It is the intent of the City of Baltimore to avoid becoming a passive participant in private sector commercial discrimination by refusing to engage in business with business firms that discriminate in the solicitation, selection, hiring, or treatment of vendors, suppliers, subcontractors, or commercial customers on the basis of race, gender, religion, national origin, ethnicity, sexual orientation, gender identity or expression, age, or disability by providing a procedure for receiving, investigating, and resolving complaints of discrimination filed against business firms that have submitted a bid or proposal for, have been selected to engage in, or are engaged in doing business with the City. Ord. 06-186

In this subtitle, the following terms have the meanings indicated unless the context clearly requires a different meaning. “Baltimore City Market Area” means Baltimore City, Baltimore County, Anne Arundel County, Howard County, Montgomery County, and Prince George’s County. “Business firm” means any person, firm, sole proprietorship, partnership, corporation, limited liability company, or other business entity or combination of them, including any financial institution, developer, consultant, prime contractor, subcontractor, supplier, or vendor, that has submitted a bid or proposal, has been selected to do business, or is doing business with the City, including selling or leasing supplies, or goods, or providing construction, financial, professional, or other services, in return for a fee or any other form of compensation. “Chief” means the Chief of the Minority and Women’s Business Opportunity Office. “City” means the City of Baltimore and those agencies, boards, commissions, government authorities, and corporations authorized to act on behalf of, or as agent for, the City of Baltimore. “Commercial customer” means a business entity that has procured or attempted to procure goods or services from another business entity for business purposes, as opposed to personal, family, or household purposes. “Contract” means an agreement with any business firm let by or on behalf of the City for that business firm to sell or lease supplies, or goods, or provide construction, financial, professional, or other services, in return for a fee or any other form of compensation. “Discrimination” means any disadvantage, difference, distinction, or preference in the solicitation, selection, hiring, or treatment of a vendor, supplier, subcontractor, commercial customer, or any other business entity on the basis of race, gender, religion, national origin, ethnicity, sexual orientation, gender identity or expression, age, disability, or any other form of unlawful discrimination regarding the characteristics of that business entity’s employees or owners. “Discrimination” does not include otherwise lawful efforts, including those specified in Subtitle 28, {“Minority and Women’s Business Enterprises”} of <cite data-path="|5">this Article</cite>, to remedy the effects of discrimination that has occurred or is occurring in the marketplace. “Financial institution” means any person or entity engaged in the business of lending money, guaranteeing loans, extending credit, securing bonds, or providing venture or equity capital to business entities, or that offers financial services in connection with City projects or the administration of City government. “Financial institution” includes any bank, savings and loan association, venture capital company, insurance company, bonding company, mortgage company, credit union, and broker. “Hearing examiner” means an individual appointed by the City Solicitor to conduct hearings under this subtitle. “Office” means the Minority and Women’s Business Opportunity Office. “Subcontract” means an agreement for the performance of a particular portion of work to be performed under a contract with the City. Ord. 06-186 Ord. 22-125

This subtitle applies to all business firms and all contracts to which the City is a party. A claim of discrimination may be investigated and adjudicated under this policy only if the claim alleges that:the discrimination was committed by a business firm within the applicable limitations period set forth in <cite data-path="|5|§29-7">§ 29-7 of this subtitle</cite>; and the discrimination occurred in the Baltimore City Market Area. Discrimination is deemed to have occurred in the Baltimore City Market Area only if:each party either operated a place of business in, or resided in, the Baltimore City Market Area at the time of the discrimination; or the discriminatory act was committed in the Baltimore City Market Area. Every contract and other agreement between the City of Baltimore and any governmental agency, quasi-governmental agency, corporation, developer, or contractor, under which the agency, corporation, developer, or contractor receives any fiscal assistance from or through the City for the purpose of contracting with businesses to perform real estate development, renovation, maintenance, or other services, must require the agency, corporation, developer, or contractor to comply with this subtitle in awarding and administering that contract or agreement. Ord. 06-186

The provisions of this subtitle are to be liberally construed to accomplish its policies and purposes. Ord. 06-186 Ord. 22-125

This subtitle may be cited as the “Commercial Non-Discrimination Policy”. Ord. 06-186

It is the policy of the City of Baltimore not to accept bids or proposals from, nor to engage in business with, any business firm that has discriminated on the basis of race, gender, religion, national origin, ethnicity, sexual orientation, gender identity or expression, age, disability, or any other form of unlawful discrimination in its solicitation, selection, hiring, or treatment of another business. Ord. 06-186

Any adult person, business entity, association, organization, or government agency may file an administrative complaint with the Chief stating facts showing or tending to show that a business firm has engaged in discrimination against one or more other businesses. The complaint must be filed within 4 years from the date it accrues. Within 10 business days, the Chief shall notify the business firm against whom the complaint was filed that a complaint has been received. Ord. 06-186

The Office’s investigative unit shall review and investigate discrimination complaints filed under this subtitle. The City Solicitor in consultation with the Chief shall exercise his or her best judgment to assign Office staff persons, other City personnel, and outside consultants to the investigative unit as necessary to conduct investigations in a comprehensive, fair, competent, and efficient manner. The investigative unit shall seek all relevant evidence from the complainant, from the respondent business firm, and from external sources relating to the allegations of the complaint. Ord. 06-186

Based upon the investigative unit’s review and investigation, the Chief shall make an initial non-binding finding of each allegation stated in the complaint, that either:the investigation produced sufficient evidence to find that the alleged discrimination did take place (“sustained”); the investigation failed to produce sufficient evidence to find that the alleged discrimination took place (“not sustained”); the investigation produced sufficient evidence to find that the alleged discrimination did not take place (“unfounded”); the investigation produced sufficient evidence to establish that the complainant knowingly made one or more false or frivolous allegations (“false or frivolous”); the allegation has been settled or otherwise resolved with the agreement of the interested parties; or the allegation has been withdrawn. The Chief shall recommend to the City Solicitor, or his or her representative, appropriate action to be taken. That action may include additional investigation of the complaint, sanctions, remedies, or other action consistent with this subtitle. In making the initial finding and recommendation, the Chief may consider evidence regarding:whether there was an intent to discriminate on the part of the respondent business firm; whether there was a pattern and practice of discrimination on the part of the respondent business firm; any actions taken by the respondent business firm to remedy the alleged discrimination; the effectiveness of any prior attempts by the respondent business firm to remedy the discrimination; whether the respondent business firm had procured goods or services from or otherwise engaged in business with persons or entities of the same protected class as the complainant to an extent sufficient to demonstrate that the respondent had not discriminated against such protected class in the overall context of its business; and any other evidence deemed relevant by the Chief. The Chief shall make the initial finding based upon a preponderance of the evidence. The initial non-binding findings and recommendations shall be made by the Chief within 120 calendar days of receipt of the complaint. The City Solicitor may extend this time limit at the request of the Chief either for good cause, or if the parties agree to mediate a settlement to the complaint. The Chief shall notify the complainant and the business firm within 5 business days of the issuance of the initial non-binding findings and recommendations, including an explanation of the reasons justifying the initial findings. Ord. 06-186

If the Chief determines that one or more allegations are sustained, the business firm against whom the allegations were made shall be entitled to an administrative hearing on the allegations and an opportunity to participate in the administrative hearing. The business firm must request an administrative hearing by filing a written request with the Chief within 15 calendar days of notice of the initial findings and recommendations. If the business firm fails to properly request an administrative hearing, the initial non-binding findings and recommendations shall become the final administrative decision of the City pending review and approval by the Board of Estimates. If the business firm does request an administrative hearing, the Chief shall so notify the City Solicitor immediately, and within 10 days, the City Solicitor shall appoint a hearing examiner for purposes of conducting the administrative hearing. The administrative hearing shall be held by the hearing examiner within 90 calendar days of the appointment of the hearing examiner. The City Solicitor shall establish regulations, as necessary, that are in accordance with this Subtitle and any due process rights to which any party is entitled, to further specify the procedures and standards by which these administrative hearings are conducted. At a minimum, the hearing shall afford all parties an opportunity to present witnesses, conduct direct and cross-examination of witnesses, introduce relevant evidence, submit briefs, and present oral argument. Findings shall be made by the hearing examiner based upon a preponderance of the evidence presented. Consistent with the State Public Information Act, Title 4 of the State <cite data-path="|general">General Provisions Article</cite>, and with the State Open Meetings Act, Title 3 of the State <cite data-path="|general">General Provisions Article</cite>, the hearing examiner may issue protective orders for good cause for the following reasons:to limit, or otherwise impose conditions on, access by any person to any document in the possession of a party, including a document in the City’s possession or in the record of the hearing that is not a public record; or to close all or any portion of the hearing, or otherwise impose conditions on access to the hearing by any person. Within a reasonable period of time not to exceed 120 days after the closing of the hearing record, the hearing examiner shall prepare a written decision that may affirm or reject the initial findings and recommendations, may substitute different findings and order appropriate remedies, or may return the case to the Chief for further investigation and findings to be completed within a period of time specified by the hearing examiner. The hearing examiner’s written decision shall be based upon a preponderance of the evidence contained in the hearing record, and shall reflect the evidentiary basis for its findings. At the hearing, the City shall have the burden of proof based upon a preponderance of the evidence. Ord. 06-186 Ord. 16-503

When a complaint is sustained in a final administrative decision, the hearing examiner or the Board of Estimates may order any one or more of the following actions:any remedy agreed to by the respondent business firm, the complainant, and the City; recommendation to, or implementation of procedures by, the City Solicitor and the Board of Estimates for debarment of the respondent business firm from bidding and contract awards on City projects for a period of not more than 5 years; rescission, suspension or termination of any current contract between the respondent business firm and the City; referral of the matter for criminal prosecution for fraud and other violations of law, if appropriate under the circumstances; or The Board of Estimates or Hearing Examiner may order the parties to subject the complaint to mediation. Ord. 06-186

If the Chief determines that one or more allegations of a complaint are false and that the complainant knew them to be false when filed, or that one or more of the allegations of a complaint are frivolous and without merit, the Chief may refuse to review or investigate any complaint filed under this subtitle by the same complainant for a period of up to 3 years. The Chief may also recommend to the hearing examiner or the Board of Estimates that monetary sanctions be imposed against the complainant in the amount of the costs incurred for the investigation and review of the false or frivolous complaint. Ord. 06-186

A business firm against whom a complaint has been filed or a complainant may appeal the decision of the hearing examiner by filing a request for an appeal in writing with the City Solicitor within 10 calendar days from service of the notice of the decision. The City Solicitor, or his or her representative, shall within 10 calendar days of receipt of the request for appeal, notify all parties that an appeal has been requested, and refer the matter to the Board of Estimates to hear the appeal. The City Solicitor shall also transfer the entire record of the investigation and administrative hearing to the Board of Estimates in advance of the appeal hearing. The appeal shall be heard and the Board of Estimates shall render a final administrative decision within 90 calendar days of receipt of the request for appeal. At the appeal hearing, the Chief or the Chief’s designee shall be responsible for presenting the justifications for its findings and recommendations as previously sustained or modified by the hearing examiner. Ord. 06-186

A party aggrieved by a final decision of the Board of Estimates under this subtitle may seek judicial review of that decision by petition to the Circuit Court for Baltimore City in accordance with the Maryland Rules of Procedure. A party to the judicial review may appeal the court’s final judgment to the Court of Special Appeals in accordance with the Maryland Rules of Procedure. Ord. 06-186 Ord. 19-332

Every contract and subcontract shall contain a nondiscrimination clause that reads as follows: Contractor shall not discriminate on the basis of race, gender, religion, national origin, ethnicity, sexual orientation, gender identity or expression, age, or disability in the solicitation, selection, hiring, or treatment of subcontractors, vendors, suppliers, or commercial customers. Contractor shall provide equal opportunity for subcontractors to participate in all of its public sector and private sector subcontracting opportunities, provided that nothing contained in this clause shall prohibit or limit otherwise lawful efforts to remedy the effects of marketplace discrimination that has occurred or is occurring in the marketplace, such as those specified in <cite data-path="|5">Article 5</cite>, Subtitle 28 of the Baltimore City Code, as amended from time to time. Contractor understands and agrees that violation of this clause is a material breach of the contract and may result in contract termination, debarment, or other sanctions. This clause is not enforceable by or for the benefit of, and creates no obligation to, any third party. Ord. 06-186

All requests for bids or proposals issued by the City shall include a clause that reads as follows: As part of its bid or proposal, Bidder shall provide to the City a list of all instances within the past 5 years where there has been a final adjudicated determination in a legal or administrative proceeding in the State of Maryland that the bidder has discriminated against its subcontractors, suppliers, vendors, or commercial customers on the basis of race, gender, religion, national origin, ethnicity, sexual orientation, gender identity or expression, age, or disability, and a description of any resulting sanction entered and remedial action taken. Ord. 06-186

Every contract shall include a clause that reads as follows: Upon the City’s request, and only after the filing of a complaint against Contractor pursuant to <cite data-path="|5">Article 5</cite>, Subtitle 29, of the Baltimore City Code, as amended from time to time, Contractor agrees to provide the City, within 60 calendar days, a truthful and complete list of the names of all subcontractors, vendors, and suppliers that Contractor has used in the past 4 years on any of its contracts that were undertaken within the Baltimore City Market Area as defined in <cite data-path="|5">Article 5</cite>, §28-1(d) of the Baltimore City Code, as amended from time to time, including the total dollar amount paid by Contractor for each subcontract or supply contract. Contractor agrees to fully cooperate in any investigation conducted by the City pursuant to the City’s Commercial Non-Discrimination Policy, as contained in <cite data-path="|5">Article 5</cite>, Subtitle 29, of the Baltimore City Code, as amended from time to time. Contractor understands and agrees that violation of this clause is a material breach of the contract and may result in contract termination, debarment, and other sanctions. Ord. 06-186

The remedies provided by this subtitle are in addition to any other statutory, legal, or equitable remedies that may be available and are not intended to be prerequisite to or exclusive of any other remedies. Ord. 06-186

The filing, investigation, hearing, and appeal of a complaint under this subtitle does not hinder or affect the award of, performance of, or payment on a contract prior to a final administrative decision that establishes a violation. Ord. 06-186

Subject to Title 4 {“Administrative Procedure Act – Regulations”} of the <cite data-path="|general">City General Provisions Article</cite>, the City Solicitor may adopt rules and regulations to carry out this subtitle. Ord. 06-186 Text Conformed 02/14/21 By authority of Ordinance 20-431, Section 5, the Director of Legislative Reference, in consultation with the Law Department, has conformed the text of this section to refer expressly to the requirements of the recently-enacted Administrative Procedure Act that, effective January 15, 2021, governs the proposal, adoption, and publication of administrative rules and regulations.