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Statutes Text

Article - State Finance and Procurement


    (a)    Each public body that awards a public work contract shall:

        (1)    take cognizance of a complaint of a violation of this subtitle committed in the course of performance of the public work contract; and

        (2)    when making payments to the contractor, withhold any amount that the contractor owes to its employees or the public body as a result of the violation.

    (b)    (1)    The Commissioner shall promptly institute an investigation as necessary to determine compliance with this subtitle and regulations adopted under this subtitle when the Commissioner:

            (i)    receives a complaint of a violation of this subtitle; and

            (ii)    is otherwise made aware of a possible violation of this subtitle.

        (2)    Any written or oral complaint or statement made by an employee is confidential and may not be disclosed to the employer without the consent of the employee.

    (c)    A contractor or subcontractor subject to an investigation under this section shall allow the Commissioner, during normal working hours, to observe work being performed at the site of a public work project, to interview employees, and to review books and records, to determine:

        (1)    the correctness of each classification;

        (2)    the ratio of apprentices to mechanics; and

        (3)    payment of straight and overtime prevailing wage rates as required under the public work contract.

    (d)    (1)    If, after investigation, the Commissioner determines that a provision of this subtitle may have been violated, the Commissioner immediately shall notify the public body.

    (2)    On notification, the public body shall withhold from payment due the contractor or subcontractor an amount sufficient to:

            (i)    pay each employee of the contractor or subcontractor the full amount of wages due under this subtitle; and

            (ii)    satisfy a liability of a contractor for liquidated damages as provided in § 17–222(a) of this subtitle, pending a final determination.

        (3)    If a subcontractor is responsible for a violation of this subtitle, the contractor:

            (i)    may withhold from payment to the subcontractor an amount equal to the amount withheld from the contractor under paragraph (2) of this subsection; or

            (ii)    if payment has been made to the subcontractor, may sue to recover that amount.

    (e)    (1)    (i)    If, after investigation, the Commissioner makes an initial determination that a contractor or subcontractor may have violated the requirement to pay the prevailing wage rate under this subtitle, the Commissioner immediately may issue a stop work order to cease all business operations at every site where a violation occurred and shall:

                1.    notify the contractor or subcontractor of the violation, to include a statement of facts disclosed in the investigation;

                2.    meet with the contractor or subcontractor within 48 hours of issuing the stop work order; and

                3.    provide the contractor or subcontractor a reasonable timeframe, as determined by the Commissioner, to resolve the violation.

            (ii)    The Commissioner may issue the stop work order even if the Commissioner has referred the matter to the Attorney General or another appropriate authority for investigation or prosecution.

        (2)    If a stop work order is issued against a subcontractor:

            (i)    the prime contractor on the contract may not terminate the contract with the subcontractor until 48 hours after the meeting between the Commissioner and the subcontractor;

            (ii)    the prime contractor may not terminate the contract with the subcontractor if the violation has been resolved; and

            (iii)    the prime contractor may not incur any civil liability for damages to the subcontractor whose contract was terminated, other subcontractors affected by the termination, or any public body resulting from the termination.

        (3)    The Commissioner may impose a penalty of up to $5,000 per day against a contractor or subcontractor for each day the contractor or subcontractor violates a stop work order.

        (4)    A stop work order issued under this subsection shall:

            (i)    take effect when served on the contractor or subcontractor; and

            (ii)    remain in effect until the Commissioner issues an order releasing the stop work order.

        (5)    The Commissioner shall issue an order releasing a stop work order issued under this subsection on a showing by the contractor or subcontractor that the contractor or subcontractor:

            (i)    is properly paying employees the appropriate prevailing wage rate set in accordance with this subtitle; and

            (ii)    has paid all penalties assessed against the contractor or subcontractor under this subtitle.

        (6)    The Commissioner may include in the order releasing a stop work order a requirement that the contractor or subcontractor submit periodic reports to the Commissioner demonstrating compliance with the requirements of this subtitle.

    (f)    (1)    (i)    Within 72 hours after a contractor or subcontractor receives a stop work order under subsection (e) of this section, the contractor or subcontractor may submit a written appeal to the Commissioner on the stop work order.

            (ii)    If an appeal is not requested within 72 hours, the stop work order shall become a final order of the Commissioner.

        (2)    The Commissioner shall hold a hearing within 7 days after receiving the written appeal.

        (3)    If the Commissioner does not hold a hearing within 7 days after receiving the written appeal, the contractor or subcontractor may request an administrative law judge to release the order.

        (4)    (i)    Within 5 days after holding a hearing on a stop work order under this subsection, the Commissioner shall issue a written decision on the appeal.

            (ii)    The decision shall include:

                1.    an explanation of why the order was upheld or released; and

                2.    the grounds on which the result was determined.

    (g)    If after investigation, the Commissioner determines that a provision of this subtitle may have been violated and has not issued a stop work order in accordance with subsection (e) of this section, the Commissioner shall:

        (1)    issue an order for a hearing within 30 days after completing an investigation; and

        (2)    expeditiously conduct the hearing.

    (h)    (1)    At least 10 days before the hearing, the Commissioner shall serve, personally or by mail, written notice of the hearing on all interested persons, including the public body.

        (2)    The notice shall include:

            (i)    a statement of the facts disclosed in the investigation; and

            (ii)    the time and place of the hearing.

    (i)    (1)    In conducting an investigation or hearing under this section, the Commissioner is deemed to be acting in a quasi–judicial capacity and may:

            (i)    issue subpoenas;

            (ii)    administer oaths; or

            (iii)    examine witnesses.

        (2)    The Commissioner shall grant each interested person an opportunity to speak at the hearing on matters relevant to the complaint.

    (j)    (1)    After the conclusion of the hearing, the Commissioner shall:

            (i)    file in the Commissioner’s office an order that states the Commissioner’s determination; and

            (ii)    serve, personally or by mail, the public body and parties to the hearing with a copy of the order and notice of its filing.

        (2)    If the Commissioner finds a violation, the Commissioner shall determine the amount of liquidated damages and restitution to be assessed for the violation.

        (3)    On the entry and service of a Commissioner’s order, the public body, from the money due the contractor or subcontractor, shall:

            (i)    pay the affected employees the full amount of wages due them; and

            (ii)    satisfy the obligation of the contractor or subcontractor to pay liquidated damages as required under § 17–222 of this subtitle.

    (k)    (1)    In addition to any other penalty, the Commissioner may impose a civil fine of not more than $1,000 against a contractor or subcontractor that knowingly fails to produce records or attend a hearing or deposition as required by an investigation into a possible prevailing wage violation under subsection (b) of this section.

        (2)    Each day that a violation under paragraph (1) of this subsection continues is a separate offense.

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