Chapter 04. Proceedings
Regulation .01 Notice.LinkCopy 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.LinkCopy 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.LinkCopy 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.LinkCopy 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.LinkCopy 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.LinkCopy 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 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:
History: Regulations .01—.07 adopted as an emergency provision effective July 28, 1982 (9:17 Md. R. 1701); emergency status extended at 9:20 Md. R. 1980; adopted permanently effective October 25, 1982 (9:21 Md. R. 2107)
History: Regulations .01, .05—.07 amended effective January 2, 1983 (9:26 Md. R. 2574)
History: Chapter revised as an emergency provision effective February 11, 1983 (10:4 Md. R. 314); emergency status extended at 10:8 Md. R. 723 (Emergency regulations are temporary and not printed in COMAR)
History: Chapter revised as an emergency provision effective April 30, 1983 (10:9 Md. R. 788); adopted permanently effective July 5, 1983 (10:13 Md. R. 1182)
History: Chapter revised effective January 9, 1989 (15:27 Md. R. 3138)
History: Regulations .01—.12, Debarment—Statutory Violations, repealed and new Regulations .01—.06, Proceedings, adopted effective August 2, 1993 (20:15 Md. R. 1221)
History: Regulation .01 amended effective October 2, 2000 (27:19 Md. R. 1731); March 15, 2004 (31:5 Md. R. 451); November 7, 2005 (32:22 Md. R. 1759); April 7, 2008 (35:7 Md. R. 751)
History: Regulation .03H amended effective April 7, 2008 (35:7 Md. R. 751)
History: Regulation .04 amended effective April 7, 2008 (35:7 Md. R. 751)
History: Regulation .04E amended effective March 15, 2004 (31:5 Md. R. 451)
History: Regulation .06 amended effective March 13, 2006 (33:5 Md. R. 523)