Chapter 03. Debarment
Regulation .01 Debarment of Persons by Operation of Law from Contracts with Public Bodies.LinkCopy 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.LinkCopy 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.LinkCopy 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.LinkCopy 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.LinkCopy 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.LinkCopy 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.LinkCopy 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 annotations
Authority: State Finance and Procurement Article, §§11-205.1, 12-101, and 16-101—16-312; State Government Article, §§10-201—10-217; Annotated Code of Maryland
History: Effective date: July 1, 1981 (8:13 Md. R. II-5)
History: Regulation .01 amended effective January 9, 1989 (15:27 Md. R. 3138)
History: Regulation .01 repealed and new Regulations .01—.07 adopted under a new chapter, COMAR 21.08.03 Debarment, effective August 2, 1993 (20:15 Md. R. 1221)
History: Regulation .03A amended effective October 2, 2000 (27:19 Md. R. 1731); March 13, 2006 (33:5 Md. R. 523); March 12, 2007 (34:5 Md. R. 562)
History: Regulation .03C amended effective September 18, 2023 (50:18 Md. R. 800)
History: Regulation .05B, C amended effective October 2, 2000 (27:19 Md. R. 1731)
History: Regulation .06 amended effective October 2, 2000 (27:19 Md. R. 1731)