EXPLANATION: CAPITALS indicate matter added to existing law.
[Brackets] indicate matter deleted from existing law.
* WARNING: THIS IS AN UNOFFICIAL, INTRODUCTORY COPY OF THE BILL.
THE OFFICIAL COPY CONSIDERED BY THE CITY COUNCIL IS THE FIRST READER COPY.
INTRODUCTORY*
CITY OF BALTIMORE
COUNCIL BILL
Introduced by: Councilmember Curran, Kraft, Clarke, Harris
A BILL ENTITLED
AN ORDINANCE concerning
Title
Sweat-Free Procurement
FOR the purpose of requiring certain contractors to assure that they and their subcontractors do not utilize sweatshop labor, slave labor, abusive forms of child labor, or foreign convict or forced labor and that they and their subcontractors are otherwise in compliance with wage, health, labor, environmental, safety, and other laws or requirements; defining certain terms; imposing certain remedies; authorizing certain waivers; and generally relating to City procurement of equipment, goods, materials, and supplies.
Body
BY adding
Article 5 - Finance, Property, and Procurement
Section(s) 29-1 through 29-13, inclusive, to be under the new subtitle designation,
"Subtitle 29. Sweat-Free Procurement"
Baltimore City Code
(Edition 2000)
Recitals
Each year, Baltimore City spends millions of dollars contracting with the private sector for the purchase, lease, or rental of equipment, goods, materials, and supplies. The prudent expenditure of public dollars requires that the City's procurement process lead to the selection of qualified and responsible contractors who have the ability to perform the contract.
The City has long supported the premise that employers should fairly compensate employees, that the health and safety of workers should be protected, and that no form of discrimination or abuse should be tolerated. Experience indicates that laws and regulations designed to safeguard basic tenets of ethical business practice are disregarded in some workplaces, commonly referred to as "sweatshops".
In its role as a market participant that procures equipment, goods, materials, and supplies, the City seeks to protect its interests by assuring that the integrity of the City's procurement process is not undermined by contractors who engage in sweatshop practices and other employment practices abhorrent to the City. When the City inadvertently contracts with these contractors, the City's ethical contractors are placed at a distinct competitive disadvantage. Many times, ethical contractors are underbid by unscrupulous contractors in competition for City contracts. These ethical contractors might be dissuaded from participating in future City procurement contracts.
The City's proprietary contracting interests are served by doing business with contractors who make a good faith effort to ensure that they and their subcontractors shun sweatshop practices and adhere to workplace and wage laws.
SECTION 1. BE IT ORDAINED BY THE MAYOR AND CITY COUNCIL OF BALTIMORE, That the Laws of Baltimore City read as follows:
Baltimore City Code
Article 5. Finance, Property, and Procurement
SUBTITLE 29. SWEAT-FREE PROCUREMENT
§ 29-1. DEFINITIONS.
(A) IN GENERAL.
IN THIS SUBTITLE, THE FOLLOWING TERMS HAVE THE MEANINGS INDICATED.
(B) CONTRACT.
(1) IN GENERAL.
"CONTRACT" MEANS ANY AGREEMENT TO PROCURE EQUIPMENT, GOODS, MATERIALS, OR SUPPLIES FOR THE CITY.
(2) INCLUSIONS.
"CONTRACT" INCLUDES THE PROCUREMENT OF GARMENTS, UNIFORMS, FOOT APPAREL, AND RELATED ACCESSORIES.
(C) CONTRACTOR.
"CONTRACTOR" MEANS ANY PERSON THAT HAS A CONTRACT WITH THE CITY.
(D) INCLUDES; INCLUDING.
"INCLUDES" OR "INCLUDING" MEANS BY WAY OF ILLUSTRATION AND NOT BY WAY OF LIMITATION.
(E) PERSON.
"PERSON" MEANS:
(1) AN INDIVIDUAL;
(2) A PARTNERSHIP, FIRM, ASSOCIATION, CORPORATION, OR OTHER ENTITY OF ANY KIND;
(3) A RECEIVER, TRUSTEE, GUARDIAN, PERSONAL REPRESENTATIVE, FIDUCIARY, OR REPRESENTATIVE OF ANY KIND; OR
(4) A GOVERNMENTAL ENTITY OR AN INSTRUMENTALITY OR UNIT OF A GOVERNMENTAL ENTITY.
(F) PROCUREMENT.
"PROCUREMENT" MEANS THE PURCHASE, LEASE, OR RENTAL OF EQUIPMENT, GOODS, MATERIALS, OR SUPPLIES.
§ 29-2. RULES OF CONSTRUCTION.
(A) LIBERAL CONSTRUCTION.
THE PROVISIONS OF THIS SUBTITLE ARE TO BE LIBERALLY CONSTRUED TO ACCOMPLISH ITS POLICIES AND PURPOSES.
(B) MANDATORY, PROHIBITORY, AND PERMISSIVE TERMS.
(1) MANDATORY TERMS.
"MUST" AND "SHALL" ARE EACH MANDATORY TERMS USED TO EXPRESS A REQUIREMENT OR TO IMPOSE A DUTY.
(2) PROHIBITORY TERMS.
"MUST NOT", "MAY NOT", AND "NO ... MAY" ARE EACH MANDATORY NEGATIVE TERMS USED TO ESTABLISH A PROHIBITION.
(3) PERMISSIVE TERMS.
"MAY" IS PERMISSIVE.
(C) NUMBER.
THE SINGULAR INCLUDES THE PLURAL AND VICE VERSA.
(D) SEVERABILITY.
(1) ALL PROVISIONS OF THIS SUBTITLE ARE SEVERABLE.
(2) IF A COURT DETERMINES THAT A WORD, PHRASE, CLAUSE, SENTENCE, PARAGRAPH, SUBSECTION, SECTION, OR OTHER PROVISION IS INVALID OR THAT THE APPLICATION OF ANY PART OF THE PROVISION TO ANY PERSON OR CIRCUMSTANCES IS INVALID, THE REMAINING PROVISIONS AND THE APPLICATION OF THOSE PROVISIONS TO OTHER PERSONS OR CIRCUMSTANCES REMAIN IN FULL FORCE AND EFFECT TO THE MAXIMUM EXTENT PRACTICABLE.
§ 29-3. SCOPE.
(A) IN GENERAL.
EXCEPT AS OTHERWISE PROVIDED IN THE SECTION, THIS SUBTITLE APPLIES TO ANY CONTRACTOR WHO ENTERS INTO A CONTRACT WITH:
(1) A VALUE OF $25,000 OR MORE; AND
(2) A TERM OF 3 MONTHS OR MORE.
(B) EXCEPTION.
THIS SUBTITLE DOES NOT APPLY TO A CONTRACT IF TO DO SO WOULD VIOLATE OR CONFLICT WITH FEDERAL OR STATE LAW.
(C) WAIVERS.
ON RECOMMENDATION OF THE CITY PURCHASING AGENT, THE BOARD OF ESTIMATES MAY WAIVE COMPLIANCE WITH THIS SUBTITLE UNDER THE FOLLOWING CIRCUMSTANCES:
(1) THE CONTRACT IS NECESSARY TO RESPOND TO AN EMERGENCY THAT ENDANGERS PUBLIC HEALTH OR SAFETY, AND NO CONTRACTOR THAT IS IN COMPLIANCE WITH THIS SUBTITLE IS CAPABLE OF RESPONDING TO THE EMERGENCY;
(2) THE CONTRACT IS FOR EQUIPMENT, GOODS, MATERIALS, OR SUPPLIES THAT ARE AVAILABLE FROM ONLY ONE CONTRACTOR, AND THAT CONTRACTOR IS OTHERWISE QUALIFIED AND ACCEPTABLE TO THE CITY;
(3) THE CONTRACT IS WITH ANOTHER PUBLIC ENTITY; OR
(4) THE APPLICATION OF THIS SUBTITLE TO THE CONTRACT WOULD CONFLICT WITH THE TERMS OR CONDITIONS OF A FEDERAL OR STATE GRANT OR AGREEMENT.
§ 29-4. RULES AND REGULATIONS.
(A) IN GENERAL.
THE BOARD OF ESTIMATES SHALL ADOPT RULES AND REGULATIONS TO CARRY OUT THIS SUBTITLE.
(B) FILING WITH LEGISLATIVE REFERENCE.
A COPY OF ALL RULES AND REGULATIONS MUST BE FILED WITH THE DEPARTMENT OF LEGISLATIVE REFERENCE BEFORE THEY TAKE EFFECT.
§ 29-5. {RESERVED}
§ 29-6. AFFIDAVIT OF COMPLIANCE.
(A) IN GENERAL.
BEFORE A CONTRACT IS AWARDED, THE CONTRACTOR MUST EXECUTE AN AFFIDAVIT OF COMPLIANCE.
(B) FORM.
THE AFFIDAVIT OF COMPLIANCE MUST BE IN THE FORM SET BY THE BOARD OF ESTIMATES.
(C) CONTENTS.
THE AFFIDAVIT OF COMPLIANCE MUST CONTAIN, IN ADDITION TO ANY OTHER PROVISIONS SPECIFIED BY THE BOARD OF ESTIMATES, PROVISIONS BY WHICH THE CONTRACTOR PROMISES TO COMPLY WITH THE REQUIREMENTS OF EACH OF § 29-7 {"SWEATSHOPS AND OTHER ABUSES"}, § 29-8 {"WAGE, HEALTH, SAFETY, ETC., LAWS"}, § 29-9 {"COMPLIANCE BY SUBCONTRACTORS"}, AND § 29-10 {"PROCUREMENT LIVING WAGE"}.
§ 29-7. SWEATSHOP AND OTHER ABUSES.
(A) DEFINITIONS.
(1) "ABUSIVE FORMS OF CHILD LABOR".
(I) IN GENERAL.
"ABUSIVE FORMS OF CHILD LABOR" MEANS WORK PERFORMED BY MINOR WHO:
(A) DOES NOT VOLUNTARILY SEEK THE WORK; OR
(B) IS THREATENED WITH PHYSICAL, MENTAL, OR EMOTIONAL HARM FOR NONPERFORMANCE.
(II) INCLUSIONS.
"ABUSIVE FORMS OF CHILD LABOR" INCLUDES:
(A) WORK PERFORMED BY A MINOR IN VIOLATION OF ANY APPLICABLE LAW OF THE COUNTRY OF MANUFACTURE OR ASSEMBLY GOVERNING THE MINIMUM AGE OF EMPLOYMENT, COMPULSORY EDUCATION, OR OCCUPATIONAL HEALTH AND SAFETY; AND
(B) THE USE OF A MINOR FOR ILLICIT ACTIVITIES, IN PARTICULAR FOR THE PRODUCTION OR TRAFFICKING OF ILLICIT DRUGS OR FOR PROSTITUTION.
(2) "MINOR".
"MINOR" MEANS ANY INDIVIDUAL UNDER THE AGE OF 18.
(3) "SLAVE LABOR".
"SLAVE LABOR" MEANS ANY FORM OF SLAVERY OR PRACTICES SIMILAR TO SLAVERY, SUCH AS THE SALE AND TRAFFICKING OF PERSONS, DEBT BONDAGE, SERFDOM, FORCED OR COMPULSORY LABOR, OR FORCED OR COMPULSORY RECRUITMENT OF MINORS FOR USE IN ARMED CONFLICT.
(4) "SWEATSHOP LABOR".
"SWEATSHOP LABOR" MEANS WORK PERFORMED BY AN INDIVIDUAL WHO IS EMPLOYED BY A CONTRACTOR OR SUBCONTRACTOR THAT HAS HABITUALLY VIOLATED LAWS OF ANY APPLICABLE JURISDICTION GOVERNING WAGES, EMPLOYEE BENEFITS, OCCUPATIONAL HEALTH AND SAFETY, NONDISCRIMINATION, OR FREEDOM OF ASSOCIATION.
(B) COMPLIANCE REQUIRED.
(1) EVERY CONTRACTOR MUST COMPLY WITH ALL HUMAN AND LABOR RIGHTS AND LABOR OBLIGATIONS THAT ARE IMPOSED BY TREATY OR LAW ON THE COUNTRY IN WHICH THE EQUIPMENT, GOODS, MATERIALS, OR SUPPLIES ARE MADE OR ASSEMBLED.
(2) THESE INCLUDE RIGHTS AND OBLIGATIONS IMPOSED WITH RESPECT TO:
(I) ABUSIVE FORMS OF CHILD LABOR;
(II) SLAVE LABOR;
(III) SWEATSHOP LABOR; OR
(IV) FOREIGN CONVICT OR FORCED LABOR, AS DEFINED IN 19 U.S.C. § 1307.
§ 29-8. WAGE, HEALTH, SAFETY, ETC., PROTECTIONS.
EVERY CONTRACTOR MUST COMPLY WITH ALL APPLICABLE WAGE, HEALTH, LABOR, ENVIRONMENTAL, AND SAFETY LAWS, LEGAL GUARANTEES OF FREEDOM OF ASSOCIATION, BUILDING AND FIRE CODES, AND LAWS AND ORDINANCES RELATING TO WORKPLACE AND EMPLOYMENT DISCRIMINATION.
§ 29-9. COMPLIANCE BY SUBCONTRACTORS.
EVERY CONTRACTOR MUST TAKE GOOD FAITH MEASURES TO ENSURE THAT, TO THE BEST OF THE CONTRACTOR'S KNOWLEDGE, THE CONTRACTOR'S SUBCONTRACTORS ALSO COMPLY WITH THIS SUBTITLE.
§ 29-10. "PROCUREMENT LIVING WAGE".
(A) SCOPE.
THIS SECTION APPLIES ONLY TO CONTRACTS INVOLVING THE PROCUREMENT OF GARMENTS, UNIFORMS, FOOT APPAREL, AND RELATED ACCESSORIES.
(B) "PROCUREMENT LIVING WAGE" DEFINED.
"PROCUREMENT LIVING WAGE" MEANS:
(1) FOR DOMESTIC MANUFACTURERS, A BASE HOURLY WAGE ADJUSTED ANNUALLY TO THE AMOUNT REQUIRED TO PRODUCE, FOR 2,080 HOURS WORKED, AN ANNUAL INCOME EQUAL TO OR GREATER THAN THE U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES MOST RECENT POVERTY GUIDELINE FOR A FAMILY OF 3, PLUS AN ADDITIONAL 20% OF THE WAGE LEVEL PAID EITHER AS HOURLY WAGES OR HEALTH BENEFITS; AND
(2) FOR MANUFACTURING OPERATIONS IN COUNTRIES OTHER THAN THE UNITED STATES, A WAGE SET BY THE BOARD OF ESTIMATES THAT IS COMPARABLE TO THE WAGE FOR DOMESTIC MANUFACTURERS, AS DEFINED ABOVE, ADJUSTED TO REFLECT THE COUNTRY'S LEVEL OF ECONOMIC DEVELOPMENT BY USING THE WORLD BANK'S GROSS NATIONAL INCOME PER CAPITA PURCHASING POWER PARITY INDEX.
(B) COMPLIANCE REQUIRED.
FOR A CONTRACT SUBJECT TO THIS SECTION, THE CONTRACTOR MUST ENSURE THAT WORKERS ARE PAID NO LESS THAN A PROCUREMENT LIVING WAGE.
§ 29-11. {RESERVED}
§ 29-12. ADMINISTRATIVE SANCTIONS.
(A) IN GENERAL.
A CONTRACTOR WHO FAILS TO COMPLY WITH ANY REQUIREMENT OF THIS SUBTITLE OR OF THE CONTRACTOR'S AFFIDAVIT OF COMPLIANCE IS SUBJECT ONE OR MORE OF THE FOLLOWING PENALTIES:
(1) SUSPENSION OF CONTRACT;
(2) WITHHOLDING OF FUNDS;
(3) RESCISSION OF CONTRACT BASED ON MATERIAL BREACH;
(4) REFUSAL TO ACCEPT A BID;
(5) DISQUALIFICATION FROM CONTRACTING WITH THE CITY FOR A PERIOD NOT TO EXCEED 2 YEARS; AND
(6) PAYMENT OF LIQUIDATED DAMAGES.
(B) CURATIVE ACTIONS.
IN ADDITION, THE BOARD OF ESTIMATES MAY TAKE ONE OR BOTH OF THE FOLLOWING ACTIONS:
(1) DEMAND THAT THE CONTRACTOR OR SUBCONTRACTOR AT THE POINT OF MANUFACTURE, ASSEMBLY, OR SERVICE PROVIDE ACCESS TO INDEPENDENT HUMAN RIGHTS MONITORS; AND
(2) DEMAND THAT THE CONTRACTOR OR SUBCONTRACTOR AT THE POINT OF MANUFACTURE, ASSEMBLY, OR SERVICE PROVIDE MANAGEMENT AND WORKERS WITH TRAINING AND BEST PRACTICES GUIDELINES TO ENSURE FUTURE COMPLIANCE WITH THIS SUBTITLE.
(C) CONSIDERATIONS.
BEFORE TAKING ACTION UNDER THIS SECTION, THE BOARD OF ESTIMATES MUST TAKE INTO CONSIDERATION ALL RELEVANT AND RELIABLE INFORMATION, INCLUDING:
(1) INFORMATION PROVIDED BY THE CONTRACTOR AND ITS SUBCONTRACTORS AT THE POINT OF MANUFACTURER, ASSEMBLY, OR SERVICE;
(2) REPORTS FROM REPUTABLE NATIONAL AND INTERNATIONAL ORGANIZATIONS;
(3) DOCUMENTED MEDIA REPORTS; AND
(4) CREDIBLE INFORMATION FROM LOCAL GROUPS AND ORGANIZATIONS.
§ 29-13. CRIMINAL PENALTIES.
(A) PROHIBITED CONDUCT.
NO PERSON MAY:
(1) in any matter subject to this subtitle, willfully falsify, conceal, or cover up by a trick, scheme, or device a material fact or make any false writing or document knowing that it contains any false, fictitious, or fraudulent statement or entry;
(2) willfully obstruct, impede, or attempt to obstruct or impede an authorized official or employee who is investigating a contractor's or subcontractor's compliance with this subtitle; or
(3) fraudulently obtain, attempt to obtain, or aid another in fraudulently obtaining or attempting to obtain public money to which the person is not entitled under this subtitle.
(b) Penalties.
Any person who violates any provision of this section is guilty of a misdemeanor and, on conviction, is subject to imprisonment for not more than 1 year, to a fine of not more than $1,000, or to both imprisonment and fine.
SECTION 2. AND BE IT FURTHER ORDAINED, That the catchlines contained in this Ordinance are not law and may not be considered to have been enacted as a part of this or any prior Ordinance.
SECTION 3. AND BE IT FURTHER ORDAINED, That this Ordinance takes effect on the 30th day after the date it is enacted.
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