In this subtitle the following words have the meanings indicated. “Adversely affect” means to: eliminate more than two employee positions assigned to perform bargaining unit work if the positions are: authorized; fully funded; and vacant for less than 90 days; or occupied at the time the Commission solicits a service contract; or permanently and involuntarily reduce: below the number of hours for regular full–time employment for more than five employees currently assigned to a regular full–time work schedule to perform bargaining unit work when the Commission solicits a service contract; the pay grade for more than five employees currently assigned to a regular full–time work schedule to perform bargaining unit work when the Commission solicits a service contract; or the base pay or fringe benefits otherwise applicable to a job classification covering more than five employees currently assigned on a full–time basis to perform bargaining unit work when the Commission solicits a service contract. “Adversely affect” does not include an action the Commission takes in accordance with: a bona fide disciplinary proceeding; an applicable collective bargaining agreement in accordance with Subtitle 2 of this title; or a reallocation or reassignment to another bargaining unit work or other duties that does not result in a change in job classification or grade. “Bargaining unit work” means work duties assigned or allocated to a position occupied within the preceding 90 days by an employee who is represented by a certified representative. “Certified representative” means an employee organization certified as an exclusive representative in accordance with Subtitle 2 of this title. “Secretary–treasurer” means the secretary–treasurer of the Commission. “Service contract” means a procurement contract for services that will be provided to the Commission.

This subtitle applies to a service contract that: the Commission solicits as a management plan intended to adversely affect employees of the Commission represented by a certified representative; and a procurement officer of the Commission estimates will exceed a yearly cost of $75,000 as calculated under subsection (b) of this section. The Commission shall adjust the estimate of the yearly cost described in subsection (a)(2) of this section to the nearest $100 every 2 years to reflect any aggregate increase in the Consumer Price Index for all urban consumers, for the Washington Metropolitan Area, or any successor index, for the previous 2 years. This subtitle does not apply to: solicitation of a service contract as part of a management plan or program intended to augment bargaining unit work and not for a present or eventual purpose of adversely affecting employees of the Commission represented by a certified representative; solicitation of a service contract for which the primary purpose is to obtain goods or construction services; solicitation of a service contract that the Commission’s purchasing officials reasonably believe and express in writing may negatively affect the potential for participation by a minority business enterprise according to a minority business enterprise utilization program authorized under Title 15, Subtitle 2 of this article; solicitation of a service contract for a service provided by a consultant; solicitation of a service contract for a professional service, unless the scope of service is provided by employees of a bargaining unit when the service contract is solicited; solicitation of a service contract that the Commission reasonably believes is: necessary to meet an emergent or imminent threat to public health, welfare, or safety; required to comply with the requirements of a grant related to the funding of the service contract; or related to the settlement of an insurance claim; solicitation of a service contract that is in the best interest of an employee based on a need for specialized safety experience or expertise; solicitation of a service contract for a service provided by a public entity or provided to the Commission in accordance with a public–private partnership with a private entity; solicitation of a service contract to be awarded on a noncompetitive basis in accordance with applicable laws regarding service contracts awarded on a noncompetitive basis; a service contract entered into before October 31, 2007; the renewal or rebidding of a service contract entered into before October 31, 2007, if the renewal or rebidding of the service contract does not result in a greater adverse effect on employees of a bargaining unit than existed before its renewal or rebidding; solicitation of a service contract for a capital improvement project or asset management project; solicitation of a class, type, category, or particular service contract that the Commission reasonably believes should be performed by an independent contractor to eliminate a conflict of interest otherwise apparent if the services are performed by an employee of a bargaining unit; solicitation of a class, type, category, or particular service contract when the need for the service or activity is such that the time necessary for the analysis required under § 16–404 of this subtitle would: result in damage to property of the Commission; result in injury to an individual; or substantially hinder the objective of constructing or maintaining safe and sanitary properties and facilities; or a service contract that the Montgomery County Council or the Prince George’s County Council authorizes or requires to be provided by an independent contractor. This subtitle does not apply to or limit the authority of the Commission to abolish a bargaining unit position or conduct a reduction in force.

Before the Commission solicits a service contract under this subtitle, the secretary–treasurer shall certify that the Commission has complied with §§ 16–404 and 16–405 of this subtitle.

The secretary–treasurer may not certify that the Commission complied with the requirements of this subtitle unless the Commission: has taken steps to consider alternatives to the service contract, including reorganization, reevaluation of service, and reevaluation of performance; has consulted with the certified representative of all employees of the Commission who will be adversely affected if the Commission enters into the service contract; and has demonstrated, based on a cost comparison analysis and good faith estimates, that by entering into the service contract the Commission will save at least an amount equal to the lesser of $200,000 or 20% of the estimated net present value of the cost of the service contract. The Commission shall estimate and compare at least the following in the cost comparison analysis: direct costs, including fringe benefits and the assumption that the contractor will pay employees who perform work under the service contract at the lesser of the labor rate established as the county living wage rate for Montgomery County or Prince George’s County; indirect overhead costs properly allocable to the bargaining unit work or service contract according to generally accepted accounting principles; and costs associated with unemployment compensation or outplacement assistance for displaced employees.

The Commission shall provide at least 60 days’ advance notice, and maintain at all times a formal plan of outplacement assistance, for each employee of the Commission who is represented by a certified representative and will be adversely affected by a service contract that is subject to this subtitle. A plan described in subsection (a) of this section shall include: efforts to transfer or place each adversely affected employee of the Commission in a vacant position of the Commission that the employee is qualified to perform; inclusion of a requirement in the service contract that the contractor shall: notify the Commission of each vacant position for which displaced employees of the Commission may apply; and consider and give preference to hiring displaced employees of the Commission; and written notification of the anticipated adverse effect on one or more job classifications to the certified representative at least 90 days before the anticipated adverse effect will occur.

The certified representative of an adversely affected employee of the Commission may submit a proposal for existing bargaining unit employees to continue performing the services described in a solicitation while achieving the targeted savings.

If the Commission fails to comply with this subtitle and an employee of the Commission is adversely affected, the certified representative of the employee may file an appeal on the record on behalf of the employee before the State Office of Administrative Hearings in accordance with the contested case provisions of the Administrative Procedure Act, Title 10, Subtitle 2 of the State Government Article. If the administrative law judge finds that the Commission was arbitrary and capricious in soliciting or entering into a service contract that is subject to this subtitle, and the employee of the Commission has been adversely affected, the administrative law judge may award the employee actual damages for back pay and front pay for a combined period of up to 2 years beginning on the date the employee was first adversely affected. The employee is obligated to mitigate the actual damages. An award of actual damages authorized under this subsection shall be the sole and exclusive remedy for a violation of this subtitle that is available to the employee, and liability may not accrue for punitive damages, consequential damages, or damages for emotional distress or pain and suffering. Noncompliance with this subtitle may not invalidate a contract award or proposed contract award that the Commission has otherwise validly awarded or issued.