Plain Text Law

Title 21 — Subtitle 08. Suspension and Debarment

Chapter 01. General

Regulation .01 Purpose.Copy Citation

The purpose of this subtitle is to:
A.
Promote the best interests of the public and the State by protecting the integrity of the procurement process; and
B.
Ensure open competition for public contracts and impartial selection of qualified and responsible participants in the procurement process.

Regulation .02 Definitions.Copy Citation

A.
In this subtitle, the following words have the meanings indicated.
B.
Terms Defined.
(1)
“Business” means an individual, or a corporation, partnership, sole proprietorship, joint venture, or any other legal entity through which commercial activity is conducted.
(2)
“Contract” means any agreement in any form.
(3)
“Controlling stockholder” means a stockholder who:
(a)
Owns more than 25 percent of the voting shares of a corporation; or
(b)
Has the power to direct or control the direction of the management or policies of a corporation, regardless of the number of shares the stockholder owns.
(4)
“Conviction” means a judgment or conviction of a criminal offense by any court of competent jurisdiction, whether entered upon a verdict or a plea, and includes:
(a)
A conviction entered upon an accepted plea of nolo contendere; or
(b)
The imposition of probation before judgment.
(5)
“Person” means an individual, or a corporation, partnership, sole proprietorship, joint stock company, joint venture, unincorporated association, union, committee, club, or other organization or legal entity.
(6)
“Principal” means a person with actual or apparent authority to enter into a contract on behalf of a business.
(7)
“Public body” means:
(a)
The State;
(b)
A unit; or
(c)
A local governmental entity in the State, including a bicounty or multicounty governmental entity.
(8)
Unit.
(a)
“Unit” means an officer or other entity that is in the Executive Branch of the State government and is authorized by law to enter into a procurement contract.
(b)
“Unit” does not include:
(i)
A bistate, multistate, bicounty, or multicounty governmental agency; or
(ii)
A special tax district, sanitary district, drainage district, soil conservation district, water supply district, or other political subdivision of the State.
(9)
Unsatisfactory Performance.
(a)
“Unsatisfactory performance” means deficient performance or default, within the preceding 5 years, on one or more contracts.
(b)
“Deficient performance” includes but is not limited to:
(i)
Failure to perform in accordance with contract specifications or terms and conditions;
(ii)
Untimely performance;
(iii)
Performance that violates an applicable statute, regulation, ordinance, code, or standard of performance in the relevant industry.

Regulation .03 Public Notice of Suspension and Debarment Actions.Copy Citation

A.
The Board shall maintain a list of persons that it has suspended or debarred.
B.
A list of persons suspended or debarred for all or any portion of the fiscal year, including a summary of the scope of the suspension or debarment, shall be published in eMaryland Marketplace annually and shall be maintained in an electronic media accessible to the public.

Chapter 02. Suspension

Regulation .01 General.Copy Citation

A.
Upon the institution of debarment proceedings under COMAR 21.08.04, and before a final decision on debarment, the Board may suspend a person from:
(1)
Being considered for the award of, being awarded, or performing a contract with a public body if the debarment proceedings are instituted under State Finance and Procurement Article, §16-202, Annotated Code of Maryland, and COMAR 21.08.03.01 or .02; or
(2)
Being considered for the award of, being awarded, or performing a contract with the State if the debarment proceedings are instituted under State Finance and Procurement Article, §16-203, Annotated Code of Maryland, and COMAR 21.08.03.03.
B.
If the Board suspends a person pending a decision on debarment, the person may petition the Board to modify or terminate the suspension. The petition shall be:
(1)
In writing; and
(2)
Received by the Board within 30 days after the person receives notice that it is suspended.
C.
If a suspended person's debarment would cause the debarment of a business under State Finance and Procurement Article, §16-307, Annotated Code of Maryland, and COMAR 21.08.03.04, the Board shall notify the business in writing within a reasonable time:
(1)
That the business is suspended to the same extent that the person is suspended;
(2)
Of the basis for the person's suspension; and
(3)
Of the business' right to petition for modification or termination of the business' suspension.
D.
Hearings.
(1)
If a suspended person or business requests a hearing on its petition to terminate or modify its suspension, the Board, in its discretion, may grant or deny the request.
(2)
If the Board grants the request for a hearing, the Board may delegate the hearing to a hearing officer and in such case shall refer the case to the Office of Administrative Hearings for assignment of a hearing officer.
(3)
A hearing on a petition to modify or terminate a suspension shall be held in accordance with COMAR 21.08.04.06.

Regulation .02 Suspension of Businesses by Operation of Law.Copy Citation

A.
A business is suspended to the same extent that a person is suspended if the person is:
(1)
An officer, director, controlling shareholder, or partner of the business; or
(2)
An employee of the business directly involved in the process of obtaining contracts with the State or public bodies.
B.
Suspension under this regulation shall terminate if the business establishes to the satisfaction of the Board that the person no longer is associated with the business in any of the capacities described in §A of this regulation.
C.
If the business has been suspended under this regulation and wishes to establish that the business is entitled to termination of its suspension, the business shall notify the Board by certified mail that the person is no longer associated with the business in any of the capacities described in §A of this regulation. The Board may request that the Attorney General investigate the person's status with the business pursuant to State Finance and Procurement Article, §16-303, Annotated Code of Maryland, and make a recommendation to the Board.
D.
If a business requests a hearing to establish the business' right to termination of its suspension, a hearing shall be held in accordance with COMAR 21.08.04.02 and a final decision issued in accordance with COMAR 21.08.04.03.

Regulation .03 Scope of Sanctions.Copy Citation

A.
At the time of suspension the Board may:
(1)
Exercise or direct the exercise of the State's right to terminate any existing State contract with the person; or
(2)
Prohibit any modification, extension, or renewal of any existing State contract with the person.
B.
In determining the scope or period of a person's suspension, the Board may impose such conditions on the person's State contract related activities as the Board considers appropriate, including, for example, appropriate monitoring of the person's future contracting activities with the State.

Chapter 03. Debarment

Regulation .01 Debarment of Persons by Operation of Law from Contracts with Public Bodies.Copy Citation

A.
A person is debarred by operation of law from entering into a contract with a public body if the person has been convicted under the laws of the State of any of the following offenses, committed in furtherance of obtaining a contract with a public body:
(1)
Bribery;
(2)
Attempted bribery; or
(3)
Conspiracy to bribe.
B.
Opportunity to be Heard.
(1)
The Board shall notify a person who is debarred by operation of law that the person is debarred and shall give a reasonable opportunity for that person to be heard on whether the stated basis for debarment exists and on the appropriate duration of the debarment.
(2)
Notice shall be given pursuant to COMAR 21.08.04.01.
(3)
A hearing shall be conducted pursuant to COMAR 21.08.04.02.

Regulation .02 Debarment of Persons for Cause from Contracts with Public Bodies.Copy Citation

A.
A person may be debarred from entering into a contract with a public body if the person:
(1)
Has been convicted under the laws of the State of any of the following offenses, committed other than in furtherance of obtaining a contract with any public body:
(a)
Bribery,
(b)
Attempted bribery, or
(c)
Conspiracy to bribe;
(2)
Has been convicted under the laws of another state or of the United States for:
(a)
Bribery,
(b)
Attempted bribery,
(c)
Conspiracy to bribe; or
(3)
Has admitted, in writing or under oath, acts or omissions that would constitute bribery, attempted bribery, or conspiracy to bribe under the laws of the State, another state, or the United States.
B.
Opportunity to be Heard.
(1)
The Board shall notify a person that debarment proceedings have started and shall give a reasonable opportunity for that person to be heard on whether the stated basis for debarment exists.
(2)
Notice shall be given pursuant to COMAR 21.08.04.01.
(3)
If a hearing is requested, any hearing on debarment shall be conducted pursuant to COMAR 21.08.04.02.
C.
The Board may suspend a person in accordance with COMAR 21.08.02 pending the Board's final debarment decision.

Regulation .03 Debarment of Persons for Cause from State Contracts.Copy Citation

A.
A person may be debarred from entering into a contract with the State if that person or any of its officers, partners, controlling stockholders, principals, or other persons substantially involved in its contracting activities has been:
(1)
Convicted under any state or federal law of a criminal offense, other than bribery, incident to obtaining, attempting to obtain, or performing a public or private contract;
(2)
Convicted under any state or federal law of fraud, embezzlement, theft, forgery, falsification or destruction of records, or receiving stolen property;
(3)
Convicted of a criminal violation of a state or federal antitrust statute;
(4)
Convicted of a violation of the Racketeer Influenced and Corrupt Organization Act, 18 U.S.C. §1961 et seq., or the Mail Fraud Act, 18 U.S.C. §1341 et seq., for acts in connection with the submission of bids or proposals for a public or private contract;
(5)
Convicted under State Finance and Procurement Article, §14-308, Annotated Code of Maryland;
(6)
Convicted under State Finance and Procurement Article, §11-205.1, Annotated Code of Maryland;
(7)
Convicted of a conspiracy to commit any act or omission that would constitute grounds for conviction or liability under any law described in §A(1)—(6) of this regulation;
(8)
Found civilly liable under state or federal antitrust statutes for acts or omissions in connection with the submission of bids or proposals for a public or private contract;
(9)
Debarred from federal contracts under the Federal Acquisition Regulation, as provided in 48 CFR Chapter 1, or Federal Executive Order 11246, as amended, due to discriminatory hiring practices in the State;
(10)
Been found in a final adjudicated decision to have violated the Commercial Nondiscrimination Policy under State Finance and Procurement Article, Title 19, Annotated Code of Maryland, with regard to a public or private contract; or
(11)
Been found to have willfully or knowingly violated State Government Article, Title 20, Subtitle 6, Annotated Code of Maryland, if the finding was made by a court and the decision of the court became final, or the finding was made in a contested case under the Administrative Procedure Act and the finding was not overturned on judicial review.
B.
A person may be debarred from entering into a contract with the State if that person or any of its officers, partners, controlling stockholders, principals, or any other persons substantially involved in its contracting activities has admitted, in writing or under oath, acts or omissions that would constitute grounds for conviction or liability under any law described in §A of this regulation.
C.
A person may be debarred from entering into a contract with the State if the Board finds:
(1)
That the person was established or operates in a manner designed to evade the application of, or to defeat the purpose of, this subtitle;
(2)
That the person is a successor, assignee, subsidiary, or affiliate of a suspended or debarred person;
(3)
One of the following violations of a contract provision that is sufficiently serious to justify debarment:
(a)
The deliberate failure without good cause to perform in accordance with the specifications or within the time provided in a contract; or
(b)
The failure to perform or unsatisfactory performance in accordance with the terms of one or more contracts within the preceding 5 years unless the failure to perform or the unsatisfactory performance was caused by acts beyond the control of the person; or
(4)
That the person persistently fails to meet contract goals in the absence of mitigating factors under the criteria established under State Finance and Procurement Article, §14-305(c)(2), Annotated Code of Maryland; debarment under this subsection shall be for a period not exceeding 3 years.
D.
A person may be debarred for any other cause the Board determines to be so serious as to affect the integrity of the State procurement process, including, for example and not by limitation, the failure to file the debarment affidavit required by State Finance and Procurement Article, §16-311, Annotated Code of Maryland, and COMAR 21.05.08.07 and 21.07.01.25, or the filing of an untruthful affidavit.

Regulation .04 Debarment of Businesses by Operation of Law.Copy Citation

A.
A business is debarred to the same extent that a person is debarred if the person is:
(1)
An officer, director, controlling shareholder, or partner of the business; or
(2)
An employee of the business directly involved in the process of obtaining contracts with public bodies.
B.
If a business is subject to debarment under this regulation, the Board shall notify the business that it is subject to debarment. Notice shall:
(1)
Include a copy of the Board's final decision on debarment of the person associated with the business as an officer, director, controlling shareholder, partner, or employee directly involved in the process of obtaining contracts with public bodies; and
(2)
Indicate that the business will be debarred to the same extent as the person as of 30 days from the business' receipt of the notice unless, before that date, the business establishes to the satisfaction of the Board that the debarred person no longer is associated with the business in any of the capacities described in §A of this regulation.
C.
The business has a right to request a hearing upon receipt of the notice of debarment. If a hearing is requested:
(1)
The hearing shall be held in accordance with COMAR 21.08.04.02; and
(2)
The Board may stay debarment of the business until a final decision is made by the Board pursuant to COMAR 21.08.04.03.
D.
Debarment under this regulation shall terminate if the business establishes to the satisfaction of the Board that the person no longer is associated with the business in any of the capacities described in §A of this regulation.
E.
If the business has been debarred under this regulation and wishes to establish that the business is entitled to termination of its debarment, the business shall notify the Board by certified mail that the person is no longer associated with the business in the capacities described in §A of this regulation. The Board may request that the Attorney General investigate the person's status with the business pursuant to State Finance and Procurement Article, §16-303, Annotated Code of Maryland, and make a recommendation to the Board.
F.
If the business requests a hearing to establish its right to termination of its debarment, the hearing shall be held in accordance with COMAR 21.08.04.02 and a final decision issued in accordance with COMAR 21.08.04.03.

Regulation .05 Initiation of Debarment.Copy Citation

A.
If the Board receives information pursuant to State Finance and Procurement Article, §16-302, Annotated Code of Maryland, or otherwise is advised of information reasonably believed to constitute possible grounds for debarment of a person, the Board shall refer that information to the Attorney General.
B.
If the Attorney General receives information from the Board or otherwise that the Attorney General believes constitutes possible grounds for debarment of a person, the Attorney General shall investigate the information. If the Attorney General determines that a reasonable basis for the initiation of debarment proceedings exists, the Attorney General may institute debarment proceedings by filing an administrative complaint with the Board setting out:
(1)
The name of the person or persons to be debarred;
(2)
The conduct for which the person or persons should be debarred;
(3)
The grounds for debarment.
C.
The Attorney General shall send copies of the administrative complaint by certified mail to each person who is the subject of the complaint. The Attorney General shall also send copies to the Secretaries of Budget and Management, General Services, Public Safety and Correctional Services, Transportation, and the Chancellor of the University System of Maryland, each of whom may provide written comments to the Board including but not limited to whether the initiation of debarment or suspension of the person, or both, would preserve the integrity of the procurement process and be in the best interest of the State.

Regulation .06 Suspension Pending Disbarment.Copy Citation

A.
At any time before a final decision on debarment is made, the Attorney General may recommend that the Board immediately suspend the person pending possible debarment.
B.
After considering the recommendation of the Attorney General, and any other pertinent information, the Board shall determine whether immediate suspension of the person is warranted pending the outcome of the debarment proceedings.
C.
If the Board determines that the Attorney General has a reasonable basis for beginning debarment proceedings, the Board may suspend the person pending the outcome of the proceedings.

Regulation .07 Agreements Relating to Debarment.Copy Citation

A.
At any time before a debarment, a person may enter into an agreement with the Attorney General relating to debarment of the person.
B.
If an agreement is reached between the Attorney General and the person, the Attorney General shall present the agreement to the Board, together with any written comments of affected Department heads or their designees concerning the agreement.
C.
The Board may accept or reject the agreement between the Attorney General and the person or may defer decision until after the receipt of such additional information as may be requested by the Board or its designee.
D.
Acceptance of Debarment Agreement.
(1)
Any agreement between the Attorney General and a person relating to debarment is not binding upon the State unless the Board accepts the agreement.
(2)
If the Board accepts the agreement, the Board's acceptance shall constitute the Board's decision on debarment in the same manner and having the same effect as if there had been debarment proceedings pursuant to State Finance and Procurement Article, Title 16, Annotated Code of Maryland, and COMAR 21.08.04.
(3)
If the Board rejects the agreement, the agreement may not be considered as an admission by the person in any subsequent debarment proceedings.
E.
The Board shall accept or reject the agreement within a reasonable time after receipt of the agreement from the Attorney General.

Chapter 04. Proceedings

Regulation .01 Notice.Copy Citation

Within a reasonable time after the receipt of the administrative complaint, the Board shall provide written notice by First Class mail to the person and by publication in eMaryland Marketplace indicating:
A.
The commencement of debarment proceedings pursuant to State Finance and Procurement Article, Title 16, Annotated Code of Maryland, and this chapter;
B.
The effective date of any suspension and that any suspension is for a temporary period pending the completion of debarment proceedings;
C.
The grounds for suspension and possible debarment;
D.
The effect of suspension and possible debarment;
E.
The person's right to request a hearing on suspension and possible debarment by written communication received by the Board within 30 days after the person receives the notice and that the request shall include response to the administrative complaint;
F.
The person's right to be represented by counsel at the hearing; and
G.
That the failure to request a hearing shall waive the person's right to a hearing and result in debarment.

Regulation .02 Hearings.Copy Citation

A.
A person who fails to make a timely request for a hearing:
(1)
Waives the right to a hearing and to any subsequent appeal; and
(2)
Is debarred.
B.
If a person subject to debarment proceedings requests a hearing, the Board may refer the case and transmit the record to the Office of Administrative Hearings, which shall appoint an administrative law judge who shall conduct the hearing within a reasonable time after receipt of the record from the Board.
C.
If the person has been debarred by operation of law pursuant to State Finance and Procurement Article, §16-202(a), Annotated Code of Maryland, and COMAR 21.08.03.01, or has been suspended pending the outcome of debarment proceedings, the administrative law judge shall provide a hearing within 45 days from the date of the Board's referral of the matter and transmission of the record to the Office of Administrative Hearings unless the person consents to a longer time period.
D.
The administrative law judge assigned by the Office of Administrative Hearings shall give notice of the hearing to the person pursuant to State Government Article, §10-205, Annotated Code of Maryland, and COMAR 23.01.03.03.
E.
The administrative law judge shall conduct the hearing in accordance with State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland, and COMAR 23.01.03.
F.
Evidence.
(1)
The Attorney General shall present evidence concerning the basis for debarment and the appropriate duration of debarment and may make a recommendation as to the duration of the proposed debarment.
(2)
If the person has been debarred by operation of law pursuant to COMAR 21.08.03.01, the person may present evidence in its defense limited solely to whether the stated bases for debarment exist and the appropriate duration of debarment.
(3)
If the proposed debarment is based upon the causes enumerated in COMAR 21.08.03.02 or .03, the person may present evidence on whether the stated bases for debarment exist and on the appropriate duration of debarment. The person may also present evidence in mitigation addressed to the following issues:
(a)
The nature and seriousness of the act that caused the person to be subject to debarment;
(b)
The time the act occurred;
(c)
Whether and to what extent the person cooperated with authorities in their investigation of the matter;
(d)
The conditions under which the person cooperated; and
(e)
The conduct of the person since the act occurred.
(4)
If a business has been debarred by operation of law pursuant to State Finance and Procurement Article, §16-307, Annotated Code of Maryland, and COMAR 21.08.03.04, the business may present evidence in its defense limited solely to whether the debarred person remains associated with the business as an officer, director, controlling shareholder, partner, or employee directly involved in the process of obtaining contracts with public bodies.

Regulation .03 Decisions.Copy Citation

A.
The administrative law judge shall issue a proposed decision containing findings of fact and conclusions of law within 90 days after the hearing.
B.
The administrative law judge shall send the proposed decision, by certified mail, to the Attorney General and the persons subject to debarment and shall notify these parties that oral argument may be requested before the Board by any party adversely affected by the proposed decision.
C.
Within 15 days after receipt of the proposed decision, a party adversely affected by the proposed decision may file written exceptions to the proposed decision and may request oral argument before the Board as follows:
(1)
A party that files written exceptions to the proposed decision or requests oral argument before the Board shall include in the exceptions or request precise references to those sections of the record that the party wishes the Board to review.
(2)
References to the record, other than any transcript of testimony, shall be indicated as “R . . . ”, and references to any transcript of testimony as contained in the record shall be indicated as “T . . . ”.
(3)
If a party fails to provide the references specified in §C(2) of this regulation, the Board may dismiss any request for oral argument and may base its review of the proposed decision on whatever portion of the record it considers appropriate.
D.
If oral argument is not requested, the Board shall issue its final decision within a reasonable time.
E.
If oral argument is requested, the Board shall notify the parties of the date, time, and place for the argument, which shall be held within a reasonable time of the receipt of a request for the oral argument.
F.
The Board shall issue a final decision, copies of which shall be mailed to all parties, by certified mail, within a reasonable time after the oral argument.
G.
In its final decision, the Board shall notify the person that the person is:
(1)
Debarred, specifying:
(a)
The reasons for debarment,
(b)
The nature of the debarment sanctions applied, and
(c)
The period of debarment; or
(2)
Not debarred and that any suspension has been terminated as of the date of the Board's decision.
H.
All final decisions issued by the Board shall include findings of fact and conclusions of law in accordance with State Government Article, §10-221, Annotated Code of Maryland, which may incorporate by reference or be adopted from the proposed decision of the administrative law judge.

Regulation .04 Scope of Sanctions.Copy Citation

A.
If a person is debarred based on grounds set forth in State Finance and Procurement Article, §16-202, Annotated Code of Maryland, and COMAR 21.08.03.01 or .02, the person may not be considered for the award of, be awarded, or perform, directly or indirectly, a contract with a public body during the period of debarment. Units shall immediately terminate any existing contracts with debarred persons effective on the date of debarment.
B.
If a person is debarred based on grounds set forth in State Finance and Procurement Article, §16-203, Annotated Code of Maryland, and COMAR 21.08.03.03, the person may not be considered for the award of, be awarded, or perform, directly or indirectly, a contract with the State during the period of the debarment. Units shall immediately terminate any existing contracts with debarred persons effective on the date of debarment.
C.
If a business is debarred pursuant to State Finance and Procurement Article, §16-307, Annotated Code of Maryland, and COMAR 21.08.03.04, as a result of the debarment of an officer, director, controlling shareholder, partner, or employee directly involved in its contracting activities, the debarment of the business shall be coextensive with that of the officer, director, controlling shareholder, partner, or employee directly involved in its contracting activities.
D.
In determining the scope or period of a person's debarment, the Board may impose such conditions on the person's State contract related activities as the Board considers appropriate, including, for example, and not by limitation, a deferred debarment date to give agencies sufficient time to transition to new contractors and appropriate monitoring of the person's current or future contracting activities with the State. If the Board does not specify a period of debarment, the time period of a debarment is indefinite.

Regulation .05 Appeal.Copy Citation

A party adversely affected by a final decision of the Board may obtain judicial review of the Board's decision as provided by State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.

Regulation .06 Termination of Suspension or Debarment.Copy Citation

A.
If a person's suspension or debarment is based upon a conviction that subsequently is reversed or otherwise is rendered void, the suspension or debarment shall terminate automatically.
B.
If a person is suspended pending debarment proceedings and the Board determines that an insufficient basis for commencing debarment proceedings exists, the suspension shall terminate automatically.
C.
A State debarment based solely on a federal debarment shall terminate automatically if:
(1)
The federal debarment that is the basis for the State debarment is reversed or otherwise rendered void; and
(2)
The person debarred provides to the Board sufficient legal documentation that the federal debarment has been reversed or otherwise rendered void.
D.
A person who has been debarred under State Finance and Procurement Article, §16-202, Annotated Code of Maryland, and COMAR 21.08.03.01 or .02, may petition the Board for termination of the debarment at any time after 5 years from the date of debarment.
E.
A person who has been debarred under State Finance and Procurement Article, §16-203, Annotated Code of Maryland, and COMAR 21.08.03.03, may petition the Board for termination of the debarment after the expiration of the lesser of one-half the period of debarment or 5 years from the date of debarment.
F.
A petition for termination of debarment shall be served on the Board, the Attorney General, the Secretaries of Budget and Management, General Services, Public Safety and Correctional Services, and Transportation, and the Chancellor of the University System of Maryland, each of whom may comment to the Board on the petition.
G.
Petition for Termination of Debarment.
(1)
Within 90 days after receiving a petition for termination of a debarment, the Board, in its discretion, shall determine whether to conduct a hearing regarding the petition and shall notify the person of the Board's decision.
(2)
If the Board decides to conduct a hearing regarding a petition for termination of debarment, it may refer the matter to the Office of Administrative Hearings, which shall appoint a hearing officer to conduct a hearing in accordance with the procedures in Regulations .02 and .03 of this chapter.
(3)
If the Board determines not to conduct a hearing regarding a petition for termination of debarment, it shall give written notice by certified mail to the person that the debarment is terminated or is continued.

Chapter 05. Contested Cases

Repealed

Chapter 06. Conditional Suspension, Suspension and Debarment for Unsatisfactory Performance and Improper Conduct

Repealed