Md. Code Regs. 21.11.03.13

Current through Register Vol. 51, No. 12, June 14, 2024

Section 21.11.03.13 - Compliance

A. To ensure compliance with certified MBE participation goals, the procurement agency shall:

(1) Verify that the certified MBEs listed in the MBE participation schedule are actually performing work and receiving compensation as set forth in the participation schedule; and

(2) Monitor and collect data on contractor compliance with contract MBE participation goals.

B. The contractor shall:

(1) Permit the procurement agency to inspect any relevant matter, including records and the jobsite and to interview subcontractors and workers;

(2) If performing a State construction contract, ensure that all subcontractors are paid any undisputed amount to which the subcontractor is entitled within 10 calendar days of receiving a progress or final payment from the State and otherwise comply with COMAR 21.10.08 which sets forth the obligations of the prime contractor, contractors, and subcontractors and the remedies for delinquency or nonpayment of undisputed amounts, in State construction contracts.

(3) Submit monthly to the procurement agency a report listing payments made to each MBE subcontractor in the preceding 30 days and any unpaid invoices over 30 days old received from a certified MBE subcontractor, and the reason payment has not been made; and

(4) Include in its agreements with its certified MBE subcontractors a requirement that the certified MBE subcontractors submit monthly to the procurement agency a report identifying the prime contract, and listing:

(a) Payments received from the contractor in the preceding 30 days, and

(b) Invoices for which the subcontractor has not been paid.

C. Upon determining that a contractor did not make good faith efforts to comply with contract MBE participation goals, the procurement agency shall notify the contractor in writing of its findings and shall specify what corrective actions are required. The contractor is required to initiate the corrective actions within 10 days and complete them within the time specified by the procurement agency.

D. If a procurement agency determines that material noncompliance with MBE contract provisions exists and that the prime contractor refuses or fails to take the corrective action required by the procurement agency, then the following sanctions may be invoked:

(1) Termination of the contract;

(2) Referral to the Office of the Attorney General for appropriate action; or

(3) Initiation of any other specific remedy identified by contract.

E. Upon completion of the project, the procurement agency shall:

(1) Prepare a report that compares the dollar value of the payments actually received by MBEs with the dollar value of the amount that MBEs were intended to have received under the contract's MBE participation goal; and

(2) Include in the report an explanation of any discrepancy.

F. A procurement agency may use any other compliance mechanism authorized by contract or this title.

G. A procurement agency may, upon completion of a contract, and before final payment or release of retainage or both, require that a prime contractor on any contract having an MBE subcontract goal, submit a final report, in affidavit form and under penalty of perjury, of all payments made to, or withheld from, MBE subcontractors. The solicitation shall contain notice of this provision.

Md. Code Regs. 21.11.03.13

Regulation .13 amended effective 40:9 Md. R. 789, eff.5/13/2013
Regulation .13A amended effective April 7, 2008 (35:7 Md. R. 751)