# Montgomery County Code — Part II. Local Laws, Ordinances, Resolutions, Etc.

## Chapter 11B. Contracts and Procurement.

### Article VII. Protests and Debarment.

**Sec. 11B-36. Protests of solicitations and awards.**

  (a)   Right to protest. Any actual or prospective bidder or offeror who is aggrieved in connection with a formal solicitation may challenge a decision regarding the formal solicitation. A bidder or offeror is aggrieved only if the bidder or offeror can demonstrate that should the protest be sustained, the bidder or offeror may be eligible for the award, or the bidder or offeror may be eligible for the award of costs under subsection (h).  The protest must be filed in writing with the Director:

    (1)   within 10 days after the Director publicly lists the proposed contract award if the bidder or offeror seeks as a remedy the award of the contract or costs under subsection (h); and

    (2)   before the submission date for bids or proposals if the bidder or offeror seeks as a remedy the cancellation or amendment of the solicitation.

  (b)   Authority to resolve protests. The Director has the authority to settle or resolve a protest under regulations.

  (c)   Appeal to Chief Administrative Officer. An actual or prospective bidder or offeror who is aggrieved by the decision of the Director may challenge the decision of the Director.  The appeal must be filed in writing with the Chief Administrative Officer within 10 days of the Director's decision.

  (d)   Hearing. The Chief Administrative Officer may hold a hearing if necessary to resolve an appeal and may designate a hearing officer to take evidence, and make proposed findings and a recommendation.

  (e)   Decision. If the appeal is not resolved by mutual agreement, the Chief Administrative Officer in consultation with the County Attorney must adjudicate the protest on the record and issue a written decision.  The decision must:

    (1)   state the reasons for the action taken; and

    (2)   inform the appellant of the right to an administrative appeal to the Circuit Court under the Maryland Rules.

  (f)   Appeal to court. The appellant may appeal the decision of the Chief Administrative Officer to the Circuit Court under the Maryland Rules. The appellant and the County may appeal the decision of the Circuit Court to the Court of Special Appeals.

  (g)   Award of contract during a protest. In the event of a timely protest or appeal, the Director, after consultation with the head of the Using Department, may award the contract without delay if the Director determines in writing that awarding the contract without delay is necessary to protect the interests of the County.

  (h)   Entitlement to costs. Any judgement in favor of a protesting bidder or offeror is limited to reasonable bid or proposal preparation costs if:

    (1)   the protesting bidder or offeror should have been awarded the contract; and

    (2)   the award has been made to another.

**Sec. 11B-37. Debarment or suspension.**

  (a)   Debarment. After reasonable notice to the person involved and reasonable opportunity for that person to respond, the Director, after consultation with the Using Department and the County Attorney, may debar a person for cause from consideration for award of contracts.  The Director must determine the length of time the contractor is debarred.  The length of time should not be less than the time which would be expected to include one or more solicitations for the type of work being provided by the debarred contractor.  The debarment time imposed by the Director is not limited by the debarment time imposed by another public entity.  The Director may hold a hearing if necessary to determine if a person should be debarred and may designate a hearing officer to take evidence and propose findings to the Director.

  (b)   Suspension. The Director, after consultation with the Using Department and the County Attorney, may suspend a person from consideration for award of contracts if there is probable cause for debarment.  The suspension must not be for more than 6 months.

  (c)   Causes for debarment or suspension. The causes for debarment or suspension may include:

    (1)   conviction for commission of a criminal offense incident to obtaining or attempting to obtain a public or private contract or subcontract, or in the performance of the contract or subcontract;

    (2)   conviction of embezzlement, theft, forgery, bribery, falsification or destruction of records, receiving stolen property, kickbacks or any other offense indicating a lack of business integrity;

    (3)   conviction under state or federal antitrust statutes arising out of the submission of bids or proposals;

    (4)   violation of County contract provisions of a character which is regarded by the Director to be so serious as to justify debarment action.  These provisions may include:

      (A)   deliberate failure without good cause to perform under the specifications or within the time limit provided in the contract; or

      (B)   a record of failure to perform or of unsatisfactory performance under the provisions of one or more contracts; however, failure to perform or unsatisfactory performance caused by acts beyond the control of the contractor are not a basis for debarment;

    (5)   violation of the wage requirements in Section 11B-33A;

    (6)   any other serious cause the Director determines to be so compelling as to affect the competency or integrity of a potential contractor, including debarment by another public entity;

    (7)   violation of Section 11B-33D;

    (8)   conviction, plea of nolo contendere, or sentencing for a criminal offense involving human trafficking, including offenses under:

      (A)   Sections 3-1102 {Sex trafficking} and 3-1202 {Labor trafficking} of the Criminal Law Article of the Maryland Code, as amended; and

      (B)   Chapter 77 {Peonage, Slavery, and Trafficking in Persons} of Part I of Title 18 of the United States Code, as amended;

    (9)   finding by an administrative or judicial body of a violation of Subtitle 4 {Wages and Hours} of Title 3 of the Labor and Employment Article of the Maryland Code, as amended; or

    (10)   violation of the ethical standards set forth in this Chapter or Chapter 19A.

  (d)   Decision. The Director must issue a written decision to debar or suspend. The decision must:

    (1)   state the reasons for the action taken; and

    (2)   inform the debarred or suspended person of the right to an administrative appeal, after the decision becomes final, to the Circuit Court under the Maryland Rules.

  (e)   The Director must send a copy of the decision to the person involved and the Chief Administrative Officer who may approve, revise, or remand the decision.  If the Chief Administrative Officer takes no action within 5 working days, the decision of the Director becomes final.

  (f)   Appeal to court. The debarred or suspended person may appeal the decision to debar or suspend to the Circuit Court under the Maryland Rules governing administrative appeals.  The debarred or suspended person and the County may appeal the decision of the Circuit Court to the Appellate Court of Maryland.

**Sec. 11B-38. Remedies before an award.**

  If before an award the Director determines that a solicitation or proposed award of a contract is in violation of law or regulations, then the solicitation or proposed award must be:

  (a)   canceled; or

  (b)   revised to comply with the law.

**Sec. 11B-39. Remedies after an award.**

  If after an award the Director determines that a solicitation or award of a contract was in violation of law or regulations, then:

  (a)   if the person awarded the contract has not acted fraudulently or in bad faith;

    (1)   the contract may be ratified and affirmed; or

    (2)   the contract may be terminated and the person awarded the contract must be compensated for the actual expenses reasonably incurred under the contract, plus a reasonable profit, prior to the termination;

  (b)   if the person awarded the contract has acted fraudulently or in bad faith;

    (1)   the contract may be declared null and void; or

    (2)   the contract may be ratified and affirmed if the action is in the best interests of the County, without prejudice to the rights of the County to damages as may be appropriate.