedures do not directly address that issue, which appears to be
a difference as compared to SPP § 13-405. To be clear, SPP § 13-
405 only makes service contracts “subject to a legislative audit to
determine compliance with projected cost savings.” SPP 13-
405(e)(1) (emphasis added). The fact that a contract might be
subject to an audit does not mean that an audit is required in every
Gen. 3] 31
case.19 So the Universities certainly would not need to require an
after-the-fact review of every contract, as that would be a stricter
standard than the one imposed on units subject to SPP § 13-405. It
is for the BPW to decide, however, whether the express possibility
for some after-the-fact review is necessary in order to “promote the
purposes” of SPP § 13-402.20
Finally, we examine the requirement that the Universities’
policies must, “to the maximum extent practicable, be similar” to
SFP § 13-218.1. Under that provision, each of the Universities has
taken steps to provide affected employees with advance written
notice of a proposed service contract and a reasonable opportunity
to meet to discuss alternatives to the service contract, as set forth
in SFP § 13-218.1. In fact, each of the Universities has adopted a
60-day timeframe, the exact same timeframe provided under SFP
§ 13-218.1, although some of their policies—consistent with the
language of S.B. 342—provide for 60 days whenever doing so is
practicable, meaning that the policies might allow for less than 60
days’ notice in limited circumstances. See Morgan State MOU at
19
Indeed, although H.B. 158 originally stated that “the legislative
audit required under . . . this paragraph shall be completed prior to the
expiration of the initial term of the service contract,” H.B. 158, 2015
Leg., Reg. Sess. (first reader) (emphasis added), that provision was
removed at the request of the legislative auditor so that auditors would
“have discretion regarding the contracts selected for audit, since [they]
do not have sufficient resources to audit every contract.” Letter from
Thomas J. Barnickel III to Sen. Thomas M. Middleton and Del. Maggie
McIntosh, at 1 (Mar. 17, 2015). In light of that amendment, service
contracts governed by Title 13, Subtitle 4 of the State Personnel and
Pensions Article are “subject to” audit, but an audit is not required of
every contract. SPP § 13-405(e).
20
On this point, for the sake of completeness, we note that, when one
of the sponsors of S.B. 342 was asked during a committee hearing
whether the bill would extend the requirement for an audit of projected
savings to the Universities, he responded, “I would say, not extend; I
would say we thought that we did that last year and this is cleaning that
up.” Hearing on S.B. 342 Before the Senate Educ., Health, and Envtl.
Affairs Comm., 2016 Leg., Reg. Sess. (Feb. 16, 2016) (statement of Sen.
Feldman). That exchange could be read to suggest that this sponsor, at
least, expected the Universities to have such requirements in their
policies. Of course, in “cleaning . . . up” the prior year’s bill, the General
Assembly chose to require the Universities to adopt procurement policies
that “promote the purposes” of SPP § 13-402, rather than to expressly
require a “similar” audit provision to the one in SPP § 13-405. As such,
it is ultimately up to the BPW to determine whether a similar provision
providing for the possibility of after-the-fact review is required to
“promote the purposes” of the preference for State employees.
32 [107 Op. Att’y
30 (providing the University will “to the maximum extent
practicable” provide notice “at least sixty (60) days” in advance
(emphasis added)); St. Mary’s College MOU at 10 (providing for
notice “at its earliest opportunity, but normally no later than sixty
(60) days in advance” (emphasis added)). While such processes
appear likely to satisfy this aspect of S.B. 342, the BPW will
ultimately make that determination once they are incorporated into
the Universities’ procurement policies and submitted for approval.
III
Conclusion
In our opinion, as a procedural matter, S.B. 342 obligates
USM, Morgan State, and St. Mary’s College to amend their
procurement policies and submit them to the AELR Committee for
review and to the BPW for approval. Substantively, the
Universities have flexibility to develop a process that is not
identical to SPP § 13-405 and that meets each of their unique needs,
but the process must be similar enough to SPP § 13-405 so as to
protect State employees from layoffs associated with outsourcing
when it is feasible and cost-efficient to do so and to prevent the
State from paying more for services its employees are available to
perform. The Universities’ policies must also, “to the maximum
extent practicable, be similar” to SFP § 13-218.1 by providing
affected employees with advance written notice of a proposed
service contract and a reasonable opportunity to meet and discuss
alternatives to the contract. Although each of the Universities has
taken steps to address S.B. 342, none of them amended their
procurement policies and submitted them to the BPW for approval.
Ultimately, the BPW will have to decide in the first instance
whether, and to what extent, each of the Universities’ policies
complies with S.B. 342.
Brian E. Frosh
Attorney General of Maryland
Alan J. Dunklow
Assistant Attorney General
Patrick B. Hughes
Chief Counsel, Opinions and Advice