(a) The OSDI shall ensure adherence to this chapter by Commission personnel, prime contractors and direct subcontractors.
(b) To ensure compliance with contract specific MBE subcontracting goals, the OSDI shall verify that the certified MBEs listed in approved SLBE/MBE subcontracting and supplier certifications (subcontracting plans) are actually performing work and receiving compensation as set forth in the plan.
(c) Requests for waiver of approved SLBE/MBE subcontracting and supplier certifications (subcontracting plans) shall be filed in accordance with WSSC 6.30.260.
(d) Failure of a prime contractor to make good faith efforts to comply with an approved SLBE/MBE subcontracting and supplier certifications (subcontracting plans) may – absent unintentional, accidental or otherwise justifiable extenuating circumstances – constitute either willful or intentional failure to perform in accordance with the requirements of the subcontracting plan, or willful or intentional action to frustrate the plan. The OSDI shall determine whether the prime contractor’s failure to make good faith efforts was willful or intentional based on all relevant facts, circumstances and information presented or available to the OSDI and shall then determine whether enforcement action should be taken in a particular case.
(e) Upon determining that a prime contractor has failed to comply with an approved SLBE/MBE subcontracting and supplier certifications (subcontracting plans), the OSDI shall notify the Procurement Office, which will 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 business days of receipt of notice and complete them within the time specified in the notice. The corrective actions shall be recommended by the OSDI and implemented and issued to the contractor by the Chief Procurement Officer.
(f) If the OSDI determines that material noncompliance with MBE contract provisions exists and that the prime contractor refuses or fails to take the corrective action required in the Procurement Office’s notice, then the following sanctions may be invoked by the Chief Procurement Officer:
(1) Withhold payment to the prime;
(2) Suspension of the contract;
(3) Termination of the contract;
(4) Referral to the General Counsel’s Office for appropriate action; or
(5) Initiation of any other specific remedy identified by contract, this chapter or other applicable law or regulation.
(g) Unless the OSDI Director grants a partial or complete waiver of the contract-specific subcontracting goal from the OSDI, failure on the part of any bidder to commit to attainment of a contract-specific subcontracting goal shall render a bid nonresponsive. Furthermore, disclosure of subcontractor information is a material specification in the bid, and failure to provide such information shall render a bid nonresponsive.
(h) Absent a waiver, a prime contractor’s failure to reach the required level of MBE subcontracting shall be considered a material breach of contract. No final payment on the prime contract shall be released to the prime contractor, and no new WSSC contracts should be issued to the prime contractor until the audit of previous subcontract payments is complete and payments are determined to comply with contract specifications.
(i) The OSDI in collaboration with the Procurement Office, Contracting Manager (CM) (or Administrating Contract Manager (ACM)) may initiate the noncompliance notification to the prime contractor via the Procurement Office for corrective action, as outlined in WSSC’s Contract Terms and Conditions.
(j) The OSDI may use any other compliance mechanism authorized by contract or by Commission regulation.
(k) The OSDI, in conjunction with appropriate WSSC personnel, may, upon completion of a contract, and before final payment, require that a prime contractor on any contract having a contract specific MBE subcontracting goal submit a final report, in affidavit form and under penalty of perjury, of all payments made to, or withheld from, MBE subcontractors:
(1) Submit a final report, in affidavit form and under penalty of perjury, of all payments made to, or withheld from, MBE subcontractors;
(2) Allow the OSDI to inspect any relevant matter, including job site records of the contractor;
(3) Allow the OSDI to interview subcontractors and employees of the contractor;
(4) For construction contracts, ensure that subcontractors are (a) paid any undisputed amount to which the subcontractor is entitled as provided under the State Finance and Procurement Article, § 15-226, Annotated Code of Maryland; and (b) comply with the Commission regulations; and
(5) Include in the agreement with the eligible MBE subcontractor a requirement that the subcontractor submits a monthly report to the Commission as required by the contract through WSSC’s Web-Based Compliance System or any successor Web-Based Compliance System thereto.
(6) Notice of this requirement shall be included in the IFB or RFP.
(l) Any enforcement action taken by WSSC pursuant to this section shall be subject to the internal appeals process and procedures provided for in WSSC’s Procurement Manual (and any subsequent manual or regulation thereto).