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(a) The SLMBE Office shall ensure adherence to this chapter by Commission employees and SLBEs.

(b) The SLMBE Office shall verify that a prime contractor has submitted the SLBE/MBE subcontracting and supplier certification (subcontracting plan) before the notice to proceed (NTP) is issued on a contract and, if applicable, the contract’s option term(s).

(c) To ensure compliance with contract-specific SLBE subcontracting requirements, the SLMBE Office shall verify that the WSSC-approved SLBE listed in the approved SLBE/MBE subcontracting and supplier certification plan (subcontracting plan) is actually performing work and receiving compensation as set forth in the plan.

(d) Requests for waiver of approved SLBE/MBE subcontracting and supplier certification plan (subcontracting plan) shall be filed and resolved in accordance with WSSC 6.35.230.

(e) Failure of a prime contractor to make good faith efforts to comply with an approved SLBE/MBE subcontracting and supplier certification plan (subcontracting plan) may, absent unintentional, accidental or otherwise justifiable extenuating circumstances, constitute either willful or intentional failure to perform in accordance with the requirements of the SLBE/MBE subcontracting and supplier certification plan (subcontracting plan), or willful or intentional action to frustrate the plan. The SLMBE Office 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 Office and shall then determine whether enforcement action should be taken in a particular case.

(f) Upon determining that a prime contractor has failed to comply with an approved SLBE/MBE subcontracting and supplier certification plan (subcontracting plan), the SLMBE Office shall notify the Procurement Office, which will notify the prime contractor in writing of its findings and shall specify what corrective actions are required. The prime contractor is required to initiate the corrective actions within 10 days of receipt of notice and complete them within the time specified in the notice. The correction actions shall be recommended by the SLMBE Office and implemented and issued to the contractor by the Chief Procurement Officer.

(g) If the SLMBE Office determines that material noncompliance with SLBE 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 contractor;

(2) Suspension of the contract;

(3) Referral to the General Counsel’s Office for appropriate action;

(4) Termination of the contract; or

(5) Initiation of any other specific remedy identified by contract, this chapter or other applicable law or regulation.

(h) Unless the SLMBE Director grants a partial or complete waiver of the contract-specific subcontracting requirement from the SLMBE Office, failure on the part of any bidder to commit to attainment of a contract-specific subcontracting requirement 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.

(i) Absent a waiver, a prime contractor’s failure to reach the required level of WSSC-approved SLBE 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.

(j) The SLMBE Office, in collaboration with the Procurement Office, Contracting Manager (CM) (or Administrating Contract Manager (ACM)), may initiate the noncompliance with the prime contractor via the Procurement Office for corrective action, as outlined in WSSC’s Contract Terms and Conditions.

(k) The SLMBE Office may use any other compliance mechanisms authorized by the contract, or by Commission regulation.

(l) The SLMBE Office, in conjunction with appropriate WSSC personnel, may, upon completion of a contract, and before final payment is made, require that a prime contractor on any contract having a contract-specific SLBE subcontracting requirement to:

(1) Submit a final report, in affidavit form and under penalty of perjury, of all payments made to, or withheld from, SLBE subcontractors;

(2) Allow the SLMBE Office to inspect any relevant matter, including job site records of the contractor;

(3) Allow the SLMBE Office to interview subcontractors and employees of the contractor;

(4) For construction contracts, ensure that subcontractors (a) are 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 WSSC-approved SLBE subcontractor a requirement that the subcontractor submit a monthly report to the Commission as required by the contract through the WSSC’s Web-Based Compliance System or any successor system thereto.

(6) Notice of this requirement shall be included in the IFB or RFP.

(m) WSSC shall establish and implement subcontractor substitution standards to prevent prime contractors from listing subcontractors on bid documents without utilizing their services. Substitution of a listed subcontractor in furtherance of bid shopping before or after the award of the prime contract is prohibited.

(n) Any enforcement action taken by WSSC pursuant to WSSC 6.35.220 shall be subject to the internal appeals process and procedures provided for in WSSC Chapter 6.15 (and any subsequent manual or regulation thereto). (REG-PROC-SD-2017-005 § VI(F))