Md. Code, State Finance and Procurement, Title 19

Md. Code, State Finance and Procurement, Title 19
in effect

Md. Code, State Finance and Procurement § 19-101

(a) It is the policy of the State not to enter into a contract with any business entity that has discriminated in the solicitation, selection, hiring, or commercial treatment of vendors, suppliers, subcontractors, or commercial customers on the basis of race, color, religion, ancestry or national origin, sex, age, marital status, sexual orientation, gender identity, or on the basis of disability or any otherwise unlawful use of characteristics regarding the vendor’s, supplier’s, or commercial customer’s employees or owners. (b) Nothing in this title shall be construed to prohibit or limit otherwise lawful efforts to remedy the effects of discrimination that have occurred or are occurring in the marketplace. (c) A complaint of discrimination shall be filed within 4 years after the date the cause of action accrues.

Md. Code, State Finance and Procurement § 19-102

It is the intent of the State to avoid becoming a passive participant in private sector commercial discrimination by refusing to procure goods and services from business entities that discriminate in the solicitation, selection, hiring, or commercial treatment of vendors, suppliers, subcontractors, or commercial customers on the basis of race, color, religion, ancestry or national origin, sex, age, marital status, gender identity, sexual orientation, or on the basis of disability or other unlawful forms of discrimination by providing a procedure for receiving, investigating, and resolving complaints of discrimination filed against business entities that: (1) have submitted a bid or proposal; or (2) have been selected to engage in, or are engaged in, providing goods or services to the State.

Md. Code, State Finance and Procurement § 19-103

(a) In this title the following words have the meanings indicated. (b) “Administrative law judge” means the individual assigned by the Office of Administrative Hearings to conduct a hearing under this title. (c) (1) “Business entity” means any person, as defined in § 1–101(d) of this article, firm, sole proprietorship, partnership, corporation, limited liability company, or other business entity or a combination of any of these entities, including any financial institution, developer, consultant, prime contractor, subcontractor, supplier, or vendor, that has submitted a bid or proposal for, has been selected to engage in, or is engaged in providing goods or services to the State. (2) “Business entity” does not include another governmental entity that is subject to Title VI of the Civil Rights Act of 1964. (d) “Commercial customer” means a business entity that procured or attempted to procure goods or services from a business entity for business as opposed to personal, family, or household use. (e) “Commercial Nondiscrimination Policy” means the provisions contained under this title and any regulations or documentation requirements adopted by the Commission on Civil Rights in accordance with this title. (f) (1) “Commercial treatment” means the treatment of a vendor, supplier, subcontractor, or commercial customer by a business entity that affects the conduct of business and the terms and conditions under which business is transacted between two or more business entities. (2) “Commercial treatment” does not mean treatment that is unrelated to a business transaction or the conduct of business. (g) “Commission” means the Commission on Civil Rights. (h) “Commission staff” means employees of the Commission on Civil Rights designated by the Commission to process, investigate, and pursue complaints filed under this title. (i) “Contract” means an agreement with a business entity that is let by or on behalf of the State for that business entity to sell or lease supplies or goods, or to provide construction, real estate development, financial, insurance, professional, or other services to the State in return for a fee or any other form of compensation to be paid or provided by the State. (j) (1) “Discrimination” means any disadvantage, difference, distinction, or preference in the solicitation, selection, hiring, or commercial treatment of a vendor, supplier, subcontractor, or commercial customer on the basis of race, color, religion, ancestry or national origin, sex, age, marital status, sexual orientation, gender identity, or on the basis of disability or any otherwise unlawful use of characteristics regarding the vendor’s, supplier’s, or commercial customer’s employees or owners. (2) “Discrimination” does not include lawful efforts to remedy the effects of discrimination that have occurred or are occurring in the marketplace. (k) “Economic development project” means a real estate development, construction, or renovation project for which the State provides: (1) funding or other financial assistance, other than payments in exchange for goods or services; (2) land; (3) road improvements; (4) tax credits; or (5) a below market purchase price. (l) (1) “Financial institution” means a person: (i) engaged in the business of lending money, guaranteeing loans, extending credit, securing bonds, or providing venture or equity capital; or (ii) that offers financial services in connection with State projects or the administration of State government. (2) “Financial institution” includes banks, savings and loans, venture capital companies, insurance companies, bonding companies, mortgage companies, credit unions, and brokers. (m) “Party” means: (1) the person who has filed a complaint under this title; (2) the respondent business entity that has been alleged to have violated this title; and (3) the Commission that is responsible for investigating the complaint and rendering the initial findings. (n) “Retaliate” means to take any action that has a material negative effect against any person, business or other entity for reporting any incident of discrimination, testifying as a witness at a hearing, or providing requested assistance to Commission staff in any investigation of an incident of discrimination under this title. (o) “Services” includes construction, real estate development, financial, insurance, professional, and other services. (p) “State subcontract” means an agreement for the provision of goods or the performance of a particular portion of work to be performed under a contract with the State, where: (1) the party providing the goods or services is on reasonable notice that the work is to be performed under a State contract; and (2) the amount to be paid for such goods and services is material with respect to the overall amount of the contract. (q) “State subcontractor” means the party providing goods or services under a State subcontract.

Md. Code, State Finance and Procurement § 19-104

(a) As a condition of participating in an economic development project, the State shall require the governmental entity, quasi-governmental entity, corporation, developer, or contractor that receives assistance from the State to comply with this title: (1) in administering the economic development project; and (2) in awarding contracts to manage or perform the work entailed in the economic development project. (b) (1) Each contract and subcontract awarded in connection with an economic development project shall contain the nondiscrimination clause set forth in § 19-115 of this title. (2) Any claim of discrimination relating to the economic development project shall be subject to investigation and adjudication by the State in accordance with this title. (c) This title does not apply to: (1) other than a lease of real estate for the State’s use, any real property acquisition by the State, including property subject to condemnation; (2) settlement of litigation; (3) except for proceedings to enforce this title, settlement of judicial or administrative enforcement proceedings by or on behalf of the State; and (4) agreements concerning standards for locating facilities in a State right-of-way when a business entity has a statutory right to be in the right-of-way.

Md. Code, State Finance and Procurement § 19-105

(a) The provisions of this title are to be liberally construed to accomplish its objectives and purposes. (b) For purposes of administration, the Commission shall construe the provisions of this title. (c) A decision of the Commission is subject to judicial review under § 19-113 of this title.

Md. Code, State Finance and Procurement § 19-106

(a) Any person may file an administrative complaint with the Commission within the limitations period set forth in § 19–101(c) of this title stating facts showing or tending to show that a business entity has within the preceding 4–year period engaged in discrimination or retaliation against that person in violation of this title. (b) Within 10 business days, the Commission shall notify the business entity against whom the complaint was filed that a complaint has been received. (c) Before the commencement of an investigation of an administrative complaint, Commission staff shall review the complaint to determine whether: (1) mediation would be appropriate; and (2) both parties should be contacted to attempt such mediation in a manner consistent with the regulations adopted under this title.

Md. Code, State Finance and Procurement § 19-107

(a) Commission staff shall be responsible for directing and conducting investigations of discrimination and retaliation complaints filed under this title in a manner consistent with §§ 20–208, 20–1005, 20–1006, 20–1008, 20–1009, and 20–1010 of the State Government Article. (b) The Commission may request assignment of additional State personnel or outside consultants as may be reasonably necessary or appropriate to conduct an investigation. (c) (1) Commission staff shall exercise reasonable judgment in seeking relevant evidence from the complainant, the respondent business entity and, as necessary, external sources. (2) This title may not be construed to require the State to fund the cost of: (i) having State staff or other individuals travel outside the State to investigate any claim under this title; or (ii) having witnesses travel to the State for the purpose of investigating a claim or testifying at a hearing or proceeding under this title. (d) (1) Consistent with § 20–1101 of the State Government Article, the Public Information Act, and the Open Meetings Act, the Commission shall protect the confidential character of information relating to an investigation and may issue protective orders for good cause to limit, or otherwise impose conditions on, access by any person to any document in the possession of a party. (2) A protective order issued under paragraph (1) of this subsection may include: (i) a document in the possession of the State or otherwise in the record that is not a public record; and (ii) information disclosed in accordance with § 19–116 of this title. (e) The Commission shall exercise reasonable discretion in determining the extent of the investigation required to support Commission staff’s initial findings and recommendations. (f) (1) The Commission may investigate and adjudicate a claim of discrimination under this title only if the claim alleges that: (i) the discrimination was committed by a business entity within the limitations period set forth in § 19–101(c) of this title; and (ii) the discrimination occurred in the State. (2) Discrimination is deemed to have occurred in the State only if: (i) each party operated a place of business in, or resided in, the State at the time of the discrimination; or (ii) the discriminatory act was committed in the State.

Md. Code, State Finance and Procurement § 19-108

(a) In determining whether to proceed further with an investigation and in making findings, Commission staff may consider any evidence provided by the complainant or the respondent business entity as to the following factors: (1) whether there was an intent to discriminate on the part of the respondent business firm; (2) whether there was a pattern and practice of discrimination on the part of the respondent business entity; (3) any actions taken by the respondent business entity to remedy the alleged discrimination; (4) the effectiveness of any prior attempts by the respondent business entity to remedy the discrimination; (5) whether the respondent business entity has procured goods or services from or otherwise engaged in business with persons or entities of the same protected class as the complainant to an extent sufficient to demonstrate that the respondent business entity has not discriminated against such protected class in the overall context of its business; and (6) any other evidence deemed relevant by the Commission. (b) Based on a review and investigation consistent with § 20–1005 of the State Government Article, Commission staff shall make an initial finding of each allegation stated in the complaint, that either: (1) the investigation produced sufficient evidence to find that the alleged discrimination or retaliation did take place (“probable cause”); (2) the investigation failed to produce sufficient evidence to find that the alleged discrimination or retaliation took place (“no probable cause”); (3) the investigation produced sufficient evidence to establish that the complainant knowingly made one or more false or frivolous allegations, and further investigation did not appear likely to produce sufficient evidence that the alleged discrimination or retaliation did take place (“false or frivolous”); (4) the allegation has been settled or otherwise resolved with the agreement of the respondent business entity, the complainant, and the State (“settled”); or (5) the allegation has been withdrawn (“withdrawn”). (c) Commission staff shall make the initial findings under subsection (b) of this section based on a preponderance of the evidence. (d) On completion of its initial investigation, Commission staff shall recommend to the Commission the appropriate action to be taken, including: (1) additional investigation of the complaint; (2) the Commission’s adoption of the initial findings rendered by Commission staff; (3) imposition of sanctions; (4) imposition of remedies; or (5) other action consistent with this title. (e) In determining appropriate action on a discrimination claim, the Commission may take into account any evidence provided or uncovered in the course of the investigation regarding: (1) the impact of the discrimination on affected parties; (2) the impact of any authorized remedy on the State or any other party; (3) actions taken by the respondent business entity to remedy the alleged discrimination; (4) the effectiveness of any prior attempts by the respondent business entity to remedy the discrimination; (5) whether the respondent business entity has procured goods or services from or otherwise engaged in business with persons or entities of the same protected class as the complainant to an extent sufficient to demonstrate that the respondent business entity has not discriminated against such protected class in the overall context of its business; (6) the number and scope of prior violations of this policy by the respondent business entity; and (7) any other evidence determined to be relevant by the Commission. (f) (1) Except as provided in paragraph (2) of this subsection, the Commission shall make the initial findings and issue recommendations for appropriate action within 120 calendar days of the receipt of the complaint. (2) The Commission may extend the time limit set forth in paragraph (1) of this subsection: (i) for good cause; or (ii) if the parties agree to mediate a settlement to the complaint. (g) The Commission shall notify the complainant and the business entity within 5 business days of the issuance of the initial findings and recommendations, including an explanation of the reasons justifying the initial findings.

Md. Code, State Finance and Procurement § 19-109

(a) A request for a contested case hearing in accordance with the procedures specified in this section may be made by: (1) a business entity, upon a Commission determination of probable cause for one or more of the allegations stated in the complaint against the business entity, and failure of timely conciliation; or (2) a complainant on a Commission determination that the complainant has filed a knowingly false or frivolous complaint. (b) (1) To submit a matter to an administrative hearing as a contested case under this title, the business entity or the complainant must request a contested case hearing by filing a written notice with the Commission within 15 calendar days of notice of the initial findings and recommendations. (2) The notice must contain the following information: (i) a demand that the matter be referred to the Office of Administrative Hearings for a contested case hearing in accordance with § 10–205(c)(2) of the State Government Article; (ii) the names, addresses, and telephone numbers of the Commission, the business entity’s representatives, and any other parties; (iii) a reference to this title; and (iv) a summary of the Commission’s findings and recommendations that are being submitted for resolution to the administrative law judge for the contested case hearing. (3) The requesting party shall immediately serve notice of the request for a contested case hearing upon all other parties. (c) If the business entity fails to properly request a contested case hearing, the initial findings and recommendations of the Commission shall become the final administrative decision of the State, and the Commission shall then be authorized to enter any order and to take any action reasonably necessary or convenient to: (1) implement remedies under § 19–110 of this title; (2) impose sanctions under § 19–111 of this title; and (3) govern the conduct of the parties in the manner described under § 19–112 of this title so that the purposes of this title are achieved. (d) (1) (i) For each contested case hearing properly requested by the business entity or by the complainant, the Commission shall file a statement of charges with the Office of Administrative Hearings and request a hearing before an administrative law judge in a manner consistent with the requirements of this subsection. (ii) The Commission may designate the venue for the contested case hearing, taking into consideration the convenience of the parties and the location of the evidence. (iii) At the contested case hearing, the Commission shall have the burden of proof by a preponderance of the evidence. (2) The Office of Administrative Hearings shall conduct any contested case hearing in accordance with its rules of procedure under COMAR 28.02.01. (3) (i) At the conclusion of the contested case hearing, the administrative law judge shall issue a written decision. (ii) The administrative law judge’s written decision may: 1. affirm or reject all or part of the statement of charges; or 2. substitute different findings and recommend appropriate remedies. (4) The administrative law judge’s written decision shall be solely based on a preponderance of the evidence contained in the record of the contested case hearing and shall reflect the evidentiary basis for its findings. (5) An administrative law judge may consider any evidence regarding the factors described in § 19–108(a) of this title when determining whether to sustain an allegation presented in a statement of charges. (e) Notwithstanding any contrary provision in this title, unless the administrative law judge finds that one or more allegations giving rise to the Commission’s findings or the business entity’s challenge to the findings were frivolous or knowingly false when made, each party shall bear the cost of its own legal representation and expert witness fees. (f) If the administrative law judge finds that one or more allegations giving rise to the Commission’s findings or the business entity’s challenge to the findings was frivolous or knowingly false when made, the administrative law judge may require the party who made the frivolous or knowingly false allegations to bear all or a portion of the other party’s legal fees and expert witness fees. (g) The business entity, the Commission, and the complainant shall cooperate in good faith to have the contested case hearing concluded within 180 days after the business entity issues its notice for a contested case hearing. (h) If the Commission determines that one or more allegations are knowingly false or frivolous, the complainant making the allegations shall be entitled to a contested case hearing on the allegations that are determined to be knowingly false or frivolous in accordance with the procedures set forth in this section, except that all references to the business entity with respect to matters of contested case hearing rules and procedure shall apply to the complainant. (i) If the complainant fails to properly request a contested case hearing regarding a determination of a knowingly false or frivolous allegation as provided in this title, the initial findings and recommendations shall become the final administrative decision of the State in accordance with § 19–112 of this title. (j) (1) If a timely contested case hearing is not requested, the Commission may vacate the Commission staff’s recommended remedy on written notice to all parties within 5 business days after the time for requesting a contested case hearing has expired. (2) In the absence of notice, the Commission shall be deemed to have approved the Commission staff’s recommended remedy. (k) To the extent that procedures and standards stated in this title differ from those contained in Title 10, Subtitle 2 of the State Government Article, this title shall govern but, in all other respects, the provisions of the State Government Article shall govern.

Md. Code, State Finance and Procurement § 19-110

(a) When an allegation is sustained by an administrative law judge under this title, the administrative law judge may take additional evidence on the appropriate remedy to be recommended, including evidence relating to factors set forth in § 19–108(e) of this title and any other evidence deemed relevant by the administrative law judge. (b) If the administrative law judge sustains an allegation, the administrative law judge may order any one or more of the following actions: (1) any remedy that is agreed to by the respondent business entity, the complainant, and the Commission; (2) referral of the respondent business entity to the Board of Public Works for a determination of debarment pursuant to §§ 16–306 and 16–307 of this article to preclude the business entity from: (i) bidding on or receiving contract awards on State projects; and (ii) participating in State contracts as a subcontractor, vendor, or supplier for a period of not more than 3 years; (3) rescission, suspension, or termination of any current contract between the respondent business entity and the State under the terms of that contract; (4) exercise of any other rights or remedies available to the State under any current contract between the respondent business entity and the State; (5) finding that the respondent business entity is not a “responsible bidder” within the meaning of this article with respect to specific contracts that the State has put out for bids or intends to put out for bids; (6) referral of the matter for criminal prosecution of fraud and other violations under State law if appropriate under the circumstances; or (7) mediation.

Md. Code, State Finance and Procurement § 19-111

(a) If the Commission determines that one or more allegations of a complaint filed under this title are false and that the complainant knew them to be false when filed, or that one or more of the allegations of a complaint are frivolous and without merit, the Commission may refuse to review or investigate any subsequent complaint filed by that complainant for a period of up to 3 years. (b) When the totality of the evidence warrants action to deter future abuse of the protections made available under this title, the Commission may also recommend to the administrative law judge: (1) that monetary sanctions be imposed against the complainant in the amount of the costs incurred by the State and the business entity in the investigation and review of the false or frivolous complaint, including reasonable attorneys’ fees; and (2) that the complainant be disqualified from bidding and contract awards on State projects for a period of not more than 3 years.

Md. Code, State Finance and Procurement § 19-112

(a) Absent a request for a contested case hearing, the Commission’s findings and recommendations shall become the final administrative decision of the State, subject to such judicial review as is provided for in a contested case under § 10-222 of the State Government Article. (b) In cases where a contested case hearing has been requested, the administrative law judge’s written decision shall become the final administrative decision of the State subject to judicial review as provided for in a contested case under § 10-222 of the State Government Article. (c) On issuance of a final decision, the Commission or the administrative law judge may enter any order reasonably necessary or convenient to govern the conduct of the State and the parties so that the purposes of this title are achieved.

Md. Code, State Finance and Procurement § 19-113

Any party who, after having exhausted all administrative remedies available, is aggrieved by a final decision of the Commission or the administrative law judge may seek judicial review of such decision under § 10-222 of the State Government Article.

Md. Code, State Finance and Procurement § 19-114

Every contract and subcontract shall contain a nondiscrimination clause that is substantially similar to the following: “As a condition of entering into this agreement, the company represents and warrants that it will comply with the State’s Commercial Nondiscrimination Policy, as described under Title 19 of the State Finance and Procurement Article of the Annotated Code of Maryland. As part of such compliance, the company may not discriminate on the basis of race, color, religion, ancestry or national origin, sex, age, marital status, sexual orientation, gender identity, or on the basis of disability or other unlawful forms of discrimination in the solicitation, selection, hiring, or commercial treatment of subcontractors, vendors, suppliers, or commercial customers, nor shall the company retaliate against any person for reporting instances of such discrimination. The company shall provide equal opportunity for subcontractors, vendors, and suppliers to participate in all of its public sector and private sector subcontracting and supply opportunities, provided that nothing contained in this clause shall prohibit or limit otherwise lawful efforts to remedy the effects of marketplace discrimination that have occurred or are occurring in the marketplace. The company understands and agrees that a material violation of this clause shall be considered a material breach of this agreement and may result in termination of this agreement, disqualification of the company from participating in State contracts, or other sanctions. This clause is not enforceable by or for the benefit of, and creates no obligation to, any third party.”.

Md. Code, State Finance and Procurement § 19-115

All requests for bids or proposals issued for State contracts shall include the following certification to be completed by the bidder: “The undersigned bidder hereby certifies and agrees that the following information is correct: In preparing its bid on this project, the bidder has considered all proposals submitted from qualified, potential subcontractors and suppliers, and has not engaged in “discrimination” as defined in § 19–103 of the State Finance and Procurement Article of the Annotated Code of Maryland; to wit: discrimination in the solicitation, selection, or commercial treatment of any subcontractor, vendor, supplier, or commercial customer on the basis of race, color, religion, ancestry or national origin, sex, age, marital status, sexual orientation, gender identity, or on the basis of disability or other unlawful forms of discrimination. Without limiting the foregoing, “discrimination” also includes retaliating against any person or other entity for reporting any incident of “discrimination”. Without limiting any other provision of the solicitation for bids on this project, it is understood and agreed that, if this certification is false, such false certification will constitute grounds for the State to reject the bid submitted by the bidder on this project, and terminate any contract awarded based on the bid. As part of its bid or proposal, the bidder shall provide to the State a list of all instances within the immediate past 4 years where there has been a final adjudicated determination in a legal or administrative proceeding in the State of Maryland that the bidder discriminated against its subcontractors, vendors, suppliers, or commercial customers, and a description of the status or resolution of that complaint, including any remedial action taken. As a condition of submitting a bid or proposal to the State, the bidder agrees to comply with the State’s Commercial Nondiscrimination Policy as described under Title 19 of the State Finance and Procurement Article of the Annotated Code of Maryland.”.

Md. Code, State Finance and Procurement § 19-116

Every contract that the State enters into shall include language substantially similar to the following: “As a condition of entering into this agreement, upon the request of the Commission on Civil Rights, and only after the filing of a complaint against the company under Title 19 of the State Finance and Procurement Article, as amended from time to time, the company agrees to: provide to the State within 60 days after the request a truthful and complete list of the names of all subcontractors, vendors, and suppliers that the company has used in the past 4 years on any of its contracts that were undertaken within the State of Maryland, including the total dollar amount paid by the contractor on each subcontract or supply contract. The company further agrees to cooperate in any investigation conducted by the State pursuant to the State’s Commercial Nondiscrimination Policy as set forth under Title 19 of the State Finance and Procurement Article of the Annotated Code of Maryland, to provide any documents relevant to any investigation that is requested by the State. The company understands and agrees that violation of this clause shall be considered a material breach of this agreement and may result in contract termination, disqualification by the State from participating in State contracts, and other sanctions.”.

Md. Code, State Finance and Procurement § 19-117

The remedies provided by this title are in addition to any other statutory, legal, or equitable remedies that may be available and are not intended to be prerequisite to or exclusive of any other remedies.

Md. Code, State Finance and Procurement § 19-118

The filing, investigation, hearing, and appeal of a complaint under this title may not hinder or affect the eligibility for bidding, award of, performance of, or payment on a contract prior to a final adjudicated decision that establishes a violation.

Md. Code, State Finance and Procurement § 19-119

(a) In accordance with Title 10 of the State Government Article, the Commission shall adopt regulations to implement this title. (b) The Commission may establish documentation and reporting requirements to further the purposes and intent of this title.
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