Title 27 DCMR — CONTRACTS AND PROCUREMENT

27-1 GENERAL RULES OF THE CONTRACT APPEALS BOARD

27 DCMR § 100 GENERAL PROVISIONS

100.1 Scope. These rules, consisting of Chapters 1, 2, 3 and 4 of Title 27 DCMR, govern all proceedings in all cases filed with the District of Columbia Contract Appeals Board (Board).

100.2 Codification. These rules shall amend Chapters 1, 2, 3, and 4 of Title 27 of the District of Columbia Municipal Regulations (DCMR) and shall be cited with the appropriate reference to the publication of these rules in the D.C. Register, indicating the volume number, page number and the date of publication.

100.3 Application. These rules shall apply to all appeals and protests filed with the Board on or after April 6, 2020, and to all further proceedings in appeals and protests pending before the Board at that time.

100.4 Transition. If, however, the Board determines that the application of a rule in a particular case pending before the Board on the effective date of these rules would be impracticable or would work an injustice on a party, the Board may order that all or a portion of the former rules shall apply to further proceedings in the case.

100.5 Construction. These rules shall be construed to obtain the just, expeditious, and inexpensive resolution of every case. In addition to the Board's own precedent, the Board will be guided by (i) precedent of the District of Columbia courts in construing those Board rules that are analogous to the Rules of Civil Procedure of the DC Superior Court; and (ii) precedent of the United States Government Accountability Office in construing those Board rules that are analogous to protest rules of the Government Accountability Office.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 100

27 DCMR § 101 BOARD

101.1 The name of the Board is the District of Columbia Contract Appeals Board.

101.2 The Board's membership shall consist of a Chief Administrative Judge (Chairperson) and other administrative judges, as provided by law.

101.3 Cases before the Board are assigned to panels consisting of three administrative judges as appropriate for final disposition or decision, except as determined by the Chief Administrative Judge in accordance with Subsection 215.5, or otherwise.

101.4 The presiding administrative judge designated to manage a particular case pursuant to Subsection 102.5 shall have the authority to administer oaths and affirmations, issue subpoenas, rule on all interlocutory matters and nondispositive motions, schedule and conduct proceedings and hearings, and take other action as necessary to prepare the case for final disposition or decision.

101.5 Except for appeals processed under the small claims (expedited) procedure, as prescribed in Section 215, the final disposition of a case shall be made by majority vote of the administrative judges assigned to the panel.

101.6 The Board's final decision in a case shall be in writing and based solely on the record, including such matters as the Board may expressly take notice of. A copy of the decision shall be dated and forwarded to the parties by first class mail or electronically. All decisions which constitute a final adjudication of a case, except decisions issued on cases under the optional small claims procedures of Section 215, shall be published in the District of Columbia Register.

101.7 The Board shall hear and decide de novo all cases under its jurisdiction.

101.8 If any contracting agency, which is exempt from coverage of the Procurement Practices Reform Act, wishes to have the Board hear and decide appeals and/or protests, the Board shall do so only in accordance with a written agreement with the agency. The cost of processing cases involving such an agency shall be on a reimbursable basis agreed to by the Board and the agency.

101.9 Proceedings before the Board shall be conducted at its offices, unless otherwise ordered by the Board.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 101

27 DCMR § 102 CHIEF ADMINISTRATIVE JUDGE (CHAIRPERSON)

102.1 The chairperson of the Board shall serve as the Chief Administrative Judge of the Board.

102.2 In addition to participating in the hearing of cases, the Chief Administrative Judge shall oversee the administrative activities of the Board and shall provide, within approved budgetary ceilings, for the staffing of the Board with nonmember personnel. These persons shall be responsible to and shall function under the direction, supervision, and control of the Chief Administrative Judge.

102.3 In the case of a vacancy in the position of the Chief Administrative Judge, or his or her absence or disability, the administrative judge who has the senior length of service shall serve as the Acting Chief Administrative Judge and exercise all of the authority, duties, and responsibilities of the Chief Administrative Judge.

102.4 When by reason of a vacancy, disability, or absence, neither the Chief Administrative Judge nor the member who has the senior length of service is available to exercise the duties of the Chief Administrative Judge, the administrative judge next in length of service shall serve as the Acting Chief Administrative Judge. Should there not be an administrative judge with a senior length of service, the Chief Administrative Judge shall designate a Board member to serve as Acting Chief Administrative Judge.

102.5 The Chief Administrative Judge shall assign and, as necessary, reassign cases and administrative judges to panels and shall designate one of the panel members as the presiding judge having the lead responsibility for the management of a particular case.

102.6 The Chief Administrative Judge may authorize the performance by another administrative judge or Board employee of any function of the Chief Administrative Judge, except that, as provided by law, only administrative judges may hear and decide cases. The attendance of at least two members of the Board shall constitute a quorum.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 102

27 DCMR § 103 BOARD OPERATIONS

103.1 The Board's office shall be open for the transaction of business from 9:00 a.m. until 5:00 p.m. daily, except Saturdays, Sundays, and legal holidays.

103.2

(a) Unless otherwise directed by an administrative judge, all paper pleadings, briefs, motions, and any other submissions to the Board shall be filed at the Board's office during business hours.

(b) Subject to Chapter 4, documents can be filed electronically at any time. As stated in Chapter 4, electronic filing is the electronic submission of documents to the Board via the Board’s designated electronic file and serve system. Sending an email to the Board is not a proper method of electronic filing.

103.3 Upon the receipt of a paper appeal or a protest, the Board shall stamp the date of filing next to the title of the case. Upon receipt of an electronic filing, the Board’s designated vendor shall issue a confirmation showing the authorized date and time of filing. If a person filing requests a Board certification, a copy of the submission provided by the person shall be marked to show the time and date of the filing and it shall be initialed by the Board.

103.4 The Board shall keep and maintain: all incoming pleadings, motions, and other communications to the Board, and all outgoing notices, correspondence, and Board actions; a monthly docket of current cases under the Board's jurisdiction; copies of decisions and final orders of the Board; and copies of the Board's rules.

103.5 Subject to the provisions of Section 104, the case docket, and copies of decisions, final orders, and rules shall be available for inspection by the public at the Boards' office. Copies of Board decisions and final orders shall be available to the public at a reasonable cost. Consistent with the requirements of the District of Columbia Freedom of Information Act, the Board shall provide access to electronic records not subject to a Protective Order under Section 104 during normal business hours.

103.6 The Board shall maintain records that contain the date of mailing, or delivery, of all papers that are served or delivered.

103.7 Cases before the Board shall be assigned consecutive numbers in the appropriate docket books in order of their filing, one sequence for appeals bearing the letter "D" as a prefix, and another sequence for protests bearing the letter "P" as a prefix.

103.8 Upon request, the Board shall furnish to the public the names of its members, and the identity of the Board members comprising the panel to which a particular case has been assigned.

103.9 The Board shall maintain a case docket, updated monthly, which provides the names of the appellant or protester, the name of the contracting agency, the case number, the date the case was filed with the Board, the name of the presiding judge, the date of any scheduled hearing on the merits of the case, and an identification of accelerated and small claims appeals.

103.10 Active case files containing all pleadings and other records of the case, except as provided by Section 104, shall be available for inspection by the public at the Board's office. However, the public may not remove any pleadings or other records from the case file nor remove the case file from the Board's office without the express written authorization of an administrative judge.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 103

27 DCMR § 104 PROTECTIVE ORDERS; IN CAMERA REVIEW

104.1

(a) At the request of a party to a protest or appeal or on its own initiative, the Board may issue a protective order controlling the treatment of protected information. Such information may include proprietary, confidential, or source-selection-sensitive material, as well as other information the release of which could result in a competitive advantage to one or more firms. The protective order shall establish procedures for application for access to protected information, identification and safeguarding of that information, and submission of redacted copies of documents omitting protected information. For informational purposes only, a sample protective order, as well as sample applications for access to materials under a protective order, are available on the Board’s website: www.cab.dc.gov.

(b) If a party to a protest or appeal seeks to have its initial filing in a case sealed, it must submit with the filing a motion for a protective order pursuant to this Rule, or submit an explicit request for a protective order in the filing, as well as a redacted copy of the filing that would be accessible to the public. If, a party seeks to have a subsequent filing or specified exhibits sealed, it must first file a motion for a protective order pursuant to this rule. Redacted copies of the exhibits need not be submitted, however. Only the specific document or exhibit that is to be filed under seal shall be designated as sealed. For any party that has not been allowed access under the protective order, the filing party shall serve notice of the filing and that the served party must request admission under the protective order to access the documents filed.

(c) If no protective order has been issued, the agency may withhold from the parties those portions of a document submission which would ordinarily be subject to a protective order. The Board will review in camera all information not released to the parties.

(d) After a protective order has been issued, counsel or consultants retained by counsel appearing on behalf of a party may apply for admission under the protective order by submitting an application to the Board, with copies furnished simultaneously to all parties. The application shall establish that the applicant is not involved in competitive decision making for any firm that could gain a competitive advantage from access to the protected information and that there will be no significant risk of inadvertent disclosure of protected information. Objections to an applicant's admission shall be raised within two (2) days after receipt of the application, although the Board may consider objections raised after that time.

(e) Any violation of the terms of a protective order may result in the imposition of sanctions as the Board deems appropriate, including referral to appropriate bar associations or other disciplinary bodies and restricting the violator's practice before the Board.

104.2 At the request of a party or on its own initiative, the Board may order that specific documents or tangible articles be submitted for in camera review by the Board, and not be available for inspection, if they are asserted to contain privileged information. A party by motion may challenge another party's assertion of privilege.

104.3 Information subject to a protective order under this Rule may be used in any appellate matter filed with the Superior Court of the District of Columbia or the District of Columbia Court of Appeals (collectively, “Court”), without the Board’s prior authorization, provided that the information is filed under seal with the Court, that the Court is informed by the Appellant(s) of the Board’s protective order, and that the Appellant(s) request the Court to issue its own protective order to cover the protected material. Use of information protected under the Board’s protective order in such appellate proceedings will be governed by the protective order issued by the Court.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 104

27 DCMR § 105 EX PARTE COMMUNICATIONS

105.1 Ex parte communications, as defined in Subsection 199.1, shall be prohibited.

105.2 Excluded from ex parte communications are those that:

(a) Are specifically authorized by law to be made on an ex parte basis; or

(b) Relate to the Board's administrative functions or procedures; or

(d) Are communications among Board members, and/or communications among Board members and staff.

105.3 An administrative judge or a staff member of the Board who receives an ex parte communication prohibited by this section, shall immediately report its receipt to the Chief Administrative Judge and prepare a memorandum describing in detail the substance of the communication. The memorandum shall be placed in the case file, along with the actual communication if it is in written form. The Board shall provide a copy of the memorandum to all parties.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 105

27 DCMR § 106 APPEARANCE AND REPRESENTATION

106.1 In a proceeding before the Board, an individual, receiver, or trustee may appear in his or her behalf; a general partner of a partnership may represent the partnership; and an officer of a corporation may represent the corporation. The Office of the Attorney General for the District of Columbia shall represent the District. Independent agencies of the District of Columbia may be represented by agency counsel.

106.2 A party may be represented in a proceeding by an attorney at law admitted to practice before the District of Columbia Court of Appeals or before the highest court of the state where he or she resides or maintains an office. An attorney at law employed by the District of Columbia government may represent an agency in accordance with the requirements of Rule 49(c)(4) of the Rules of the District of Columbia Court of Appeals.

106.3 An individual appearing before or transacting business with the Board in a representative capacity pursuant to the provisions of Subsection 106.1 may be required to establish his or her authority to act in that capacity.

106.4 Notice of Appearance. Each person, including an Assistant Attorney General, representing a party in a case pending before the Board shall file with the Board a written notice of appearance containing the following:

(a) The signature of the representative;

(b) The typed or printed name of the representative;

(d) The name of the party for whom the appearance is made.

106.5 The notice of appearance shall become a part of the record.

106.6 Each person who has entered an appearance shall be deemed to continue as representative of the named party unless there is filed with the Board any of the following:

(a) A notice of withdrawal of appearance signed by both the representative and the party; or

(b) A notice signed by the party stating that the representation has been concluded, together with proof of service upon the representative; or

106.7 If two or more persons have entered their appearance for a party, service on one representative shall be service on the party, unless one of the representatives has been designated for service.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 106

27 DCMR § 107 FORM AND FILING OF PLEADINGS, MOTIONS, AND OTHER SUBMISSIONS

107.1 For documents, such as protests, agency reports, complaints, answers, motions, and responses thereto, filed on paper, an original and two (2) copies shall be filed with the Board. All paper filings shall contain proof of service, in accord with Section 109.

107.2 A filing may be made by mail, hand-delivery or electronically in accordance with Chapter 4, unless otherwise ordered by the Board. Irrespective of the method used for filing, a submission shall only be considered timely filed if it is actually received in the Board's office during business hours or received by the electronic filing vendor within the time established by law, regulation, or Board order.

107.3 Complaints, protests, and other pleadings shall, on the first page, contain a caption setting forth the name of the Board, title of the case, and contain a heading under the caption describing the nature of the pleading, motion, or matter being brought to the attention of the Board. The caption and heading shall be in the following format:

GOVERNMENT OF THE DISTRICT OF COLUMBIA

CONTRACT APPEALS BOARD [PROTEST] OR [APPEAL] OF: [NAME OF PROTESTER or APPELLANT] )

([ADDRESS OF PROTESTER or APPELLANT]) CAB No.

(Under [IFB or RFP] or [Contract] No.) [HEADING]

107.4 In addition to the requirements of Subsection 107.3, the initial filing by or on behalf of a party shall have in the caption the name and full business or residence address of the party. If the party is appearing pro se (without an attorney), the caption shall also include the party's business or personal email address, and a contact telephone number. In the initial filing by a non-governmental corporate body party, the party shall file a corporate disclosure statement identifying all parent companies, subsidiaries (except wholly-owned subsidiaries), and affiliates that have issued shares to the public.

107.5 A submission signed by an attorney shall contain the name, office address, telephone number, and bar identification number of the attorney. Notice of a change in address or telephone number of the attorney, or a party not represented by an attorney, shall be filed within five (5) business days of the change.

107.6 Unless they are changed by a notice filed with the Board, the address and telephone number of a party or any attorney noted on the first filing shall be conclusively taken as the last known address and telephone number of the party or attorney.

107.7 The original of a paper submission that is filed with the Board shall be signed in ink by the party, its attorney, or its authorized representative.

107.8 All submissions filed shall be typed (double spaced), reproduced by any duplicating or copying process that produces a clear black image on white 8½ x 11 inch size paper, and, unless filed electronically, fastened at the top.

107.9 A submission shall not include documents that are not relevant to the case. Irrelevant documents may be rejected by the Board.

107.10 Submissions that do not conform to the requirements of this Rule may be rejected either before or after filing. If the submission is rejected after filing, the effect shall be the same as if it had not been filed.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 107

27 DCMR § 108 SERVICE OF PLEADINGS, MOTIONS, AND OTHER SUBMISSIONS

108.1 Except as otherwise provided in the Board's rules or directed by an administrative judge, a pleading, motion, notice, appearance, or other submission filed with the Board subsequent to the filing of an appeal or a protest, shall be served by the filing party upon each party in the case.

108.2 Whenever, under this Rule or a Board order, service is required or permitted to be made upon a party who is represented by an attorney, the service shall be made upon the attorney.

108.3 Electronic service upon a party shall be as provided in Chapter 4. Non-electronic service upon a party, or an attorney representing a party, shall occur at the time of hand delivery; or, if by mail, to the address of record, by the postmark date plus three days as prescribed in Section 122.

108.4 The Board may waive the requirement of furnishing to other parties copies of bulky, lengthy, or out-of-size documents when the party, by written motion, has shown that service would impose an undue burden. The moving party shall notify the other parties that the documents are available for inspection at the office of the Board.

108.5 Notwithstanding the foregoing, any document may be served electronically pursuant to Chapter 4.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 108

27 DCMR § 109 PROOF OF SERVICE

109.1 This section only applies to non-electronic filing. A party filing a document with the Board shall furnish written proof that a copy also has been sent to every other party.

109.2 The proof shall show the date and manner of service and may be written acknowledgment of service, affidavit of the person making service, certificate of an attorney of record, or by other proof satisfactory to the Board.

109.3 Proof of service shall not be required if the document has been served electronically pursuant to Chapter 4.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 109

27 DCMR § 110 MOTIONS PRACTICE

110.1 Every application to the Board for an order or other relief shall be by motion. Before filing any motion, the moving party shall first ascertain whether other affected parties will consent to the relief sought. Only when the movant certifies in writing that despite diligent efforts consent could not be obtained, will the Board consider the motion as a contested matter. If the relief sought is consented to but requires Board approval, the moving party shall serve the other parties and file with the Board a motion which includes the word "Consent" in its title and states that all affected parties have consented to the relief sought.

110.2 With the exception of a motion made during a hearing or conference, all motions shall be in writing, unless otherwise directed by the Board. A motion shall be accompanied by a statement of its purpose, the grounds on which it is based, and the reasons for the order or relief sought.

110.3 A written motion shall include on separate page(s) following the signature page a proposed order for the Board's signature including, if paper filed, a list of all parties, and their current addresses.

110.4 A motion shall include within its body a statement setting forth specific points and authorities to support the motion, including a concise statement of facts material to the issues raised in the motion. No separate memorandum of points and authorities shall be required.

110.5 A memorandum of opposing points and authorities may be filed with the Board and served on a party no later than ten (10) days after service of the motion, unless another Board rule prescribes a larger or shorter time. The Board may also grant or order a larger or shorter time for such filing. If a statement of opposing points and authorities is not filed within the prescribed time, the Board may treat the motion as conceded.

110.6 A reply memorandum may be filed with the Board and served on a party no later than seven (7) days after service of the opposition described in Subsection 110.5, or within a larger or shorter time as the Board may grant or order.

110.7 The Board may decide a motion without a hearing. The Board may also order a hearing on a motion upon the application of either party, or on the Board’s initiative.

110.8 Despite the provisions of Subsection 110.5, for good cause shown, the Board may act upon a motion at any time without waiting for a response to the motion by the opposing party.

110.9 If a moving party fails to appear at a hearing on its motion, the Board may treat the motion as withdrawn and the motion may be refiled only with the permission of the Board. If the opposing party fails to appear at the hearing, the Board may treat the motion as conceded.

110.10 In addition to the statement of points and authorities required by Subsection 110.4 to be included within the body of the motion, a motion for summary judgment shall also include within the motion a separate statement of the material facts as to which the moving party contends there is no genuine issue.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 110

27 DCMR § 111 STIPULATIONS

111.1 The parties may stipulate to facts, issues, admission of relevant documents, testimony, discovery procedures, and other matters which may aid in expediting the proceedings in a case, subject to acceptance by the Board. A stipulation, however, may not extend a time limit established by a rule or order of the Board without its approval.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 111

27 DCMR § 112 DISCOVERY

112.1 The Board encourages all parties to engage in voluntary discovery. Discovery documents shall not be filed with the Board unless the Board, on its own initiative or by granting the motion of a party, orders that they be filed.

112.2 After an appeal has been docketed, a party may obtain discovery regarding a matter which is not privileged and is relevant to the case. It shall not be a ground for objection to a discovery request that the information will be inadmissible in the record of the case, if the information appears reasonably calculated to lead to the discovery of admissible evidence.

112.3 A party to a protest or a small claims (expedited) appeal may engage in discovery only to the extent it is acceptable to and ordered by the Board. The Board shall not permit discovery unless it is necessary to advance a fair and expeditious resolution.

112.4 A party may obtain discovery by one or more of the following methods:

(a) Depositions upon oral examination or written questions, but said deposition testimony may only be used at the hearing of an appeal if the witness is unavailable, or to contradict or impeach the testimony of the deponent given at the hearing;

(b) Written interrogatories;

(d) Requests for admissions.

112.5 Written interrogatories and requests for admission shall be answered separately in writing, signed under oath by the person making the answers, within thirty (30) days after service. Requests for production of documents or other tangible things shall be answered within 30 days after service. Unless otherwise ordered by the Board, any objection to a discovery request must be filed within fifteen (15) days after service. A party shall fully respond to any discovery request to which it does not file a timely objection. The parties are required to make a good faith effort to resolve objections to discovery requests.

112.6 The use of the discovery methods set forth in Subsection 122.4 shall be limited by the Board if it determines that:

(a) The discovery is unreasonably cumulative or duplicative or is obtainable from some other source that is more convenient, less burdensome, or less expensive; and

(b) The discovery is unduly burdensome and expensive, taking into account the needs of the case, amount involved in the controversy, limitations on the parties' resources, and importance of the issues at stake in the case.

112.7 The parties are encouraged to utilize electronic transmission to the maximum extent practicable. When discovery material is transmitted electronically, the attorney or other person transmitting the material shall be deemed to have certified that the documents contained in the transmission are what they purport to be.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 112

27 DCMR § 113 FAILURE TO MAKE OR COOPERATE IN DISCOVERY; SANCTIONS

113.1 Before any motion to compel discovery is filed, the affected parties or counsel must meet for a reasonable period of time in an effort to resolve the disputed matter. The movant shall accompany any motion to compel discovery with a certification that despite a good faith effort to secure it, the discovery material sought has not been provided. This certification shall set forth specific facts describing the good faith effort, including a statement of the date, time, and place of the meeting required by this rule.

113.2 If a party fails to obey an order to provide or permit discovery, the Board may make:

(a) An order that certain facts shall be taken to be established in accordance with the claim of the moving party;

(b) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence;

(c) An order striking pleadings, staying further proceedings until the order is obeyed, dismissing the case or proceeding or any part thereof, or rendering a judgment by default against the disobedient party; or

(d) An order imposing such other sanctions as the Board deems appropriate.

113.3 When the Board believes that the circumstances warrant either dismissing the case or rendering a default judgment against the disobedient party as a discovery sanction, it will issue an order to show cause pursuant to Subsection 121.3.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 113

27 DCMR § 114 SUBPOENAS

114.1 A party is expected to cooperate in good faith by making available witnesses and evidence under the party's control, when requested by another party, without issuance of a subpoena and by securing the voluntary attendance of third-party witnesses and the production of evidence by third parties.

114.2 The presiding judge may issue, on his or her initiative or upon written motion of a party, a subpoena that commands the person to whom it is directed to:

(a) Attend and give testimony at a deposition;

(b) Attend and give testimony at a hearing; and

114.3 A request for subpoena shall be filed at least fifteen (15) calendar days before the testimony of a witness or evidence is to be provided, and shall state the relevancy, materiality, and scope of the testimony or documentary evidence sought, including, as to documentary evidence, the identification of all documents desired and the facts to be proved by them in sufficient detail to indicate materiality and relevancy. The Board may, in its discretion, honor requests for subpoenas not made within the time limit provided by this rule.

114.4 The party requesting a subpoena shall arrange for its service. The service shall be made as soon as practicable after the subpoena has been issued.

114.5 A subpoena requiring the attendance of a witness at a deposition or hearing may be served at any place consistent with the rules of the D.C. Superior Court. A subpoena may be served by registered or certified mail, by a United States Marshal or his or her deputy, or by any other person who is not a party and is not less than eighteen (18) years of age.

114.6 The service of a subpoena upon a person named in the subpoena shall be made by personally delivering a copy to that person and tendering the fees for one day's attendance and the mileage allowed by law. However, where the subpoena is issued on behalf of the District government, the fees and mileage allowance need not be tendered in advance of attendance.

114.7 The person serving the subpoena shall make proof of the service to the Board promptly, and, in any event, before the date on which the person served must respond to the subpoena. The proof of service shall be made by completing and executing the "Return on Service" portion of a duplicate copy of the subpoena issued by an administrative judge and returning it to the Board. If service is made by a person other than a United States Marshal or his or her deputy, that person shall make an affidavit as proof by executing the "Return on Service" in the presence of a notary.

114.8 Upon written motion by the person subpoenaed or by a party, made within ten (10) days after service, but in any event not later than the time specified in the subpoena for compliance, the Board may:

(a) Quash or modify the subpoena if it is unreasonable and oppressive or for other good cause shown; or

(b) Require the party in whose behalf the subpoena was issued to advance the reasonable cost of producing subpoenaed documentary evidence.

114.9 In a case of contumacy or refusal to obey a subpoena by a person who resides, is found, or transacts business within the jurisdiction of the D.C. Superior Court, the Board shall apply to the D.C. Superior Court for an order requiring the person to appear before the Board to give testimony, produce evidence, or both. If a person fails to obey the order, without adequate excuse, the Board may apply for an order that the person be held in contempt by the Court.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 114

27 DCMR § 115 JURISDICTION

115.1 The Board at any time may consider the question of its jurisdiction to decide a case.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 115

27 DCMR § 116 SUSPENSION OF RULES

116.1 In the interest of expediting a decision in a case or for other good cause shown, the Board may, except for the time requirements for filing a protest or an appeal, suspend or dispense with the filing requirements and procedural provisions of these rules on the motion of a party or on its own initiative and may order proceedings in accordance with its direction.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 116

27 DCMR § 117 RECONSIDERATION

117.1 A party to an appeal or a protest may by motion request the Board to reconsider its decision or order for the reasons stated below:

(a) To clarify the decision;

(b) To present newly discovered evidence which by due diligence could not have been presented to the Board prior to the rendering of its decision;

(c) If the decision contains typographical, numerical, technical or other clear errors that are evident on their face; or

(d) If the decision contains errors of fact or law, except that parties shall not present arguments substantially identical to those already presented to the Board.

117.2 For appeals, a motion for reconsideration shall be filed within (30) thirty days after the Board's decision or order is transmitted to a party. For protests, a motion for reconsideration shall be filed within the time period set forth in Subsection 313.2.

117.3 A motion for reconsideration shall set forth the following:

(a) The particular points of fact or law which the moving party believes the Board has overlooked or misapprehended;

(b) Any argument the moving party wishes to make in support of the motion; and

117.4 For appeals, a party may file an opposition to a motion for reconsideration no later than fifteen (15) days after the motion is served. For protests, a party may file an opposition no later than seven (7) days after the motion is served.

117.5 If a motion for reconsideration is granted, the Board may make a final disposition of the case without reargument, permit reargument, or issue an appropriate order regarding further proceedings.

117.6 A motion of reconsideration does not affect the finality of the Board's decision or suspend its operation except that the Board may stay its decision for good cause shown.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 117

27 DCMR § 118 CONSOLIDATION OF CASES

118.1 When cases involving a common question of law or facts are pending before the Board, consolidation may be ordered by the Board on its own initiative, or on the motion of a party in order to avoid unnecessary costs or delay.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 118

27 DCMR § 119 SEPARATE DETERMINATION OF LIABILITY

119.1 The Board may limit a hearing to those issues of law and fact relating to the right of a party to recover, reserving the determination of the amount of recovery, if any, for another proceeding.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 119

27 DCMR § 120 BURDEN OF PROOF

120.1 Except as otherwise provided by law, the burden of persuasion by a party to establish a fact or facts in dispute shall be met by a preponderance of the evidence.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 120

27 DCMR § 121 DISMISSAL OF CASES

121.1 A case may be dismissed by an appellant or protester as a matter of right by filing a notice of dismissal at any time prior to the service of an answer or motion on the appellant or protester, or by filing a stipulation signed by each party.

121.2 A dismissal initiated by an appellant or protester not covered by Subsection 121.1 shall be approved by the Board upon terms and conditions as it deems proper.

121.3 Whenever either party fails to file documents required by these rules, respond to notices or correspondence from the Board, comply with orders of the Board, or otherwise indicate an intention not to continue the prosecution or defense of a case, the Board may issue an order to show cause why the case should not be dismissed for failure to prosecute or defend.

121.4 The Board shall specify whether a dismissal is with or without prejudice.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 121

27 DCMR § 122 COMPUTATION OF TIME

122.1 In computing any period of time prescribed or allowed by these rules, the day of the act, event, or default from which the designated period of time begins to run shall not be included.

122.2 The last day of each period computed pursuant to Subsection 122.1 shall be included unless it is a Saturday, Sunday, or legal holiday, or, when the act to be done is the filing of a paper with the Board, a day or any part of a day in which the Board's office is closed, in which event the period shall run until the end of the next day which is not one of the aforementioned days.

122.3 Whenever a party has the right or is required to do some act within a prescribed period after the service of a notice or other paper upon the party and the notice or paper is served upon the party by mail, three (3) days shall be added to the prescribed period.

122.4 Whenever a party has the right or is required to do some act within a prescribed period after the service of a notice or other document upon the party and the notice or document is served upon the party electronically in accordance with Chapter 4, the notice or document shall be considered as served when the transmission is completed ("authorized date and time"), provided, however, for the purpose of computing time for the served party to respond, any notice or document served on a day or at a time when the Board is not open for business shall be deemed to have been served on the day and at the time of the next opening of the Board for business.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 122

27 DCMR § 123 ENLARGEMENT OF TIME

123.1 The Board, for good cause shown, may enlarge the time prescribed by the Board rules, or by its order, for doing any act, or may permit an act to be done after the expiration of the prescribed time. The Board, may not, however, enlarge the time for filing a protest or an appeal.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 123

27 DCMR § 124 CONTINUANCES

124.1 Any party may move in writing to request a continuance of any scheduled hearing, or to extend the time to file a pleading, or for leave to amend a pleading if the motion is served on opposing parties and the Board at least five (5) business days before the hearing or the time limit.

124.2 Continuance shall be approved only for good cause shown.

124.3 Conflicting engagements of counsel, absence of counsel, or the employment of new counsel shall not be regarded as good cause for continuance unless set forth promptly.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 124

27 DCMR § 125 UNEXCUSED ABSENCE OF A PARTY

125.1 The unexcused absence of a party at the time set for a motion or merits hearing will not be occasion for delay. In the event of such absence, the hearing will proceed and the motion or case will be regarded as submitted on the record by the absent party.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 125

27 DCMR § 126 EVIDENCE

126.1 The Board shall follow the rules of evidence of the D.C. Superior Court. However, oral and documentary evidence not ordinarily admissible under those rules may be received in evidence at the discretion of the Board.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 126

27 DCMR § 127 SANCTIONS

127.1 If a party or the party's representative fails or refuses to comply with a Board order or rule, or engages in unreasonable or vexatious conduct, the Board may, on its own initiative or on motion of a party, sanction the offending party or representative as it considers necessary to the just and expeditious conduct of the case.

127.2 The Board may deny any party's representative from appearing in a case currently before it if that individual is found by the Board, after hearing, either to be lacking in the requisite qualifications to represent others or to have engaged in unethical, improper or unprofessional conduct.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 127

27 DCMR § 128 CONFLICT OF INTEREST

128.1 Board employees may not engage in outside employment, including the practice of law, that is incompatible with their duties and responsibilities on the Board or as District government employees, as provided in Title 6-B, Chapter 18, of the District of Columbia Municipal Regulations, as amended.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 128

27 DCMR § 129 SEAL OF THE BOARD

129.1 The seal of the Board shall be a circular boss, the center portion of which shall depict the flag of the District of Columbia and flag of the United States. The outer margin of the seal shall bear the legend, "CONTRACT APPEALS BOARD, D.C."

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 129

27 DCMR § 199 DEFINITIONS

199.1 In addition to the terms defined in D.C. Official Code § 2-351.04, the following terms shall have the indicated definitions for purposes of Chapters 1, 2, 3, and 4 of these rules:

Aggrieved person means an actual or prospective bidder or offeror (i) whose direct economic interest would be affected by the award of a contract or by the failure to award a contract, or (ii) who is aggrieved in connection with the solicitation of a contract.

Appeal means a submission to the Board seeking administrative review of a claim by the District or a contractor arising under or related to a contract including those arising under the Public-Private Partnership Act of 2014, a claim for interest penalties pursuant to the District of Columbia Quick Payment Act, or a debarment or suspension action. Appellant means the party filing an appeal with the Board. For purposes of these rules, a "protest" is not an appeal.

Business day means any day other than a Saturday, Sunday, or legal holiday.

Case means an appeal, protest, debarment, or suspension.

Contracting agency means a department, agency, or instrumentality of the District government which employs the contracting officer who has the authority to enter into a contract which is the subject of the solicitation, contract, or agency action at issue before the Board.

Days refer to calendar days, unless otherwise provided. Subsections 122.1 - 122.4 govern computation of time.

Director means the Director of the Office of Contracting and Procurement who is the Chief Procurement Officer.

Dispositive motion means a motion which, if granted, would terminate part or all of a case on the merits or on procedural grounds.

An ex parte communication means any oral or written communication with the Board, which excludes one or more parties to the case, concerning the merits of the case pending before the Board, made by any persons directly or indirectly involved in the outcome of the case.

In camera review refers to the private review of documents or exhibits by an administrative judge without the presence of parties or attorneys.

Interested party has the same meaning as aggrieved person.

Intervenor means an awardee if the contract has been awarded, or, if no award has been made, all bidders or offerors who appear to have a substantial prospect of receiving an award if the protest is denied.

Protected information means information subject to a protective order, such as proprietary, confidential, or source-selection-sensitive material, as well as other information the release of which could result in a competitive advantage to one or more firms.

Protest means a written objection by an aggrieved party to a solicitation for bids or proposals or a written objection to a proposed or actual contract award. Protester means an aggrieved party who files a protest with the Board.

Respondent means the contracting agency whose decision, action, or inaction is the subject of an appeal or protest.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 199

27-2 APPEAL PROCEDURES OF THE CONTRACT BOARD

27 DCMR § 200 APPEALS BY CONTRACTORS

200.1 An appeal by a contractor of a final decision by the contracting officer relating to a contract dispute, a claim for interest penalties, or a decision of the Director relating to a debarment or suspension action, shall commence by the contractor filing a complaint with the Board.

200.2 The complaint shall be filed:

(a) In a contract dispute, no later than ninety (90) days after the contractor received the decision of the contracting officer; or, where the time period for the contracting officer to issue a decision has expired, the contractor shall file a complaint within a reasonable time;

(b) In a dispute concerning suspension or debarment, no later than sixty (60) days after the contractor receives the decision of the Director to suspend or debar.

200.3 The appellant shall serve a copy of the complaint on the agencies specified in Subsections 202.3(a) and (b), and shall furnish the Board with proof of service.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 200

27 DCMR § 201 COMPLAINT

201.1 A complaint shall indicate that an appeal is being taken and shall identify the contract in dispute, or the suspension/debarment proceedings; the department or agency involved in the dispute; the decision from which the appeal is taken; the amount in dispute, if any; and shall state that the complaint is timely filed.

201.2 The complaint shall be signed by the contractor personally or by an authorized representative or attorney.

201.3 The complaint referred to herein does not require a particular form, but it shall fulfill the requirements of a complaint.

201.4 The appellant shall file a complaint setting forth simple, concise, and direct statements of each of its claims with the Board. If filed on paper, the appellant shall file an original and two (2) copies of the complaint with attachments.

201.5 The appellant shall set forth the basis, with appropriate reference to contract provisions and applicable law, of each claim to the extent known; the dollar amount claimed, to the extent known; and the relief sought from the Board.

201.6 If an appeal has been lawfully initiated by the filing of a complaint, the Board may thereafter order the District to file a complaint where an appellant has appealed an affirmative claim by the District asserted in a final decision by a contracting officer. In such cases, the Board may also order the appellant to file an answer as described in Section 205.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 201

27 DCMR § 202 DOCKETING OF APPEALS

202.1 When a complaint has been received by the Board, it shall be docketed promptly.

202.2 The Board shall provide the appellant a written acknowledgment that the complaint has been docketed, the case docket number, and the citation of the publication containing the current rules of the Board. In addition, the Board shall advise the appellant of the identity of the persons furnished the acknowledgment as prescribed in Subsection 202.3.

202.3 The Board promptly shall send a copy of the acknowledgment to:

(a) The Director in the case of an appeal of a debarment or suspension;

(b) The contracting officer in the case of any other appeal; and

202.4 The Board shall notify the contracting agency to file the appeal file as prescribed in Section 203.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 202

27 DCMR § 203 THE APPEAL FILE

203.1 Within thirty (30) days after receipt of the acknowledgement that a complaint has been docketed, the contracting agency shall assemble and transmit to the Board an appeal file consisting of all documents pertinent to the appeal, including:

(a) The decision from which the appeal is taken;

(b) The contract, including specifications and pertinent amendments, plans, and drawings;

(c) All correspondence between the parties relevant to the appeal, including the letter or letters of claim in response to which the decision was issued;

(d) Transcripts of any testimony taken during the course of proceedings, and affidavits or statements of any witnesses on the matter in dispute made prior to the filing of the complaint with the Board; and

(e) Any additional information considered relevant to the appeal.

203.2 Within the same thirty (30) day time period, the contracting agency shall furnish the appellant a copy of each document submitted to the Board, except those in Subsection 203.1 (b) above. As to the latter, a list furnished appellant indicating contractual documents submitted to the Board will suffice.

203.3 Within thirty (30) days after receipt of a copy of the appeal file assembled by the contracting agency, the appellant shall transmit to the Board any documents or other tangible things not contained therein which are considered relevant to the appeal, and shall furnish a copy of each document to the attorney representing the contracting agency.

203.4 The Board may, at any time during the pendency of the appeal, require either party to supplement the appeal file or record by filing other documents and tangible things.

203.5 All exhibits in the appeal file shall be considered, without further action by the parties, a part of the record upon which the Board will render its decision. However, a party may object, for reasons stated, to consideration of a particular document reasonably in advance of a hearing, or, if there is no hearing, of closing the record. If an objection is made, the Board shall remove the document from the appeal file and permit the party offering the document to move its admission as evidence.

203.6 Documents in the appeal file may be originals or legible facsimiles or authenticated copies, and shall be arranged in chronological order where practicable, numbered sequentially, tabbed, and indexed to identify the contents of the file.

203.7 Original copies of documents may be withdrawn from the appeal file, with the Board's consent, if an acceptable copy is substituted.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 203

27 DCMR § 204 JUDICIAL NOTICE

204.1 The record in each case may also include such matters as the Board may expressly take notice of.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 204

27 DCMR § 205 ANSWER

205.1 Within thirty (30) days from receipt of the complaint, the contracting agency shall file an answer with the Board. If filed on paper, the contracting agency shall file an original and two (2) copies of the answer and attachments.

205.2 The contracting agency shall serve a copy of the answer on the appellant, or its attorney and, unless served electronically, provide proof of service to the Board.

205.3 The answer shall set forth simple, concise and direct statements of the contracting agency's defenses to each claim asserted by the appellant, and shall include any affirmative defenses or counterclaims available.

205.4 In lieu of answering, the contracting agency may file a dispositive motion. If the motion is filed and denied by the Board, in whole or in part, the answer shall be filed no later than thirty (30) days after the contracting agency receives the Board's ruling on the motion.

205.5 If no answer or motion is received from the contracting agency within thirty (30) days from receipt of the complaint, the Board may, in its discretion, enter a general denial to the appeal, and the appellant shall be so notified, or the Board may consider the failure to answer as an admission of the claims of the appellant.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 205

27 DCMR § 206 SUPPLEMENTAL PLEADINGS

206.1 The Board, upon its own initiative, or upon application by a party, may order a party to make a more definite statement of the complaint or answer, or to reply to an answer.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 206

27 DCMR § 207 AMENDMENT OF PLEADINGS

207.1 The Board may, in its discretion, and within the proper scope of the appeal, permit either party to amend its pleading upon conditions fair to both parties.

207.2 When issues within the proper scope of the appeal have not been raised by the pleadings but are tried by express or implied consent of the parties or by permission of the Board, they shall be treated in all respects as if they had been raised in the pleadings. In these instances, motions to amend the pleadings to conform to the proof may be made but are not required. If evidence is objected to at a hearing on the ground that it is not within the issues raised by the pleadings, it may be admitted within the proper scope of the appeal, provided, however, that the objecting party may be granted a continuance if necessary to enable it to meet the evidence.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 207

27 DCMR § 208 ELECTION OF PROCEDURE

208.1 After the complaint, answer, appeal file and any supplemental pleadings have been filed, each party shall inform the Board whether it desires a hearing, as prescribed by Section 211, or whether it desires to submit its case on the record without a hearing, as prescribed by Section 209.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 208

27 DCMR § 209 SUBMISSION ON THE RECORD

209.1 Both parties may elect to waive a fact-finding hearing and to submit the case on the record.

209.2 Submission of the case without a hearing shall not relieve the parties from providing the facts supporting their allegations and defenses.

209.3 Either party may apply to the Board to supplement the record by filing affidavits, depositions, admissions, answers to interrogatories, and stipulations.

209.4 The Board may permit the record to be supplemented by oral argument and briefs.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 209

27 DCMR § 210 PREHEARING PROCEDURES

210.1 The Board may, upon its own initiative, or upon application of either party, arrange for a telephone conference or direct the parties to appear before the Board at a specified time and place, prior to or during the course of a hearing, to consider the following:

(a) Settlement of part or all of the dispute;

(b) The simplification of issues;

(d) The possibility of obtaining admission of fact and stipulations concerning the use of documents to avoid unnecessary proof;

(e) The limitation of the number of witnesses;

(f) The possibility of prior mutual exchange of prepared testimony and exhibits between the parties;

(g) A schedule for the completion of discovery, if discovery is deemed necessary, and has not been completed; and

(h) Any other matters that may aid in shortening the hearing on the merits and in the disposition of the appeal.

210.2 The Board shall make an order or memorandum which shall recite the action taken at the conference. This order or memorandum, when filed, shall be a part of the record in the appeal and shall control the subsequent course of the appeal unless modified by the Board.

210.3 The Board may, on its initiative or upon application of either party, order the parties to file prehearing briefs explaining and analyzing the legal issues in any case.

210.4 Pleadings, discovery, and other prehearing activity shall be allowed only as consistent with the requirement to conduct the hearing on the date scheduled, or, if no hearing is scheduled, to close the record in a reasonable time. The Board, at its discretion, may impose shortened time periods for any actions prescribed or allowed under these rules.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 210

27 DCMR § 211 HEARINGS

211.1 The Board shall provide the parties at least seven (7) business days’ notice of the time and place of a hearing, but the notice may be waived by the parties.

211.2 All hearings on the merits shall be open to the public. The Board may limit access to testimony covered by a protective order entered in the case pursuant to Section 104.

211.3 Questions concerning the admissibility of evidence and other matters that may arise in the course of the hearing shall be ruled upon by the presiding administrative judge, or, if necessary, by a majority vote of the designated panel. A decision upon the merits, or a final disposition of any appeal or part thereof, shall be by majority vote of the designated panel, except as provided in Subsection 215.5.

211.4 Witnesses at hearings shall be examined orally under oath or affirmation, which shall be administered by the presiding administrative judge or any member of the assigned panel. Any member of the panel may question any witness at any time during or after examination or cross-examination by the parties.

211.5 An official reporter selected by the District shall make an official transcript of the proceedings at hearings on the merits. After the close of a hearing this transcript, together with any exhibits, briefs, or other documents filed in the proceeding, shall be filed with the Board and become a part of the record. No other recordings of the proceedings will be made.

211.6 The official reporter shall transmit copies of the transcript to the Board and the contracting agency. Copies of the official transcript shall be supplied to other parties by the official reporter at rates determined between the official reporter and the parties.

211.7 Motions to correct an official transcript shall be filed with the Board within fifteen (15) days after the receipt of the last portion of the transcript, and shall certify the date when the last portion of the transcript was received by the maker of the motion.

211.8 Witnesses are to be excluded from the hearing room so they cannot hear the testimony of other witnesses, except a party who is an individual, the designated representative of a party which is an entity, someone authorized by statute to be present, or a person whose presence is essential to the presentation of the party’s case.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 211

27 DCMR § 212 POST HEARING BRIEFS

212.1 Unless filed electronically in accordance with Chapter 4, an original and two (2) copies of post hearing briefs shall be submitted as directed by the Board at the conclusion of the hearing.

212.2 Briefs and any memoranda of law shall be filed electronically in accordance with Chapter 4, or be typewritten on white bond 8½ x 11 inch paper and shall be double spaced except for quotations.

212.3 Briefs shall contain, in the following order, a short procedural history of the case, a table of contents, a table of authorities cited, a concise summary of argument, proposed findings of fact with citations to those places in the record where supporting evidence can be found, proposed conclusions of law with citations to supporting legal authorities, and the relief desired by the party.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 212

27 DCMR § 213 RECORD

213.1 The record of the appeal shall include the complaint, answer, appeal file, all motions and other submissions filed by the parties with the Board pursuant to these rules; all correspondence exchanged between the Board and the parties or their attorney; transcripts made of hearings before the Board; all exhibits and other evidence admitted to the record; all findings, decisions, opinions, and orders of the Board; and such other matters as the Board may expressly take notice of.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 213

27 DCMR § 214 DECISIONS

214.1 All decisions shall be in writing and based solely on the record as prescribed in Subsection 213.1.

214.2 With each decision finally disposing of an appeal or any part thereof, the Board shall file separate findings of fact and conclusions of law unless the findings of fact and conclusions of law appear therein.

214.3 A copy of the decision shall be transmitted by the Board to each party or his or her attorney.

214.4 Judicial Review of Board Decisions on Appeals.

(a) A contractor may appeal the Board decision to the District of Columbia Court of Appeals within one hundred twenty (120) days after the date of receipt of the Board’s decision.

(b) If the District determines that an appeal should be taken, the Director, with the prior approval of the Office of the Attorney General, may appeal the Board’s decision to the District of Columbia Court of Appeals within one hundred twenty (120) days after the date of the receipt of the Board’s decision.

(c) When a Board decision is appealed, the appealing party must also provide a copy of the notice of appeal to the Board.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 214

27 DCMR § 215 OPTIONAL SMALL CLAIMS (EXPEDITED) PROCEDURES

215.1 In an appeal where the amount in dispute is ten thousand dollars ($10,000) or less, the appellant may elect to have the appeal adjudicated under the small claims procedure set forth in this rule, or the accelerated procedure in Section 216.

215.2 Whenever possible, decisions under the small claims procedure will be rendered within ninety (90) days from the date on which the contractor files an appeal. The election shall be stated in the complaint, except that the Board for good cause may permit the election to be made after the complaint is filed. Once the election is made, it may not be withdrawn except with the permission of the Board for good cause shown.

215.3 The following time periods shall apply for cases proceeding as a small claims appeal unless otherwise ordered by the Board:

(a) Within ten (10) business days of receipt of notice of the appellant's election, the respondent shall submit to the Board a copy of the contract, the contracting agency's final decision, and the appellant's claim letter or letters; other documents from the appeal file prescribed in Section 203 shall be submitted as the Board directs.

(b) Within fifteen (15) days after the Board has received the appellant's election, the designated administrative judge shall take the following action in an informal meeting or a telephone conference with the parties:

(1) Formulate and simplify the issues;

(2) Establish a simplified procedure appropriate to the appeal;

(3) Determine whether either party wants a hearing, and, if so, fix a time and place;

(4) Require the respondent to furnish any additional documents relevant to the appeal; and

(5) Establish an expedited schedule for resolution of the appeal.

215.4 Pleadings, discovery, and other prehearing activity shall be allowed only as consistent with the requirement to conduct the hearing on the date scheduled, or, if no hearing is scheduled, to close the record on a date that will allow decisions within the ninety (90)-day limit. The Board, at its discretion, may impose shortened time periods for any actions prescribed or allowed under these rules as necessary to enable the Board to decide the appeal within the time limit.

215.5 Written decisions by the Board in cases adjudicated under the small claims (expedited) procedure shall be short and may contain abbreviated findings of fact and conclusions of law. The decisions may be rendered for the Board by a single administrative judge. A decision under the small claims procedure shall have no precedential value in future cases before the Board.

215.6 In a case where a small claims procedure has been elected and in which there has been a hearing, the administrative judge presiding at the hearing may, in the judge's discretion, at the conclusion of the hearing and after entertaining any oral arguments as deemed appropriate, render on the record oral findings of fact, conclusions of law, and a decision of the appeal.

215.7 Whenever an oral decision is rendered pursuant to Subsection 215.6, the Board shall subsequently furnish the parties with a written copy of the oral decision for record and payment purposes, and to establish the starting date for the period for filing a motion for reconsideration or a judicial appeal.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 215

27 DCMR § 216 OPTIONAL ACCELERATED PROCEDURES

216.1 In appeals where the amount in dispute is fifty thousand dollars ($50,000) or less, the appellant may elect to have the appeal adjudicated under the accelerated procedure set forth in this rule. The appellant’s election must be made within thirty (30) days after the answer is filed.

216.2 Decisions under the accelerated procedure shall be rendered within one hundred and eighty (180) days from the date the Board receives notice that the appellant has elected to utilize the accelerated procedure.

216.3 The appellant's election herein, once exercised, may not be withdrawn, except with the permission of the Board for good cause shown.

216.4 In a case proceeding as an accelerated appeal, the Board shall encourage the parties to waive or limit pleadings, discovery, and briefs to the maximum possible extent consistent with the adequate presentation of their factual and legal positions.

216.5 Within thirty (30) days of receiving appellant's election of the accelerated procedure, the respondent shall file the appeal file as prescribed by Section 203.

216.6 Within forty-five (45) days of receiving appellant's election of the accelerated procedure, the Board shall convene an informal meeting, or a telephone conference, with the parties and shall proceed with the case.

216.7 The Board shall permit discovery by the parties consistent with its requirement to decide their case under the time limit imposed by Subsection 216.2.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 216

27 DCMR § 217 ALTERNATIVE DISPUTE RESOLUTION

217.1 Availability of ADR procedures. The Board will make its services available for ADR proceedings in contract appeals and protest matters involving District agencies.

(a) ADR subsequent to docketing of case at the Board. Parties are encouraged to consider the feasibility of using ADR as soon as their case is docketed. If, however, at any time during the course of a Board proceeding, the parties agree that their dispute may be resolved through the use of an ADR technique, the presiding judge may suspend proceedings for a reasonable period of time while the parties and the Board attempt to resolve the dispute in this manner. The use of an ADR technique will not toll any relevant statutory time limit for deciding the case.

(b) Other ADR. Upon request, the Board will make a Board Neutral available for an ADR proceeding involving a District agency in any contract, protest, or procurement matter at any stage of a procurement, even if no contracting officer decision has been issued or is contemplated. To initiate an ADR proceeding, the parties shall jointly request the ADR in writing and direct such request to the Chief Administrative Judge. The Board will provide ADR services on a reimbursable basis.

217.2 Conduct of ADR.

(a) Selection of Board Neutral. If ADR is agreed to by the parties and the Board, the parties may request the appointment of one or more Board judges to act as a Board Neutral or Neutrals. The parties shall request that the Chief Administrative Judge appoint a particular judge or judges as the Board Neutral, or appoint any judge or judges as the Neutral. If, when ADR has been requested for a case that has already been docketed with the Board, as provided in Subsection 217.1(a), the parties may request that the presiding judge serve as the Board Neutral. In such situation, when the ADR is unsuccessful, (i) if the ADR has involved mediation, the presiding judge shall not retain the case, and (ii) if the ADR has not involved mediation, the presiding judge, after considering the parties' views, shall decide whether to retain the case.

(b) Retention and confidentiality of materials. The Board will review materials submitted by a party for an ADR proceeding, but will not retain such materials after the proceeding is concluded or otherwise terminated. Material created by a party for the purpose of an ADR proceeding is to be used solely for that proceeding unless the parties agree otherwise. Parties may request a protective order in an ADR proceeding in the manner provided in Section 104.

217.3 Types of ADR. ADR is not defined by any single procedure or set of procedures. The Board will consider the use of any technique proposed by the parties which is deemed to be fair, reasonable, and in the best interest of the parties, the Board, and the resolution of disputes. The following are examples of available techniques:

(a) Mediation. The Board Neutral, as mediator, aids the parties in settling their case. The mediator engages in ex parte discussions with the parties and facilitates the transmission of settlement offers. Although not authorized to render a decision in the dispute, the mediator may discuss with the parties, on a confidential basis, the strengths and weaknesses of their positions. No judge who has participated in discussions about the mediation will participate in a Board decision of the case if the ADR is unsuccessful.

(b) Neutral case evaluation. The parties agree to present to the Board Neutral information on which the Board Neutral bases a non-binding, oral, advisory opinion. The manner in which the information is presented will vary from case to case depending upon the agreement of the parties. Presentations generally fall between two extremes, ranging from an informal proffer of evidence together with limited argument from the parties to a more formal presentation of oral and documentary evidence and argument from counsel, such as through a mini-trial.

(c) Binding decision. One or more Board judges render a decision which, by prior agreement of the parties, is to be binding and non-appealable. As in the non-binding evaluation of a case by a Board Neutral, the manner in which information is presented for a binding decision may vary depending on the circumstances of the particular case.

(d) Other procedures. In addition to other ADR techniques, including modifications to those listed above, as agreed to by the Board and parties, the parties may use ADR techniques that do not require direct Board involvement.

(e) Selective use of standard procedures. Parties considering the use of ADR are encouraged to adapt for their purposes any provisions in the Board's rules which they believe will be useful. This includes but is not limited to provisions concerning record submittal, prehearing discovery procedures, and hearings.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 217

27-3 PROTEST PROCEDURES OF THE CONTRACT APPEALS BOARD

27 DCMR § 300 PARTIES ENTITLED TO PROTEST

300.1 An aggrieved person, as defined in Subsection 199.1, may protest to the Board a solicitation issued by or for a District contracting agency for the procurement of property or services, or a proposed award, or the award of such a contract.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 300

27 DCMR § 301 FORM AND CONTENT OF PROTEST

301.1 All protests shall be in writing, addressed to the Board, and shall include the following:

(a) The name, address, and telephone number of the protester;

(b) The identity of the contracting agency, the number and date of the solicitation, and if a contract has been awarded, the number and date of the contract and to whom the contract was awarded, if known;

(c) A clear and concise statement of the legal and factual grounds of the protest, including copies of relevant documents, and citations to statutes, regulations, or solicitation provisions claimed to be violated;

(d) Information establishing the timeliness of the protest (see Section 302);

(e) Information establishing that the protester is an aggrieved person for the purpose of filing the protest (see Subsection 199.1); and

(f) The relief sought by the protester.

In addition, a protest may request a protective order, request specific documents relevant to the protest grounds, and request a hearing.

301.2 Protests shall be signed by the protester or by an authorized representative or attorney.

301.3 Protests are not required to be formal or technical but shall be logically arranged and legally sufficient.

301.4 A protest may be dismissed for failure to comply with any of the requirements of this Rule.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 301

27 DCMR § 302 FILING THE PROTEST WITH THE BOARD; TIME LIMITATIONS

302.1 Unless filed electronically in accordance with Chapter 4, the protester shall file an original and two (2) paper copies of its protest, including all attachments, with the Board by hand delivery, mail, or commercial carrier within the time limitations established by law and set forth below in Subsection 302.2. The protester shall also serve a copy of the protest, including all attachments, on the contracting agency and shall furnish the Board with proof of service.

302.2 Time Limitations. Filing occurs when the protest is received on paper by the Board or electronically by the Board's designated electronic filing system in accordance with Chapter 4. The following paragraphs specify the time limitations associated with the filing of a protest.

(a) A protest based upon alleged improprieties in a solicitation which are apparent prior to bid opening or the time set for receipt of initial proposals shall be filed with the Board prior to bid opening or the time set for receipt of initial proposals. In procurements where proposals are requested, alleged improprieties which do not exist in the initial solicitation, but which are subsequently incorporated into the solicitation, must be protested not later than the next closing time for receipt of proposals following the incorporation.

(b) Protests other than those covered in paragraph (a) shall be filed with the Board not later than ten (10) business days after the basis of the protest is known or should have been known, whichever is earlier.

302.3 A protest concerning a procurement conducted by an agency exempt from the Procurement Practices Reform Act, which has entered into an agreement with the Board under Subsection 101.8 to resolve protests, shall be filed with the Board within the time prescribed by the agency's regulations. If the agency has no regulations placing limits on the time for filing protests, these rules shall govern.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 302

27 DCMR § 303 BOARD DOCKETING OF PROTESTS

303.1 Docketing of Protests. When a protest has been accepted for filing by the Board, it shall be docketed immediately.

(a) The Board shall prepare an acknowledgment that the protest has been docketed, indicating the name of the protester, the solicitation at issue, the Board's protest docket number, and the District of Columbia Register citation to the current rules of the Board. In addition, the Board shall advise the protester of the identity of the persons furnished with the acknowledgment.

(b) Within one (1) business day of receipt of the protest filing, the Board shall send a copy of the acknowledgment to:

(1) The contracting officer;

(2) The Office of the Attorney General or the counsel for an independent agency; and

(3) The protester.

303.2 The acknowledgment shall notify the contracting officer to file the Agency Report as prescribed in Section 305.

303.3 The contracting agency shall immediately give notice of the protest to:

(a) In the case of a protest alleging solicitation improprieties, prospective bidders or offerors who can reasonably be ascertained;

(b) In protests other than those covered in paragraph (a), (i) if a contract has not been awarded, to all bidders or offerors who appear to have a reasonable prospect of receiving an award; (ii) if a contract has been awarded, to the contract awardee and all other bidders or offerors who appear to have a reasonable prospect of receiving an award if the protest is sustained.

The contracting agency shall furnish copies of the protest submissions to those parties, except where disclosure of the information is prohibited by law, with instructions to communicate further directly with the Board. All parties shall furnish copies of all protest communications to the contracting agency and to other participating parties.

303.4 All protest communications shall be sent by means reasonably calculated to effect timely delivery.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 303

27 DCMR § 304 AUTOMATIC STAY; DIRECTOR DETERMINATION TO PROCEED

304.1 Automatic Stay Procedures. Except as provided by law, no contract may be awarded in any procurement after the contracting officer has received the notice of protest pursuant to Subsection 303.1 (b) and while the protest is pending.

304.2 If an award has already been made but the contracting officer receives the notice of protest within eleven (11) business days after the date of award, the contracting officer shall immediately direct the awardee to cease performance under the contract and to suspend any related activities that may result in additional obligations being incurred by the District under that contract. Except as provided by law, performance and related activities suspended pursuant to law may not be resumed while the protest is pending.

304.3 Director Determination to Proceed with Performance. Performance under a protested procurement may proceed, or award may be made, while a protest is pending only if the Director makes a written determination, supported by substantial evidence, that urgent and compelling circumstances that significantly affect interests of the District will not permit waiting for the decision of the Board concerning the protest. A copy of the determination shall be provided within one business day of issuance to both the Board and the protester.

304.4 Protester Challenge. If the protester wishes to challenge a determination made by the Director pursuant to Subsection 304.3, the protester may do so by filing a written motion with the Board (with same day service on the District) within five (5) business days of receipt of a copy of the Director's determination. The District shall file a written response with the Board (with same day service on the protester) within two (2) business days of receipt of the protester's motion. The protester may file a reply within one (1) business day of receipt of the District's response.

304.5 Board Decision on Protester Challenge. The Board shall issue a decision on the protester's motion within ten (10) business days after the date the written motion is filed by the protester.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 304

27 DCMR § 305 AGENCY REPORT

305.1 As expeditiously as possible but no later than twenty (20) days after receipt of the Board acknowledgment specified in Subsection 303.1 (a), the contracting agency shall file an Agency Report with the Board which shall include, where relevant:

(a) The procurement solicitation;

(b) The bid or proposal submitted by the protester;

(d) Bid tabulation sheets or proposal selection reports and evaluation reports, work papers, and scoring sheets;

(e) The contracting agency position and defense for each ground of the protest, including the facts, legal principles, and precedents supporting its position; and

(f) Any other documents and exhibits that are relevant to the protest.

305.2 The contracting agency shall simultaneously provide a copy of the Agency Report to the protester and all interested parties.

305.3 Copies of the Agency Report provided under Subsection 305.2 shall include all relevant documents including documents containing protected information. Copies of the Agency Report served on the protester or an intervenor shall be redacted to exclude protected information unless such parties have been admitted under a protective order.

305.4 The Board may require parties to supplement the Agency Report by filing other documents and tangible things. Any motion by a party to compel the District to supplement the Agency Report must be filed within five (5) days after receipt of the Agency Report.

305.5 All exhibits in the Agency Report shall be considered, without further action by the parties, a part of the record upon which the Board will render its decision. However, a party may object, for reasons stated, to consideration of a particular document reasonably in advance of closing the record. If an objection is made, the Board shall remove the documents from the Agency Report and permit the party offering the document to move its admission as evidence.

305.6 Documents in the Agency Report may be originals or legible facsimiles or authenticated copies, and shall be arranged in chronological order where practicable, numbered sequentially, tabbed, and indexed to identify the contents of the file.

305.7 Original copies of documents may be withdrawn from the Agency Report, with the Board's consent, if an acceptable copy is substituted.

305.8 The contracting agency may request, by motion, an extension of the deadline for filing the Agency Report and shall explain why an extension is needed. Extensions are to be considered exceptional and will be granted only for good cause.

305.9 When a contracting agency fails to submit an Agency Report, the Board may treat the factual allegations contained in the protest as conceded. When a contracting agency fails to challenge or rebut a factual allegation in the protest, the Board may treat the factual allegation as conceded.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 305

27 DCMR § 306 DISPOSITIVE MOTION IN LIEU OF REPORT

306.1 In lieu of filing the Agency Report, the contracting agency may file a dispositive motion with the Board and serve it on all parties. If the motion is filed and denied by the Board in whole or in part, the Agency Report shall be filed no later than ten (10) days after receipt of the Board's ruling or within a lesser period as the Board may order.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 306

27 DCMR § 307 COMMENTS ON AGENCY REPORT OR MOTION

307.1 Within seven (7) business days after receipt of the Agency Report, or the dispositive motion prescribed in Subsection 306.1, the protester and interested parties may file a reply or response to either which shall state the party's factual and legal agreement or opposition to the Agency Report or motion.

307.2 All parties shall be served with a copy of the comments and proof of service provided to the Board.

307.3 Failure of the protester to file comments, or to file a statement requesting that the case be decided on the existing record, or to request an extension of time for filing, shall result in closing the record of the case and may result in dismissal of the protest.

307.4 When a protester fails to file comments on an Agency Report, factual allegations in the Agency Report's statement of facts not otherwise contradicted by the protest, or the documents in the record, may be treated by the Board as conceded.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 307

27 DCMR § 308 SUMMARY DISPOSITION OF PROTESTS

308.1 When a protest is, on its face, invalid or untimely filed, or otherwise not for consideration, the Board shall summarily dismiss the protest without requiring submission of an Agency Report.

308.2 Frivolous Protests. The Board may dismiss, at any stage of the proceedings, any protest, or portion of a protest, it deems frivolous. In addition, the Board may require the protester to pay the agency attorney fees, at the rate of one hundred dollars ($100) per hour, for time counsel spent representing the agency in defending the frivolous protest or its frivolous part. If the entire protest is dismissed on frivolous grounds, the Board may also assess the protester damages for each day the contract was suspended equal to the amount of liquidated damages specified in the contract for late completion of the contract. The Board shall not determine damages, if liquidated damages are not specified in the contract. In addition, counsel for the protester may be suspended or barred from practicing before the Board.

308.3 A motion for assessment of agency attorney fees and/or damages on account of defending against a frivolous protest shall be submitted by the contracting agency during protest proceedings or within twenty (20) days of receipt of a Board decision determining that a protest in whole or in part was frivolous.

308.4 The motion shall be accompanied by sufficient documentation supporting the requested costs and/or damages.

308.5 The protester may, within fifteen (15) days after its receipt of the contracting agency's motion, file a written response to the motion.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 308

27 DCMR § 309 DISCOVERY

309.1 Discovery in protest cases shall be permitted only with approval by the Board and is available only to the protester, the contracting agency, and an intervenor.

309.2 The Board may permit a protester or intervenor to engage in discovery if no Agency Report is filed in order to provide a sufficient factual basis for the fair and just resolution of the protest.

309.3 The cost of discovery pursuant to Subsection 309.2 may be borne by the contracting agency as equitably determined by the Board.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 309

27 DCMR § 310 CONFERENCE

310.1 A conference may be held at the discretion of the Board upon its own motion or upon the request of the protester, the contracting agency, or another proper party who filed comments on the Agency Report in accordance with Section 307.

310.2 A request for a conference shall be made promptly in order to receive favorable consideration.

310.3 The protester, all proper parties who filed comments, and the contracting agency may attend the conference and the Board may request the attendance of other persons as it deems appropriate.

310.4 The conference shall be an informal meeting between the Board and the parties to discuss matters relevant to the protest without strict regard to formal rules of evidence or procedure. These matters may include:

(a) Simplifying or clarifying the issues including the elimination of frivolous allegations or defenses;

(b) Stipulations, admissions, or agreements which will avoid unnecessary proof;

(d) Any other matter which might aid in a just and expeditious disposition of the protest.

310.5 No direct or cross-examination shall be permitted at the conference.

310.6 The conference may be electronically recorded by the Board at its discretion. If the preparation of a transcript is ordered by the Board, any party desiring a copy of the transcript shall be responsible for obtaining one at the party's expense.

310.7 The Board may require or permit the submission of briefs, legal memoranda, or proposed findings of fact and conclusions of law after the conference has been completed. A party failing to attend the conference shall not be permitted to file a post-conference submission.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 310

27 DCMR § 311 EVIDENTIARY HEARINGS

311.1 If the Board determines that there is a genuine issue of material fact which cannot be resolved on the written record, the Board may order an evidentiary hearing. Ordinarily, hearings will be conducted at the Board, however, the Board may at its discretion order hearings by other electronic means, including by telephone.

311.2 At the hearing, the Board shall receive from the parties probative evidence or relevant testimony under oath or affirmation. Direct and cross-examination of witnesses shall be allowed at the hearing.

311.3 The hearing shall be stenographically transcribed or electronically recorded. Stenographic transcriptions shall be arranged in accordance with Subsection 211.5. Any party desiring a copy of the transcript shall be responsible for obtaining one at the party's expense.

311.4 At the conclusion of the hearing, the Board may order or permit the submission of proposed findings of fact and conclusions of law.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 311

27 DCMR § 312 DECISION

312.1 All decisions shall be in writing, based solely on the record, issued sixty (60) business days from the protest filing date, and transmitted to each party who has participated in the protest before the Board.

312.2 Judicial Review of Board decisions on Protests.

(a) A protester may seek judicial review of the Board's decision by filing a petition for review of agency action in the Superior Court of the District of Columbia.

(b) If the District determines that it should seek judicial review, the Director, with the prior approval of the Office of the Attorney General, may seek judicial review of the Board's decision in the Superior Court of the District of Columbia.

[See District of Columbia v. Group Ins. Admin., 633 A.2d 2, 14 (D.C. 1993); Francis v. Recycling Solutions, Inc., 695 A.2d 63, 70 (D.C. 1997).]

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 312

27 DCMR § 313 RECONSIDERATION

313.1 The protester, the contracting agency, or an interested party who filed comments on the Agency Report may by motion request the Board to reconsider a decision.

313.2 Motions for reconsideration shall be conducted in accordance with Section 117 of these rules, except that the time periods contained in Subsection 117.2 and Subsection 117.4 shall be shortened to fifteen (15) days and seven (7) days respectively.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 313

27 DCMR § 314 REMEDIES

314.1 If the Board determines, in sustaining a protest, that the solicitation, proposed award, or award does not comply with the applicable law, regulations, or terms and conditions of the solicitation, the Board may order the contracting agency to do one or more of the following:

(a) Terminate the contract for the convenience of the District government;

(b) Refrain from exercising any options under the contract;

(d) Issue a new solicitation;

(e) Award a contract consistent with the law and regulations; or

(f) Take such other action, except enjoining a contract award, as the Board may direct.

If the Board determines that a contract is void pursuant to D.C. Official Code § 2-359.02, the Board shall direct that the contract be canceled consistent with the requirements of D.C. Official Code § 2-359.02(c).

314.2 In determining the appropriate remedy, the Board shall consider the circumstances surrounding the procurement, including, but not limited to, the following factors:

(a) Best interest of the District government;

(b) Seriousness of the procurement deficiency or violation;

(d) Maintaining the integrity of the procurement system; and

(e) Good faith of District government officials and other parties.

314.3 In determining whether to terminate a contract, the Board shall consider the following additional factors:

(a) Extent of contract performance;

(b) Impact of termination on the contracting agency's activities and mission;

(d) Urgent need for the procurement.

314.4 If the Board finds that the District government actions were arbitrary and capricious, the Board may, when requested, award the protester's reasonable bid or proposal preparation costs and costs of pursuing the protest, but not legal fees.

314.5 A motion for bid or proposal preparation costs and costs of pursuing the protest shall be submitted by the protester within twenty (20) days of receipt of the Board's decision.

314.6 The motion shall be accompanied by sufficient documentation supporting the requested costs and an appropriate proposed order for the Board.

314.7 The contracting agency may, within fifteen (15) days after its receipt of the protester's motion, file a written response to the motion.

314.8 At the request of the protester or the District government or on its own initiative, the Board may conduct a hearing on the motion before issuing a ruling.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 314

27-4 ELECTRONIC FILING

27 DCMR § 400 ELECTRONIC FILING OF PLEADINGS AND OTHER DOCUMENTS

400.1 All pleadings, motions, memoranda of law, orders, or other documents may be filed electronically through the Board's designated vendor, File & ServeXpress ("Vendor") which can be contacted online at: www.fileandservexpress.com. Documents may be filed as either E Documents or E Images as defined under this Rule. The Board may at its discretion designate alternative and/or additional electronic filing systems.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 400

27 DCMR § 401 ASSIGNMENT BY THE VENDOR OF PERSONAL IDENTIFICATION NUMBERS

401.1 Upon receipt by the Vendor of a properly executed subscriber agreement at their website, the Vendor shall assign a confidential password to the attorney or other designated representative of a party before the Board which must be used to file, serve, receive, review, and retrieve electronically filed pleadings, orders, and other documents. An attorney or other authorized user shall be responsible for any use of his or her password.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 401

27 DCMR § 402 MAINTENANCE OF ORIGINAL DOCUMENT

402.1 Unless otherwise ordered by the Board, an original of all documents filed electronically, including original signatures, shall be maintained by the party filing the document and shall be made available, upon reasonable notice, for inspection by other counsel or the Board. From time to time, it may be necessary to provide the Board with a hard copy of an electronically filed document.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 402

27 DCMR § 403 TIME FOR FILING AND EFFECT OF USE OF E FILING

403.1 Any pleading filed electronically shall be considered as filed with the Board when the transmission is completed ("authorized date and time"). Any document filed electronically with the Board before midnight local time at the Board’s offices is deemed filed with the Board on that date; however, for the purpose of computing time for any other party to respond, any document filed on a day or at a time when the Board is not open for business shall be deemed to have been filed on the day and at the time of the next opening of the Board for business. In the event of service via facsimile, the Vendor’s system will record the date and time the fax transmission was completed as proof of service. The Vendor is hereby appointed the agent of the Board as to the electronic filing, receipt, service, and/or retrieval of any pleading or document maintained electronically. Upon filing and receipt of a document, the Vendor shall issue a confirmation that the document has been received. The confirmation shall serve as proof that the document has been filed. A filer will receive email notification of documents subsequently rejected by the Board, and may be required to refile the instruments to meet necessary filing requirements.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 403

27 DCMR § 404 SYSTEM OR USER FILING ERRORS

404.1 If the electronic filing is not filed with the Board because of (1) an error in the transmission of the document to the Vendor which was unknown to the sending party, (2) a failure to process the electronic filing when received by the Vendor, or (3) other technical problems experienced by the filer, the Board may upon satisfactory proof enter an order permitting the document to be filed nunc pro tunc to the date it was first attempted to be sent electronically.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 404

27 DCMR § 405 FORM OF DOCUMENTS ELECTRONICALLY FILED

405.1 Format of Electronically Filed Documents. All electronically filed pleadings shall, to the extent practicable, be formatted in accordance with the applicable rules governing formatting of paper pleadings, and in such other and further format as the Board may require from time to time.

405.2 Representations by Using a Typographical Signature. Every pleading, document, and instrument electronically filed shall be deemed to have been signed by the attorney or declarant and shall bear a facsimile or typographical signature of such person, along with the typed name, address, telephone number, and Bar number of a signing attorney. Typographical signatures shall be styled “/s/ name” and shall be treated as personal signatures for all purposes under these Rules.

405.3 Electronic Title of Pleadings and Other Documents. The electronic title of each electronically filed pleading or other document ("paper"), shall include:

Party or parties filing the paper;

Nature of the paper;

Party or parties against whom relief, if any, is sought; and

Nature of the relief sought (e.g., “Appellant’s Motion to Compel Discovery and for Sanctions against Appellee”).

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 405

27 DCMR § 406 MULTIPLE CASE FILING

406.1 Where counsel is filing a pleading in consolidated cases, a single filing in the lead case is deemed to be filed in all cases consolidated with it.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 406

27 DCMR § 407 ELECTRONIC SERVICE OF PLEADINGS AND OTHER DOCUMENTS

407.1 Electronic and Facsimile Service. All parties or their representatives may make service upon other parties electronically through the E File Service. Parties who subscribe to the E File Service consent to receive electronic service of documents via the E Filing Service. Parties, or their designated counsel, shall receive all documents E Filed and E Served upon them via access to the Vendor's system over the Internet or, if a party or party’s designee has not subscribed to the Services, via facsimile transmission. For the purposes of this Rule, service of documents via facsimile is hereby authorized in addition to those methods of service permitted in Subsection 108.3.

407.2 Effect of Electronic Service of Filings. The electronic service of a pleading or other document shall be considered as valid and effective service on all parties and shall have the same legal effect as an original paper document. Proof of service required by Section 109 shall not be necessary for electronically filed documents.

407.3 Service on Parties; Time to Respond or Act. E Service shall be deemed complete at the time a document has been received by the Vendor's system as reflected by the authorized date and time appearing on the confirmation provided, however, for the purpose of computing time for any other party to respond, any document filed on a day or at a time when the Board is not open for business shall be deemed to have been filed at the time of next opening of the Board for business. If electronic service on a party does not occur because of (1) inaccessibility to the Vendor's system; (2) an error in the Vendor’s transmission of notice to the party being served, (3) the Vendor’s failure to process the electronic filing for service, or (4) the party was erroneously excluded from the service list, the party to be served shall, absent extraordinary circumstances, be entitled to an order extending the date for any response or the period within which any right, duty or other act must be performed.

In the event of service via facsimile, the Vendor’s system will record the date and time the fax transmission was completed as proof of service.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 407

27 DCMR § 408 ELECTRONIC FILING AND SERVICE OF ORDERS AND OTHER PAPERS

408.1 The Board may issue, file, and serve notices, orders, and other documents electronically, subject to the provisions of these Rules.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 408

27 DCMR § 409 SEALED DOCUMENTS

409.1 A motion for protective order may be filed and served electronically. Redacted copies of documents filed under seal may be filed and served electronically.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 409

27 DCMR § 499 DEFINITIONS

499.1 Definitions

E Filing. Electronic transmission of an original document (pleading) to the Board via the Vendor's system. An E File consists of a document, an image, or both.

E Service. Electronic transmission of an original document (pleading) to all other designated recipients via the Vendor's system. Upon the completion of any transmission to the Vendor's system, a certified receipt is issued to the sender acknowledging receipt by the Vendor system.

E Document. An electronic file of a word processing document that contains almost exclusively text.

E Image. An electronic file of a document that has been scanned or converted to a graphical or image format.

History

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 499

27-5 CRIMINAL BACKGROUND AND TRAFFIC RECORDS CHECKS FOR DISTRICT GOVERNMENT CONTRACTORS THAT PROVIDE DIRECT SERVICES TO CHILDREN OR YOUTH

27 DCMR § 500 GENERAL PROVISIONS

500.1 A private entity that provides services as a covered child or youth services provider, as defined in section 202(3) of the Child and Youth, Safety and Health Omnibus Amendment Act of 2004, effective April 13, 2005 (D.C. Law 15-353; D.C. Official Code § 4-1501.01 et seq.), as amended (Act), shall obtain criminal history records to investigate persons applying for employment, in either a compensated or an unsupervised volunteer position, as well as its current employees and unsupervised volunteers.

500.2 A private entity is required to obtain traffic records to investigate persons applying for employment, or current employees and volunteers of private entities, when that person will be required to drive a motor vehicle to transport children in the course of performing his or her duties.

500.3 The following individuals are not required to submit to a criminal background check:

(a) Applicants for, or employees or volunteers working in positions at a private entity that will not bring them in direct contact with children or youth;

(b) Applicants, employees and volunteers who have federal security clearance; or

History

AUTHORITY: Unless otherwise noted, the authority for this chapter is section 204 of as amended by Title II of the Omnibus Public Safety Amendment Act of 2006, effective April 24, 2007 (D.C. Law 16-306; 54 DCR 6577) (Act), Mayor's Order 2002-207 (dated December 18, 2002) and Mayor's Order 2007-95 (dated April 18, 2007)
SOURCE: Final Rulemaking published at 56 DCR 3490 (May 1, 2009).

27 DCMR § 501 NOTICE TO PRIVATE ENTITY

501.1 Each solicitation and contract subject to the Act, shall:

(a) Identify the positions that will require a criminal background check and/or a traffic record check;

(b) Contain a clause requiring the private entity to inform all applicants requiring a criminal background check that a criminal background check must be conducted on the applicant before the applicant may be offered a compensated position or an unsupervised volunteer position;

(c) Contain a clause requiring the private entity to inform all applicants requiring a traffic records check that a traffic records check must be conducted on the applicant before the applicant may be offered a compensated position or a volunteer position;

(d) Contain a provision requiring the private entity to obtain a written authorization from each applicant, employee and unsupervised volunteer which authorizes the District to conduct a criminal background check;

(e) Contain a provision requiring the private entity to obtain a written confirmation from each applicant, employee and unsupervised volunteer stating that the private entity has informed him or her that the District is authorized to conduct a criminal background check;

(f) Contain a provision requiring the private entity to obtain a signed affirmation from each applicant, employee and unsupervised volunteer stating whether or not they have been convicted of a crime, pleaded nolo contendere, are on probation before judgment or placement of a case upon a stet docket, or have been found not guilty by reason of insanity, for any sexual offenses or intra-family offenses in the District of Columbia or their equivalent in any other state or territory, or for any of the following felony offenses or their equivalent in any other state or territory:

(i) Murder, attempted murder, manslaughter, or arson;

(ii) Assault, assault with a dangerous weapon, mayhem, malicious disfigurement, or threats to do bodily harm;

(iii) Burglary;

(iv) Robbery;

(v) Kidnapping;

(vi) Illegal use or possession of a firearm;

(vii) Sexual offenses, including indecent exposure; promoting, procuring, compelling, soliciting, or engaging in prostitution; corrupting minors (sexual relations with children); molesting; voyeurism; committing sex acts in public; incest; rape; sexual assault; sexual battery; or sexual abuse; but excluding sodomy between consenting adults;

(viii) Child abuse or cruelty to children; or

(ix) Unlawful distribution of or possession with intent to distribute a controlled substance.

(g) Contain a provision requiring the private entity to obtain a written acknowledgement from each applicant, employee and unsupervised volunteer stating that the private entity has notified them that they are entitled to receive a copy of the criminal background check and to challenge the accuracy and completeness of the report;

(h) Contain a provision requiring the private entity to obtain a written acknowledgement from each applicant, employee and unsupervised volunteer stating that the private entity has notified them that they may be denied employment or a volunteer position, or may be terminated as an employee or volunteer based on the results of the criminal background check;

(i) Contain a provision requiring the private entity to inform each applicant, employee and unsupervised volunteer that a false statement may subject them to criminal penalties; and

(j) Contain a provision requiring the District to identify the positions that will require a criminal background check and/or a traffic records check upon the exercise of each option period of the contract or at any other time specified in the contract.

History

SOURCE: Final Rulemaking published at 56 DCR 3490 (May 1, 2009).

27 DCMR § 502 RESPONSIBILITIES OF PRIVATE ENTITY

502.1 Before any applicant for employment with a private entity, in either an employee or an unsupervised volunteer position, may be offered a position, the private entity shall inform the applicant that a criminal background check must be conducted on him or her.

502.2 Prior to requesting a criminal background check, the private entity shall provide each applicant, employee, or unsupervised volunteer with a form or forms to be utilized for the following purposes:

(a) To authorize the Metropolitan Police Department or other entity, as appropriate, to conduct the criminal background check and confirm that the applicant, employee, or unsupervised volunteer has been informed that the private entity is authorized and required to conduct a criminal background check;

(b) To affirm whether or not the applicant, employee, or unsupervised volunteer has been convicted of a crime, has pleaded nolo contendere, is on probation before judgment or placement of a case upon a stet docket, or has been found not guilty by reason of insanity for any sexual offenses or intra-family offenses in the District of Columbia or their equivalent in any other state or territory of the United States, or for any of the felony offenses described in section 501.1(f) of this chapter;

(c) To acknowledge that the applicant, employee, or unsupervised volunteer has been notified of his or her right to obtain a copy of the criminal background check report and to challenge the accuracy and completeness of the report;

(d) To acknowledge that the private entity may choose to deny the applicant employment, assignment to, or an unsupervised volunteer position for which a criminal background check is required based on the outcome of the criminal background check; and

(e) To inform the applicant or employee that a false statement on the form or forms may subject them to criminal penalties as described in section 506 of this chapter.

502.3 The private entity shall direct the applicant or employee to complete the form or forms specified in section 502.2 and notify the applicant or employee when and where to report to be fingerprinted.

502.4 Unless otherwise provided in the contract, private entities shall request criminal background checks from the Chief, Metropolitan Police Department (or designee), who shall be responsible for conducting criminal background checks, including fingerprinting, for private entities.

502.5 Unless otherwise provided in the contract, private entities shall request traffic record checks from the Director, Department of Motor Vehicles (or designee), who shall be responsible for conducting traffic record checks for private entities.

502.6 Private entities shall pay for the costs for the criminal background checks and traffic record checks required under this chapter and the Act, pursuant to the requirements set forth by the Metropolitan Police Department and the Department of Motor Vehicles.

502.7 A private entity may make an offer of appointment to, or assign a current employee or applicant to, a compensated position contingent upon receipt from the contracting officer of the Contracting Officer's Technical Representative's (COTR) decision after his or her assessment of the criminal background or traffic record check.

502.8 A private entity may not make an offer of appointment to an unsupervised volunteer whose position brings him or her into direct contact with children until it receives from the contracting officer the COTR's decision after his or her assessment of the criminal background or traffic record check.

502.9 A private entity shall not employ or permit to serve as an unsupervised volunteer an applicant or employee who has been convicted of, has pleaded nolo contendere to, or is on probation before judgment or placement of a case on the stet docket because of, or has been found not guilty by reason of insanity for any sexual offenses involving a minor.

502.10 Private entities shall conduct periodic criminal background checks as specified in the contract for current employees and unsupervised volunteers.

502.11 An employee or unsupervised volunteer may be subject to administrative action including, but not limited to, reassignment or termination at the discretion of the COTR after his or her assessment of a criminal background or traffic record check.

502.12 If any application is denied because the COTR determines that the applicant presents a present danger to children or youth, the private entity shall notify the applicant of such determination and inform the applicant in writing that she or he may appeal the denial to the Commission on Human Rights within thirty (30) days of the determination.

History

SOURCE: Final Rulemaking published at 56 DCR 3490 (May 1, 2009).

27 DCMR § 503 ASSESSMENT OF INFORMATION FROM CRIMINAL BACKGROUND AND TRAFFIC RECORDS CHECKS

503.1 The COTR for the contract shall be solely responsible for assessing the information obtained from each criminal background check report to determine whether a final offer may be made to each applicant or employee. The COTR shall inform the contracting officer of its decision, and the contracting officer shall inform the private entity whether an offer may be made to each applicant.

503.2 The COTR for the contract shall be solely responsible for assessing the information obtained from each traffic records check to determine whether a final offer may be made to each applicant or employee. The COTR shall inform the contracting officer of its decision, and the contracting officer shall inform the private entity whether an offer may be made to each applicant.

503.3 The information obtained from the criminal background check shall not create a disqualification or presumption against employment or volunteer status of the applicant unless the COTR determines that the applicant poses a present danger to children or youth. The COTR shall consider the following factors to determine whether a final offer may be made to each applicant or employee:

(a) The specific duties and responsibilities necessarily related to the employment sought;

(b) The bearing, if any, the criminal offense for which the person was previously convicted will have on his or her fitness or ability to perform one or more of such duties or responsibilities;

(d) The age of the person at the time of the occurrence of the criminal offense;

(e) The frequency and seriousness of the criminal offense;

(f) Any information produced by the person, or produced on his or her behalf, regarding his or her rehabilitation and good conduct since the occurrence of the criminal offense; and

(g) The public policy that it is beneficial generally for ex-offenders to obtain employment.

History

SOURCE: Final Rulemaking published at 56 DCR 3490 (May 1, 2009).

27 DCMR § 504 ACTION AGAINST CONTRACTOR

504.1 The contracting officer may take action, in accordance with the "Default" provision of the contract, against any private entity who is found to have violated the provisions of this chapter.

History

SOURCE: Final Rulemaking published at 56 DCR 3490 (May 1, 2009).

27 DCMR § 505 CONFIDENTIALITY

505.1 Criminal background check reports obtained under this section shall be confidential and are for the exclusive use of making employment-related determinations under this chapter. Private entities shall not release or otherwise disclose the reports to any person, except when:

(a) Required as one component of an application for employment with the private entity;

(b) Requested by the contracting officer or COTR during an official inspection or investigation;

(d) Authorized by the written consent of the person being investigated;

(e) Otherwise required by the contract; or

(f) Utilized for a corrective or adverse action in a personnel proceeding, including but not limited to, an administrative action under section 502.10.

505.2 An individual who discloses confidential information in violation of this section is guilty of a criminal offense and, upon conviction, shall be fined not more than $1,000 or imprisoned for not more than 180 days, or both.

History

SOURCE: Final Rulemaking published at 56 DCR 3490 (May 1, 2009).

27 DCMR § 506 PENALTY FOR PROVIDING FALSE INFORMATION

506.1 An applicant for employment or a volunteer position with a private entity who provides false information in the course of applying for the position shall be subject to prosecution pursuant to section 404 of the District of Columbia Theft and White Collar Crimes Act of 1982 (D.C. Law 4-164; D.C. Official Code § 22-2405), and, upon conviction, shall be fined not more than $1,000 or imprisoned for not more than 180 days, or both.

History

SOURCE: Final Rulemaking published at 56 DCR 3490 (May 1, 2009).

27 DCMR § 507 RIGHT TO APPEAL CONTRACTING OFFICER'S TECHNICAL REPRESENTATIVE'S DECISION

507.1 If a COTR denies an application, the COTR shall notify the contracting officer who shall advise the private entity to notify the applicant of such determination. The private entity shall inform the applicant in writing that she or he may appeal the denial to the Commission on Human Rights within thirty (30) days of the determination.

History

SOURCE: Final Rulemaking published at 56 DCR 3490 (May 1, 2009).

27 DCMR § 599 DEFINITIONS

599.1 When used in this chapter, the following terms have the meaning ascribed:

Act - Child and Youth, Safety and Health Omnibus Amendment Act of 2004, effective April 13, 2005 (D.C. Law 15-353; D.C. Official Code § 4-1501.01 et seq.)(2006 Supp.), as amended by Title II of the Omnibus Public Safety Amendment Act of 2006, effective April 24, 2007 (D.C. Law 16-306; 54 DCR 6577).

Applicant - an individual who has filed a written application for employment, or who has made an affirmative effort through a written application or a verbal request to serve in an unsupervised volunteer position, with a private entity.

Children - individuals twelve (12) years of age and under.

Covered child or youth services provider - any District government agency providing direct services to children and youth and any private entity that contracts with the District to provide direct services to children and youth, or for the benefit of children or youth, that affect the health, safety, and welfare of children or youth, including individual and group counseling, therapy, case management, supervision, or mentoring.

In accordance with Mayor's Order No. 2007-95, the following District agencies shall be subject to the criminal background check and traffic records check provisions of the Act and this chapter for purposes of their own activities, and the activities of private entities and who are parties to contracts entered into on behalf of the following agencies by the Office of Contracting and Procurement:

*Department of Human Services

*Department of Health

*Department of Parks and Recreation

*Fire and Emergency Medical Services Department

*Metropolitan Police Department

*Office of the State Superintendent of Education

*Department of Mental Health

*Child and Family Services Agency

*Department of Youth Rehabilitation Services

*Department of Employment Services

*Department on Disability Services

*Any other agency which, as a result of a permanent or temporary change to its mission such as may be caused by reorganization or a similar reason, shall become a covered child or youth services provider subject to the Act

Criminal background check - the investigation of an individual's criminal history through the record systems of the Federal Bureau of Investigation and the District of Columbia Metropolitan Police Department.

Employee - an individual who is employed on a full-time, part-time, temporary or contractual basis by a private entity.

Private Entity - any private entity that contracts with the District to provide direct services to children or youth, or for the benefit of children or youth, that affect the health, safety, and welfare of children or youth, including individual and group counseling, therapy, case management, supervision, or mentoring.

Supervised - any person who is under the direct supervision, at all times, of an employee or a volunteer who has received a current, satisfactory criminal background check.

Volunteer - an individual who works without any monetary or any other financial compensation for a private entity.

Youth - an individual between thirteen (13) and seventeen (17) years of age, inclusive.

History

SOURCE: Final Rulemaking published at 56 DCR 3490 (May 1, 2009).

27-6 MINORITY BUSINESS DEVELOPMENT

27 DCMR § 600 GENERAL PROVISIONS

600.1 The Department of Small and Local Business Development shall establish and implement programs to encourage and increase the participation of local minority business enterprises in contract procurement by the government of the District of Columbia and to improve minority business opportunities generally in the District of Columbia.

600.2 The Commission shall promulgate rules and regulations in order to accomplish the goals of the Act and implement the various programs established under the authority of the "Minority Contracting Act of 1976."

600.3 The operations of the Commission shall be conducted in accordance with the provisions of the Act and chapters 6 and 7 of this title.

600.4 The Commission shall hold a regular meeting on the first Tuesday of each month at 2:00 p.m. at a place to be set by the Commission. In the event that the Commission fails to meet on the scheduled regular meeting date, a meeting shall be scheduled one (1) week later.

600.5 Meetings of the Commission shall be open to the public, provided that the Commission may meet in executive session to discuss information which is privileged by law.

600.6 Applicants wishing to make an appearance at a Commission meeting shall give written notice to the Commission at least five (5) days before the meeting at which they appear.

600.7 The official records of the proceedings and actions of the Commission shall be maintained by the Staff Director.

600.8 The Staff Director shall send written notice of each Commission meeting to each Commission member at least one (1) week in advance of each meeting. The notice shall include the agenda of the meeting and a copy of the minutes of the previous meeting.

600.9 The rules of evidence shall not apply to the proceedings of the Commission; however, the Commission may exclude irrelevant or repetitive testimony or evidence.

History

AUTHORITY: Unless otherwise noted, the authority for this chapter is §5(a) of the Minority Contracting Act, D.C. Law 1-95, D.C. Code §1-1144(a) (1981).
SOURCE: Final Rulemaking published at 26 DCR 2771, 2772 (December 21, 1979).

27 DCMR § 601 GENERAL PROGRAM POLICY

601.1 The Commission shall implement a sheltered market program in accordance with the provisions of the Act and chapters 6 and 7 of this title.

601.2 While it is the general policy of the Commission to encourage minority participation in contracting through the regular advertisement and bidding process, the Commission may take either of the following actions in specific instances:

(a) Require that the advertisement of selected contracts for construction, goods, or services be limited to categories of contractors; or

(b) Authorize the letting of selected contracts by negotiation.

601.3 Acting pursuant to a written request from a certified contractor, the Commission may recommend that any of the following actions be taken by an agency:

(a) Advance, partial, progress, or other types of payments to contractors under contracts for property or services, provided that the payments shall not exceed the unpaid contract price, shall be based upon a finding by the agency head that they will be in the public interest, and shall be secured in accordance with the provisions of sec. 12(c) of the Act; or

(b) Waiver of bonding requirements where the waiver shall maintain the integrity of the District's procurement program.

601.4 A Commission recommendation on any of the actions set forth in §601.3 shall not be required prior to agency action. An agency may request the recommendation of the Commission prior to initiating any such action.

601.5 The Commission may, from time to time, review minority contracting problems and make recommendations for the improvement of minority business development in the District of Columbia in accordance with the provisions of the Act.

601.6 The Commission may make specific recommendations with respect to particular contracts. In making these recommendations, the Commission shall consider the following factors:

(a) Emergency or other unusual circumstances;

(b) The location of the contractor or other entity;

(d) The potential for enhancing the position of minority business in a particular market or industry;

(e) The potential for encouraging entrepreneurship among residents of the District of Columbia; and

(f) Other factors affecting the public interest and the promotion of minority business in the District of Columbia.

History

SOURCE: Final Rulemaking published at 26 DCR 2771, 2772 (December 21, 1979).

27 DCMR § 602 SHELTERED MARKET PROGRAM: GOALS AND ESTABLISHMENT

602.1 Each agency of the District government shall be required to establish an annual program for minority procurement in accordance with the provisions of the Act and chapters 6 and 7 of this title.

602.2 Agency programs established pursuant to this section shall be submitted to the Commission annually for review and approval. The Commission shall provide forms for submission of annual sheltered market procurement programs.

602.3 In establishing its annual program, each agency shall allocate its contracting and procurement to meet the following goals:

(a) Placement of thirty-five per cent (35%) of the total dollar amount of construction contracts in the sheltered market; and

(b) Placement of thirty-five per cent (35%) of procurement of goods and services in the sheltered market.

602.4 Annual programs shall be established on a fiscal year basis. Agencies shall submit proposed programs to the Commission at least sixty (60) days before the beginning of the fiscal year. Modifications to the program based on the actual fiscal year budget apportionment shall be submitted to the Commission within thirty (30) days of the receipt of the final apportionment by the agency.

602.5 Agency sheltered market programs may include any of the following types of placements:

(a) Direct placement of contracts with certified MBE's;

(b) Direct placement of contracts with joint ventures certified under §701; or

(c) Indirect placement of contracts by requiring a portion of the subcontracts let under an open market contract to be let to certified MBE subcontractors in accordance with the requirements of §604.

602.6 Agency programs shall clearly indicate the manner in which the agency plans to reach the goals set forth in this section.

602.7 Agency programs shall specifically indicate the following:

(a) The total dollar amount of construction contracts to be let by the agency during the fiscal year;

(b) The total dollar amount of goods and services to be procured by the agency during the fiscal year;

(d) Contracts and subcontracts for goods and services which shall be placed in the sheltered market;

(e) The dollar amounts represented by each construction contract (and subcontract) and procurement contract (and subcontract) listed pursuant to paragraphs (c) and (d) of this subsection;

(f) The percentages of total dollar amounts for both construction and procurement of goods and services represented by the portion of each which shall be placed in the sheltered market program; and

(g) Dollar amounts and percentages for joint venture contracts shall be adjusted to reflect the proportion of participation by the MBE(s) in each joint venture. Only those portions of contracts which are actually attributable to the minority participant(s) shall be counted toward an agency's program goals.

602.8 In any instance where the percentages of dollar amounts set forth in an agency's fiscal year sheltered market program are less than the goals set forth in this section for either category, the agency shall include a written justification of the difference.

History

SOURCE: Final Rulemaking published at 26 DCR 2771, 2773 (December 21, 1979); as amended by Final Rulemaking published at 30 DCR 5734 (November 4, 1983).

27 DCMR § 603 COMMISSION REVIEW AND APPROVAL OF PROGRAMS

603.1 The Commission shall review each agency's proposed program. As part of its review, the Commission may hold discussions with agency staff and make recommendations for modifications in the agency's proposed program.

603.2 After receipt and review of an agency's proposed sheltered market program, the Commission shall take one of the following actions:

(a) Approve the program as submitted and notify the agency;

(b) Approve that portion of the proposed program which is satisfactory and make recommendations for additional placements in the sheltered market or other actions by the agency to improve its program plans; or

(c) Reject the proposed program as unsatisfactory and make recommendations to the agency for sheltered market placements and other actions.

603.3 If an agency's proposed program is either rejected or partially approved, the Commission may require that the agency take additional steps to meet the goals set forth in this section, including, but not limited to, those set forth in §606.

History

SOURCE: Final Rulemaking published at 26 DCR 2771, 2775 (December 21, 1979).

27 DCMR § 604 SHELTERED MARKET PROGRAM IMPLEMENTATION

604.1 The Commission shall establish and maintain a centralized list of certified contractors. The central list shall be used by agencies to identify contracts or classes of contracts for placement in the sheltered market. Appropriate certified contractors on the list shall also receive invitations to bid on open market contracts advertised by each agency.

604.2 Where an agency places specific contracts or categories of contracts in the sheltered market, consideration shall be given only to certified contractors.

604.3 An agency head may determine, subject to the approval of the Commission, that certain classes of procurements shall not be placed in the sheltered market. Agency heads shall give written notice of each determination to the Commission.

604.4 Each agency shall maintain and display in each procurement office bidders mailing lists which indicate the following:

(a) The name of each contractor doing business with the office; and

(b) Those contractors which are certified under the provisions of the Act and chapter 6 and 7 of this title.

604.5 Each agency shall also maintain for review by the Commission the following types of procurement lists:

(a) Small purchase sources;

(b) Term contracts;

(d) Repetitive or recurring procurements; and

(e) GSA Schedule procurements.

604.6 All invitations for bid under the sheltered market shall include the following language:

This invitation for bid is designated for certified minority bidders only, under the provisions of D.C. Law 1-95, "The Minority Contracting Act of 1977."

604.7 A copy of the MBE letter of certification shall be attached to the outside cover of each sealed bid.

604.8 Invitations to bid in the sheltered market shall be sent to all certified MBE's which qualify under the work classification for which the contract shall be let.

604.9 Once an agency has placed a contract in the sheltered market, it shall not be removed by the agency without the approval of the Commission. That approval shall generally be given only upon a showing of the following:

(a) There are no certified contractors available which are capable of performing the contract; or

(b) That at least one attempt to solicit bids for the contract in the sheltered market has failed to produce an acceptable bid.

604.10 Any District agency asserting that any bid made by a certified contractor or contractors is excessive shall indicate the reasons for that assertion to the Commission in writing, including an analysis of the following factors:

(a) Wage determinations;

(b) Overhead;

(d) Use of brokers; and

(e) Other pertinent data.

604.11 Each agency shall submit a quarterly report to the Commission on the status of its sheltered market procurement program, in accordance with the provisions of §7(a)(3) of the Act, on forms to be provided by the Commission.

History

SOURCE: Final Rulemaking published at 26 DCR 2771, 2775 (December 21, 1979).

27 DCMR § 605 SHELTERED MARKET CONTRACTS: PRIORITY CONSIDERATIONS

605.1 In accordance with §2(c) of D.C. Law 4-167, effective March 9, 1983, bids and proposals of certified minority business enterprises and joint ventures shall be evaluated so as to give preference to certain minority business enterprises and joint ventures for the purpose of awarding sheltered market contracts.

605.2 The Commission shall accord a preference to a minority business enterprise or joint venture which meets the requirements of §605.3, by reducing by five percent (5%) the bid or price proposal of that minority business enterprise or joint venture, solely for purposes of comparing that bid or price proposal with the bids or price proposals of other certified minority business enterprises or joint ventures.

605.3 A minority business enterprise or joint venture shall be eligible for a preference if it is certified by the Commission as having its principal office physically located in the District of Columbia, and either:

(a) The minority business enterprise or joint venture is licensed pursuant to the general business and professional license law of the District of Columbia, §7 of "An Act Making Appropriations to provide for the expenses of the government of the District of Columbia for the fiscal year ending June 30th, 1903, and for other purposes," approved July 1, 1902 (32 Stat. 622; D.C. Code, §47-2801 et seq. (1981)); or

(b) The minority business enterprise or joint venture is subject to income and franchise taxes levied under title X of the "District of Columbia Income and Franchise Tax Act of 1947," approved July 16, 1947 (61 Stat. 349; D.C. Code, §47-1801.1 et seq. (1981)).

History

SOURCE: Final Rulemaking published at 30 DCR 5734, 5735 (November 4, 1983); as amended by Final Rulemaking published at 33 DCR 2490 (April 25, 1986).

27 DCMR § 606 SHELTERED MARKET SUBCONTRACTS

606.1 When an agency's sheltered market program includes placement of subcontracts in the sheltered market by one (1) or more of its prime contractors, those indirect placements shall be made in accordance with the provisions of this section.

606.2 Each solicitation for bids on the open market for contracts which include a percentage allocation of subcontracting opportunities to the sheltered market shall include a notice to bidders of the requirement for placement of certain subcontracts (or a percentage of all subcontracts or subcontract value) in the sheltered market.

606.3 All bids or offers on prime contracts covered by this section shall include the following:

(a) The name of the employee of the offeror or bidder who shall administer the subcontracting program and a description of the duties of the employee;

(b) A description of the efforts which the offeror or bidder shall undertake to ensure that certified MBE's will be able to compete for subcontracts or participate in a sheltered MBE subcontracting program; and

(c) A proposed plan for implementation of the MBE subcontracting goal or requirement of the prime contract, including a description of the records which will be kept and made available to the agency and Commission to show compliance with the sheltered market program aspect of the contract.

606.4 Each solicitation for bids shall state that no contract will be awarded until an acceptable plan is negotiated with the contracting officer and incorporated in the contract. Acceptable plans shall, in the opinion of the contracting officer, provide the maximum practicable opportunity for certified MBE participation in the performance of the contract.

606.5 Prime contractors awarded contracts containing MBE subcontractor requirements shall submit quarterly reports to the contracting agency for inclusion in that agency's quarterly report to the Commission. These reports shall be made on forms supplied by the Commission.

606.6 If it appears that a prime contractor has not complied with the MBE participation requirements of a contract, the Commission may institute a compliance review investigation. After the investigation, the Commission shall notify the contractor of its findings and recommendations for corrective measures. If the contractor fails to correct the deficiencies, the Commission may recommend that the contracting agency initiate sanctions or other action for breach of contract against the prime contractor.

History

SOURCE: Final Rulemaking published at 26 DCR 2771, 2777 (December 21, 1979).

27 DCMR § 607 COMMISSION OVERSIGHT OF PROGRAM IMPLEMENTATION

607.1 If the Commission determines that an agency's proposed sheltered market program is unsatisfactory or that an agency is not fulfilling its commitment under an approved program, the Commission may make specific recommendations to the agency with regard to the agency's program or program implementation.

607.2 If the Commission determines that an agency's sheltered market program goal is too low or is not being met, the Commission may require the agency to give at least thirty (30) days advance notice to the Commission of the solicitation of bids on the open market for any contract in the amount of twenty-five thousand dollars ($25,000) or more.

607.3 If the Commission determines that an agency's sheltered market procurement program goal is too low or is not being met, the Commission may require that, prior to the establishment of specifications for any procurement contract in the amount of $2,000 or more, an agency shall inform the Commission whether the contract will be placed in the sheltered market.

607.4 If the agency has not determined whether the contract will be placed in the sheltered market, the Commission may make a recommendation for placement and provide the names of certified contractors to the agency.

607.5 If an agency does not place a contract in the sheltered market pursuant to a Commission recommendation under this section, the agency shall provide the Commission with a written explanation for placing the contract in the open market.

607.6 If the Commission determines that an agency's sheltered market program goal is too low or is not being met, the Commission may order that a portion of the agency's contracts be reserved for placement in the sheltered market program.

607.7 The Commission shall inform the Mayor of all determinations, recommendations, and orders issued pursuant to this section.

History

SOURCE: Final Rulemaking published at 26 DCR 2771, 2778 (December 21, 1979).

27 DCMR § 608 BONDING

608.1 The Commission shall consider any certified MBE's request for bond waiver on any District of Columbia contract reserved exclusively for the sheltered market as defined in D.C. Code §1-1142(7) (1981).

608.2 A certified MBE requesting a bond waiver shall submit an affidavit including the following information:

(a) History of the certified MBE, which shall contain the following:

(1) Records of prior completed contracts, including the extent of the MBE's involvement in each contract;

(2) The total value of each contract;

(3) The contracting agency, including the names and telephone numbers of agency representatives familiar with each contract;

(4) A description of each contract; and

(5) The amount of any bond provided, including the name, address, and telephone number of the bonding agent;

(b) Statement of reasons why the bond should be waived;

(d) Evidence that the contractor has been denied a bond by two (2) surety companies.

608.3 The Commission shall maintain all information provided under §608.2 in confidence and shall return any data submitted by the certified MBE unless it becomes part of a recommendation to the Mayor for bond waiver.

608.4 Upon majority vote of a quorum of the Commission to waive bond on a specific contract, the Staff Director shall prepare and forward to the Mayor through the contracting officer a request for bond waiver stating the reason(s) for the waiver, and the benefits to be derived from waiving the bond.

608.5 The Commission shall not recommend a bond waiver unless in its judgment it is in the best interest of the District of Columbia to do so.

608.6 For a specified contract in excess of one hundred thousand dollars ($100,000), the Commission may, prior to solicitation of bids, recommend that the requirement for bonding be waived or reduced, and may make such a request to the Mayor through the contracting officer by memorandum providing the basis for the recommendation and the benefit to the District of Columbia from waiving or reducing the bonding requirement.

History

SOURCE: Final Rulemaking published at 33 DCR 5659 (September 12, 1986).

27 DCMR § 699 DEFINITIONS

699.1 The definitions of the terms "minority," "minority business enterprise," "local business enterprise," "joint venture," "agency," and "sheltered market," set forth in sec. 3 of the Act are applicable to these rules and incorporated herein by reference.

699.2 In addition to the terms under §699.1, when used in this chapter, the following terms and phrases shall have the meanings ascribed:

Act - the Minority Contracting Act of 1976, as amended.

Principal office - the primary office (based upon the totality of the business activities) in which routine and essential business functions occur such as the following:

(a) Bookkeeping and other record keeping;

(b) Payroll maintenance;

(d) Receipt of correspondence;

(e) Storing of books and records; or

(f) Directing, controlling and coordinating of activities and policies by officers, principals and managers.

History

SOURCE: Final Rulemaking published at 26 DCR 2771 (December 21, 1979); as amended by Final Rulemaking published at 30 DCR 5734 (November 4, 1983).

27-7 MINORITY BUSINESS ENTERPRISES

27 DCMR § 700 CERTIFICATION POLICY

700.1 The Commission shall certify bona fide local minority business enterprises which meet the requirements of the Act and this chapter for participation in the various programs of the District of Columbia operated under the auspices of the Commission for the promotion and enhancements of minority business opportunities in the District of Columbia.

700.2 In considering each application for certification, the Commission shall determine whether persons represented in the application are members of a "minority," as defined in the Act, by reviewing the application and accompanying documentation, the results of staff investigations, and other relevant information. Other relevant information may include the following:

(a) Birth certificates;

(b) Employment records;

(d) EEO and affirmative action records; and

(e) Other evidence of the minority status of persons named in the application.

700.3 In determining whether an applicant meets the requirements for minority participation set forth in §3 of the Act, the Commission shall review the extent to which bona fide minority participants have actual rights of ownership and control of the business enterprise, including the proportion of ownership and control over decision-making, day-to-day operations, and profit and loss.

700.4 The Commission shall consider the extent to which the minority participants could operate the business enterprise in the absence of the non-minority participants.

700.5 The Commission shall review relevant documents and information including, but not limited to, the following:

(a) Shareholders' agreements, pooling agreements, buy-sell agreements, voting trusts, management agreements, lease and rental agreements, and deeds or other evidence of ownership of real property;

(b) Non-voting preferred stock, debentures and other debt instruments, dividends, and returns of capital or debt investment; and

700.6 In determining whether a minority business whose principal office is physically located outside the District of Columbia is a local business enterprise, the Commission shall consider the following factors:

(a) The applicant's principal office is located in the Washington Standard Metropolitan Statistical Area;

(b) More than thirty percent (30%) of assets of the business enterprise are located in the District of Columbia;

(d) The owner(s) of more than fifty percent (50%) of the business enterprise are residents of the District of Columbia;

(e) More than thirty percent (30%) of the total sales or other revenues is derived from the transactions of the business enterprise in the District of Columbia; and

(f) Any other factors that indicate significant business or economic relations with the District of Columbia by the business enterprise.

700.7 In addition to the factors to be considered in §700.6, a minority business whose principal office is located physically outside the District of Columbia shall only be considered a local business enterprise if it also meets one of the following:

(a) It is licensed pursuant to §7 of "An Act Making appropriations to provide for the expenses of the government of the District of Columbia for the fiscal year ending June thirtieth, nineteen hundred and three, and for other purposes," approved July 1, 1902 (32 Stat. 622; D.C. Code, §47-2801 et seq.,(1981)); or

(b) It is subject to the tax levied under title X of the "District of Columbia Income and Franchise Tax Act of 1947," approved July 16, 1947 (61 Stat. 349; D.C. Code, §47-1810.1 et seq., (1981)).

700.8 In addition to the information supplied in the application and documents accompanying the application, the Commission may require an applicant to supply or provide access to additional information and documents relevant to the Commission's investigation and determination of the applicant's status as a local minority business enterprise. This additional information and documents may also be requested by the Commission in connection with any recertification, compliance review, investigation, or other Commission process undertaken pursuant to the Act or chapters 6 or 7 of this title.

700.9 Certification may be limited by the Commission to one (1) or more program areas. MBE's shall be eligible to participate only in those sheltered market program areas for which they are certified.

700.10 Certification shall be valid for a period of two (2) years from the date of approval by the Commission, unless revoked by the Commission. Renewal of certification shall be in accordance with the recertification procedures set forth in this chapter.

History

AUTHORITY: Unless otherwise noted, the authority for this chapter is §5(a) of the Minority Contracting Act of 1976, D.C. Law 1-95, D.C. Code §1-1144(a) (1981).
SOURCE: Final Rulemaking published at 26 DCR 2771 (December 21, 1979); as amended by Final Rulemaking published at 30 DCR 5734, 5736 (November 4, 1983).

27 DCMR § 701 CERTIFICATION OF JOINT VENTURES

701.1 The Commission shall determine the eligibility of a joint venture for certification on a contract-by-contract basis.

701.2 The Commission may certify joint ventures involving a MBE where such an agreement will contribute to minority business development and will permit the offering of a proposal on a specific contract where a MBE by itself lacks the necessary capacity to fulfill the requirements of the proposed contract, due to factors including, but not limited to, an inability to secure adequate bonding or an inability to obtain financial or technical resources.

701.3 The MBE participating in the joint venture shall represent not less than fifty percent (50%) each of the management aspect, control aspect, and ownership aspect of the joint venture, provided that where certification of the joint venture will further the MBE, the Commission may waive any or all of these requirements.

701.4 A joint venture shall not be certified under this section unless the participating MBE has been individually certified in accordance with the provisions of the Act and the requirements of chapters 6 and 7 of this title.

701.5 Individual certification of a MBE participating in a joint venture shall not automatically qualify the joint venture for certification.

701.6 If a MBE has not been certified by the Commission prior to its participation in a joint venture, the applications for individual certification of the MBE and of the joint venture may be submitted to and reviewed by the Commission simultaneously.

701.7 Every joint venture agreement shall include provisions which do the following:

(a) Specify the purpose of the joint venture;

(b) Identify parties to the joint venture and define their respective obligations and responsibilities;

(c) Provide that not less than fifty percent (50%) of the net operating profits after taxes earned by the joint venture will be distributed to the minority business enterprise;

(d) Provide for the establishment and administration of a special separate bank account in the name of the joint venture into which all funds received will be deposited and through which all expenses will be paid, and which requires all withdrawals and deposits to be signed by all members of the joint venture management committee;

(e) Contain an itemized description of all major equipment, facilities, and other resources to be furnished by each venturer with a detailed schedule of costs; and

(f) Specify the responsibilities of the parties in at least the areas of subcontract negotiation and contract and subcontract performance.

701.8 The Commission may deny certification of any joint venture whose joint venture agreement lacks any of the provisions stipulated in §701.7.

701.9 The joint venture shall make its records available to the Commission at any time deemed necessary by the Commission.

701.10 The joint venture shall submit to the Commission quarterly financial statements showing cumulative contract receipts and expenditures (including salaries of the joint venture principals) no later than forty-five (45) days after the end of each operating quarter.

701.11 The joint venture shall submit to the Commission a project-end profit and loss statement no later than ninety (90) days after completion of the contract with a statement of final profit distribution.

701.12 The Commission may revoke certification if it determines that incorrect data was submitted to the Commission in the application or supporting documents.

History

SOURCE: Final Rulemaking published at 26 DCR 2771, 2781 (December 21, 1979); as amended by Final Rulemaking published at 33 DCR 5664 (September 12, 1986).

27 DCMR § 702 APPLICATION FOR CERTIFICATION

702.1 All applications for certification shall meet the following requirements in order to be accepted for Commission review:

(a) All application forms shall be completely filled out;

(b) All required documentation shall be supplied; and

702.2 Any application which does not meet the requirements for filing set forth in §702.1 shall not be accepted for filing by the Commission.

702.3 Upon receipt of an application, the Commission staff shall conduct a preliminary review of the submission for compliance with the requirements of §702.1 and take one of the following actions:

(a) If the application is complete, it shall be accepted for Commission review;

(b) If the application is substantially incomplete or lacks the required verification, it shall be returned to the applicant with a notice indicating the need for additional actions or materials in order for the application to be accepted for review; or

(c) If the application is incomplete, but the omissions are minor, the staff may hold the application pending receipt of all remaining materials required for acceptance. In these cases, the applicant shall be given notice that the application has not been accepted and the need for the submission of additional materials in order for the application to be accepted for review.

702.4 The Commission staff may hold interviews or discussions with an applicant or applicant's representative as part of the preliminary review process in order to assist the applicant in fulfilling the application requirements of this section.

702.5 Upon acceptance of an application, the Commission staff shall conduct a full review and analysis of the application. This review process may include interviews and discussions with the applicant or applicant's representative, requests for the submission of additional documentation or information, and an on-site inspection by the Commission staff.

702.6 The staff review shall include an audit of the books and records of the applicant. Each applicant shall be required to grant permission for an audit on the application form submitted to the Commission.

702.7 Upon completion of the staff review, the Commission staff shall prepare a report setting forth findings and recommendations. The report shall be submitted to the Commission with the application for consideration by the Commission in making its determination.

702.8 Each application shall contain the following information where applicable to the individual business entity seeking certification:

(a) The name, mailing address, street address, and telephone number of the applicant;

(b) Identification of all owners, directors, and officers by name, age, date-of-birth, place of birth, position, duties and responsibilities associated with the business, actual operating authority, and percentage of ownership;

(d) Business documentation, including articles of incorporation, by-laws, certificates of good standing, stock voting rights, minutes of organizational meetings, partnership agreements, profit sharing agreements, buy-out rights, joint venture agreements, tax returns, annual reports, and other information requested by the Commission;

(e) Evidence of authority to do business in the District of Columbia, D.C. business licenses, occupancy permits, tax numbers, worker's compensation forms, lease agreements, and other information requested by the Commission;

(f) Stock options or other ownership options which are outstanding, evidence of loans or other debts between owners, evidence of loans or other debts between owners and third parties which are related to the business, and identification of trusts affecting the finances or control of the business;

(g) Copies of current balance sheets and operating statements;

(h) Identification of the persons by name and title who decide which jobs the firm will take; who obtain, negotiate, and sign for bonds and insurance; and who sign motor fuel tax forms;

(i) Type, quantity, and value of equipment owned;

(j) Bonding limit, name of bonding company, sources of letters of credit, other sources of capital and other financing, and trade references; and

(k) Experience of firm owners and managers in areas such as supervision; accounting, bookkeeping, and other record keeping; use of suppliers, and use of equipment.

History

SOURCE: Final Rulemaking published at 26 DCR 2771, 2783 (December 21, 1979).

27 DCMR § 703 DENIAL OF CERTIFICATION

703.1 The Commission shall deny certification as a local minority business enterprise or MBE/joint venture to any business entity which fails to meet the requirements of D.C. Law 1-95 and chapters 6 and 7 of this title.

703.2 The Commission may base its denial of certification on any of the following grounds:

(a) Failure to qualify as a local minority business enterprise under the eligibility provisions of D.C. Law 1-95 or this chapter;

(b) Failure to provide sufficient information to the Commission on which a determination of eligibility can be based;

(d) Refusal to comply with a reasonable Commission request for information, data, or access to records pertinent to the application for certification.

703.3 If certification is denied, the Commission shall notify the applicant of the denial in writing along with the reasons for the denial.

703.4 A copy of each Notice of Denial of Certification shall be sent to the Mayor.

703.5 Certification shall be denied when it is established that the applicant knowingly provided the Commission with incorrect data in its certification application and accompanying documents.

703.6 Upon the denial of certification of an applicant by the Commission on one (1) or more grounds set forth in §703.1 or §703.2, or for any reason, the Commission shall not accept, review, or evaluate for a period of one (1) year from the date the applicant receives notice of the Commission's decision to deny certification, unless the applicant requests and receives a hearing in accordance with §708 of this chapter, any of the following:

(a) New information on, amendments to, or the denied application; or

(b) New certification applications from the applicant, its agent(s), representative(s), or other members of the public on the applicant's behalf.

703.7 If the applicant receives a hearing in accordance with §708, the one (1) year waiting period commences on the date the applicant receives notice of the Commission's final decision on the hearing.

703.8 The one (1) year waiting period constitutes a moratorium on further review of the applicant's file for purposes of certification and participation in the sheltered market program.

703.9 Hearings shall be conducted in accordance with the procedures set forth in §708 of this chapter.

History

SOURCE: Final Rulemaking published at 26 DCR 2771, 2781 (December 21, 1979); as amended by Final Rulemaking published at 33 DCR 5659, 5660 (September 12, 1986).

27 DCMR § 704 RENEWAL OF CERTIFICATION

704.1 Application for renewal of certification shall be submitted to the Commission not less than ninety (90) days before the date of expiration of the existing certificate.

704.2 The Commission shall issue a notice of pending expiration of certification to each certified MBE approximately one hundred twenty (120) days before the expiration of the two-year (2) certification period, provided that failure of the Commission to issue the notice or failure of the certified MBE to receive the notice shall not extend the existing certification period nor relieve the MBE of the obligation to submit a timely application for recertification in accordance with this section.

704.3 Applications for renewal of certification shall meet all of the requirements for application for certification set forth in §702 with all information, documents, other data, and verification updated to the date of the application for renewal.

History

SOURCE: Final Rulemaking published at 26 DCR 2771, 2785 (December 21, 1979).

27 DCMR § 705 COMPLIANCE REVIEW

705.1 The Commission shall periodically review the practices and status of certified MBE's to determine whether they continue to meet the eligibility requirements for certification and are conducting their business activities in accordance with the requirements of D.C. Law 1-95 and this chapter.

705.2 Informal compliance review shall consist of monitoring reports and information submitted by agencies, MBE's, and joint ventures; on-site visits; or interviews and discussions conducted by the Commission staff.

705.3 If the Commission staff discovers correctable non-compliance as the result of an informal compliance review, it may seek compliance by the MBE prior to instituting further proceedings. In those cases, the Staff Director shall issue a Notice of Non-Compliance to the MBE specifying the nature of the alleged non-compliance and recommending steps to be taken by the MBE to correct the stated deficiencies. The staff may enter into discussions with the MBE to attempt to resolve the compliance problem(s) informally.

705.4 If the informal compliance procedures result in the correction of the deficiencies, the Staff Director shall make a report to the Commission which shall include the following:

(a) The compliance review findings;

(b) A copy of the Notice of Non-Compliance;

(d) The results of a follow-up investigation.

705.5 If the informal compliance procedures do not result in the correction of all deficiencies, the Staff Director may institute formal compliance review proceedings or, if formal compliance review procedures are unnecessary, submit a Compliance Review Report to the Commission.

705.6 Upon receipt of a sworn complaint from any person or a report of alleged violation by an agency head, the Commission may direct the Commission staff to conduct an informal compliance review or it may order a formal compliance review investigation which may include the following:

(a) On-site visits;

(b) Interviews and discussions with MBE representatives;

(d) Audit of MBE books and records; and

(e) Other means of determining the validity of the charge of alleged non-compliance.

705.7 Upon completion of the formal compliance review process, the Commission staff shall prepare and submit a report to the Commission setting forth its findings and recommendations.

705.8 Upon receipt of the Compliance Review Report, the Commission may hold an informal preliminary hearing at which the MBE shall be allowed to appear and state its position on the allegations. After the informal preliminary hearing or without an informal hearing if the Commission so determines, the Commission shall take one of the following actions:

(a) Dismiss the allegations as unfounded or trivial; or

(b) Adopt formal charges and conduct a formal hearing on the allegations in accordance with the provisions of §708.

History

SOURCE: Final Rulemaking published at 26 DCR 2771, 2786 (December 21, 1979).

27 DCMR § 706 REVOCATION OF CERTIFICATION

706.1 Formal charges against an MBE which may result in revocation of certification may be brought and adopted on any of the following grounds:

(a) Fraud or deceit in obtaining certification, including the furnishing of substantially inaccurate or incomplete ownership or financial information in connection with the application;

(b) Failure to report changes in the status or activities of the business entity or its minority membership which affect the MBE's eligibility for certification;

(c) Gross negligence, incompetence, financial irresponsibility, or misconduct in the performance of contractual obligations or services; or

(d) Willful violation of any provision of D.C. Law 1-95 or of chapter 6 or 7 of this title.

706.2 The Commission shall give written notice of the adoption of charges to the MBE or joint venture. The notice shall set forth the grounds and reasons for the denial and shall set forth the right to a hearing and hearing procedures.

706.3 A hearing before the Commission to contest the revocation of certification may be obtained by filing a written request for a hearing within ten (10) days of the receipt of the notice of revocation. A written response to the charges may be filed with the request for hearing or at any time prior to the conclusion of the hearing.

706.4 Hearings shall be conducted in accordance with the procedures set forth in §708.

706.5 Upon the revocation of certification by the Commission on one or more grounds set forth in §706.1, or for any other reason, the Commission shall not accept, review, or evaluate new certification applications from that MBE for a period of one (1) year from the date the MBE receives the notice, unless the MBE requests and receives a hearing in accordance with §§706.3 and 706.4.

706.6 If the MBE receives a hearing, the one (1) year waiting period commences on the date the applicant receives notice of the Commission's final decision on the hearing.

706.7 The one (1) year waiting period constitutes a moratorium on further review of the MBE's file for purposes of certification and participation in the sheltered market program.

History

SOURCE: Final Rulemaking published at 26 DCR 2771, 2787 (December 21, 1979); as amended by Final Rulemaking published at 33 DCR 5659, 5661 (September 12, 1986).

27 DCMR § 707 DENIAL OF RECERTIFICATION

707.1 The Commission may deny recertification of an MBE on one or more of the grounds set forth in §703.2 or §706.1.

707.2 If recertification is denied, the Commission shall notify the applicant of the denial in writing along with the grounds and specific reasons for the denial. Notice of denial of recertification shall also include notice of the right to a hearing and hearing procedures.

707.3 A hearing before the Commission to contest the denial of recertification may be obtained by filing a written request for a hearing within ten (10) days of the receipt of the notice of denial. A written response to the grounds and reasons for denial may be filed with the hearing request or at any time prior to the conclusion of the hearing.

707.4 Hearings shall be conducted in accordance with the procedures set forth in §708.

707.5 Upon the denial of recertification of a MBE by the Commission on one or more grounds set forth in §703.2 or §706.1, or for any other reason, the Commission shall not accept, review, or evaluate for a period of one (1) year from the date the MBE receives notice of the Commission's final decision to deny recertification, unless the MBE requests and receives a hearing in accordance with §708 of this chapter, either of the following:

(a) New information on, amendments to, or the recertification application; or

(b) New certification applications from the applicant, its agent(s), representative(s), or other members of the public on the applicant's behalf.

707.6 If the MBE receives a hearing in accordance with §708, the one (1) year waiting period commences on the date the MBE receives notice of the Commission's final decision on the hearing.

707.7 The one (1) year waiting period constitutes a moratorium on further review of the MBE's file for purposes of recertification and participation in the sheltered market program.

707.8 Hearings shall be conducted in accordance with the procedures set forth in §708 of this chapter.

History

SOURCE: Final Rulemaking published at 26 DCR 2771, 2787 (December 21, 1979); as amended by Final Rulemaking published at 33 DCR 5659, 5662 (September 12, 1986).

27 DCMR § 708 HEARING PROCEDURES

708.1 Hearings held in connection with denials of recertification and revocation of certification shall be conducted in accordance with the procedures set forth in this section.

708.2 Upon receipt of a request for hearing the Commission shall set a date for the hearing and shall give the party requesting the hearing at least thirty (30) days written notice of the date and time set for the hearing, provided that a party may waive the right to a full thirty (30) days notice of the hearing by stating that such right is waived in the request for hearing. If the right to thirty (30) days notice is waived, the Commission shall inform the MBE or joint venture of the hearing date and time at least ten (10) days prior to the hearing.

708.3 The Commission shall have the power to issue subpoenas to compel the attendance of persons and the production of documents;

708.4 MBE's against which charges have been made shall have the right to be represented by counsel, present evidence and witnesses, and cross-examine adverse witnesses;

708.5 All hearings shall be open to the public.

708.6 An electronic recording of the hearing shall be made which shall be a part of the official record of the proceedings. A copy of the recording shall be made available to the MBE without charge, upon request.

708.7 All testimony shall be given under oath or affirmation.

708.8 Any person may be excluded from the hearing for conduct which interferes with the hearing process.

708.9 The rules of evidence shall not strictly apply; however, the Commission shall have the power to exclude irrelevant or repetitive evidence or testimony.

708.10 The official record of the hearing shall consist of the following:

(a) Notice of the hearing;

(b) The written submissions of the MBE, if any;

(d) Any briefs and proposed findings and conclusions filed by the parties;

(e) Exceptions to proposed findings and conclusions; and

(f) The electronic recording of the hearing.

708.11 The Commission may require the parties to a formal hearing to submit proposed findings of fact and conclusions of law within a specified time after the close of the formal hearing. If the proposed findings and conclusions are received, each party shall receive a copy of the adverse party's filing and shall have an opportunity to file exceptions.

708.12 The Commission's final decision shall be based upon the record of the hearing and a decision to revoke the certification of an MBE shall be supported by a preponderance of the evidence.

708.13 The final decision of the Commission must be issued in writing within ninety (90) days of the date on which the charges were adopted or notice of denial of recertification issued by the Commission.

History

SOURCE: Final Rulemaking published at 26 DCR 2771, 2788 (December 21, 1979).

27 DCMR § 709 TEMPORARY CERTIFICATION

709.1 The Staff Director of the Commission may issue to an applicant a temporary certification for bidding purposes only when all of the following requirements are satisfied:

(a) The applicant has submitted a completed application for certification under §700 of this chapter.

(b) The completed application is scheduled to be reviewed by the Commission at its next scheduled meeting;

(d) The Staff Director determines, given the character of the contract at issue, the likelihood of such a contract being offered again in the sheltered market, and the amount of the contract, that the applicant's inability to bid on the contract would have a detrimental effect on the development of MBE's in the District of Columbia; and

(f) The Staff Director has the approval of at least four (4) Commissioners for temporary certification for bidding purposes.

709.2 Temporary certification for bidding shall have no significance in the Commission's review of the application for certification under §700 of this chapter.

709.3 An applicant who has received temporary certification for bidding may only bid on contracts placed in the sheltered market. An applicant shall not be qualified as a MBE to be awarded a contract placed in the sheltered market until the applicant is certified pursuant to §700 of this chapter.

History

SOURCE: Final Rulemaking published at 33 DCR 5664, 5666 (September 12, 1986).

27 DCMR § 710 DISTRIBUTORSHIPS

710.1 In determining whether an applicant meets the requirements for minority participation in the sheltered market as set forth in D.C. Code §1-1148(a) (1981), and to ensure compliance with the performance requirements for bona fide MBE's set forth in D.C. Code, §1-1147(c) and (d) (1981), the Commission shall review the extent to which a bona fide minority participant qualifies as a "distributorships."

710.2 For purposes of §710, the term "distributorship" means any legal entity organized in any form, other than a joint venture, to engage in lawful commercial transactions involving the sale of goods or services for resale; or any entity which sells chiefly to other vendors, retailers, industrial, institutional, or commercial users for resale or business use.

710.3 The term "distributorship" includes a business which owns, operates, or maintains an establishment that produces on the premises the materials, goods, articles, or equipment of the character in which the applicant claims to be a distributorship; but the term does not include a business which only performs minimal operation on or minimal assembly of items being procured.

710.4 In order to qualify as a distributorship, an applicant shall meet the following minimum eligibility requirements in addition to certification requirements stipulated in §702 of this chapter:

(a) Maintain an establishment in which materials, goods, articles, or equipment of the character in which the applicant claims to be a distributorship are bought, kept in stock, and sold to wholesale or retail customers on a recurring basis in the usual course of business; and

(b) Demonstrate that its business is an established and on-going concern regularly dealing in the particular materials, goods, articles, or equipment of the character offered to the District of Columbia.

History

SOURCE: Final Rulemaking published at 33 DCR 5659, 5662 (September 12, 1986). 4, 1983).

27 DCMR § 799 DEFINITIONS

799.1 The meanings ascribed to the definitions appearing in §699.1 of chapter 6 of this title shall apply to the terms in this chapter.

27-8 LOCAL, SMALL, AND DISADVANTAGED BUSINESS ENTERPRISES CONTRACTING

27 DCMR § 800 GENERAL PROVISIONS

This chapter is promulgated pursuant to the Small and Certified Business Enterprise Development and Assistance Act of 2005 (Act), effective October 20, 2005 (D.C. Law 16-33; D.C. Official Code § 2-218.01 et seq.).

History

SOURCE: Final Rulemaking published at 39 DCR 9052 (December 4, 1992); as amended by Final Rulemaking published at 56 DCR 8439 (October 23, 2009), incorporating by reference text of Proposed Rulemaking published at 56 DCR 5622, 5623 (July 10, 2009); as amended by Final Rulemaking published at 70 DCR 010970 (August 11, 2023). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 800

27 DCMR § 801 APPLICATION FOR CERTIFIED BUSINESS ENTERPRISE STATUS

An applicant for certification with the Department shall submit, via the Department’s website or as otherwise directed by the Department, a completed application that is signed and sworn to by the applicant, setting forth the basis for certification as a certified business enterprise (“CBE”), accompanied by documentation requested by the Department.

An applicant for certification shall also submit the following documentation:

Business documentation, including business licenses or authorization to operate in the District, by-laws, operating agreements, certificates of clean hands and good standing, partnership agreements, joint venture agreements, and tax returns;

Copies of current financial or operating statements, including balance sheets, income statements, statements of retained earnings, and statements of cash flows, all of which must be current up to the ninety (90)-day period prior to the application date, along with federal and District of Columbia and applicable state tax returns, including all forms, schedules, worksheets and statements filed with the Internal Revenue Service, the District of Columbia and applicable states, for the three most recent years;

Type, quantity, and location of equipment owned, and equipment which has been transferred or donated, including the supporting documents of these transfer or donation transactions, if applicable;

Lease or ownership information for every location at which the applicant maintains an office as well as any space that the applicant has leased or purchased in the District relating to the business including, but not limited to, a warehouse, storage space, storage lots, and land;

A list of all employees, including name, title, home address, and the office to which each employee reports; and

Any other documentation the Department may require.

An applicant may also be required to demonstrate compliance with the requirements of the Act, this chapter, and other laws of the District of Columbia. In furtherance of such demonstration, the applicant shall:

Permit the Department to enter and conduct an on-site inspection of the applicant's business premises and any affiliated locations;

Provide the Department, during the on-site inspection, with immediate access to any records or area of the premises that the Department deems necessary to review to determine whether the applicant is in compliance with the Act and these regulations; and

Provide any other information the Department deems necessary to demonstrate compliance with the Act and these regulations.

An applicant currently certified as a CBE seeking to update their CBE certificate shall submit, via the Department’s website or as otherwise directed by the Department, a complete application of changes requested that is signed and sworn to by the applicant and shall provide additional information and/or documentation required by the Act and this chapter, and any other information requested by the Department.

An applicant may withdraw an application submitted for certification, except that:

An applicant that withdraws an application may not file another application for thirty (30) days from the date of withdrawal; and

An applicant may not withdraw an application after the Department notifies the applicant that the Department intends to deny the application.

If the Department determines that the application submitted for certification is incomplete, the application shall be deemed deficient, and returned to the applicant until the applicant cures the deficiencies and resubmits the application.

History

SOURCE: Final Rulemaking published at 39 DCR 9052 (December 4, 1992); as amended by Final Rulemaking published at 56 DCR 8439 (October 23, 2009), incorporating by reference text of Proposed Rulemaking published at 56 DCR 5622, 5623 (July 10, 2009); as amended by Final Rulemaking published at 70 DCR 010970 (August 11, 2023). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 801

27 DCMR § 802 LOCAL BUSINESS ENTERPRISE REQUIREMENTS

LOCAL BUSINESS ENTERPRISE REQUIREMENTS

802.1 An applicant for certification as a local business enterprise must demonstrate, inter alia, that the principal office of the business enterprise is located in the District of Columbia. To be considered the principal office:

The space must be a dedicated suite, office, or desk that the applicant owns, or that the applicant leases for a minimum of twelve (12) months;

To the extent that the space is an office space that the applicant shares with other businesses:

There must be a clear separation between the businesses;

The applicant must have a dedicated office or desk for exclusive use of the business seeking certification;

Assets and business functions of the business shall not be commingled with other businesses; and

The lease or addendum to the membership agreement must identify the desk or office number the applicant is occupying; and

Legal documents, and if applicable, the website, insignia, signs, printed material, business cards, and letterhead where the principal office or headquarters is identified, must indicate that the office, located in the District of Columbia, is the applicant’s principal office.

802.2 In determining the principal office for the business enterprise, the Department may also consider:

The totality of the business activities in which routine and essential business functions occur such as the following:

Bookkeeping and other recordkeeping;

Payroll maintenance;

Receipt of business telephone calls;

Receipt of correspondence and bills;

Storing of books and records; and

Directing, controlling and coordinating activities and policies by officers, principals and managers; and

The number of vehicles owned by the applicant that are registered in jurisdictions outside of the District of Columbia in comparison to the number of such vehicles registered in the District of Columbia. The Department reserves the right to request copies of the vehicle registrations for all company-owned vehicles.

802.3 (a) An applicant for certification as a local business enterprise must also

demonstrate that its chief executive officer and the highest-level managerial employees perform their managerial functions in their principal office located in the District.

(b) The principal office in the District must be a dedicated space with size and functionality that enables the chief executive officer and highest-level managerial employees to perform their managerial functions.

802.4 The Department will rely on an applicant’s filed District and federal taxes, among other things, to calculate the applicant’s gross receipts and to determine whether the applicant meets the requirements of Section 2331(2A)(C) and (D) of the Act (D.C. Official Code § 2-218.31(2A)(C) and (D)).

Pursuant to Section 2331(2A)(C) of the Act (D.C. Official Code § 2- 218.31(2A)(C)), in determining whether the applicant has more than fifty percent (50%) of the assets of the business enterprise located in the District, the Department will consider:

The location of fixed assets, including property, plant, and equipment, and exclude bank accounts, accounts receivable, and intangible assets, such as goodwill, patents, copyrights, or trademarks; and

The number of vehicles owned by the applicant and used for the business enterprise that are registered in jurisdictions inside and outside of the District of Columbia.

The Department will evaluate whether the applicant meets the local business enterprise category pursuant to Section 2331(2A)(C) of the Act (D.C. Official Code § 2-218.31(2A)(C)) by relying on the following:

The applicant’s detailed list of fixed assets in the District to include:

Type, quantity, location and value of equipment owned;

Real estate properties and corresponding recent property tax bills; and

List of vehicles, year, make and model and Kelley Blue Book® values;

The Department’s site visit(s) to verify fixed assets located in the District; and

The Department may require an audited or certified financial statement by an independent auditor that attests to the statement’s compliance with generally accepted accounting principles.

History

SOURCE: Final Rulemaking published at 39 DCR 9052 (December 4, 1992); as amended by Final Rulemaking published at 56 DCR 8439 (October 23, 2009), incorporating by reference text of Proposed Rulemaking published at 56 DCR 5622, 5623 (July 10, 2009); as amended by Final Rulemaking published at 70 DCR 010970 (August 11, 2023). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 802

27 DCMR § 803 SET-ASIDE AND PREFERENCE PROGRAM QUARTERLY REPORTS

803.1 Each agency shall submit quarterly reports to the Commission that shall specifically set forth, for the quarter, the information required by this section.

803.2 Each agency shall set forth complete information in its quarterly reports on all contracts it executed as a using agency.

803.3 Quarterly reports shall set forth the following information:

(a) The construction contracts awarded by the agency;

(b) The non-construction contracts awarded by the agency;

(d) The non-construction contracts that the agency has awarded to LBEs, SBEs or DBEs;

(e) The particular dollar amounts relating to the contracts and percentages of contracts specified in each of the above paragraphs of this subsection;

(f) The month of each contract award;

(g) The dollar amount of all expenditures by object code;

(h) The dollar amount of all expenditures with certified LBEs, SBEs or DBEs by object code;

(i) The percentage of all expenditures with certified LBEs, SBEs or DBEs by object code;

(j) The names of all certified LBEs, SBEs and DBEs, utilized and the total dollar amounts expended (contracts or subcontracts) with each certified LBE, SBE or DBE; and

(k) Any supporting documentation that the Commission may require.

803.4 Each agency shall base the information required by section 803.3 agency procurement expenditures for the time periods covered by the report.

803.5 Quarterly reporting periods are as follows: October 1 through December 31, January 1 through March 31, April 1 through June 30, and July 1 through September 30.

803.6 Each agency shall submit quarterly reports on Commission forms within thirty (30) days after the end of each quarter, unless the Commission grants an extension in writing pursuant to section 803.7.

803.7 The Commission shall grant an extension of the deadline for submission of a quarterly report if an agency submits, prior to the expiration of the quarter, a request for an extension of the deadline for submission of the report which establishes good cause, as determined by the Commission, for the extension, as well as the time within which the agency will submit the report.

803.8 If an agency cannot include with a quarterly report all the information required by this section, it shall submit with the report a statement and supporting documentation which establishes good cause for the failure as well as the manner and time in which the agency will submit the required information.

803.9 If an agency's quarterly report indicates that the agency has failed to meet the program goals set forth in section 801.3 or in its Commission-approved procurement plan, the agency shall submit with its report:

(a) Evidence which establishes good cause, as determined by the Commission, for the failure; and

(b) The specific steps it will take to remedy the failure, and supporting documentation.

803.10 The Commission shall notify an agency in writing of any deficiencies in the agency's quarterly report within two months of its receipt of the report.

803.11 If an agency's quarterly report contains deficiencies, the Commission's notification under section 803.10:

(a) Shall identify the deficiencies in the report and require that the deficiencies be remedied within a stated time period;

(b) May require that the agency submit supporting documentation relating to the required elements of the report; and

(c) May include recommendations concerning how best to remedy the deficiencies in the report, including attendance at meetings with the Commission or its staff.

History

SOURCE: Final Rulemaking published at 39 DCR 9052 (December 4, 1992).

27 DCMR § 804 SET-ASIDE AND PREFERENCE PROGRAM IMPLEMENTATION

804.1 The Commission shall establish and maintain centralized lists of certified LBEs, SBEs and DBEs for use by agencies:

(a) In determining whether some or all of a particular procurement may be designated for award to SBEs; and

(b) In assisting contractors to fulfill contract goals concerning LBE, SBE or DBE subcontracting.

804.2 The Commission's centralized list of SBEs, shall set forth the procurement categories as well as the names of the SBEs certified to perform as SBEs in each procurement category, as provided in section 3(2) of the act.

804.3 Upon request by an agency, the Commission shall, for each procurement category specified by the agency in its request:

(a) Identify at least two (2) SBEs certified to perform procurements in that category pursuant to this title; and

(b) Provide its recommendation regarding the feasibility of placing that procurement category in the SBE set-aside program, or establishing particular subcontracting goals in an open market solicitation.

804.4 An agency shall not remove a solicitation placed in the SBE set-aside program without the written approval of the Commission. There must be a showing:

(a) That at least one attempt to solicit bids or proposals for the procurement in the SBE set-aside program has failed to produce a responsive bid or proposal; or

(b) That there is no certified SBE that qualifies for the procurement.

804.5 If the Commission denies an agency's request to remove a solicitation from the set-aside market, an agency may seek reconsideration by the commission.

804.6 Any District agency asserting that any bid made by a certified SBE or SBE joint venture is excessive, shall indicate to the Commission, in writing, the reason for that assertion, including an analysis of the following factors:

(a) Wage determinations;

(b) Overhead;

(d) Use of brokers; and

(e) Other pertinent data.

804.7 Each agency shall maintain for review by the Commission the following types of procurement records:

(a) Small purchase sources;

(b) Term contracts;

(d) Repetitive or recurring procurement; and

(e) GSA Schedule procurement.

804.8 Where an entire solicitation has been placed in the SBE set-aside program, the solicitation shall:

(a) Include the following language:

This invitation for bid (or request for proposal) is designated for certified small business enterprise offerors only, under the provisions of "The Equal Opportunity for Local, Small and Disadvantaged Business Enterprises Emergency Act of 1992"; and

(b) Require that responses include a copy of the SBEs' letter of certification or self-certification form.

804.9 If a solicitation contains LBE or DBE requirements, the prime contractor shall submit its subcontracting plan in the form of a notarized statement to the contracting officer. Once the plan has been approved, any changes in the plan shall be submitted to the contracting officer with a justification for the changes. Changes in the plan can only occur with the prior written approval of the contracting officer.

804.10 If a solicitation contains LBE or DBE requirements, it shall also contain a liquidated damages clause in the event that a prime contractor fails to make good faith efforts to comply with its plan.

History

SOURCE: Final Rulemaking published at 39 DCR 9052 (December 4, 1992).

27 DCMR § 805 LOCAL, SMALL AND DISADVANTAGED BUSINESS ENTERPRISES SUBCONTRACTING

805.1 When a prime contractor is certified by the Commission as an LBE, SBE or DBE, the following subcontracting requirements shall apply:

(a) The prime contractor shall perform at least fifty percent (50%) of the contracting effort, excluding the cost of materials, goods and supplies, with its own organization and resources, and if it subcontracts, fifty percent (50%) of the subcontracting effort, excluding the cost of materials, goods and supplies shall be with certified LBEs, SBEs and DBEs;

(b) The contract shall include a clause which incorporates the provisions of section 805.1(a);

(c) If the procurement is for a construction contract of $1,000,000.00 or less, the solicitation shall require that bids or proposals include a signed certification form embodying the provisions of section 805.1 (a); and

(d) For construction contracts of $1,000,000.00 or less, the prime contractor shall award at least fifty percent (50%) of the subcontracts to certified LBEs, SBEs, or DBEs.

805.2 Waiver of the subcontracting requirements of section 805.1 shall be given in writing by the contracting officer, prior to acceptance of bids or proposals, with the prior approval and consent of the Director of The Department of Human Rights and Minority Business Development (DHRMBD).

805.3 Prior to approving a request for a waiver of the requirements of this section, the contracting officer shall submit to the Director of DHRMBD a statement of the reasons which justify a waiver.

805.4 The Director of DHRMBD shall approve a waiver of the subcontracting requirements of this section, where there are no LBEs, SBEs or DBEs available to satisfy the subcontracting goals and/or the Commission finds that such a waiver is necessary to achieve the purposes of the Act and this chapter.

805.5 The Director of DHRMBD may grant a waiver or modification of an LBE or DBE subcontracting plan under this chapter upon a finding that an applicant for waiver has made a good faith effort to obtain the required LBE or DBE participation requirements of the solicitation. In making good faith determinations, the Director of DHRMBD shall consider the following factors:

(a) Whether the applicant conducted any presolicitation or pre-bid conferences to inform LBEs, and DBEs of contracting and subcontracting opportunities;

(b) Whether the applicant advertised in general circulation, trade association, and ethnic-focus media concerning the contracting and subcontracting opportunities;

(c) Whether the applicant provided written notice to a reasonable number of specific LBEs and DBEs that their interest in the contract was being solicited in sufficient time to allow LBEs and DBEs to participate effectively;

(d) Whether the applicant followed up initial solicitations of interest by conducting negotiations with LBEs and DBEs; and whether rejections of LBEs or DBEs as being unqualified were based on sound reasoning and thorough investigation of their capabilities;

(e) Whether the applicant made efforts to assist interested LBEs and DBEs in obtaining bonding, lines of credit, or insurance required by the applicant;

(f) Whether the applicant effectively used the services of the Commission in recruiting qualified and responsible LBEs and DBEs;

(g) Whether bids submitted by LBEs and DBEs were excessive or noncompetitive based upon a review of prevailing market conditions; and

(h) Any other factors which may be relevant in a particular case.

History

SOURCE: Final Rulemaking published at 39 DCR 9052 (December 4, 1992).

27 DCMR § 806 CONTRACT AWARD PREFERENCES

806.1 Agencies shall accord a preference in awarding procurements to LBEs and DBEs and certified joint ventures with participating LBEs and DBEs as follows:

(a) An LBE qualifies for the equivalent of five points on a 100 point basis in the case of proposals or five percent reduction in price for bids in the open market;

(b) Any business in an enterprise zone receives an additional two points in the case of proposals or two percentage points in the case of bids; and

806.2 When a certified joint venture includes a LBE or DBE representing at least 51 percent (51%) of the ownership and control of the venture, the joint venture will receive the preference as if it were an LBE or DBE.

806.3 An agency shall reduce the bid price or increase the points on a proposal based upon the LBE's or DBE's percentage of the bid or proposal.

History

SOURCE: Final Rulemaking published at 39 DCR 9052 (December 4, 1992).

27 DCMR § 807 COMPLIANCE

807.1 The Commission shall, upon finding that an agency has failed to meet contracting goals under section 4 of the Act, issue an order which:

(a) Requires the agency, in connection with any procurement in the amount of $10,000 or more, to provide the Commission with a copy of the procurement request at least thirty (30) days prior to the issuance of a solicitation;

(b) Requires that a portion of the agency's contracts be awarded to or performed by certified SBEs;

(d) Identifies particular procurements and requires that the agency's solicitations for those procurements include, or be amended to include, a goal that a specified percentage of the procurement be performed by certified SBEs.

History

SOURCE: Final Rulemaking published at 39 DCR 9052 (December 4, 1992).

27 DCMR § 808 BOND WAIVER RECOMMENDATIONS

808.1 The Commission may, upon request by an SBE or DBE, submit a recommendation to a contracting officer that bonding requirements be waived for an entire solicitation where such a waiver is appropriate and necessary to achieve the purposes of the act and this chapter.

808.2 An SBE or DBE seeking a Commission bond waiver recommendation shall demonstrate that a waiver is necessary by submitting a written request which includes a statement justifying the waiver.

808.3 A Commission recommendation issued pursuant to this section shall set forth the supporting reasons for the recommendation.

History

SOURCE: Final Rulemaking published at 39 DCR 9052 (December 4, 1992).

27 DCMR § 809 ADVANCE PAYMENTS

809.1 Upon request by a certified SBE or DBE, the Commission may recommend that an agency make advance, partial or progress payments to a certified SBE or DBE pursuant to a contract for construction or non-construction goods and services, where the Commission finds that such payments are necessary to achieve the purposes of the Act and this chapter.

809.2 An SBE or DBE seeking a Commission recommendation for advance payments shall demonstrate that advance payments are necessary by submitting a written request which includes:

(a) A complete contracting history of the SBE or DBE for the 12 month period prior to the request comprised of the following:

(1) A listing and description of each public or private contract awarded to the SBE or DBE or partially performed by the SBE or DBE as a subcontractor or otherwise which indicates whether or not the SBE or DBE satisfactorily completed performance on each listed contract; and

(2) Information on whether the SBE or DBE received advance payments for any contract listed and, if the contract was not satisfactorily completed, documentation of whether the SBE or DBE provided repayment.

(b) A description, supported by documentation, of the efforts that have been made to secure private financing as well as the name and address of the SBE or DBE's depository bank;

(d) A cash flow projection for the specific contract;

(e) A cash flow projection for the firm as a whole (excluding the contract in question) for the period for which contract financing is sought;

(f) A current financial statement; and

(g) Information of any previous or pending legal actions; including bankruptcy, filed by or against the SBE or DBE.

History

SOURCE: Final Rulemaking published at 39 DCR 9052 (December 4, 1992).

27 DCMR § 810 COMPUTATION OF TIME

810.1 In computing any period of time specified in this chapter the day of the act, event, or default shall not be counted, and the last day of the period shall be counted unless it is not a business day, in which event the time period shall continue until the next business day.

History

SOURCE: Final Rulemaking published at 39 DCR 9052 (December 4, 1992).

27 DCMR § 811 APPLICATION FOR LOCAL, SMALL AND DISADVANTAGED BUSINESS ENTERPRISES

811.1 An applicant for local, small and disadvantaged business enterprise certification, reinstatement or renewal shall submit to the Commission a completed application that is signed and sworn to by the applicant, and accompanied by documentation as prescribed in the application including but not limited to:

(a) Compliance with the requirements of the Act, this chapter, and other District of Columbia laws that are applicable to the applicant's business:

By permitting the Commission staff to enter and conduct an on-site inspection of the applicant's business premises; and
By providing the Commission staff, during the on-site inspection, with immediate access to any records or area of the premises that the Commission staff deems necessary to review to determine whether the applicant is in compliance with the above laws;

(b) The name, mailing address, street address, and telephone number of the applicant;

(c) Identification of all owners, directors, and officers by name, position, duties and responsibilities associated with the business, actual operating authority, and percentage of ownership; and

(d) Evidence of authority to do business in the District of Columbia, including D.C. business licenses, occupancy permits, tax numbers, worker's compensation forms, lease agreements, and other information requested by the Commission.

811.2 An applicant for certification as a local, small or disadvantaged business enterprise shall establish that the business enterprise is a local business enterprise by supplying evidence that:

(a) The business enterprise's principal office is physically located in the District of Columbia; or

(b) The business enterprise satisfies at least four of the following requirements:

(1) The applicant's principal office is physically located in the Washington Standard Metropolitan Statistical Area;

(2) More than thirty percent (30%) of applicant's assets are physically located in the District of Columbia;

(3) More than fifty percent (50%) of the applicant's employees are residents of the District of Columbia;

(4) The owners of more than fifty percent (50%) of the business enterprise are residents of the District of Columbia;

(5) More than thirty percent (30%) of the applicant's gross income is derived from business transactions in the District of Columbia; and

(6) Any other factors which demonstrate that the applicant has engaged in significant business or economic activities in the District of Columbia during the one-year period prior to the application date, including but not limited to, execution of employment agreements with the Department of Employment Services; use of a District of Columbia bank as its principal banking institution; use of other LBEs, SBEs and DBEs as suppliers and subcontractors; or that the applicant's business is unique.

811.3 An applicant for certification shall demonstrate that the applicant:

(a) Is licensed pursuant to "An Act making appropriations to provide for the expenses for the government of the District of Columbia for the fiscal year ending June 30, 1903, and for other purposes," 32 Stat. 622 (1902), D.C. Code section 47-2801 et seq. (1981 & Supp. 1987); or

(b) Is subject to the tax levied pursuant to Title X of the "District of Columbia Income and Franchise Tax Act of 1947," 61 Stat. 3349 (1947), D.C. Code Section 47-1810 et seq. (1987 & Supp. 1988).

811.4 For the purposes of this chapter, the term "principal office" means the primary office (based upon the totality of the business activities) in which routine and essential business functions occur such as the following:

(a) Bookkeeping and other recordkeeping;

(b) Payroll maintenance;

(d) Receipt of correspondence;

(e) Storing of books and records; and

(f) Directing, controlling and coordinating activities and policies and policies by officers, principals and managers.

History

SOURCE: Final Rulemaking published at 39 DCR 9052 (December 4, 1992).

27 DCMR § 812 APPLICATION PROCESS FOR LOCAL, SMALL AND DISADVANTAGED BUSINESS ENTERPRISES

812.1 Upon receipt of a certification application for local, small or disadvantaged business enterprises, the Commission staff shall conduct a preliminary review of the submission for compliance with the requirements of the Act and this chapter and take one of the following actions:

(a) If the application is complete, it shall be accepted for Commission review;

(c) If the application is incomplete, but the omissions are minor, the staff may hold the application pending receipt of all remaining materials required for acceptance. Notice shall be sent to the applicant that the application is deficient and that additional materials must be submitted in order for the application to be accepted for review.

812.2 The Commission staff may conduct site inspections and hold interviews or discussions with an applicant or applicant's representative as part of the preliminary review process in order to assist the applicant in fulfilling the application requirements of this section.

812.3 Upon completion of the staff review, the Commission staff shall prepare a report setting forth findings and recommendations. The report and application file shall be submitted to the Commission to be used in its deliberations.

812.4 In addition to the information supplied in the application and comments accompanying the application, the Commission may require an applicant to supply or provide access to additional information and documents relevant to the Commission's investigation and determination of the applicant's status as a local, small or disadvantaged business enterprise. This additional information and documentation may also be requested by the Commission in connection with any compliance review, investigation, or other Commission process undertaken pursuant to the Act or these rules.

812.5 If the Commission determines that an application is deficient the Commission shall:

(a) Issue a held in abeyance notice that specifies the deficiencies and informs the applicant that if the deficiencies are not corrected within a stated period, a notice of denial will be issued; or

(b) Issue a notice of denial.

812.6 An applicant shall report to the Commission any change that may affect the eligibility for certification of the applicant.

History

SOURCE: Final Rulemaking published at 39 DCR 9052 (December 4, 1992).

27 DCMR § 813 COMPLIANCE REVIEW AND ENFORCEMENT

COMPLIANCE REVIEW AND ENFORCEMENT

The Department may conduct periodic compliance reviews of certified business enterprises (“CBEs”), certified joint ventures, and beneficiaries to confirm ongoing compliance with the requirements of the Act and this chapter, including continuing certification eligibility and confirmation that CBEs are performing a commercially useful function.

813.2 In conducting a compliance review, the Department may perform spot checks and site visits, review documents, take photographs, and interview witnesses.

If, through a compliance review, the Department finds that a beneficiary, certified business enterprise (“CBE”), or certified joint venture has not complied with the Act and this chapter, the Department shall issue a notice which shall specify:

The nature of the non-compliance;

The corrective action that must be taken; and either

The date by which the deficiencies must be corrected; or

The Department’s intent to issue a fine and/or revoke CBE certification in accordance with the Act and this chapter if the Department determines the deficiencies cannot be corrected.

In the event that a CBE or certified joint venture fails to take corrective action within the timeframe specified in the notice, the Department may issue a notice to revoke the certification. The Department may also issue a fine to the CBE or certified joint venture in accordance with Section 2363 of the Act (D.C. Official Code § 2-218.63).

As part of confirming compliance, CBE subcontractors must cooperate with beneficiaries in the preparation of Quarterly Reports by submitting notarized/electronic Vendor Verification Forms (VVFs) confirming receipt of payment; and must immediately notify the Department in writing if there is reason to suspect a breach of the subcontracting plan.

The Department shall issue and serve on the beneficiary, CBE, or joint venture alleged to have committed a violation a written notice of violation, which shall explain the violation and related penalties, as well as procedures for seeking reconsideration and appeal.

Within twenty (20) days of receiving a notice of violation of Sections 2346 or 2348 of the Act, a respondent may submit a Request for Reconsideration, including any additional information that justifies modifying or rescinding the notice. Requests for Reconsideration received by the Department after twenty (20) days will not be considered. If, following receipt of the Department’s response to the Request for Reconsideration, the Respondent disagrees with the Department’s decision, the Respondent may submit a written appeal to the Office of Administrative Hearings, within twenty (20) days of receipt, pursuant to instructions included in the Notice.

Upon a finding that a CBE, certified joint venture, or beneficiary has engaged in conduct in violation of Section 2363(a)(3) of the Act (D.C. Official Code § 2- 218.63(a)(3)), the Department may refer the matter to the Attorney General for the District of Columbia for civil action, and shall refer the matter to the Office of Contracting and Procurement (“OCP”) for investigation and possible debarment, as well as a possible determination that the CBE, joint venture, or beneficiary shall be ineligible to be considered for government-assisted project with the District government for up to five (5) years.

History

SOURCE: Final Rulemaking published at 39 DCR 9052 (December 4, 1992); as amended by Final Rulemaking published at 56 DCR 8439 (October 23, 2009), incorporating by reference text of Proposed Rulemaking published at 56 DCR 5622, 5633 (July 10, 2009); as amended by Final Rulemaking published at 70 DCR 010970 (August 11, 2023). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 813

27 DCMR § 814 COMPLAINT PROCEDURE AND DEPARTMENT INTERNAL HEARING

Any person may file a complaint with the Department, pursuant to Section 2363(e)(1) of the Act (D.C. Official Code § 2-218.63(e)(1)), by submitting to the Department a completed written notarized complaint form, provided by the Department, identifying the nature of the complaint and swearing to the truth of the allegations in the complaint.

The Department shall review the complaint and determine the action to be taken as outlined in the Act and these regulations.

(a) If the Department determines that a complaint is not frivolous or otherwise without merit, it shall investigate the facts surrounding the allegations, including reviewing the file and all paperwork contained therein, interviewing witnesses, or any other reasonable action necessary given the nature of the allegations in the complaint.

Within three (3) months of the filing of the complaint, the Department shall:

Conduct an internal hearing at a location and time determined by the Department if it does not determine that there was no violation of the Act or these regulations upon completing its investigation; or

If the Department determines there was no violation of the Act or these regulations upon completing its investigation, to the Department shall notify the complainant and the business entity of that determination.

An internal hearing conducted by the Department conducted pursuant to Subsection 814.3(b)(1):

Shall be open to the public;

The complainant and the business entity shall be given notice to attend at least thirty (30) days before the hearing date;

The complainant shall testify;

The respondent shall have a right to:

Be present in person;

Designate a representative or representatives to appear on their behalf;

Present oral and documentary evidence;

Submit rebuttal evidence; and

Cross-examine opposing witnesses.

The Department may exclude or order the removal of any participant in an internal hearing who becomes disruptive to the internal hearing process.

The Department shall issue a decision in writing no later than thirty (30) days after the conclusion of the internal hearing.

A decision of the Department that is adverse to a business entity shall contain the following:

Findings of fact;

Conclusions of law;

Final decision; and

A statement informing the business entity that pursuant to Section 2363(g) of the Act (D.C. Official Code § 2-218.63(g)), the business entity has a right to file an appeal with the Office of Administrative Hearings (“OAH”) within twenty (20) calendar days after service of the Department’s decision.

The Department shall serve a copy of the decision on the business entity, representative and counsel if any, and the complainant within ten (10) days of the date the Department issues the decision.

Upon appeal of the Department’s decision, the decision of OAH shall be the final administrative decision for judicial review in accordance with Section 2363(g)(3) of the Act (D.C. Official Code § 2-218.63(g)(3)).

History

SOURCE: Final Rulemaking published at 39 DCR 9052 (December 4, 1992); as amended by Final Rulemaking published at 56 DCR 8439 (October 23, 2009), incorporating by reference text of Proposed Rulemaking published at 56 DCR 5622, 5634 (July 10, 2009); as amended by Final Rulemaking published at 70 DCR 010970 (August 11, 2023). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 814

27 DCMR § 815 GROUNDS FOR REVOCATION

GROUNDS FOR REVOCATION

815.1 Upon a finding that a certified business enterprise (“CBE”) or certified joint venture engaged in conduct in violation of Section 2363(a)(2) or (3) of the Act (D.C. Official Code § 2-218.63(a)(2) or (3)), the Department may issue an intent to revoke the certificate of registration for the CBE or certified joint venture under procedures set forth in Section 2363 of the Act.

In considering whether the certificate of registration should be revoked, in addition to any other consideration, the Department shall consider whether any member of the CBE or certified joint venture has been charged or convicted of a crime that bears directly on the fitness of the CBE or certified joint venture to participate in programs established pursuant to the Act and these regulations. The Department’s findings related to offenses bearing on fitness for a CBE licensure are sufficient for a revocation without the disposition of a conviction.

Upon revocation, the Department shall not accept, or evaluate for a period of twelve (12) months from the date the CBE and certified joint venture receives notice of the decision to revoke:

Amendments to or new information on the revoked certification; or

A new certification application from the CBE and certified joint venture, their agent(s), representative(s), or other members of the public on their behalf.

History

SOURCE: Final Rulemaking published at 39 DCR 9052 (December 4, 1992); as amended by Final Rulemaking published at 56 DCR 8439 (October 23, 2009), incorporating by reference text of Proposed Rulemaking published at 56 DCR 5622, 5634 (July 10, 2009); as amended by Final Rulemaking published at 70 DCR 010970 (August 11, 2023). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 815

27 DCMR § 816 OPPORTUNITY FOR A HEARING: REVOCATION

OPPORTUNITY FOR A HEARING: REVOCATION

816.1 If the Department issues an intent to revoke the certification of a certified business enterprise (“CBE”) or certified joint venture, the CBE or certified joint venture may request a hearing before OAH.

The procedures described in this section shall apply to a CBE or certified joint venture when the Department issues an intent to revoke the certificate of registration. The Department shall give the CBE or certified joint venture written notice of an opportunity for a hearing prior to the revocation of its certificate of registration. The Department shall serve that intent to revoke notice on the CBE or certified joint venture, and the notice shall include:

The intended action;

The basis for the intended action in the Act or this chapter;

A brief summary of the deficiencies or factual allegations in support of the intended action; and

A statement which informs the CBE or certified joint venture that the Department's decision will be final unless, pursuant to Section 2363(g) of the Act (D.C. Official Code § 2-218.63(g)), the CBE or certified joint venture files an appeal with OAH within twenty (20) calendar days after service of the Department’s intent to revoke notice.

If a CBE or certified joint venture does not timely appeal to OAH, the Department's intent to revoke action shall be final and the CBE’s or certified joint venture’s certification shall be revoked.

Pursuant to Section 2363(g) of the Act (D.C. Official Code § 2-218.63(g)), the CBE or certified joint venture may appeal the final revocation action by filing a written appeal with OAH within twenty (20) calendar days after the date on which the Department’s revocation is final.

The decision of OAH shall be the final administrative decision for judicial review in accordance with Section 2363(g)(3) of the Act (D.C. Official Code § 2- 218.63(g)(3)).

History

SOURCE: Final Rulemaking published at 39 DCR 9052 (December 4, 1992); as amended by Final Rulemaking published at 56 DCR 8439 (October 23, 2009), incorporating by reference text of Proposed Rulemaking published at 56 DCR 5622, 5635 (July 10, 2009); as amended by Final Rulemaking published at 70 DCR 010970 (August 11, 2023). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 816

27 DCMR § 817 OPPORTUNITY FOR A HEARING: DENIAL

The procedures described in this section shall apply to an applicant for certification whose certification application has been denied. The Department shall serve written notice of the denial on the applicant, which shall include the following:

The basis for the denial in the Act or these regulations;

A brief summary of the deficiencies or factual allegations in support of the denial; and

A statement which informs the applicant that he or she may appeal the Department's denial of certification by submitting a written request to appeal, pursuant to Section 2363(g) of the Act (D.C. Official Code § 2-218.63(g)), to OAH within twenty (20) days after service of the Department’s notice.

The Department shall include in the denial notice the applicant’s right to appeal to OAH.

Any decision issued by OAH will be the final administrative decision for the purposes of judicial review, in accordance with Section 2363(g)(3) of the Act (D.C. Official Code § 2-218.63(g)(3)).

History

SOURCE: Final Rulemaking published at 39 DCR 9052 (December 4, 1992); as amended by Final Rulemaking published at 56 DCR 8439 (October 23, 2009), incorporating by reference text of Proposed Rulemaking published at 56 DCR 5622, 5635 (July 10, 2009); as amended by Final Rulemaking published at 70 DCR 010970 (August 11, 2023). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 817

27 DCMR § 818 COMPUTATION OF TIME

COMPUTATION OF TIME

818.1 In computing any period of time specified in this chapter, the day of the act, event, or default shall not be counted, and the last day of the period shall be counted unless it is not a business day, in which event the time period shall continue until the next business day. When the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation.

Where the Department or a respondent to an action pursuant to this chapter has the right or is required to perform some act within a specified period of time, and that act is completed by mail, three (3) days shall be added to the prescribed period.

History

SOURCE: Final Rulemaking published at 39 DCR 9052 (December 4, 1992); as amended by Final Rulemaking published at 56 DCR 8439 (October 23, 2009), incorporating by reference text of Proposed Rulemaking published at 56 DCR 5622, 5636 (July 10, 2009); as amended by Final Rulemaking published at 70 DCR 010970 (August 11, 2023). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 818

27 DCMR § 819 SERVICE

SERVICE

819.1 Documentation that is required by this chapter to be served on an applicant or a respondent shall be served at the last known address of the applicant or respondent on file with the Department, or any representative thereof.

Service shall be to:

The business enterprise or majority owners or any representative’s mailing address as provided on the application or otherwise updated with the Department by:

Personal delivery;

Use of a process server;

Certified or registered mail, return receipt requested; or

The business enterprise or majority owners or any representative’s email address as provided on the application or otherwise updated with the Department. The Department will maintain an email-generated delivery receipt system.

History

SOURCE: Final Rulemaking published at 39 DCR 9052 (December 4, 1992); as amended by Final Rulemaking published at 56 DCR 8439 (October 23, 2009), incorporating by reference text of Proposed Rulemaking published at 56 DCR 5622, 5637 (July 10, 2009); as amended by Final Rulemaking published at 70 DCR 010970 (August 11, 2023). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 819

27 DCMR § 820 JUDICIAL REVIEW

JUDICIAL REVIEW

820.1 A party suffering a legal wrong or adversely affected or aggrieved by a final decision of the OAH may seek review of the decision by the District of Columbia Court of Appeals pursuant to Section 19(c)-(e) of the Office of Administrative Hearings Establishment Act of 2001, effective March 6, 2002 (D.C. Law 14-76; D.C. Official Code § 2-1831.16(c)-(e)).

History

SOURCE: Final Rulemaking published at 39 DCR 9052 (December 4, 1992); as amended by Final Rulemaking published at 56 DCR 8439 (October 23, 2009), incorporating by reference text of Proposed Rulemaking published at 56 DCR 5622, 5638 (July 10, 2009); as amended by Final Rulemaking published at 70 DCR 010970 (August 11, 2023). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 820

27 DCMR § 821 LIST OF CERTIFIED BUSINESS ENTERPRISES

LIST OF CERTIFIED BUSINESS ENTERPRISES

821.1 The Department shall establish and maintain a centralized list of certified business enterprises (“CBEs”).

The Department's centralized list of CBEs shall set forth the name of each CBE, contact information for each CBE, the CBE's business certification categories (e.g., Small Business Enterprise, Resident Owned Business), and the expiration date of the CBE's registration.

History

SOURCE: Final Rulemaking published at 39 DCR 9052 (December 4, 1992); as amended by Final Rulemaking published at 56 DCR 8439 (October 23, 2009), incorporating by reference text of Proposed Rulemaking published at 56 DCR 5622, 5638 (July 10, 2009); as amended by Final Rulemaking published at 70 DCR 010970 (August 11, 2023). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 821

27 DCMR § 822 AGENCY EXPENDABLE BUDGETS; SMALL BUSINESS ENTERPRISE EXPENDITURE

No later than one hundred twenty (120) days (June 1st) prior to the beginning of each fiscal year, the Department shall meet and confer with the Office of the Chief Financial Officer (“OCFO”), the Office of Contracting and Procurement (“OCP”), the Office of the City Administrator (“OCA”), and independent agencies regarding the total appropriated budget, comptroller object codes to be excluded from agencies’ expendable budgets, and anticipated requests for special exceptions.

No later than eighty-five (85) days prior to the beginning of each fiscal year, the Department shall review the appropriated budget data received from OCFO and update the list of the comptroller object codes that shall be excluded from the agency's expendable budget.

No later than eighty (80) days prior to the beginning of each fiscal year, each agency shall itemize its total appropriated budget as prescribed by the Department.

(a) No later than sixty (60) days (August 1st) prior to the beginning of each fiscal year, each agency may request special exceptions not included in the list provided by the Department for exclusion from the amount of the expendable budget for the agency.

(b) Any requests for special exceptions shall be submitted in a manner prescribed by the Department and must include supporting documentation.

The Department shall approve a special exception requested under Subsection 822.4 if:

No small business enterprises (“SBEs”) or certified business enterprises (“CBEs”) can provide the required goods or services;

The expenditure cannot be made to an SBE or CBE because the goods or services are proprietary;

The line item is not for goods or services;

There are federal or other restrictions on how the funds may be expended; or

The goods or services must be provided by an organization not certified by the Department.

Prior to the beginning of each fiscal year, the Department will make a determination on each request for special exception timely submitted by an agency.

Only budget items listed in Section 822.1, and either excluded under 822.2 or approved for exclusion under 822.6, shall be excluded from the agency's expendable budget.

If an agency receives unanticipated funding or funding transferred from another agency, experiences a reduction in funding, or experiences any other change in circumstances that affects its expendable budget, such changes shall be included in the proceeding quarterly updated appropriated budget data provided by OCFO to the Department. Quarterly, each agency shall make any additional special exception requests based on changes to the agency’s expendable budget. The Department will process additional special exceptions requested by an agency.

The Department shall inform each agency of the agency's projected expendable budget and its projected goals under Section 2341 of the Act (D.C. Official Code § 2-218.41); and, make available to Council information on each agency's total appropriated budget, exclusions from the agency's total appropriated budget by comptroller object code, list of exclusions in Sections 822.1 and 822.2, approved special exceptions, each agency's expendable budget, and the projected goal for each agency under Section 2341 of the Act.

Pursuant to Section 2341(a-3)(2) of the Act (D.C. Official Code § 2-218.41(a- 3)(2)), each agency shall complete the annual allocation process at least one (1) month prior to the beginning of each fiscal year by submitting in the District Enterprise System (DES) an allocation confirmation that details the following:

The name of the agency;

The fiscal year;

The budget of the agency approved by the Council for the fiscal year;

The expendable budget of the agency for the fiscal year, as approved by the Department; and

The agency's projected small business enterprise (“SBE”) expenditure goal for the fiscal year.

History

SOURCE: Final Rulemaking published at 39 DCR 9052 (December 4, 1992); as amended by Final Rulemaking published at 56 DCR 8439 (October 23, 2009), incorporating by reference text of Proposed Rulemaking published at 56 DCR 5622, 5639 (July 10, 2009); as amended by Final Rulemaking published at 70 DCR 010970 (August 11, 2023). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 822

27 DCMR § 823 [RESERVED]

History

SOURCE: Final Rulemaking published at 39 DCR 9052 (December 4, 1992); as amended by Final Rulemaking published at 56 DCR 8439 (October 23, 2009), incorporating by reference text of Proposed Rulemaking published at 56 DCR 5622, 5639 (July 10, 2009); as amended by Final Rulemaking published at 70 DCR 010970 (August 11, 2023). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 823

27 DCMR § 824 AGENCY SPENDING PLAN

AGENCY SPENDING PLAN

824.1 No later than fourteen (14) days prior to the beginning of each fiscal year, each agency shall submit its spending plan as described in Section 824.5 for the fiscal year, in a manner designated by the Department. Spending plans for agencies that contract or procure via the Office of Contracting and Procurement (“OCP”) shall be submitted via the Procurement Automated Support System Acquisition Planning Tool.

Failure of an agency to timely submit spending plan for the fiscal year shall be reported to the City Administrator no later than thirty (30) days after the start of the fiscal year; and

A report to the City Administrator under Section 824.2, an agency’s failure to report an increase in its agency's set-aside, or the Department’s failure to provide an agency allocation letter shall not eliminate the requirement for the agency to submit a spending plan to the Department.

The Department may consider the quarterly reports submitted by the agency for the previous fiscal year in determining the set-aside for the agency.

An agency spending plan shall specifically set forth the following information for the fiscal year covered by the spending plan:

Contracts or procurements that the agency intends to award, and the source funding for each contract and procurement;

Contracts or procurements that the agency has set aside for small business enterprises (“SBEs”);

A description of the contract or procurement;

Whether the contract or procurement is a new or existing contract or procurement;

The anticipated start and end date for each procurement; and

Particular dollar amounts relating to the procurements specified in each of the above paragraphs of this subsection.

If an agency cannot include with its spending plan all of the information required by this section, it shall submit with its spending plan a statement and supporting documentation which establishes good cause for the failure, as well as a request for an extension of time for submission of the required information.

If an agency fails to meet the goals set forth in Section 2341 of the Act (D.C. Official Code § 2-218.41), the Department may, pursuant to Section 2352(a) of the Act (D.C. Official Code § 2-218.52(a)), require that a portion of the agency’s contracts and procurements be made part of a set-aside program for SBEs.

History

SOURCE: Final Rulemaking published at 39 DCR 9052 (December 4, 1992); as amended by Final Rulemaking published at 56 DCR 8439 (October 23, 2009), incorporating by reference text of Proposed Rulemaking published at 56 DCR 5622, 5640 (July 10, 2009); as amended by Final Rulemaking published at 70 DCR 010970 (August 11, 2023). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 824

27 DCMR § 825 AGENCY PROGRAM REPORTS

AGENCY PROGRAM REPORTS

825.1 Quarterly reporting periods are as follows: October 1 through December 31, January 1 through March 31, April 1 through June 30, and July 1 through September 30.

An agency shall provide the Department with a quarterly program report, containing information provided by the Office of Contracting and Procurement (“OCP”) and the Office of the Chief Financial Officer (“OCFO”), within thirty (30) days after the end of each quarter. Agencies with independent contracting authority shall submit quarterly reports from their financial system. Each quarterly report submitted pursuant to this subsection must:

Include funding source, vendor name, description of the expenditure, proof of payment, the identities of active SBEs, and the dollar amount; and

Be submitted within thirty (30) days after the end of each quarter, except in the case of the fourth (4th) quarter report, which shall be submitted along with the annual report.

The Department shall notify the agency in writing of any discrepancies in the agency’s quarterly report within fifteen (15) days of its receipt of the report.

If an agency's quarterly report indicates that the agency is not currently meeting its SBE contracting and procuring requirements under Section 2341 of the Act (D.C. Official Code § 2-218.41) and its spending plan, the agency may submit to the Department:

An explanation for the projected shortfall;

The specific steps the agency will take to remedy the shortfall, along with supporting documentation; and

Evidence of compliance with Section 2341(a-2) of the Act.

The Department will reply to an agency’s submission in response to a Section 825.3 notification within fifteen (15) days of its receipt of the response. The Department’s reply may include recommendations concerning how best to remedy the discrepancies identified in the report, including a scheduled meeting with the OCFO and the Department.

History

SOURCE: Final Rulemaking published at 39 DCR 9052 (December 4, 1992); as amended by Final Rulemaking published at 56 DCR 8439 (October 23, 2009), incorporating by reference text of Proposed Rulemaking published at 56 DCR 5622, 5640 (July 10, 2009); as amended by Final Rulemaking published at 70 DCR 010970 (August 11, 2023). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 825

27 DCMR § 826 AGENCY SET-ASIDE AND PREFERENCE PROGRAM IMPLEMENTATION

When an entire solicitation has been placed in the small business enterprise (“SBE”) set-aside program pursuant to Sections 2344 and 2345 of the Act (D.C. Official Code §§ 2-218.44 and 2-218.45), the solicitation shall:

State that it is a set-aside for SBE and certified business enterprise (“CBE”) offerors under the provisions of the Act; and

Require that responses include a copy of the certification letter/email issued by the Department.

(a) Once a solicitation has been placed in the SBE set-aside program as required by Sections 2344, 2345 and 2345a of the Act (D.C. Official Code §§ 2-218.44, 2-218.45, and 2-218.45a), the agency shall not remove it from the set-aside program unless:

There are no SBEs that qualify for the procurement;

The prices of the bids or proposals from SBEs are 12% or more above the likely price on the open market; or

The removal is otherwise authorized by law.

Each solicitation removed from the SBE set-aside program shall be posted on the Department’s website.

Pursuant to Section 2345a of the Act (D.C. Official Code § 2-218.45a), a follow-on and renewable acquisition must obtain the Director’s approval to waive the SBE set-aside requirements.

Each agency shall provide to the Department, if requested, the following types of procurement records:

Small purchase sources;

Term contracts;

Blanket purchases orders;

Repetitive or recurring procurement; and

GSA Schedule procurement.

If an agency with independent contracting authority, or the Office of Contracting and Procurement (“OCP”), intends to place a solicitation covered under Sections 2344, 2345 and 2345a of the Act (D.C. Official Code §§ 2-218.44, 2-218.45, and 2-218.45a) on the open market, the agency or OCP shall provide a written notice to the Department as soon as practicable that the agency intends to exclude the contract or procurement from its SBE set-aside program. The written notice shall be posted on the Department’s website and include, at a minimum, a description of:

The steps taken to identify SBEs and CBEs that may be able to provide the goods or services;

A list of all SBEs and CBEs that were contacted by the agency;

The information contained in the written determination(s) required under Sections 2344 and 2345, if applicable; and

If applicable, the agency’s request to the Director pursuant to Section 2345a to waive the SBE set-aside requirement for follow-on and renewable acquisitions.

History

SOURCE: Final Rulemaking published at 39 DCR 9052 (December 4, 1992); as amended by Final Rulemaking published at 56 DCR 8439 (October 23, 2009), incorporating by reference text of Proposed Rulemaking published at 56 DCR 5622, 5641 (July 10, 2009); as amended by Final Rulemaking published at 70 DCR 010970 (August 11, 2023). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 826

27 DCMR § 827 GOVERNMENT-ASSISTED PROJECT CERTIFIED BUSINESS ENTERPRISE SUBCONTRACTING

Pursuant to Section 2346(a)(3) of the Act (D.C. Official Code § 2-218.46(a)(3)), a small business enterprise (“SBE”), local business enterprise (“LBE”), or disadvantaged business enterprise (“DBE”) shall not be required to comply with the requirements set forth in Section 2346(a)(1) and (2) of the Act (D.C. Official Code § 2-218.46(a)(1) and (2)).

Pursuant to Section 2346(d)(3) of the Act (D.C. Official Code § 2-218.46(d)(3)), the subcontracting plan required by Section 2346(d)(2) of the Act shall, to the extent consistent with Section 2346(d-1), be provided before the District accepts the submission of the bid or proposal for all government-assisted projects as defined in Section 2302(9A)(A) of the Act (D.C. Official Code § 2- 218.02(9A)(A)).

When determining enforcement and penalties following a beneficiary’s breach of a subcontracting plan under Section 2348 of the Act (D.C. Official Code § 2- 218.48), the Department shall consider:

Whether the beneficiary notified the Department prior to the breach;

The beneficiary's efforts at replacing the CBE subcontractor with another subcontractor certified by the Department in the same categories;

Changes in the business operation or certification of the CBE subcontractor; and

Changes in economic conditions from the time the subcontracting plan was developed.

827.4 (a) An agency seeking a waiver of the subcontracting requirements of Section 2346 of the Act (D.C. Official Code § 2-218.46) under Section 2351 of the Act (D.C. Official Code § 2-218.51), for government-assisted projects described in Section 2302(9A)(A) of the Act (D.C. Official Code § 2-218.02(9A)(A)), including contracts executed by an agency on behalf of the District, shall submit a waiver request to the Department no less than twenty (20) days prior to issuance of a solicitation or the exercise of an option.

(b) If a bid or proposal requires a small business enterprise (“SBE”) subcontracting plan, and no SBE subcontracting plans are submitted, that bid or proposal shall, pursuant to Section 2346(d)(1) of the Act (D.C. Official Code § 2-218.46(d)(1)), be deemed nonresponsive and be rejected. However, an agency may seek a waiver of the subcontracting requirements, and if a waiver is approved, the solicitation shall be revised and reissued or extended to allow for new responses to be submitted by the public in accordance with that waiver.

827.5 (a) Pursuant to Section 2341(c) of the Act (D.C. Official Code § 2-218.41(c)), the following types of contracts for government-assisted projects identified in Section 2302(9A)(A) of the Act (D.C. Official Code § 2- 218.02(9A)(A)), are not required to seek a waiver and will be exempted from the 35% SBE subcontracting requirement of Section 2346 of the Act (D.C. Official Code § 2-218.46):

Direct travel purchases, including airline tickets, train tickets, metro tickets, bus tickets, taxi fares, and accommodation costs while on travel;

Human Care Agreements that require consumer/client choice without any input, manipulation, or selection by the awarding agency. The exemption excludes those instances where the awarding agency selects the entities that are able to participate in the pool from which the consumer/client chooses;

Contracts in which the District is a tenant and pays costs to a landlord for use of private property, which may include paying for rent or lease, taxes, parking, paying the costs of existing building service contracts, paying operating costs, or paying information technology and other costs;

Contracts for proprietary goods and services procured by an agency from a documented patent/copyright/license holder; and

Contracts for projects with federal restrictions on how the funds may be expended, as documented by the agency and confirmed by the Department.

(b) An agency seeking specific exemptions pursuant to this Subsection shall submit to the Department a determination and finding, or similar justification memo, in a manner prescribed by the Department. Any determination and finding or justification memo received by the Department shall be posted on the Department’s website.

History

SOURCE: Final Rulemaking published at 39 DCR 9052 (December 4, 1992); as amended by Final Rulemaking published at 56 DCR 8439 (October 23, 2009), incorporating by reference text of Proposed Rulemaking published at 56 DCR 5622, 5642 (July 10, 2009); as amended by Final Rulemaking published at 70 DCR 010970 (August 11, 2023). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 827

27 DCMR § 828 [RESERVED]

History

SOURCE: Final Rulemaking published at 39 DCR 9052 (December 4, 1992); as amended by Final Rulemaking published at 56 DCR 8439 (October 23, 2009), incorporating by reference text of Proposed Rulemaking published at 56 DCR 5622, 5642 (July 10, 2009); as amended by Final Rulemaking published at 70 DCR 010970 (August 11, 2023). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 828

27 DCMR § 829 [RESERVED]

History

SOURCE: Final Rulemaking published at 39 DCR 9052 (December 4, 1992); as amended by Final Rulemaking published at 56 DCR 8439 (October 23, 2009), incorporating by reference text of Proposed Rulemaking published at 56 DCR 5622, 5643 (July 10, 2009); as amended by Final Rulemaking published at 70 DCR 010970 (August 11, 2023). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 829

27 DCMR § 830 [RESERVED]

History

SOURCE: Final Rulemaking published at 39 DCR 9052 (December 4, 1992); as amended by Final Rulemaking published at 56 DCR 8439 (October 23, 2009), incorporating by reference text of Proposed Rulemaking published at 56 DCR 5622, 5643 (July 10, 2009); as amended by Final Rulemaking published at 70 DCR 010970 (August 11, 2023). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 830

27 DCMR § 831 [RESERVED]

History

SOURCE: Final Rulemaking published at 39 DCR 9052 (December 4, 1992); as amended by Final Rulemaking published at 56 DCR 8439 (October 23, 2009), incorporating by reference text of Proposed Rulemaking published at 56 DCR 5622, 5644 (July 10, 2009); as amended by Final Rulemaking published at 70 DCR 010970 (August 11, 2023). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 831

27 DCMR § 832 [RESERVED]

History

SOURCE: Final Rulemaking published at 39 DCR 9052 (December 4, 1992); as amended by Final Rulemaking published at 56 DCR 8439 (October 23, 2009), incorporating by reference text of Proposed Rulemaking published at 56 DCR 5622, 5644 (July 10, 2009); as amended by Final Rulemaking published at 70 DCR 010970 (August 11, 2023). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 832

27 DCMR § 833 [RESERVED]

History

SOURCE: Final Rulemaking published at 39 DCR 9052 (December 4, 1992); as amended by Final Rulemaking published at 56 DCR 8439 (October 23, 2009), incorporating by reference text of Proposed Rulemaking published at 56 DCR 5622, 5646 (July 10, 2009); as amended by Final Rulemaking published at 70 DCR 010970 (August 11, 2023). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 833

27 DCMR § 834 [RESERVED]

History

SOURCE: Final Rulemaking published at 39 DCR 9052 (December 4, 1992); as amended by Final Rulemaking published at 56 DCR 8439 (October 23, 2009), incorporating by reference text of Proposed Rulemaking published at 56 DCR 5622, 5647 (July 10, 2009); as amended by Final Rulemaking published at 70 DCR 010970 (August 11, 2023). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 834

27 DCMR § 835 [RESERVED]

History

SOURCE: Final Rulemaking published at 39 DCR 9052 (December 4, 1992); as amended by Final Rulemaking published at 56 DCR 8439 (October 23, 2009), incorporating by reference text of Proposed Rulemaking published at 56 DCR 5622, 5648 (July 10, 2009); as amended by Final Rulemaking published at 70 DCR 010970 (August 11, 2023). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 835

27 DCMR § 836 [RESERVED]

History

SOURCE: Final Rulemaking published at 39 DCR 9052 (December 4, 1992); as amended by Final Rulemaking published at 56 DCR 8439 (October 23, 2009), incorporating by reference text of Proposed Rulemaking published at 56 DCR 5622 (July 10, 2009); as amended by Final Rulemaking published at 70 DCR 010970 (August 11, 2023). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 836

27 DCMR § 837 [RESERVED]

History

SOURCE: Final Rulemaking published at 39 DCR 9052 (December 4, 1992); as amended by Final Rulemaking published at 56 DCR 8439 (October 23, 2009), incorporating by reference text of Proposed Rulemaking published at 56 DCR 5622 (July 10, 2009); as amended by Final Rulemaking published at 70 DCR 010970 (August 11, 2023). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 837

27 DCMR § 838 EQUITY AND DEVELOPMENT PARTICIPATION

Small investors, disadvantaged investors, or certified equity participants shall receive a minimum of 20% Equity Participation in any Covered Project.

Small investor as defined by Section 2302 of the Act (D.C. Official Code § 2-218.02) means:

An SBE pursuant to Section 2332 of the Act; or

A District-domiciled individual with a personal net worth that does not exceed five (5) million dollars, excluding the value of his or her primary residence.

(1) To be a District-domiciled individual:

The District of Columbia must be the present fixed place of residence of the individual to which he or she returns following temporary absences and at which he or she intends to reside indefinitely; and

The District of Columbia must be the individual’s only domicile.

For an individual to establish that he or she is domiciled in the District, the individual must submit sufficient evidence to the Department, including providing the following:

Copies of a District of Columbia deed or lease in the District of Columbia covering the twelve (12) consecutive months preceding the Department’s evaluation for premises at which the individual resides;

Copies of utility bills for utility services provided in the District of Columbia residence covering the twelve (12) consecutive months preceding the Department’s evaluation;

Copies of earnings and leave statements (i.e., pay stubs) that show residency in the District of Columbia and the withholding of District of Columbia income tax covering the twelve (12) consecutive months preceding the Department’s evaluation;

Certified copies of District of Columbia and federal income tax returns for the tax year preceding the Department’s evaluation;

Copies of voter registration, motor vehicle registration, driver's license, and non-driver's identification; and

Copies of any other documents required by the Department that demonstrate that the District is the domicile of the individual.

(1) Disadvantaged investor as defined by Section 2302 of the Act (D.C. Official Code § 2-218.02) means:

A disadvantaged business enterprise (“DBE”) pursuant to Section 2333 of the Act (D.C. Official Code § 2-218.33); or

A District-domiciled economically disadvantaged individual

To be a District-domiciled economically disadvantaged individual, an individual must be:

A District-domiciled individual, as defined by § 838.1(b); and

Economically disadvantaged, as defined by § 804.1(b).

(1) Certified equity participant as defined by Section 2302 of the Act

means a single-purpose legal entity created to participate in real estate development projects and includes members that are small investors or disadvantaged investors.

(2) The Department shall verify that each single-purpose legal entity meets the definition of certified equity participant to be designated as such.

The Department will determine the manner in which the documents required in this section shall be submitted.

The documents required to prove District domicile under this section must be submitted to the Department in a single submission.

Each year throughout the duration of the Covered Project, each small investor and disadvantaged investor shall provide the Department in a single submission updated documents proving District-domicile status. These updated documents shall be submitted by the end of the same month as the initial submission required by § 838.1(f) (e.g., if the initial submission was in February, by the end of each February thereafter).

A certified equity participant, small investor, or disadvantaged investor will retain its designation for the duration of the Covered Project in which it is an Equity Participant, as required by Section 2349a of the Act (D.C. Official Code § 2-218.49a) and this chapter, provided the entity or individual remains in compliance with the Act and this chapter.

As appropriate, the Department may provide guidance to District agencies, business enterprises, and interested members of the public regarding the equity and development participation requirements.

An agency considering a solicitation for a Covered Project may contact the Department as needed to coordinate outreach efforts to Equity Participants and Development Participants and provide the Department with the specific details regarding the Covered Project.

With respect to public and private development (PPD) related solicitations, including Requests for Proposals ("RFPs"), Invitations for Bids ("IFBs"), Requests for Qualifications ("RFQs"), and Calls for Expressions of Interest, issued by District agencies in connection with Covered Projects, to the extent required by the Act and these rules, the solicitation shall include the Equity Participation and Development Participation requirements and a requirement that the party responding to the solicitation agrees to comply with the Equity Participation and Development Participation requirements, including submission to the Department of a separate “Service Agreement” detailing the specifics of the terms, conditions and financial requirements of the equity involvement.

Not more than one (1) business day after the issuance of any request for proposals, request for qualifications, call for expressions of interest or other similar document relating to any Covered Project, the District agency involved shall provide the Department with an electronic copy of the document, which the Department shall post on the Department’s website.

History

SOURCE: Final Rulemaking published at 39 DCR 9052 (December 4, 1992); as amended by Final Rulemaking published at 56 DCR 8439 (October 23, 2009), incorporating by reference text of Proposed Rulemaking published at 56 DCR 5622, 5684 (July 10, 2009); as amended by Final Rulemaking published at 70 DCR 010970 (August 11, 2023). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 838

27 DCMR § 839 EQUITY AND DEVELOPMENT PARTICIPATION REQUIREMENTS

EQUITY AND DEVELOPMENT PARTICIPATION REQUIREMENTS

839.1 The Equity Participant(s) shall receive a return on investment in a Covered Project that is pari passu with all other sources of Sponsor Equity.

The Equity Participation shall be maintained for the duration of the Covered Project. Completion of the Covered Project shall be measured by the issuance of one or more certificates of occupancy, certifications of completion, or other documents evidencing completion as determined by the Department.

Pursuant to Section 2349a(b) of the Act (D.C. Official Code § 2-218.49a(b)), the Department shall measure the Development Participation in addition to the general SBE subcontracting requirements of Section 2346 of the Act (D.C. Official Code § 2-218.46). The Development Participation shall not be used to satisfy the general SBE subcontracting requirements of Section 2346 of the Act.

The Department may require a beneficiary of a development project that is subject to Section 2349a(b) of the Act to submit a form, provided by the Department, to calculate and track the Development Participation.

History

SOURCE: Final Rulemaking published at 39 DCR 9052 (December 4, 1992); as amended by Final Rulemaking published at 56 DCR 8439 (October 23, 2009), incorporating by reference text of Proposed Rulemaking published at 56 DCR 5622, 5650 (July 10, 2009); as amended by Final Rulemaking published at 70 DCR 010970 (August 11, 2023). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 839

27 DCMR § 840 EVALUATION OF EQUITY AND DEVELOPMENT PARTICIPATION

When evaluating the percentage of Equity Participation by an Equity Participant in a Covered Project, the Department will take the following into account:

The financing plan for the Covered Project;

The amount and nature of leverage in the form of debt or other sources incurred by the Sponsor Entity;

The amount of institutional equity being provided for the benefit of the Sponsor Entity;

The amount of mezzanine financing being provided for the benefit of the Sponsor Entity, including the roles and rights of the mezzanine financer;

The total amount of equity required from the Sponsor Entity;

The percentage of the Sponsor Entity's equity being provided by an Equity Participant and the terms thereof;

The percentage of institutional equity being provided by an Equity Participant;

Provisions in funding documents related to the sale, dilution, or conversion of equity interests prior to project completion that may result in a change in the amount of the Equity Participant's Equity Participation and ownership;

Whether Equity Participants are treated similarly, with respect to the determination of returns, as compared to other entities with similar risk profiles on a Covered Project; and

The amount of sweat equity and the categories in which the Equity Participant(s) is (are) certified.

History

SOURCE: Final Rulemaking published at 39 DCR 9052 (December 4, 1992); as amended by Final Rulemaking published at 56 DCR 8439 (October 23, 2009), incorporating by reference text of Proposed Rulemaking published at 56 DCR 5622, 5650 (July 10, 2009); as amended by Final Rulemaking published at 70 DCR 010970 (August 11, 2023). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 840

27 DCMR § 841 [RESERVED]

History

SOURCE: Final Rulemaking published at 39 DCR 9052 (December 4, 1992); as amended by Final Rulemaking published at 56 DCR 8439 (October 23, 2009), incorporating by reference text of Proposed Rulemaking published at 56 DCR 5622 (July 10, 2009); as amended by Final Rulemaking published at 70 DCR 010970 (August 11, 2023). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 841

27 DCMR § 842 CHANGES IN EQUITY AND DEVELOPMENT PARTICIPATION

Once the selection of an Equity Participant or a Development Participant to participate in a Covered Project has been approved by the Department, there can be no change in the Equity Participant or Development Participant and no dilution of a participant's Equity Participation without the express written consent of the Director.

History

SOURCE: Final Rulemaking published at 39 DCR 9052 (December 4, 1992); as amended by Final Rulemaking published at 56 DCR 8439 (October 23, 2009), incorporating by reference text of Proposed Rulemaking published at 56 DCR 5622, 5651 (July 10, 2009); as amended by Final Rulemaking published at 70 DCR 010970 (August 11, 2023). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 842

27 DCMR § 843 CLOSING REQUIREMENTS REGARDING EQUITY PARTICIPATION

The closing documents executed in connection with any Covered Project shall contain provisions indicating there can be no change of the Equity and no dilution of a participant's Equity Participation without the Director's express written consent.

The closing documents shall expressly covenant and agree that the Department shall have third-party beneficiary rights to enforce the provisions, for and in its own right.

The agreements and covenants in the closing documents shall expressly run in favor of the Department for the entire period during which the agreements and covenants shall be in force and effect, without regard to whether the District was or is an owner of any land or interest therein or in favor of which the agreements and covenants relate.

The closing documents shall expressly covenant and agree that the Department shall have the right, in the event of a breach of the agreement or covenant in the closing documents, to exercise all the rights and remedies – and to maintain any actions or suits, at law or in equity, or other proceedings to enforce the curing of the breach of agreement or covenant – to which it may be entitled.

History

SOURCE: Final Rulemaking published at 39 DCR 9052 (December 4, 1992); as amended by Final Rulemaking published at 56 DCR 8439 (October 23, 2009), incorporating by reference text of Proposed Rulemaking published at 56 DCR 5622, 5651 (July 10, 2009); as amended by Final Rulemaking published at 70 DCR 010970 (August 11, 2023). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 843

27 DCMR § 844 EQUITY AND DEVELOPMENT PARTICIPATION RESTRICTIVE COVENANT

844.1 If there is a transfer of title to any District-owned land that will become part of a Covered Project, the Department may require that a restrictive covenant be filed on that land requiring compliance with the Equity Participation and Development Participation requirements of the Act, if applicable.

A restrictive covenant requiring compliance with the Equity Participation and Development Participation requirements of the Act shall run with the land and otherwise remain in effect until released by the Department following the completion of construction of and the issuance of certificates of occupancy for the Covered Project. A release of the restrictive covenant shall be executed by the Department only after either the developer and the Equity and Development Participants submit a sworn certification together with documentation demonstrating to the satisfaction of the Department that, or the Department otherwise determines that:

The Development Participants received at least 20% of the non- construction development goods and services for the Covered Project, in addition to the general SBE subcontracting requirements of Section 2346 of the Act; and

The Equity Participant has maintained at least a 20% ownership interest in the Sponsor Entity in the Covered Project throughout its development.

History

SOURCE: Final Rulemaking published at 39 DCR 9052 (December 4, 1992); as amended by Final Rulemaking published at 56 DCR 8439 (October 23, 2009), incorporating by reference text of Proposed Rulemaking published at 56 DCR 5622, 5652 (July 10, 2009); as amended by Final Rulemaking published at 70 DCR 010970 (August 11, 2023). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 844

27 DCMR § 845 [RESERVED]

History

SOURCE: Final Rulemaking published at 39 DCR 9052 (December 4, 1992); as amended by Final Rulemaking published at 56 DCR 8439 (October 23, 2009), incorporating by reference text of Proposed Rulemaking published at 56 DCR 5622, 5652 (July 10, 2009); as amended by Final Rulemaking published at 70 DCR 010970 (August 11, 2023). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 845

27 DCMR § 846 DEPARTMENT ASSISTANCE FOR COVERED PROJECTS

DEPARTMENT ASSISTANCE FOR COVERED PROJECTS

846.1 If a District agency receives no response from prospective Equity Participants or Development Participants to develop a Covered Project, it may contact the Department for further assistance. The Department may:

Post on its website notices of Equity and Development Participation opportunities for Covered Projects; and

Assist the District agency in identifying qualified Equity Participants and Development Participants by hosting outreach sessions.

History

SOURCE: Final Rulemaking published at 39 DCR 9052 (December 4, 1992); as amended by Final Rulemaking published at 56 DCR 8439 (October 23, 2009), incorporating by reference text of Proposed Rulemaking published at 56 DCR 5622, 5653 (July 10, 2009); as amended by Final Rulemaking published at 70 DCR 010970 (August 11, 2023). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 846

27 DCMR § 847 EQUITY OR DEVELOPMENT PARTICIPANT LOSS OF CERTIFICATION

If an Equity Participant or Development Participant loses its certified business enterprise (“CBE”) certification, or an individual no longer qualifies to be an Equity Participant, during the course of a Covered Project, and the loss of certification or qualification results in the Covered Project failing to meet the minimum Equity Participation or Development Participation requirements under Section 2349a of the Act (D.C. Official Code § 2-218.49a), the Department will evaluate whether another Equity Participant or Development Participant can participate in the Covered Project without causing any detriment to the overall project or the lead developer, so that the 20% Equity Participation and 20% Development Participation requirements are met.

History

SOURCE: Final Rulemaking published at 56 DCR 8439 (October 23, 2009), incorporating by reference text of Proposed Rulemaking published at 56 DCR 5622, 5653 (July 10, 2009); as amended by Final Rulemaking published at 70 DCR 010970 (August 11, 2023). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 847

27 DCMR § 848 EQUITY AND DEVELOPMENT REPORTS

EQUITY AND DEVELOPMENT REPORTS

848.1 Beneficiaries must submit quarterly reports to the Department regarding the fulfillment of the Equity Participation and Development Participation Program requirements on such forms as determined by the Department. The reports shall include, at a minimum, information regarding:

Changes in ownership interest of the owners/partners;

Additions or deletions of an owner/partner;

Changes in the legal status of an existing owner/partner;

Changes in the percentage of revenue distribution to an owner/partner; and

Each Development Participant, their certified business enterprise (“CBE”) certification number, a description and dates of the non-construction development good and service they provided, the contract amount, a copy of the executed contract, and any other information required by the Department.

Information provided under § 848.1(a)-(d) may be considered commercial or financial information which could result in substantial harm if disclosed to the competitive position of the provider of the information, and may be exempt from disclosure under Section 204(a)(1) of the District of Columbia Administrative Procedure Act, effective March 25, 1977 (D.C. Law 1-96; D.C. Official Code § 2- 534(a)(1)).

History

SOURCE: Final Rulemaking published at 56 DCR 8439 (October 23, 2009), incorporating by reference text of Proposed Rulemaking published at 56 DCR 5622, 5653 (July 10, 2009); as amended by Final Rulemaking published at 70 DCR 010970 (August 11, 2023). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 848

27 DCMR § 850 [RESERVED]

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 58 DCR 7320 (August 12, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 8782 (October 14, 2011); as amended by Final Rulemaking published at 70 DCR 010970 (August 11, 2023). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 850

27 DCMR § 851 SMALL BUSINESS CAPITAL ACCESS FUND

SMALL BUSINESS CAPITAL ACCESS FUND

851.1 The Department shall implement and administer the Small Business Capital Access Fund ("Fund") established pursuant to Section 2375 of the Act (D.C. Official Code § 2-218.75). The Fund is a financing tool designed to sustain and/or increase the level of business activity, job creation and retention, and provide access to capital for the sustainability and expansion of designated categories of certified business enterprises (“CBEs”).

Monies issued from the Fund may be structured as a grant, loan loss reserve funding, senior or subordinated secured or unsecured loan, loan guarantee, collateral, surety, or any other financial assistance, and any issuance of monies from the Fund shall serve a public purpose identified by the Department. The Department may, in its discretion, issue grants to assist qualified businesses with credit facility origination or the provision of financial-based professional services (e.g., grants to assist with hiring a certified public accountant, bookkeeper, escrow agent, bonding agent, qualified non-profit organization, financial institution, or professional service provider).

To be eligible for funding from the Fund a recipient must:

Be certified or eligible to be certified, pursuant to the Act as a small business enterprise (“SBE”) or disadvantaged business enterprise (“DBE”);

Be independently owned, operated, and controlled;

Be in good standing with the Department of Consumer and Regulatory Affairs; and

Have a Certificate of Clean Hands from the Office of Tax and Revenue.

The following business enterprises are ineligible to receive funding from the Fund: consumer and marketing cooperatives; dealers of rare coins and stamps; enterprises engaged in gambling; enterprises engaged in illegal activity; lending firms and loan packaging firms; enterprises engaged in multi-sales distribution; nonprofits; enterprises engaged in pyramid schemes or multi-level marketing schemes; real estate investment firms; non-profit institutions; and businesses engaged in speculation.

To the extent consistent with the grant agreement or other agreement between the Department and an eligible recipient, the recipient may use proceeds from the Fund for the following purposes:

Working capital;

Inventory;

Acquisition or repair of furniture, fixtures, machinery, or equipment;

Ecologically efficient improvements;

Purchase or implementation of financial management systems (e.g., point of sale, upgrades to meet prime contractor standards);

Leasehold improvements;

Property renovation; or

Financial and/or Procurement-based professional services.

The Department will develop underwriting criteria and rates and terms for funding from the Fund. Such criteria will include, at minimum, the maximum funding amount(s), interest rate(s) and any applicable deferral periods, term limits, security or collateral requirements and fees and costs. The Department will include the underwriting criteria with the application and/or publish the underwriting criteria on its website. The Department may modify the underwriting criteria as necessary to account for changes in budgeted amounts of the Fund or changing needs of the local business community. The Department may work with a qualified non-profit organization or financial institution to develop or modify, as necessary, the underwriting criteria.

An eligible recipient seeking funding from the Fund shall submit a written application to the Department or to a qualified non-profit organization and/or financial institution designated by the Department on such form or forms as may be prescribed or approved by the Department. The application shall include, at a minimum, submission of the following documents and information:

Current CBE Certification and evidence that the applicant is certified as an SBE or DBE or evidence that the applicant is eligible to be certified as a SBE or DBE;

Clean Hands Certification from the Office of Tax and Revenue;

Certificate of Good Standing from the Department of Consumer and Regulatory Affairs;

Financial status of the applicant, including current and past tax returns, balance sheet(s) and profit and loss statements;

Amount of funding from the Fund requested by the applicant;

Reason for requesting funding from the Fund; and

Any other information or documents the Department may require in order to assess the applicant's eligibility and/or credit worthiness.

Within sixty (60) days of receipt of a complete application, the Department or its non-profit or financial institution partner shall notify the applicant whether the funding request has been approved, denied, or if additional information is needed to make a determination. If an application is denied, the Department or its non- profit/financial institution partner shall provide the applicant an explanation of the underwriting determination.

The Department may, in its discretion, require the potential borrower or borrower to participate in targeted training, technical assistance, and/or periodic monitoring to help strengthen business operations as a condition of funding from the Fund or as a pre-condition for future funding.

History

SOURCE: Final Rulemaking published at 56 DCR 8439 (October 23, 2009), incorporating by reference text of Proposed Rulemaking published at 56 DCR 5622, 5654 (July 10, 2009); as amended by Final Rulemaking published at 59 DCR 8536 (July 20, 2012); as amended by Final Rulemaking published at 70 DCR 010970 (August 11, 2023). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 851

27 DCMR § 852 [REPEALED]

History

SOURCE: Final Rulemaking published at 56 DCR 8439 (October 23, 2009), incorporating by reference text of Proposed Rulemaking published at 56 DCR 5622, 5656 (July 10, 2009); as amended by Final Rulemaking published at 70 DCR 010970 (August 11, 2023). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 852

27 DCMR § 899 DEFINITIONS

The definitions set forth in the Act are incorporated by reference into this chapter. As used in this chapter, the following words and phrases shall have the meanings ascribed:

Act - the Small and Certified Business Enterprise Development and Assistance Act of 2005, effective October 20, 2005 (D.C. Law 16-33; D.C. Official Code § 2-218.01).

Application date - the date on which the Department receives an application.

Certificate - a letter issued by the Department indicating that a firm is a business enterprise or joint venture certified pursuant to Part D of the Act (D.C. Official Code § 2-218.31 et seq.).

Contractor - any natural person or business organization, such as a corporation, partnership, joint venture, limited liability company, or similar enterprise thatenters into a contract with the District, a public employee, or private developer to provide goods or services.

Construction - the building, alteration, repair, or improvement of real property. This term does not include the operation or routine maintenance of real property.

Covered Project - any development project conducted pursuant to a disposition under Section 1 of An Act Authorizing the sale of certain real estate in the District of Columbia no longer required for public purposes, approved August 5, 1939 (53 Stat. 1211; D.C. Official Code § 10-801).

Day - a calendar day.

Development Participant - a small business enterprise (“SBE”) or certified business enterprise (“CBE”) that participates in one or more phases of project development in a Covered Project in accordance with Section 2349a(b) of the Act (D.C. Official Code § 2-218.49a(b)).

Development Participation - participation on a Covered Project performed by a small business enterprise (“SBE”) or certified business enterprise (“CBE”) in accordance with Section 2349a(b) of the Act (D.C. Official Code § 2-218.49a(b)).

Development Project –

Means a government-assisted project involving either:

The private development or redevelopment of real property improvements conducted pursuant to a disposition under Section 1 of An Act Authorizing the sale of certain real estate in the District of Columbia no longer required for public purposes, approved August 5, 1939 (53 Stat. 1211; D.C. Official Code § 10-801); or

Private development or redevelopment of real property improvements to which the District has contributed through a grant at least 15% of the development costs or $500,000, whichever is less.

Shall not include improvements on real property where the owner will occupy at least 25% of the real property and the development budget is $ 500,000 or less.

Eligible Recipient - a business enterprise as defined in Section 2375(a)(1) of the Act (D.C. Official Code § 2-218.75(a)(1)).

Entity - an organization, including a corporation, partnership, limited liability company, sole proprietor, or trust.

Equity Participant - a small investor, disadvantaged investor, or certified equity participant that, in accordance with the Act, provides capital or other monetarily valued services in exchange for an ownership interest in a Covered Project.

Equity Participation - an ownership interest acquired by an Equity Participant in a Covered Project.

Fiscal year - October 1 of each year through September 30 of the following year.

Fixed Assets - Any long-term item of economic value owned by an individual or corporation, especially that which could be converted to cash, that the owner does not expect to convert into cash in less than one year. Examples are buildings, office equipment (not supplies), vehicles, computers, and other property.

Good Faith Efforts - a bidder/offeror’s unsuccessful actions to meet established goals, including all necessary and reasonable steps taken, such as conducting market research, strategic outreach, advertisements, and contacting the Department’s Business Opportunities Division for assistance.

Grant - a public subsidy for which the District does not anticipate repayment, such as a cash contribution, tax increment financing, payment in lieu of taxes, or similar programs or agreements. A grant shall not include a public contribution for which the District anticipates repayment, such as a loan.

Legal Holiday - a public holiday observed by the District of Columbia, on which the District of Columbia government is closed.

Principal Office - a business’s corporate headquarters where the central operational, financial, and recordkeeping functions of the business occur.

Respondent - an applicant for or holder of a certificate against whom a denial or adverse action is proposed or taken.

Site Visit - an announced or unannounced, on-site, comprehensive review of a business operation to determine compliance or continued eligibility for certification as a local business enterprise.

Sponsor Equity - the equity that is intended to be contributed by the non- institutional investors or by the private developer, excluding debt financing, mezzanine financing, or other equity contributions by limited or institutional investors.

Sponsor Entity - an individual or an entity with the day-to-day responsibilities for a development project (e.g., a Managing Member, or a General Partner).

Spot Check - an unannounced cursory, on-site inspection of a certified business enterprise (“CBE”) headquarters to ensure continued compliance with eligibility requirements of the Act and these regulations.

History

SOURCE: Final Rulemaking published at 39 DCR 9052 (December 4, 1992); as amended by Final Rulemaking published at 56 DCR 8439 (October 23, 2009), incorporating by reference text of Proposed Rulemaking published at 56 DCR 5622, 5656 (July 10, 2009); as amended by Final Rulemaking published at 70 DCR 010970 (August 11, 2023). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 899

27-9 SURPLUS PROPERTY

27 DCMR § 900 GENERAL PROVISIONS

900.1 The District of Columbia State Agency for Surplus Property (D.C. SASP) is responsible for effecting the fair and equitable distribution of federal surplus personal property, whether by sale, donation, or transfer, in accordance with the Federal Property and Administrative Services Act.

900.2 The Office of Contracting and Procurement Surplus Property Division (SPD) is responsible for effecting the fair and equitable distribution of District surplus personal property, whether by sale, donation, or transfer.

900.3 The Office of Contracting and Procurement (OCP) shall publish on the OCP website all forms used for the purpose of disposing of federal and District surplus property.

900.4 OCP shall publish on the OCP website records of all transfers of federal and District surplus property.

History

SOURCE: Final Rulemaking published at 30 DCR 2209 (May 13, 1983), incorporating Proposed Rulemaking published at 24 DCR 1705 (August 19, 1977); as amended by Final Rulemaking published at 60 DCR 9345 (June 21, 2013).

27 DCMR § 901 RESPONSIBILITIES OF THE CHIEF PROPERTY DISPOSAL OFFICER

901.1 The Director shall delegate to the Chief Property Disposal Officer (CPDO) specific responsibilities that include:

(a) Acting as the District of Columbia State Agent (State Agent) for purposes of disposing of federal surplus personal property. The State Agent shall be the Chief of D.C. SASP, and may make charges, assess fees, and distribute surplus personal property in accordance with all federal laws and regulations governing the donation and transfer of federal surplus property;

(b) Acting as the Chief of the SPD for purposes of disposing of District surplus personal property in accordance with District law and regulations governing the sale, donation, and transfer of District surplus property;

(c) Maximizing the investment recovery value of surplus personal property and effective oversight and management of personal property utilization;

(d) Maintaining office and warehouse facilities for requesting, receiving, staging, displaying, storing, and shipping all categories of surplus personal property;

(e) Examining the property records of each agency to determine the adequacy and accuracy of the property records; and

(f) Determining who shall be authorized to enter the District’s warehouse to select property.

History

SOURCE: Final Rulemaking incorporating 24 DCR 1705, 1708 (August 19, 1977); as amended by Final Rulemaking published at 60 DCR 9345 (June 21, 2013).

27 DCMR § 902 INVENTORY CONTROL

902.1 Each District agency is responsible for all personal property in its custody whether purchased from appropriations or other authorized funds, or acquired by transfer, donation, or other authorized means. Each District agency shall ensure that the personal property is properly utilized and managed in the best interest of the District government.

902.2 Each District agency director shall designate in writing to the CPDO:

(a) An administrative employee who shall serve as an Accountable Property Officer (APO); and

(b) An administrative employee who shall serve as an alternate APO.

902.3 The APO shall be responsible for:

Maintaining records that reflect accountability of property assigned to the agency;

Ensuring the proper utilization and care of all property assigned to the agency;

Reconciling physical inventories with property records and inventory databases; and

(d) Approving transfers of, accounting for, and reporting dispositions of agency personal property to SPD by utilizing the property disposal action form.

902.4 The D.C. SASP and the SPD shall maintain a shared electronic inventory control system to monitor all federal and District surplus personal property in their possession. The system shall contain the following information for each item of surplus personal property:

The date of receipt of property;

The agency from which the property was received;

A description of the property, including quantity and condition;

(d) A photograph of the property; and

(e) The estimated value of the property.

History

SOURCE: Final Rulemaking published at 60 DCR 9345 (June 21, 2013).

27 DCMR § 903 TRANSFER OF DISTRICT AND FEDERAL SURPLUS PROPERTY

903.1 The CPDO may transfer surplus District property between District agencies.

903.2 The CPDO may transfer federal surplus property to a District agency for use in carrying out or promoting, for residents of the District, a public purpose, including conservation, economic development, education, parks and recreation, public health, and public safety.

History

SOURCE: Final Rulemaking incorporating 24 DCR 1705, 1709 (August 19, 1977); as amended by Final Rulemaking published at 60 DCR 9345 (June 21, 2013).

27 DCMR § 904 SALE OF DISTRICT SURPLUS PROPERTY

904.1 When it is in the District’s best interest, and after the District has made an attempt to transfer District surplus property between District agencies, the Director may authorize the disposal or sale of surplus personal property after it has been in SPD for seven (7) days using any of the following disposal methods:

Auctions;

Competitive sealed bidding;

Competitive electronic sales; or

Other appropriate method designated by rule.

904.2 If an on-line auction occurs, items shall be placed on an on-line auction site for a period of seven (7) days. After the auction period has expired, the winning bidder shall be awarded the property after payment has been received.

904.3 During an on-line auction, the record of the bid prices received will be available for public viewing on the auction site.

904.4 Property with an estimated value exceeding ten thousand dollars ($10,000) shall only be sold subject to a minimum bid established by the CPDO. If the CPDO determines that property cannot be sold at the established minimum bid price, the CPDO may extend the bidding period or reject the bids.

904.5 The CPDO may reject any bid received during any disposal method.

No District employee or member of a District employee’s household may purchase surplus personal property.

History

SOURCE: Final Rulemaking incorporating 24 DCR 1705, 1710 (August 19, 1977); as amended by Final Rulemaking published at 60 DCR 9345 (June 21, 2013).

27 DCMR § 905 DONATION OF FEDERAL SURPLUS PROPERTY

905.1 The State Agent must determine whether an applicant is eligible to receive a donation of federal surplus property in the District’s possession.

905.2 When a determination has been made by the State Agent to donate federal surplus property, donations may be made to the following sources:

Any public agency for use in carrying out or promoting for the residents of the District one or more public purposes, such as conservation, economic development, education, parks and recreation, public health, and public safety; or

To a nonprofit educational or public health institution or organization that is exempt from taxation under section 501 of the Internal Revenue Code of 1986 (26 U.S.C. § 501), including—

a medical institution, hospital, clinic, health center, or drug abuse treatment center;

a provider of assistance to homeless individuals or to families or individuals whose annual incomes are below the poverty line (as that term is defined in Section 673 of the Community Services Block Grant Act (42 U.S.C. § 9902));

a school, college, or university;

a school for the mentally retarded or physically handicapped;

a child care center;

a radio or television station licensed by the Federal Communications Commission as an educational radio or educational television station;

a museum attended by the public;

a public library;

a historic light station as defined under Section 308(e)(2) of the National Historic Preservation Act (16 U.S.C. §§ 470w–7 (e)(2)), including a historic light station conveyed under Subsection (b) of that section, notwithstanding the number of hours that the historic light station is open to the public; or

an organization whose membership comprises substantially all veterans (as defined under Section 101 of Title 38) and representatives are recognized by the Secretary of Veterans Affairs under Section 5902 of Title 38.

905.3 The distribution of federal surplus property should be done in a fair and equitable manner based on the relative needs and resources of interested District agencies and other eligible institutions in the District, and their abilities to use the property.

905.4 When an eligible donee ceases to operate, whether by loss of license, accreditation, approval or otherwise, or fails to satisfy all financial obligations as required or fails to maintain a reasonable posture regarding all financial obligations, D.C. SASP shall terminate the distribution of federal surplus personal property immediately upon notification.

905.5 When a determination has been made by the State Agent that property has not been put into use by a donee within one (1) year from the date of receipt, or when the donee ceases to use the property within one (1) year after it has been received, the donee shall, at the direction of the CPDO do one (1) of the following:

Return all usable surplus personal property at the donee’s expense, to the D.C. SASP warehouse;

Transfer all usable property to another eligible donee; or

Make another disposal arrangement deemed appropriate by the CPDO.

905.6 D.C. SASP may impose reasonable terms, conditions, reservations, and restrictions on the use of the donated property.

905.7 D.C. SASP shall maintain a donee wish-list which shall serve as a fundamental tool designed to neutralize the necessity of frequent visits to the warehouse in search of desired properties. D.C. SASP employees shall be guided by these requests in the screening and selection of property.

History

SOURCE: Final Rulemaking incorporating 24 DCR 1705, 1712 (May 13, 1983); as amended by Final Rulemaking published at 60 DCR 9345 (June 21, 2013).

27 DCMR § 906 DONATION OF DISTRICT SURPLUS PROPERTY

906.1 The District may donate its surplus personal property to an organization qualified as a tax-exempt under Section 501 of the Internal Revenue Code of 1986 (26 U.S.C. § 501), or state, county, or municipal jurisdictions only after an attempt has been made to:

Transfer the property within an agency;

Transfer the property between agencies; and

Auction the property for sale.

906.2 The CPDO must determine whether an applicant is eligible to receive a donation of District surplus property, and re-verify its eligibility every two (2) years.

906.3 Before receiving a donation of District surplus personal property, a tax-exempt organization must:

Demonstrate it meets any approval, accreditation, or licensing requirements for operation of its program;

Certify that it is not debarred, suspended, or excluded from any federal or District program, including procurement programs;

Operate in compliance with applicable federal nondiscrimination law; and

Certify that it is a non-profit tax-exempt organization.

906.4 SPD shall maintain a donee wish-list which shall serve as a fundamental tool designed to neutralize the necessity of frequent visits to the warehouse in search of desired properties. SPD employees shall be guided by these requests in the screening and selection of property.

History

SOURCE: Final Rulemaking published at 60 DCR 9345 (June 21, 2013).

27 DCMR § 907 UNDISTRIBUTED SURPLUS PROPERTY

907.1 The CPDO may recycle, sell for scrap, abandon, or destroy undistributed District or federal surplus personal property upon making a determination that the property has no commercial value, or the estimated cost of its continued care and handling would exceed the estimated proceeds from its sale.

History

SOURCE: Final Rulemaking published at 60 DCR 9345 (June 21, 2013).

27 DCMR § 908 SERVICE CHARGES

908.1 D.C. SASP may assess a service charge for services performed under this chapter. Service charges shall be fair and equitable in relation to the services performed. The D.C. SASP must take into account the amount of screening, packing, crating, removal, transportation and other efforts required to perform the services when determining the amount of a service charge.

History

SOURCE: Final Rulemaking incorporating 24 DCR 1705, 1713 (August 19, 1977); as amended by Final Rulemaking published at 60 DCR 9345 (June 21, 2013).

27 DCMR § 909 PLACEMENT OF ANIMALS

909.1 Notwithstanding any other provisions of this chapter, the CPDO may transfer or donate surplus animals in any manner in which he determines to be in the best interest of the District.

History

SOURCE: Final Rulemaking incorporating 24 DCR 1705, 1714 (August 19, 1977); as amended by Final Rulemaking published at 60 DCR 9345 (June 21, 2013).

27 DCMR § 910 REPEALED

History

SOURCE: Final Rulemaking incorporating 24 DCR 1705, 1715 (August 19, 1977); as amended by Final Rulemaking published at 60 DCR 9345 (June 21, 2013).

27 DCMR § 911 REPEALED

History

SOURCE: Final Rulemaking incorporating 24 DCR 1705, 1720 (August 19, 1977); as amended by Final Rulemaking published at 60 DCR 9345 (June 21, 2013).

27 DCMR § 912 REPEALED

History

SOURCE: Final Rulemaking incorporating 24 DCR 1705, 1721 (August 19, 1977); as amended by Final Rulemaking published at 60 DCR 9345 (June 21, 2013).

27 DCMR § 913 REPEALED

History

SOURCE: Final Rulemaking incorporating 24 DCR 1705, 1723 (August 19, 1977); as amended by Final Rulemaking published at 60 DCR 9345 (June 21, 2013).

27 DCMR § 914 REPEALED

History

SOURCE: Final Rulemaking incorporating 24 DCR 1705, 1725 (August 19, 1977); as amended by Final Rulemaking published at 60 DCR 9345 (June 21, 2013).

27 DCMR § 915 REPEALED

History

SOURCE: Final Rulemaking incorporating 24 DCR 1705, 1726 (August 19, 1977); as amended by Final Rulemaking published at 60 DCR 9345 (June 21, 2013).

27 DCMR § 916 REPEALED

History

SOURCE: Final Rulemaking incorporating 24 DCR 1705, 1727 (August 19, 1977); as amended by Final Rulemaking published at 60 DCR 9345 (June 21, 2013).

27 DCMR § 917 REPEALED

History

SOURCE: Final Rulemaking incorporating 24 DCR 1705, 1729 (August 19, 1977); as amended by Final Rulemaking published at 60 DCR 9345 (June 21, 2013).

27 DCMR § 918 [REPEALED]

History

SOURCE: Final Rulemaking incorporating 24 DCR 1705, 1730 (August 19, 1977); as amended by the Auditor Personnel and Audit Reform Amendment Act of 2000, effective October 19, 2000 (D.C. Law 13-172; 47 DCR 6308 (August 11, 2000)); as amended by Final Rulemaking published at 60 DCR 9345 (June 21, 2013). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 918

27 DCMR § 919 REPEALED

History

SOURCE: Final Rulemaking incorporating 24 DCR 1705, 1731 (August 19, 1977); as amended by Final Rulemaking published at 60 DCR 9345 (June 21, 2013).

27 DCMR § 920 REPEALED

History

SOURCE: Final Rulemaking incorporating 24 DCR 1705, 1732 (August 19, 1977); as amended by Final Rulemaking published at 60 DCR 9345 (June 21, 2013).

27 DCMR § 921 REPEALED

History

SOURCE: Final Rulemaking published at 60 DCR 9345 (June 21, 2013).

27 DCMR § 922 REPEALED

History

SOURCE: Final Rulemaking published at 60 DCR 9345 (June 21, 2013).

27 DCMR § 923 REPEALED

History

SOURCE: Final Rulemaking published at 60 DCR 9345 (June 21, 2013).

27 DCMR § 924 REPEALED

History

SOURCE: Final Rulemaking published at 60 DCR 9345 (June 21, 2013).

27 DCMR § 925 REPEALED

History

SOURCE: Final Rulemaking published at 60 DCR 9345 (June 21, 2013).

27 DCMR § 926 REPEALED

History

SOURCE: Final Rulemaking published at 60 DCR 9345 (June 21, 2013).

27 DCMR § 927 REPEALED

History

SOURCE: Final Rulemaking published at 60 DCR 9345 (June 21, 2013).

27 DCMR § 928 REPEALED

History

SOURCE: Final Rulemaking published at 60 DCR 9345 (June 21, 2013).

27 DCMR § 929 REPEALED

History

SOURCE: Final Rulemaking published at 60 DCR 9345 (June 21, 2013).

27 DCMR § 930 REPEALED

History

SOURCE: Final Rulemaking incorporating 24 DCR 1705, 1733 (August 19, 1977); as amended by Final Rulemaking published at 60 DCR 9345 (June 21, 2013).

27 DCMR § 931 REPEALED

History

SOURCE: Final Rulemaking incorporating 24 DCR 1705, 1734 (August 19, 1977); as amended by Final Rulemaking published at 60 DCR 9345 (June 21, 2013).

27 DCMR § 932 REPEALED

History

SOURCE: Final Rulemaking incorporating 24 DCR 1705, 1735 (August 19, 1977); as amended by Final Rulemaking published at 60 DCR 9345 (June 21, 2013).

27 DCMR § 933 REPEALED

History

SOURCE: Final Rulemaking incorporating 24 DCR 1705, 1736 (August 19, 1977); as amended by Final Rulemaking published at 60 DCR 9345 (June 21, 2013).

27 DCMR § 934 REPEALED

History

SOURCE: Final Rulemaking incorporating 24 DCR 1705, 1742 (August 19, 1977); as amended by Final Rulemaking published at 60 DCR 9345 (June 21, 2013).

27 DCMR § 999 DEFINITIONS

When used in this chapter, the following words have the meanings ascribed:

Chief Property Disposal Officer: The Chief of the District of Columbia State Agency for Surplus Property and the Chief of the Office of Contracting and Procurement Surplus Property Division who is designated to oversee and manage all personal property programs of the District government.

Director: The Director of the Office of Contracting and Procurement (OCP) or the District of Columbia Chief Procurement Officer (CPO).

Electronic Inventory Control System: The shared computer system and database used by the District of Columbia Personal Property Division and the State Agency for Surplus Property to record transactions related to surplus property.

Federal Property and Administrative Services Act of 1949: The law approved August 16, 1950 to authorize a State Agency for Surplus Property to acquire and distribute to all eligible donees in the District any federal surplus property.

Public agency: A federal or District department, agency, or instrumentality thereof.

Public purpose: A program carried out by a public agency which is legally authorized in accordance with the laws of the District of Columbia, and for which public funds may be expended. Public purposes include, but are not limited to, programs such as conservation, economic development, education, parks and recreation, public health, and public safety.

History

SOURCE: Final Rulemaking published at 60 DCR 9345 (June 21, 2013).

27-10 DISTRICT OF COLUMBIA PROCUREMENT SYSTEM

27 DCMR § 1000 IMPLEMENTATION OF PROCUREMENT CODE

These rules implement the provisions in the Procurement Practices Reform Act of 2010, effective April 8, 2011, (D.C. Law 18-371; D.C. Official Code §§ 2-351.01, et seq.)(2011 Repl.) (Act).

1000.2 Where any statute or regulation is referred to in this title, the reference shall be to the most recent version, and any amendments or revisions to the statute or regulation.

History

SOURCE: Final Rulemaking published at 35 DCR 1385 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 9071 (September 27, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 11071 (December 23, 2011).

27 DCMR § 1001 COMPLIANCE WITH PROCUREMENT ACT AND REGULATIONS

1001.1 Except as otherwise provided in the Act or this section, a contract which is entered into in violation of the Act and this title is void.

1001.2 Notwithstanding the provisions of § 1001.1, a contract shall not be void if a determination is made that good faith has been shown by all parties and the violation of the provisions of the Act and this title are de minimis. The determination of good faith may be made by any of the following:

(a) The Director;

(b) The Contract Appeals Board; or

1001.3 The Director’s determination of good faith and that a violation of the provisions of the Act and this title are de minimis made pursuant to § 1001.2(a) shall be in writing based upon a written request for review by the contractor or contracting officer. The request shall fully describe the contract, the status of performance, the reason why the contract is void, and the grounds for the determination.

History

SOURCE: Final Rulemaking published at 35 DCR 1385 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 9071 (September 27, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 11071 (December 23, 2011).

27 DCMR § 1002 [RESERVED]

History

SOURCE: Final Rulemaking published at 35 DCR 1386 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 9071 (September 27, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 11071, 11072 (December 23, 2011).

27 DCMR § 1003 APPOINTMENT OF CONTRACTING OFFICERS

1003.1 Each delegation of contracting authority under the Act shall be in writing and shall include clear instructions on the limitations of the contracting authority being delegated.

1003.2 The Director may delegate contracting authority to any District employee; however, the chief procurement officer of an agency which is not subject to the authority of the Director may only delegate authority to a District employee within his or her agency.

1003.3 The Director shall use a form approved for each written delegation or modification of contracting authority. The executed form shall include the following:

(a) The limitations on the scope of delegated authority to be exercised;

(b) The limitations on the authority set forth in applicable laws and regulations; and

1003.4 In no instance shall the individual being delegated contracting authority presume any greater contracting authority than what has been given.

1003.5 Termination of a contracting officer's appointment shall be in writing unless the written delegation or modification of authority contains a provision for automatic termination or expiration. No termination shall operate retroactively.

1003.6 The Director shall publish and regularly update on the OCP Internet an updated list of authorized contracting officers and their authority limits.

History

SOURCE: Final Rulemaking published at 35 DCR 1386 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 9071 (September 27, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 11071, 11072 (December 23, 2011).

27 DCMR § 1004 AUTHORITY AND RESPONSIBILITIES OF CONTRACTING OFFICERS

1004.1 The contracting officer shall be authorized to enter into, administer, and terminate contracts. However, the contracting officer may bind the District only to the extent of the contracting authority set forth in his or her delegation.

1004.2 The contracting officer shall:

Make all determinations and findings required by the Act or this title for each solicitation or contract for which he or she is responsible;

Not enter into a contract unless he or she has ensured that all requirements of law, Mayor's Orders, Mayor's Memoranda, rules, and all other applicable procedures (including approvals) have been met;

Have wide latitude to exercise business judgment;

Ensure that contractors receive impartial, fair, and equitable treatment in accordance with the Act and this title;

Request and consider the advice of specialists in auditing, law, engineering, transportation, and other fields when necessary or appropriate to the exercise of the contracting officer's authority;

Ensure that sufficient unencumbered budget authority is available for obligation for each contract, in accordance with chapter 32 of this title; and

Not make any purchase or enter into any contract for an amount in excess of his or her specifically delegated contracting authority.

History

SOURCE: Final Rulemaking published at 35 DCR 1387 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 9071 (September 27, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 11071, 11074 (December 23, 2011).

27 DCMR § 1005 CONDUCT OF CONTRACTING OFFICERS

1005.1 The procurement business of the District shall be conducted in a manner above reproach and, except as authorized by law, with complete impartiality and with preferential treatment for none.

1005.2 The Director shall ensure that each contracting officer is thoroughly familiar with the conflict of interest and other employee conduct provisions of chapter 18 (Employee Conduct) of subtitle B (Government Personnel) of title 6 (Personnel) of the District of Columbia Municipal Regulations, and the applicability of those regulations to contracting officers and the procurement process.

History

SOURCE: Final Rulemaking published at 35 DCR 1389 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 9071 (September 27, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 11071, 11075 (December 23, 2011).

27 DCMR § 1006 [RESERVED]

History

SOURCE: Final Rulemaking published at 35 DCR 1390 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 9071 (September 27, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 11071, 11076 (December 23, 2011).

27 DCMR § 1007 [RESERVED]

History

SOURCE: Final Rulemaking published at 35 DCR 1390 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 9071 (September 27, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 11071, 11076 (December 23, 2011).

27 DCMR § 1008 PROHIBITION AGAINST CONTINGENT FEES

1008.1 The contracting officer shall ensure that each solicitation, other than those for small purchases, contains language approved by the Director giving notice to prospective contractors of the prohibition against contingent fee arrangements set forth in § 416 of the Act.

1008.2 The contracting officer shall ensure that the language required by § 416(b) of the Act is inserted into each contract, except contracts for small purchases.

1008.3 Except as permitted in § 416(b) of the Act, the contracting officer shall not award any contract to a contractor that has made arrangements to pay a contingent fee or other consideration for soliciting or obtaining the contract.

1008.4 If the contracting officer has reason to believe that a prospective contractor or contractor is or has been involved in a contingent fee arrangement prohibited under § 416 of the Act, the contracting officer shall inform the Director in writing, which shall include any evidence or documentation of the alleged prohibited arrangement.

1008.5 If the Director determines that a prohibited contingent fee has been paid or that a contractor has entered into an arrangement to pay a prohibited contingent fee under an existing contract, the Director shall have the right to terminate an existing contract or take any other remedial action authorized under § 416(b) of the Act.

1008.6 If the Director determines that a prospective contractor has entered into an arrangement to pay a prohibited contingent fee, he or she shall direct the contracting officer to notify the prospective contractor that it is no longer eligible for contract award.

History

SOURCE: Final Rulemaking published at 35 DCR 1391 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 9071 (September 27, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 11071, 11076 (December 23, 2011).

27 DCMR § 1009 PROCUREMENT PLANNING

1009.1 Agencies shall perform procurement planning and conduct market surveys to promote and provide for full and open competition with due regard to the nature of the goods and services to be acquired.

1009.2 When full and open competition is not required by law, agencies shall perform procurement planning and conduct market surveys to obtain competition to the maximum extent practicable.

1009.3 The Director shall prescribe procurement planning procedures for the following purposes:

(a) To ensure that contracts are awarded after full and open competition with adequate procurement planning and availability of funds;

(b) To ensure that procurement planning addresses the requirement to specify needs, develop specifications, and to solicit offers in a manner that promotes and provides for full and open competition;

(c) To establish criteria and thresholds at which increasingly greater detail and formality in the procurement planning process is required in those cases in which a written procurement plan must be prepared;

(d) To ensure that the principles of this section are applied, as appropriate, for all procurements whether or not a written plan is required;

(e) To review and approve procurement plans and revisions to those plans; and

(f) To authorize the waiver of standard procurement planning formats in cases of emergency.

1009.4 Procurement planning shall begin as soon as an agency need is identified and preferably well in advance of the fiscal year in which the contract award is necessary. In developing the plan, the planner may form a team consisting of all those who will be responsible for significant aspects of the procurement, such as contracting, fiscal, legal, and technical personnel and, when applicable, the Department of Small and Local Business Development.

History

SOURCE: Final Rulemaking published at 35 DCR 1394 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 9071 (September 27, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 11071, 11076 (December 23, 2011).

27 DCMR § 1099 DEFINITIONS

When used in this chapter, the following terms have the meanings ascribed:

Contingent fee - any commission, percentage, brokerage, or other fee that is dependant upon or tied to the success that a person or concern has in securing a District contract.

Contract - a mutually binding agreement between the District and a contractor, which must be in writing unless otherwise authorized by the Act, including agreements in which a party other than the District is obligated to pay the contractor.

Director - the agency head of the Office of Contracting and Procurement (OCP) or the Chief Procurement Officer (CPO).

Market survey - a testing of the marketplace to ascertain whether other qualified sources capable of satisfying the District's requirement exist. It may range from written or telephone contacts with knowledgeable experts regarding similar or duplicate requirements, and the results of any market test recently undertaken, to the more formal sources-sought announcements in pertinent publications (such as technical or scientific journals, or the Commerce Business Daily) or solicitations for information or planning purposes.

Person - any business entity, individual, union, committee, club, or other organization or group of individuals.

Pre-solicitation - prior to the transmittal by the District of any proposed contract documents to the proposed contractor before the issuance of a solicitation or in a proposed sole source procurement.

Procurement planning - the process by which the efforts of all personnel responsible for an acquisition are coordinated and integrated through a comprehensive plan for fulfilling agency needs in a timely manner and at a reasonable cost. It includes developing the overall strategy for managing the acquisition.

History

SOURCE: Final Rulemaking published at 35 DCR 1394 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 9071 (September 27, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 11071, 11077 (December 23, 2011).

27-11 [RESERVED]

27 DCMR § 1100 CERTIFIED MINORITY BUSINESS PREFERENCES

1100.1 Each sheltered market procurement shall be made in accordance with the provisions of the Procurement Practices Act of 1985 (the "Act"), the Minority Contracting Act of 1976, D.C. Code §1-1141 et seq. (1981), and this title.

1100.2 The contracting officer shall review each proposed procurement to determine whether the procurement must be made from a required source under §2100 of chapter 21 of this title. If the procurement may be made from other sources under §2100.1(i), the contracting officer shall determine whether the procurement falls within the agency sheltered market program established in accordance with chapter 6 of this title.

1100.3 If the procurement is to be made by competitive sealed bids or by competitive sealed proposals, the contracting officer may designate for the sheltered market the entire procurement or a portion of any subcontracting.

1100.4 Before a procurement is restricted to the sheltered market under §1100.3, the contracting officer shall make the following determinations:

(a) That there is a reasonable expectation that bids or offers will be obtained from at least two (2) responsible certified minority businesses; and

(b) That an award will be made at reasonable prices.

1100.5 If the contracting officer is unable to make a determination of the availability of prospective certified minority contractors under §1100.4(a), the contracting officer shall obtain from the Department of Small and Local Business Development (“DSLDB”, in accordance with §1101, a list of all available certified minority business enterprises and the DSLDB's recommendation regarding the feasibility of placing the procurement in the sheltered market.

1100.6 A contracting officer may make a procurement in the sheltered market on a sole source basis, provided that the provisions of chapter 17 of this title applicable to sole source procurements in the sheltered market shall be followed.

1100.7 A contracting officer may make a procurement in the sheltered market on an emergency basis, provided that the provisions of chapter 17 applicable to emergency procurements shall be followed.

History

AUTHORITY: Unless otherwise noted, the authority for this chapter is the District of Columbia Procurement Practices Act of 1985, D.C. Law 6-85, as amended, D.C. Code §1-1181.1 et seq. (1981).
SOURCE: Final Rulemaking published at 35 DCR 1395 (February 26, 1988).

27 DCMR § 1101 DSLDB REVIEW OF PROCUREMENTS

1101.1 The contracting officer shall send a copy of the following to the DSLDB:

(a) Each procurement request over ten thousand dollars ($10,000) that has been designated for the sheltered market by the contracting officer under §1100.3; and

(b) Each procurement request, regardless of the dollar amount, that is being considered for the sheltered market when the contracting officer is unable to determine the availability of prospective certified minority contractors under §1100.5.

1101.2 When submitting a procurement request to the DSLDB under §1101.1(b), the contracting officer shall request a recommendation from the DSLDB regarding the feasibility of a sheltered market procurement and a list of minority businesses certified in the specific supply, service, or construction area of the procurement.

1101.3 The contracting officer shall request the DSLDB to provide the contracting officer with a recommendation and a list of certified minority businesses in accordance with §1101.2 within ten (10) working days after the date of the contracting officer's submittal of the procurement request. If the DSLDB has not responded within ten (10) working days after receipt of the request, the contracting officer may proceed with the procurement based on the contracting officer's determination without further notice to the DSLDB.

1101.4 After receiving an DSLDB recommendation under §1101.3 that sheltered market procurement is feasible, if the contracting officer decides to solicit the procurement in the open market, the contracting officer shall inform the head of the contracting agency in writing of the reasons for the decision to solicit in the open market, and shall send a copy of the determination to the DSLDB.

History

SOURCE: Final Rulemaking published at 35 DCR 1396 (February 26, 1988).

27 DCMR § 1102 CANCELLATION OF A SHELTERED MARKET SOLICITATION

1102.1 If the contracting officer cancels a sheltered market solicitation for any of the reasons set forth in chapters 15, 16, or 17, the contracting officer shall provide a copy of the determination to the DSLDB in addition to complying with the reporting requirements of this title.

1102.2 After the contracting officer cancels a sheltered market solicitation, the contracting officer may resolicit in the open market if the service, supply, or construction is still required.

History

SOURCE: Final Rulemaking published at 35 DCR 1396 (February 26, 1988).

27 DCMR § 1103 SHELTERED MARKET SUBCONTRACTING

1103.1 The contracting officer shall review each solicitation that has not been designated for the sheltered market to determine whether the agency sheltered market program established by the using agency would apply to subcontracts that might be let under the proposed contract, in accordance with chapter 6 of this title.

1103.2 The contracting officer shall include in each solicitation for which a portion of the subcontracting is designated for the sheltered market a clause, approved by the Director, which sets forth the requirements for a sheltered market subcontracting plan, including the time limits for submitting the plan.

1103.3 For each solicitation in which a portion of the subcontracting is designated for the sheltered market, the contracting officer shall require the low bidder or the apparently successful offeror to submit a sheltered market subcontracting plan, in accordance with §1104.

1103.4 If the low bidder or apparently successful offeror does not submit a sheltered market subcontracting plan within the time limit set by the contracting officer in the solicitation, that bidder or offeror shall be ineligible for award.

History

SOURCE: Final Rulemaking published at 35 DCR 1397 (February 26, 1988).

27 DCMR § 1104 SHELTERED MARKET SUBCONTRACTING PLANS

1104.1 Each certified minority business subcontracting plan required under §1103 shall include the following:

(a) A percentage goal for using certified minority businesses;

(b) The name of an individual employed by the bidder or offeror who will administer the sheltered market subcontracting program, and a description of the duties of the individual;

(c) A description of the efforts the bidder or offeror will make to ensure that certified minority businesses will have an equitable opportunity to compete for subcontracts;

(d) In all subcontracts that offer further subcontracting opportunities, assurances that the bidder or offeror will include a clause, approved by the Director, that the subcontractor will adopt a sheltered market plan similar to the plan required by the contract;

(e) Assurances that the bidder or offeror will cooperate in any studies or surveys that may be required by the contracting officer, and submit periodic reports to the contracting officer to allow the District to determine the extent of compliance by the bidder or offeror with the subcontracting plan;

(f) A recitation of the types of records the bidder or offeror will maintain to demonstrate procedures adopted to comply with the requirements and goals set forth in the plan, including establishing source lists; and

(g) A description of the bidder's or offeror's recent efforts to locate certified minority businesses and to award subcontracts to them.

1104.2 A contractor may establish a master subcontracting plan which contains all the elements required except percentage goals, subject to approval by the contracting officer. The contracting officer shall recognize the master subcontracting plan for a one (1) year period after approval.

1104.3 When incorporated in an individual contract, the master subcontracting plan shall apply to that contract throughout the life of the contract.

History

SOURCE: Final Rulemaking published at 35 DCR 1397 (February 26, 1988).

27 DCMR § 1105 REVIEW AND ACCEPTANCE OF SUBCONTRACTING PLANS

1105.1 The contracting officer shall review each sheltered market subcontracting plan for adequacy, ensuring that the required information, goals, and assurances are included.

1105.2 The contracting officer shall consider each plan in terms of the circumstances of the particular procurement, including the following:

(a) Previous involvement of certified minority businesses as prime contractors or subcontractors in similar procurements;

(b) Proven methods of involving certified minority businesses as subcontractors in similar procurements; and

(c) The previous success of methods the contractor intends to use to meet the goals and requirements of the plan, as evidenced by records maintained by contractors.

1105.3 If, in a procurement by competitive sealed bidding, a bidder does not submit a plan which incorporates the required elements set forth in §1104.1, the bidder shall be ineligible for award. If the plan, although responsive, reflects the bidder's intention not to comply with its obligations under the plan, the contracting officer may find the bidder nonresponsible.

1105.4 In competitive sealed proposals, the contracting officer shall determine whether the plan is acceptable based on the negotiation of each of the elements of the plan.

1105.5 In determining the acceptability of a proposed subcontracting plan, the contracting officer shall do the following:

(a) Evaluate the bidder's or offeror's past performance in awarding subcontracts for the same or similar goods or services to certified minority businesses, or if information is not available on a specific type of supply or service, evaluate the bidder's or offeror's overall past performance;

(b) If the contract involves goods or services that are particularly specialized or not generally available in the commercial market, consider the bidder's or offeror's current capacity to perform the work and the possibility of reduced subcontracting opportunities;

(c) Evaluate subcontracting potential, considering the nature of the goods or services to be subcontracted, and the known availability of certified minority businesses in the geographical area where the work will be performed; and

(d) Evaluate the feasibility of the bidder's or offeror's proposed percentage goals.

1105.6 The contracting officer may request the DSLDB to review a sheltered market subcontracting plan within five (5) working days of receipt of the plan by the DSLDB and submit recommendations to the contracting officer. The recommendations shall be considered advisory in nature.

1105.7 When the solicitation requires submission of a subcontracting plan, the contracting officer shall ensure that an acceptable subcontracting plan is incorporated into and made a part of the contract.

1105.8 After a contract containing a sheltered market subcontracting plan is awarded, the contracting officer shall notify the DSLDB of the award and send a copy of the subcontracting plan to the DSLDB.

History

SOURCE: Final Rulemaking published at 35 DCR 1398 (February 26, 1988).

27 DCMR § 1106 [RESERVED]

27 DCMR § 1107 [RESERVED]

27 DCMR § 1108 [RESERVED]

27 DCMR § 1109 [RESERVED]

27 DCMR § 1110 DISTRICT-BASED BUSINESS PREFERENCES

1110.1 In order to qualify as a District-based business, a business enterprise, including a sole proprietorship, shall be required to satisfy all of the following criteria:

(a) The business, if required to be licensed in the District under the general business and professional license law, D.C. Code §47-2801 et seq. (1981), or other District law or regulations, has the required license in force;

(b) The business is subject to the District of Columbia Income and Franchise Taxes Act of 1947, D.C. Code §47-1807 et seq. (1981), and at least sixty percent (60%) of the net income of the business is taxable income, as defined in D.C. Code §§47-1806.1, 47-1807.1, or 47-1808.2 (1981), whichever is applicable;

(c) At least sixty percent (60%) of the amount deducted as wages of employees of the business for District income tax purposes is paid to residents of the District; and

(d) The principal office of the business is located in the District.

1110.2 When using the competitive sealed proposal method of procurement, the contracting officer may increase the offeror's evaluation point score by not more than five percent (5%) of the total possible number of evaluation points for a proposal submitted by a District-based business. The number of preference points shall be stated in the solicitation.

1110.3 When a solicitation is in the sheltered market, the contracting officer may accord a preference to a minority business enterprise having a principal office located in the District according to §605 of this title.

History

SOURCE: Final Rulemaking published at 35 DCR 1400 (February 26, 1988).

27 DCMR § 1199 DEFINITIONS

1199.1 When used in this chapter, the following terms and phrases shall have the meanings ascribed:

Certified minority business enterprise - any firm certified in accordance with the provisions of the Minority Contracting Act of 1976, effective March 29, 1977, D.C. Law 1-95, D.C. Code §1-1141 et seq. (1981).

Director - the Director of the Office of Contracting and Procurement or the District of Columbia Chief Procurement Officer.

Master subcontracting Plan - a subcontracting plan containing the elements specified in §1104.1, except percentage goals.

Principal office - the primary office, based upon the totality of the business activities, in which routine and essential business functions occur, to include at least three (3) of the following:

(a) Bookkeeping and other record keeping;

(b) Payroll maintenance;

(d) Storage of books and records; or

(e) Directing, controlling, and coordinating of activities and policies by officers, principals, and managers.

Procurement request - a request to a contracting office to procure goods, services, or construction (see definition in the Act, §107(38), D.C. Code §1-1181.7(15) (1981).

Sheltered market procurement - a process by which contracts or subcontracts are designated, before solicitation of bids or proposals, for competition among minority business enterprises on the basis of competitive sealed proposals or competitive sealed bids.

History

SOURCE: Final Rulemaking published at 35 DCR 1401 (February 26, 1988).

27-12 CONTRACT MANAGEMENT AND ADMINISTRATION

27 DCMR § 1200 CONTRACT EXECUTION BY THE DISTRICT

1200.1 Only a contracting officer is authorized to sign and enter into a contract on behalf of the District.

1200.2 The contracting officer's name and official title shall be typed or printed on the contract.

1200.3 The contracting officer shall:

Ensure that the person signing on behalf of the contractor has the authority to bind the contractor; and

(b) Sign the contract after it has been properly signed by the contractor.

History

SOURCE: Final Rulemaking published at 35 DCR 1402 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 9071 (September 27, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 11077 (December 23, 2011).

27 DCMR § 1201 CONTRACT EXECUTION BY CONTRACTORS

1201.1 A contract with an individual shall be signed by that individual.

1201.2 A contract with an individual doing business as a firm shall be signed by that individual, and the signature shall be followed by the individual's typed, stamped or printed name and, if applicable, the “doing business as” (DBA) name.

1201.3 A contract with a partnership shall be signed in the partnership name by a general partner with authority to bind the partnership.

1201.4 A contract with a corporation shall be signed in the corporate name followed by the word "By", and the signature and title of the person authorized to sign for the corporation.

1201.5 A contract with a joint venture shall be signed by a person authorized by the joint venture to bind the joint venture.

History

SOURCE: Final Rulemaking published at 35 DCR 1402 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 9071 (September 27, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 11077 (December 23, 2011).

27 DCMR § 1202 [RESERVED]

History

SOURCE: Final Rulemaking published at 35 DCR 1403 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 9071 (September 27, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 11077, 11078 (December 23, 2011).

27 DCMR § 1203 [RESERVED]

History

SOURCE: Final Rulemaking published at 35 DCR 1403 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 9071 (September 27, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 11077, 11078 (December 23, 2011).

27 DCMR § 1204 CONTRACT FILES

1204.1 The Director shall determine the documents required to be included in a contract file which shall contain the original fully executed documents.

History

SOURCE: Final Rulemaking published at 35 DCR 1404 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 9071 (September 27, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 11077, 11078 (December 23, 2011). Editor’s Note: Notice of Final Rulemaking published at 58 DCR 11077 (December 23, 2011) repealed the pre-existing chapter 12 (Contract Management and Administration) and replaced it with a new chapter 12 which included new sections.

27 DCMR § 1205 DETERMINATIONS AND FINDINGS

1205.1 A determination and findings (D & F) shall be used for an individual or class contract action, and shall be retained in the contract file.

1205.2 The Director shall determine the information to be included in an individual or class D & F.

History

SOURCE: Final Rulemaking published at 35 DCR 1405 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 9071 (September 27, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 11077, 11078 (December 23, 2011).

27 DCMR § 1206 [RESERVED]

History

SOURCE: Final Rulemaking published at 35 DCR 1405 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 9071 (September 27, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 11077, 11078 (December 23, 2011).

27 DCMR § 1207 [RESERVED]

History

SOURCE: Final Rulemaking published at 35 DCR 1406 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 9071 (September 27, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 11077, 11078 (December 23, 2011). Editor’s Note: Notice of Final Rulemaking published at 58 DCR 11077 (December 23, 2011) repealed the pre-existing chapter 12 (Contract Management and Administration) and replaced it with a new chapter 12 which included new sections.

27 DCMR § 1208 [RESERVED]

History

SOURCE: Final Rulemaking published at 35 DCR 1407 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 9071 (September 27, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 11077, 11078 (December 23, 2011).

27 DCMR § 1209 CONTRACT ADMINISTRATION

1209.1 The contracting officer may appoint a contract administrator for each contract.

1209.2 The contracting officer may delegate the following functions to a contract administrator:

Prepare a clear and concise statement of work;

Determine the allowability, suspension, or disapproval of costs;

Approve or disapprove contractor invoices;

Review and approve or disapprove a contractor’s requests for payments under progress payments or performance-based payment structures;

Take action to recover overpayments from the contractor;

Perform production support, oversight, and status reporting, including timely reporting of potential and actual slippages in contract delivery schedules;

Advise the contracting officer of any actual or potential labor disputes;

Ensure contractor compliance with contractual quality assurance requirements;

Ensure contractor compliance with contractual safety requirements;

Perform surveillance to assess compliance with contractual terms for schedule, cost, and technical performance in the areas of design, development and production;

Report to the contracting officer any inadequacies noted in the specifications;

Ensure timely submission of required reports;

Monitor contractor compliance with specifications or other contractual requirements;

Prepare evaluations of contractor performance in accordance with chapter 22 of this title; and

Any other function relating to contract administration not expressly reserved by these rules to the contracting officer.

History

SOURCE: Final Rulemaking published at 35 DCR 1407 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 9071 (September 27, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 11077, 11078 (December 23, 2011).

27 DCMR § 1210 [RESERVED]

History

SOURCE: Final Rulemaking published at 35 DCR 1407 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 9071 (September 27, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 11077, 11079 (December 23, 2011). Editor’s Note: Notice of Final Rulemaking published at 58 DCR 11077 (December 23, 2011) repealed the pre-existing chapter 12 (Contract Management and Administration) and replaced it with a new chapter 12 which included new sections.

27 DCMR § 1211 [RESERVED]

History

SOURCE: Final Rulemaking published at 35 DCR 1409 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 9071 (September 27, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 11077, 11079 (December 23, 2011).

27 DCMR § 1212 NOVATION AGREEMENTS

1212.1 A request by a contractor to recognize a successor in interest shall be submitted in writing to the contracting officer.

1212.2 When a contractor asks the District to recognize a successor in interest, the contractor shall submit to the contracting officer three (3) signed copies of the proposed novation agreement and one (1) copy of each of the following:

(a) A list of all affected contracts and purchase orders remaining unsettled between the transferor and the District showing for each the contract number and type, the name and address of the District’s contracting office, the total dollar value of each contract, as amended, and the remaining unpaid balance;

(b) The opinions of legal counsel for the transferor and transferee stating that the transfer was properly effected under applicable law and the effective date of the transfer;

(d) The consent of sureties on all affected contracts if bonds are required, or a statement from the transferor that no bond is required; and

(e) Any other documents or evidence that the contracting officer deems appropriate.

1212.3 The contracting officer shall determine whether it is in the best interests of the District to recognize the proposed successor in interest. The contracting officer's decision shall include a determination of responsibility for the proposed successor in accordance with chapter 22 of this title.

1212.4 When it is in the best interest of the District not to concur in the transfer of a contract to another company, the original contractor shall remain under contractual obligation to the District, and the contract may be terminated for reasons of default if the original contractor does not perform.

1212.5 If recognizing a successor in interest to a District contract is consistent with the best interest of the District, the responsible contracting officer shall execute a novation agreement with the transferor and the transferee.

1212.6 The novation agreement shall contain the following requirements:

(a) The transferee assumes all of the transferor's obligations under the contract including those incurred in the past unless the contracting officer waives these obligations in writing after determining waiver to be in the best interest of the District;

(b) That the transferor waives all rights under the contract against the District, except as otherwise provided in the novation agreement;

(c) That the transferor guarantees performance of the contract by the transferee or provides a satisfactory performance bond; and

(d) That nothing in the agreement shall relieve the transferor or transferee from compliance with any applicable law or regulation.

1212.7 Any of the requirements set forth in § 1212.6 may be waived by the contracting officer if waiver is in the best interest of the District. Each proposed waiver shall be reviewed by the Attorney General in its pre-execution review required under

§ 1212.8.

1212.8 The Attorney General shall review a contractor’s proposed novation agreement to determine its legal sufficiency before execution by the contracting officer.

1212.9 The contracting officer shall forward signed copies of the executed novation agreement to the transferor and transferee and retain a signed copy in the contract file.

History

SOURCE: Final Rulemaking published at 35 DCR 1410 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 9071 (September 27, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 11077, 11079 (December 23, 2011).

27 DCMR § 1213 CHANGE-OF-NAME AGREEMENTS

1213.1 A contractor’s request to recognize a change in name shall be formally submitted in writing to the contracting officer.

1213.2 The contractor shall submit to the contracting officer two (2) signed copies of the proposed change of name agreement and one (1) copy of each of the following:

A list of all affected contracts and purchase orders remaining unsettled between the contractor and the District showing for each the contract number and type, the name and address of the District’s contracting office, the total dollar value of each contract, as amended, and the remaining unpaid balance; and

A copy of the document effecting the name change.

1213.3 The Attorney General shall review a contractor’s proposed change-of-name agreement to determine its legal sufficiency before execution by the contracting officer.

1213.4 The contracting officer shall forward a signed copy of the executed change-of-name agreement to the contractor and retain a signed copy in the contract file.

History

SOURCE: Final Rulemaking published at 35 DCR 1411 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 9071 (September 27, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 11077, 11081 (December 23, 2011). Editor’s Note: Notice of Final Rulemaking published at 58 DCR 11077 (December 23, 2011) repealed the pre-existing chapter 12 (Contract Management and Administration) and replaced it with a new chapter 12 which included new sections.

27 DCMR § 1214 CONTRACTOR EVALUATION

1214.1 The contracting officer shall ensure that each contractor’s performance is evaluated in accordance with the rules established by the Director in chapter 22 of this title.

History

SOURCE: Final Rulemaking published at 35 DCR 1411 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 9071 (September 27, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 11077, 11081 (December 23, 2011).

27 DCMR § 1299 DEFINITIONS

1299.1 When used in this chapter, the following terms shall have the meanings ascribed:

Change-of-name agreement - a legal instrument executed by the contractor and the District that recognizes the legal change of name of the contractor without disturbing the original contractual rights and obligations of the parties.

Determination and findings (D&F) - the "determination" is a conclusion or decision supported by the "findings." The "findings" are statements of fact or the rationale essential to support the determination and cover each applicable requirement of the statute or regulation.

Director - the Director of the Office of Contracting and Procurement or the District of Columbia Chief Procurement Officer.

Novation agreement - a legal instrument executed by a contractor (transferor), the successor in interest (transferee), and the District by which, among other things, the District recognizes the transfer of the rights and obligations of a contractor under a contract to a new contractor.

History

SOURCE: Final Rulemaking published at 35 DCR 1416 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 9071 (September 27, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 11077, 11083 (December 23, 2011). Editor’s Note: Notice of Final Rulemaking published at 58 DCR 11077 (December 23, 2011) repealed the pre-existing chapter 12 (Contract Management and Administration) and replaced it with a new chapter 12 which included new sections.

27-13 PUBLICIZING CONTRACT ACTIONS

27 DCMR § 1300 GENERAL PROVISIONS

1300.1 The Director shall maintain an Office of Contracting and Procurement (OCP) Internet site that provides the public with notice of opportunities to participate in the District’s procurement process, notice of contract awards and other relevant information about District procurements.

History

SOURCE: Final Rulemaking published at 35 DCR 1418 (February 26, 1988); as amended by Emergency Rulemaking published at 47 DCR 4703 (June 2, 2000) [EXPIRED]; as amended by Final Rulemaking published at 47 DCR 9887 (December 15, 2000); as amended by Notice of Emergency and Proposed Rulemaking published at 57 DCR 1375 (February 12, 2010)[EXPIRED]; as amended by Notice of Emergency Rulemaking published at 57 DCR 4008 (May 7, 2010)[EXPIRED]; as amended by Notice of Emergency Rulemaking published at 57 DCR 8253 (September 10, 2010)[EXPIRED]; as amended by Notice of Emergency Rulemaking published at 58 DCR 558 (January 21, 2011)[EXPIRED]; as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 4665 (May 27, 2011)[EXPIRED]; as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 8383 (September 30, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 9514 (November 11, 2011).

27 DCMR § 1301 NOTICE OF PROPOSED SOLICITATIONS

1301.1 An agency shall give public notice of a solicitation in accordance with §§ 402 and 403 of the District of Columbia Procurement Practices Reform Act of 2010, effective April 8, 2011 (D.C. Law 18-371; D.C. Official Code §§ 2-354.02 and 2-354.03) (2011 Supp.) (Act).

1301.2 Except as provided in § 1301.5 of this chapter, the contracting officer shall publish each proposed solicitation over one hundred thousand dollars ($100,000) and up to two hundred fifty thousand dollars ($250,000) on OCP’s Internet site, and may publish the solicitation using any other methods reasonably available, such as newspapers or trade publications.

1301.3 Except as provided in § 1301.5 of this chapter, the contracting officer shall publish each proposed solicitation over two hundred fifty thousand dollars ($250,000) on the OCP Internet site and in a newspaper of general circulation and in trade publications considered by the Director to be appropriate to give adequate public notice.

1301.4 A contracting officer may place additional advertisements of solicitations when it is in the best interest of the District.

1301.5 The requirements for advertisement of solicitations set forth in this section shall not apply to the following:

Emergency procurements;

Small purchases;

Procurement of architect-engineering services;

Procurement of medical and human care services; and

Procurements exempt from competition under § 413 of the Act.

History

SOURCE: Final Rulemaking published at 35 DCR 1419 (February 26, 1988) ); as amended by Emergency Rulemaking published at 47 DCR 4703 (June 2, 2000) [EXPIRED]; as amended by Final Rulemaking published at 47 DCR 9887 (December 15, 2000); as amended by Final Rulemaking published at 53 DCR 5874(July 21, 2006); as amended by Notice of Emergency and Proposed Rulemaking published at 57 DCR 1375 (February 12, 2010)[EXPIRED]; as amended by Notice of Emergency Rulemaking published at 57 DCR 4008 (May 7, 2010)[EXPIRED]; as amended by Notice of Emergency Rulemaking published at 57 DCR 8253 (September 10, 2010)[EXPIRED]; as amended by Notice of Emergency Rulemaking published at 58 DCR 558 (January 21, 2011)[EXPIRED]; as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 4665 (May 27, 2011)[EXPIRED]; as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 8383 (September 30, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 9514 (November 11, 2011).

27 DCMR § 1302 INVITATION FOR BIDS

1302.1 An Invitation for Bids (IFB) shall be advertised for at least fourteen (14) days before the date set for the receipt of bids, unless the Director determines in writing that it is appropriate to shorten the notice period to not less than three (3) days. The Director shall consider the following factors in determining whether it is appropriate to shorten a notice period:

The complexity of the procurement;

Subcontracting requirements;

The degree of urgency;

The impact of a shortened notice period on competition; and

Any other relevant factors.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 58 DCR 4665 (May 27, 2011)[EXPIRED]; as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 8383 (September 30, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 9514, 9515 (November 11, 2011).

27 DCMR § 1303 REQUESTS FOR PROPOSALS

1303.1 A Request for Proposals (RFP) shall be advertised for at least twenty-one (21) days before the date set for the receipt of proposals, unless the Director determines in writing that it is appropriate to shorten the notice period to not less than fourteen (14) days. The Director shall consider the following factors in determining whether it is appropriate to shorten the notice period:

The complexity of the procurement;

Subcontracting requirements;

The degree of urgency;

The impact of a shortened notice period on competition; and

Any other relevant factors.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 58 DCR 4665 (May 27, 2011)[EXPIRED]; as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 8383 (September 30, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 9514, 9515 (November 11, 2011); as corrected by an Errata Notice published at 58 DCR 9830 (November 18, 2011).

27 DCMR § 1304 NOTICE OF INTENT TO AWARD A SOLE SOURCE CONTRACT

1304.1 A notice of intent to award a sole source contract shall be published on the OCP Internet for at least ten (10) days prior to contract award if the estimated price is over ten-thousand dollars ($10,000).

1304.2 A notice of intent to award a sole source contract shall include:

A copy of the proposed determination and findings required under § 404(b) of the Act;

A clear description of the item to be procured;

The procuring agency;

A response due date;

A point of contact; and

The intended sole source contractor.

1304.3 Sole source awards, regardless of dollar value, shall be published in accordance with the provisions in § 1305 of this chapter.

History

SOURCE: Emergency and Proposed Rulemaking published at 58 DCR 4665 (May 27, 2011)[EXPIRED]; as amended by Emergency and Proposed Rulemaking published at 58 DCR 8383 (September 30, 2011)[EXPIRED]; as amended by Final Rulemaking published at 58 DCR 9514, 9516 (November 11, 2011); as amended by Final Rulemaking published at 61 DCR 391 (January 17, 2014). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 1304

27 DCMR § 1305 NOTICE OF CONTRACT AWARDS OVER ONE HUNDRED THOUSAND DOLLARS ($100,000)

1305.1 The following documents related to each contract award over one hundred thousand dollars ($100,000) shall be published on the OCP Internet site within seven (7) days of award:

The solicitation and all amendments thereto;

The contract and all modifications thereto;

Determinations and findings; and

Change orders.

1305.2 All information published under this § 1305 shall be removed from the Internet site upon the expiration or termination of the contract, or after five (5) years of award, whichever is longer.

1305.3 The provisions of this § 1305 shall apply to contract awards for all District agencies and departments, whether or not they are subject to the authority of the Chief Procurement Officer.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 58 DCR 4665 (May 27, 2011)[EXPIRED]; as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 8383 (September 30, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 9514, 9516 (November 11, 2011).

27 DCMR § 1306 NOTICE OF AWARDS OF HUMAN CARE AGREEMENTS

1306.1 Human care agreement awards, regardless of dollar value, shall be published in accordance with the provisions in § 1305 of this chapter.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 58 DCR 4665 (May 27, 2011)[EXPIRED]; as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 8383 (September 30, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 9514, 9517 (November 11, 2011).

27 DCMR § 1307 NOTICE OF EMERGENCY PROCUREMENTS

1307.1 Emergency procurement awards, regardless of dollar value, shall be published in accordance with the provisions in § 1305 of this chapter.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 58 DCR 4665 (May 27, 2011)[EXPIRED]; as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 8383 (September 30, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 9514, 9517 (November 11, 2011).

27 DCMR § 1308 NOTICE OF SPECIAL PILOT PROCUREMENTS

1308.1 Unless otherwise determined by the Director, a notice of intent to use the special pilot procurement method shall be published on the OCP Internet for at least ten (10) days prior to discussions. The notice shall include:

A copy of the proposed determination and findings required under § 408(c) of the Act;

A clear description of the goods or services to be procured;

The name of the proposed contractor, if the agency has identified a proposed contractor;

The procuring agency;

How vendors may express their interest in providing the required goods or services;

A point of contact; and

A response due date.

1308.2 Special pilot awards, regardless of dollar value, shall be published in accordance with the provisions in § 1305 of this chapter.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 58 DCR 4665 (May 27, 2011)[EXPIRED]; as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 8383 (September 30, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 9514, 9517 (November 11, 2011).

27 DCMR § 1399 DEFINITIONS

1399.1 When used in this chapter, the following terms and phases shall have the meanings ascribed:

Commercially-available "off-the-shelf" items - Items produced and placed in stock by a contractor, or stocked by a distributor, before receiving orders or contracts for their sale, including items for commercial order or produced to government specification or description.

Standard commercial services - Installation, maintenance, repair, training or other services necessary for proper use of commercially-available "off-the-shelf" items; services offered to both the general public and the government under similar terms and conditions; or services of a type offered and sold competitively in substantial quantities in the commercial marketplace for specific tasks performed under standard commercial terms and conditions.

History

SOURCE: Final Rulemaking published at 35 DCR 1419 (February 26, 1988); as amended by Emergency Rulemaking published at 47 DCR 4703 (June 2, 2000) [EXPIRED]; as amended by Final Rulemaking published at 47 DCR 9887 (December 15, 2000).

27-14 USE OF ELECTRONIC COMMERCE

27 DCMR § 1400 GENERAL PROVISIONS

GENERAL PROVISIONS

The District shall accomplish the purposes of this title by using electronic commerce whenever practicable.

The use of the terms in this title commonly associated with paper transactions (for example, “typewritten”, “copy”, “document”, “signed in ink”, “written legibly”, “page”, “postmark”, “envelope”) shall be deemed to include their electronic analogues and shall not be interpreted to discourage the use of electronic commerce.

As a condition of participation in an electronic transaction, the Director may require potential bidders and offerors to:

(a) Register with the District, and any other entity designated by the District, before participating in an electronic transaction; and

(b) Agree to the terms, conditions, or other requirements of an electronic transaction, or to agree to terms and conditions governing the electronic transaction, such as procedures that the District may use to attribute, authenticate, or verify the accuracy of an electronic offer or the actions that constitute an electronic signature.

Contracting officers may allow the use of other media, including but not limited to hard copies of drawings, specifications, or bid samples, to supplement electronic submissions to meet the requirements of the electronic transaction.

History

Source: Notice of Emergency and Proposed Rulemaking published at 57 DCR 10224 (October 29, 2010)[EXPIRED]; as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 1658 (March 4, 2011)[EXPIRED]; as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 6100 (July 22, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 7978 (September 9, 2011).

27 DCMR § 1401 ELECTRONIC SOLICITATIONS

1401.1 Each electronic solicitation shall comply with the requirements of this title and the District of Columbia Procurement Practices Reform Act of 2010, effective April 8, 2011 (D.C. Law 18-371; D.C. Official Code §§ 2-351.01, et seq. (2011 Supp.)), for the procurement method being utilized.

History

Source: Notice of Emergency and Proposed Rulemaking published at 57 DCR 10224 (October 29, 2010)[EXPIRED]; as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 1658 (March 4, 2011)[EXPIRED]; as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 6100 (July 22, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 7978, 7979 (September 9, 2011).

27 DCMR § 1402 FAILURE OF THE ELECTRONIC SYSTEM

1402.1 If a failure of the District’s electronic system interferes with the ability of bidders or offerors to participate in an electronic transaction, the District shall amend the notice or solicitation when the electronic system becomes available to extend the date and time for receipt of electronic bids or offers.

History

Source: Notice of Emergency and Proposed Rulemaking published at 57 DCR 10224 (October 29, 2010)[EXPIRED]; as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 1658 (March 4, 2011)[EXPIRED]; as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 6100 (July 22, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 7978, 7979 (September 9, 2011).

27-15 PROCUREMENT BY COMPETITIVE SEALED BIDDING

27 DCMR § 1500 INVITATION FOR BIDS

1500.1 The contracting officer shall solicit goods and services for contracts exceeding one hundred thousand dollars ($100,000) using the competitive sealed bidding process unless the Director determines that use of competitive sealed bidding is not practicable or in the best interest of the District.

1500.2 An invitation for bids (IFB) shall be used to solicit goods or services under competitive sealed bidding procedures.

1500.3 Each IFB shall include the following:

(a) Instructions and information to bidders concerning bid submission requirements, including the time and date set for receipt of bids and the location where bids are to be delivered;

(b) The purchase description, delivery, or performance schedule, and any special instructions necessary; and

(c) A statement indicating whether contract award will be made on the basis of the lowest bid price or the lowest evaluated bid price, whichever is applicable.

1500.4 If the lowest evaluated bid price is the basis of contract award, the objective measurable criteria to be used shall be set forth in the IFB. The objective measurable criteria must be related to price.

1500.5 The IFB shall require acknowledgement by each bidder of the receipt of all issued amendments, addenda, and changes.

1500.6 The District shall evaluate bids without discussions with bidders.

1500.7 Information concerning proposed acquisitions shall not be released outside the District before solicitation, except for pre-solicitation notices.

History

SOURCE: Final Rulemaking published at 35 DCR 1420 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 59 DCR 3714 (March 6, 2012)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 6290 (June 1, 2012).

27 DCMR § 1501 [RESERVED]

History

SOURCE: Final Rulemaking published at 35 DCR 1421 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 59 DCR 3714 (March 6, 2012)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 6290, 6291 (June 1, 2012).

27 DCMR § 1502 [RESERVED]

History

SOURCE: Final Rulemaking published at 35 DCR 1422 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 59 DCR 3714 (March 6, 2012)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 6290, 6291 (June 1, 2012).

27 DCMR § 1503 TIME FOR SUBMISSION OF BIDS

1503.1 The contracting officer shall provide a reasonable time for prospective bidders to prepare and submit bids in all IFBs, consistent with the needs of the District, but in no event less than fourteen (14) days from the first day of publication, unless the Director determines that it is appropriate to shorten the notice period to a period not less than three (3) days.

1503.2 When establishing a reasonable bidding time, the contracting officer shall consider the following factors:

(a) The complexity of the procurement;

(b) The subcontracting requirements;

(d) The degree of urgency; and

(e) Any other relevant factors.

History

SOURCE: Final Rulemaking published at 35 DCR 1422 (February 26, 1988); as amended by Notice of Emergency Rulemaking published at 58 DCR 558 (January 21, 2011)[EXPIRED]; as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 4668 (May 27, 2011)[EXPIRED]; as amended by Notice of Emergency Rulemaking published at 58 DCR 8381 (September 30, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 9824 (November 18, 2011); as amended by Notice of Emergency and Proposed Rulemaking published at 59 DCR 3714 (March 6, 2012)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 6290, 6291 (June 1, 2012).

27 DCMR § 1504 INVITATION FOR BIDS IN THE SET-ASIDE MARKET

1504.1 Before the contracting officer restricts an IFB to the small business set-aside market, the contracting officer shall determine that:

(a) There is a reasonable expectation that bids will be obtained from at least two (2) responsible certified small business enterprises certified by the Department of Small and Local Business Development (DSLBD); and

(b) An award will be made at reasonable prices.

History

SOURCE: Final Rulemaking published at 35 DCR 1423 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 59 DCR 3714 (March 6, 2012)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 6290, 6291 (June 1, 2012).

27 DCMR § 1505 [RESERVED]

History

SOURCE: As amended by Notice of Emergency Rulemaking published at 59 DCR 3714 (March 6, 2012)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 6290, 6292 (June 1, 2012).

27 DCMR § 1506 BID SAMPLES

BID SAMPLES

Each IFB shall state whether the bidder is required to furnish samples.

The contracting officer shall not require bidders to furnish bid samples unless there are characteristics of the product that cannot be described adequately in the specifications or purchase description.

The contracting officer shall only use bid samples to determine the responsiveness of the bid, and shall not be used to determine a bidder’s ability to produce the required items.

The contracting officer shall reject a bid as nonresponsive if the sample fails to conform to each of the characteristics listed in the IFB.

History

SOURCE: Final Rulemaking published at 35 DCR 1423 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 59 DCR 3714 (March 6, 2012)[EXPIRED]; as amended Notice of Final Rulemaking published at 59 DCR 6290, 6292 (June 1, 2012).

27 DCMR § 1507 DESCRIPTIVE LITERATURE

DESCRIPTIVE LITERATURE

Each IFB shall state whether the bidder is required to furnish descriptive literature.

The contracting officer shall not require bidders to furnish descriptive literature unless the contracting officer needs it to determine, before award, whether the product offered meets the specifications or to establish exactly what the bidder proposes to furnish.

The contracting officer shall document, in writing, the reasons why product acceptability cannot be determined without submission of descriptive literature and shall include the document in the contract file.

The IFB shall clearly identify the following:

(a) The descriptive literature required to be furnished;

(b) The purpose for which the literature is required;

The rules that shall apply if a bidder fails to furnish the literature before bid opening or the literature furnished does not comply with the requirements of the IFB.

After receipt of bids, the contracting officer may waive the requirement for furnishing descriptive literature if either of the following occurs:

(a) The bidder states in its bid that the product being offered is the same as a product previously or currently being furnished to the District; or

The contracting officer determines that the product offered by the bidder complies in all material respects with the specification requirements of the IFB.

History

SOURCE: Final Rulemaking published at 35 DCR 1424 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 59 DCR 3714 (March 6, 2012)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 6290, 6291 (June 1, 2012).

27 DCMR § 1508 NOTICES OF INVITATIONS FOR BIDS

1508.1 The contracting officer shall publicize IFBs in accordance with the provisions of chapter 13 of this title.

1508.2 Prospective bidders that are debarred or suspended from District or federal contracts or otherwise determined to be ineligible to receive awards shall not be eligible to bid.

History

SOURCE: Final Rulemaking published at 35 DCR 1424 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 59 DCR 3714 (March 6, 2012)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 6290, 6293 (June 1, 2012).

27 DCMR § 1509 [RESERVED]

History

SOURCE: Final Rulemaking published at 35 DCR 1425 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 59 DCR 3714 (March 6, 2012)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 6290, 6293 (June 1, 2012).

27 DCMR § 1510 [RESERVED]

History

SOURCE: Final Rulemaking published at 35 DCR 1425 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 59 DCR 3714 (March 6, 2012)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 6290, 6293 (June 1, 2012).

27 DCMR § 1511 [RESERVED]

History

SOURCE: Final Rulemaking published at 35 DCR 1426 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 59 DCR 3714 (March 6, 2012)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 6290, 6293 (June 1, 2012)

27 DCMR § 1512 [RESERVED]

History

SOURCE: Final Rulemaking published at 35 DCR 1426 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 59 DCR 2714 (March 6, 2012)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 6290, 6294 (June 1, 2012).

27 DCMR § 1513 PREQUALIFICATION PROCESS

1513.1 Before issuing an IFB, the contracting officer may prequalify bidders by

establishing a prequalification process to certify the financial and professional qualifications of prospective bidders.

1513.2 The contracting officer may use a prequalification process when he or she

determines that this process will be the most advantageous to the District. The contracting officer may limit participation in certain procurements to prospective contractors who have been prequalified under the process.

1513.3 The contracting officer shall conduct the prequalification process as follows:

The contracting officer shall first advertise a Request for Qualifications pursuant to chapter 13 of this title, for prospective bidders to submit financial and professional responsibility information; and

The contracting officer may only issue an IFB to those prospective bidders determined to be qualified after evaluation of the responses to the Request for Qualifications. Only qualified prospective bidders may submit bids in response to the IFB.

1513.4 The Request for Qualifications shall include, at a minimum:

(a) A detailed description of the contract requirements; and

(b) Submission requirements that will be used to determine whether a prospective bidder is qualified.

1513.5 The contracting officer may conduct oral or written discussions with prospective bidders who submitted responses to the Request for Qualifications.

1513.6 The contracting officer may provide the information submitted by all prospective bidders in response to the request to an evaluation panel. The panel may recommend to the contracting officer, based upon the panel’s analysis of the information according to the criteria set forth in the request, whether a prospective bidder is qualified.

1513.7 After determining the most qualified prospective bidders, the contracting officer shall issue an IFB only to the bidders who have been determined most qualified.

1513.8 The IFB shall not be advertised in newspapers or publicly posted.

1513.9 The use of the prequalification process shall not nullify the requirement for a determination of contractor responsibility under chapter 22 of this title.

History

SOURCE: Final Rulemaking published at 35 DCR 1426 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 59 DCR 3714 (March 6, 2012)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 6290, 6294 (June 1, 2012).

27 DCMR § 1514 [RESERVED]

History

SOURCE: As amended by Notice of Emergency and Proposed Rulemaking published at 59 DCR 3714 (March 6, 2012)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 6290, 6295 (June 1, 2012).

27 DCMR § 1515 [RESERVED]

History

SOURCE: As amended by Notice of Emergency and Proposed Rulemaking published at 59 DCR 3714 (March 6, 2012)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 6290, 6295 (June 1, 2012).

27 DCMR § 1516 PRE-BID CONFERENCES

1516.1 The contracting officer may conduct pre-bid conferences to explain the procurement requirements.

1516.2 The contracting officer shall announce pre-bid conferences in the IFB to all prospective bidders.

1516.3 The contracting officer shall hold a pre-bid conference as early as possible after an IFB has been issued and before bids are due.

1516.4 Nothing stated at the pre-bid conference shall change an IFB unless a change is made by the contracting officer by written amendment.

History

SOURCE: Final Rulemaking published at 35 DCR 1427 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 59 DCR 3714 (March 6, 2012)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 6290, 6295 (June 1, 2012).

27 DCMR § 1517 AMENDMENT OF INVITATIONS FOR BIDS

1517.1 The contracting officer shall identify amendments to an IFB and require the bidders to acknowledge receipt of each amendment issued.

1517.2 The contracting officer shall amend the solicitation if it becomes necessary to make changes in quantity, specifications, delivery schedules, opening time or date, or to correct a defective or ambiguous IFB.

1517.3 The contracting officer shall send each amendment to all prospective bidders and post the amendment on the Internet.

1517.4 The contracting officer shall distribute and post each amendment within a reasonable time to allow prospective bidders to consider the information before submitting or modifying their bids.

History

SOURCE: Final Rulemaking published at 35 DCR 1427 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 59 DCR 3714 (March 6, 2012)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 6290, 6295 (June 1, 2012).

27 DCMR § 1518 CANCELLATION OF INVITATIONS FOR BIDS BEFORE OPENING

1518.1 The contracting officer shall not cancel an IFB unless the Director determines in writing that cancellation is in the best interest of the District.

1518.2 If an IFB is canceled before bid opening, the contracting officer shall:

(a) Return to the bidders unopened bids that have been received via mail or hand-delivery; or

(b) Purge all bids that have been received electronically from primary and backup data storage systems.

1518.3 The contracting officer shall promptly publish on the Internet a notice of cancellation.

History

SOURCE: Final Rulemaking published at 35 DCR 1428 (February 26, 1988); as amended by Notice of Emergency Rulemaking published at 58 DCR 558 (January 21, 2011)[EXPIRED]; as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 4668 (May 27, 2011)[EXPIRED]; as amended by Notice of Emergency Rulemaking published at 58 DCR 8381 (September 30, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 9824 (November 18, 2011); as amended by Notice of Emergency and Proposed Rulemaking published at 59 DCR 3714 (March 6, 2012)[EXPIRED]; as amended by Notice of Final Rulemaking published 59 DCR 6290, 6296 (June 1, 2012).

27 DCMR § 1519 [RESERVED]

History

SOURCE: As amended by Notice of Emergency and Proposed Rulemaking published at 59 DCR 3714 (March 6, 2012)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 6290, 6296 (June 1, 2012).

27 DCMR § 1520 [RESERVED]

History

SOURCE: As amended by Notice of Emergency and Proposed Rulemaking published at 59 DCR 3714 (March 6, 2012)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 6290, 6296 (June 1, 2012).

27 DCMR § 1521 BID SUBMISSION REQUIREMENTS

1521.1 To be considered for award, a bid shall comply in all material respects with the IFB.

1521.2 Bidders shall complete and submit bids in accordance with the instructions in the IFB.

1521.3 Bidders shall submit bids so that they are received at the location designated in the IFB no later than the exact time specified in the IFB.

1521.4 Unless the solicitation states another time, the deadline for receipt of bids shall be 2:00 p.m. local time on the date that bids are due.

History

SOURCE: Final Rulemaking published at 35 DCR 1428 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 59 DCR 3714 (March 6, 2012)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 6290, 6296 (June 1, 2012).

27 DCMR § 1522 [RESERVED]

History

SOURCE: Final Rulemaking published at 35 DCR 1428 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 59 DCR 3714 (March 6, 2012)[EXPIRED]; as amended by Notice of Final Rulemaking published 59 DCR 6290, 6296 (June 1, 2012).

27 DCMR § 1523 PRE-OPENING MODIFICATION OR WITHDRAWAL OF BIDS

1523.1 Bids may be modified or withdrawn by written notice received at the location designated in the IFB prior to the time and date set for bid opening. An electronic modification or withdrawal received from the bidder prior to the time and date set for bid opening will be effective; provided that, there is objective evidence in electronic form confirming that the modification or withdrawal was received prior to the time and date set for bid opening.

1523.2 If a bid is withdrawn in accordance with this subsection, the bid security, if any, shall be returned to the bidder.

History

SOURCE: Final Rulemaking published at 35 DCR 1428 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 59 DCR 3714 (March 6, 2012)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 6290, 6297 (June 1, 2012).

27 DCMR § 1524 LATE BIDS, LATE WITHDRAWALS, AND LATE MODIFICATIONS

1524.1 Any bid received at the location designated in the solicitation after the time and date set for receipt of bids shall be considered a "late" bid unless it was received prior to the contract award and any of the following applies:

(a) It was sent by registered or certified mail not later than five (5) calendar days before the bid receipt date specified;

It was sent by mail and the contracting officer determines that the late receipt was due solely to mishandling by the District after receipt at the location specified in the IFB; or

It was sent electronically by the bidder prior to the time and date specified and there is objective evidence in electronic form confirming that the bid was received prior to the bid receipt time and date specified.

1524.2 Any request for withdrawal or request for modification of a bid received after the bid receipt time and date is late.

1524.3 A late bid, late request for modification, or late request for withdrawal shall not be considered, except as provided in this section.

1524.4 A late modification of a successful bid which makes its terms more favorable to the District shall be considered at any time it is received and may be accepted.

1524.5 A late bid, late modification of bid, or late withdrawal of bid that is not considered shall be held unopened, unless opened for identification, until after award and then retained with unsuccessful bids.

History

SOURCE: Final Rulemaking published at 35 DCR 1430 (February 26, 1988); as amended by Notice of Emergency and Proposed published at 59 DCR 3714 (March 6, 2012)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 6290, 6297 (June 1, 2012).

27 DCMR § 1525 NOTICE TO BIDDERS OF LATE ACTIONS

1525.1 The contracting officer shall promptly notify the bidder if a bid, modification of bid, or withdrawal of bid is received late, and it is clear from available information that it cannot be considered.

History

SOURCE: As amended by Notice of Emergency and Proposed Rulemaking published at 59 DCR 3714 (March 6, 2012)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 6290, 6298 (June 1, 2012).

27 DCMR § 1526 RECEIPT AND SAFEGUARDING OF BIDS

1526.1 Upon its receipt, each bid and modification shall be time- and date-stamped but not opened, and shall be stored in a secure place until the date and time set for bid opening. Bids submitted through electronic means shall be received in such a manner that the time and date of submittal, along with the contents of such bids shall be securely stored until the time and date set for bid opening.

1526.2 Except as provided in § 1526.4, 1526.5, 1526.6 and 1526.7, all bids shall remain unopened until the time and date set for bid opening.

1526.3 If an IFB is canceled before bid opening, bids shall be handled in accordance with § 1518.2.

1526.4 Before bid opening, information concerning the identity and number of bids received shall be made available only to District employees, and then only as required in the execution of their duties.

1526.5 When bid samples are submitted, they shall be handled with sufficient care to prevent disclosure of characteristics before bid opening.

1526.6 Envelopes or documents marked as bids which do not identify the bidder or the solicitation may be opened solely for the purpose of identification or to determine whether a bidder is eligible to bid, and then only by an official designated for this purpose.

1526.7 Any person who opens a sealed bid by mistake, or for the reasons set forth in § 1526.6, shall deliver it to the contracting officer. The contracting officer shall immediately write the following on the envelope and then sign and reseal the envelope:

(a) An explanation of the opening;

(b) The date and time opened; and

History

SOURCE: Final Rulemaking published at 35 DCR 1430 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 59 DCR 3714 (March 6, 2012)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 6290, 6298 (June 1, 2012).

27 DCMR § 1527 OPENING OF BIDS

1527.1 Bids and modifications shall be opened publicly, in the presence of one (1) or more witnesses, at the time, date, and location designated in the IFB.

1527.2 The name of each bidder, the bid price and such other information as the contracting officer deems appropriate, shall be read aloud or otherwise made available. Such information also shall be recorded at the time of bid opening; that is, the bids shall be tabulated or a bid abstract made.

1527.3 The names and addresses of required witnesses shall be recorded at the bid opening.

1527.4 The opened bids shall be available for public inspection except to the extent the bidder designates trade secrets or other proprietary data to be confidential as set forth in § 1527.7. Material so designated shall accompany the bid and shall be readily separable from the bid in order to facilitate public inspection of the nonconfidential portion of the bid.

1527.5 Prices, makes and models, or a catalogue of the items offered, deliveries, and terms of payment shall be publicly available at the time of bid opening regardless of any designation to the contrary.

1527.6 If bids are submitted through electronic means, a bid abstract containing the requirements of this section shall be published on the Internet as soon as practicable after bid opening.

1527.7 The contracting officer shall examine the bids to determine the validity of any requests for nondisclosure of trade secrets and other proprietary data identified in writing. The contracting officer may request that a bidder provide the justification for withholding information.

History

SOURCE: Final Rulemaking published at 35 DCR 1431 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 59 DCR 3714 (March 6, 2012)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 6290, 6299 (June 1, 2012).

27 DCMR § 1528 POSTPONEMENT OF BID OPENING

1528.1 The contracting officer may postpone a bid opening until after the time scheduled for bid opening under the following circumstances:

(a) If the contracting officer has reason to believe that the bids of an important segment of bidders have been delayed in the mail or in the electronic system specified for transmission of bids, for causes beyond the control of bidders and without their fault or negligence, such as flood, fire, accident, weather conditions, strikes, or District equipment blackout or malfunction when bids are due; or

If an emergency or unanticipated event interrupts normal governmental processes so that the conduct of bid openings as scheduled is impractical.

1528.2 At the time of a determination to postpone a bid opening, an announcement of the determination shall be publicly posted. If practical, before issuance of a formal amendment to the IFB, the determination shall be otherwise communicated to prospective bidders.

1528.3 When a bid opening is postponed, the time of the rescheduled bid opening shall be communicated to prospective bidders.

1528.4 The contracting officer may proceed with bid opening as soon as practical after the original scheduled bid opening time without amendment to the IFB or notice to bidders whenever any delay incident to the issuance of the amendment or notice would not be in the best interest of the District.

History

SOURCE: Final Rulemaking published at 35 DCR 1431 (February 26, 1988); as amended by Notice of Final Rulemaking published at 59 DCR 3714 (March 6, 2012)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 6290, 6299 (June 1, 2012).

27 DCMR § 1529 RECORDING OF BIDS

1529.1 The contracting officer shall complete and certify the accuracy of the bid abstract prior to contract award.

1529.2 The contacting officer shall promptly publish the bid abstract on the Internet.

History

SOURCE: Final Rulemaking published at 35 DCR 1432 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 59 DCR 3714 (March 6, 2012)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 6290, 6300 (June 1, 2012).

27 DCMR § 1530 CANCELLATION OF AN INVITATION FOR BIDS AFTER OPENING

1530.1 An IFB may be canceled, or all bids rejected, only if the Director determines that the action taken is in the best interest of the District. If all bids have been rejected, the contracting officer shall cancel the solicitation.

1530.2 After bid opening, an IFB shall not be canceled and resolicited due solely to increased requirements for the items being procured. Contract award shall be made on the initial IFB and any additional quantity shall be treated as a new procurement.

1530.3 After bid opening, an IFB may be canceled and all bids rejected before being awarded if the Director determines that cancellation is in the best interest of the District for any reason, including the following:

(a) Inadequate or ambiguous specifications were cited in the IFB;

(b) Specifications have been revised;

(d) The IFB did not provide for consideration of all factors of cost to the District;

(e) Bids received indicate that the needs of the District can be satisfied by a less expensive article differing from that for which the bids were invited;

(f) All otherwise acceptable bids received are at unreasonable prices, or only one (1) bid is received and the contracting officer cannot determine the reasonableness of the bid price;

(g) No responsive bid has been received from a responsible bidder; or

(h) The bids were not independently arrived at in open competition, were collusive, or were submitted in bad faith.

1530.4 If administrative difficulties arise after bid opening which may delay award beyond the bidders’ acceptance period, the contracting officer should request the lowest bidders to extend the bid acceptance period (with consent of sureties, if any) in order to avoid the need for readvertisement.

1530.5 The contracting officer shall post on the Internet a notice of cancellation which shall briefly explain the reason the IFB is being canceled.

History

SOURCE: Final Rulemaking published at 35 DCR 1432 (February 26, 1988); as amended by Notice of Emergency Rulemaking published at 58 DCR 558 (January 21, 2011)[EXPIRED]; as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 4668 (May 27, 2011)[EXPIRED]; as amended by Notice of Emergency Rulemaking published at 58 DCR 8381 (September 30, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 9824, 9825(November 18, 2011); as amended by Notice of Emergency and Proposed Rulemaking published at 59 DCR 3714 (March 6, 2012)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 6290, 6300 (June 1, 2012).

27 DCMR § 1531 NEGOTIATIONS AFTER CANCELLATION

1531.1 By determination, the Director may authorize the use of negotiations if an IFB is canceled after bid opening for any of the following reasons:

(a) All otherwise acceptable bids received are at unreasonable prices, or only one (1) bid is received and the contracting officer cannot determine the reasonableness of the bid price;

(b) The bids were not independently arrived at in open competition, were collusive, or were submitted in bad faith; or

1531.2 If the Director determines that an IFB should be canceled and that the use of negotiations is in the District’s best interest, the contracting officer may negotiate and award a contract without issuing a new solicitation, provided that:

All responsible bidders under the IFB have been given notice that negotiations shall be conducted and have been given the opportunity to participate in the negotiations; and

The contract is awarded to the responsible bidder with the lowest negotiated price.

History

SOURCE: Final Rulemaking published at 35 DCR 1433 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 59 DCR 3714 (March 6, 2012)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 6290, 6301 (June 1, 2012).

27 DCMR § 1532 REJECTION OF INDIVIDUAL BIDS

1532.1 The contracting officer shall reject any bid that fails to conform to the essential requirements of the IFB.

1532.2 The contracting officer shall reject any bid that does not conform to the applicable specifications unless the IFB authorized the submission of alternate bids and the goods offered as alternates meet the requirements specified in the IFB.

1532.3 Any bid that fails to conform to the delivery schedule or permissible alternates stated in the IFB shall be rejected.

1532.4 A bid shall be rejected if the bidder imposes conditions that would modify the requirements of the IFB or limit the bidder's liability to the District. For example, a bid shall be rejected if the bidder:

(a) Protects against future changes in conditions, such as increased costs, if total possible costs to the District cannot be determined;

(b) Fails to state a price and indicates that price shall be "price in effect at time of delivery" or words of equivalent meaning;

States a price but qualifies it as being subject to "price in effect at time of delivery" or words of equivalent meaning;

When not authorized by an IFB, conditions or qualifies a bid by stipulating that it is to be considered only if the bidder receives, or does not receive, an award under a separate solicitation;

(e) Requires the District to determine that the bidder’s product meets applicable District specifications; or

(f) Limits the rights of the District under any contract clause.

1532.5 A low bidder may be requested to delete objectionable conditions from a bid, so long as the conditions do not go to the substance, as distinguished from the form, of the bid or would give the bidder an unfair advantage over other bidders. A condition goes to the substance of a bid when it affects price, quantity, quality, or delivery of the items or services offered.

1532.6 The contracting officer may reject any bid if he or she determines that the bid price is unreasonable. Unreasonableness of price includes not only the total price of the bid, but the prices for individual line items as well.

1532.7 A bid received from any bidder that is suspended, debarred, or otherwise ineligible shall be rejected if the period of suspension, debarment, or ineligibility has not expired by the bid opening date.

The contracting officer shall reject low bids received from bidders determined not to be responsible, and shall consider the non-responsible bidders for debarment pursuant to chapter 22 of this title.

1532.9 When bid security is required and a bidder fails to furnish the security in accordance with the requirements of the IFB, the rules set forth in chapter 27 of this title shall apply.

1532.10 If a bid received at the District government facility by electronic data interchange is unreadable to the degree that conformance to the essential requirements of the IFB cannot be ascertained, the contracting officer shall immediately notify the bidder that the bid will be rejected unless the bidder provides clear and convincing evidence:

(a) Of the content of the bid as originally submitted; and

That the unreadable condition of the bid was caused by District government software or hardware error, malfunction, or other District government mishandling.

History

SOURCE: Final Rulemaking published at 35 DCR 1435 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 59 DCR 3714 (March 6, 2012)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 6290, 6302 (June 1, 2012).

27 DCMR § 1533 ALL OR NONE QUALIFICATIONS

1533.1 Unless the solicitation provides otherwise, a bid may be responsive even though the bidder specifies that award will be accepted only on all, or a specified group, of the items.

1533.2 Bidders shall not be permitted to withdraw or modify an "all or none" qualification after bid opening because "all or none" qualifications are substantive and affect the rights of other bidders.

History

SOURCE: As amended by Notice of Emergency and Proposed Rulemaking published at 59 DCR 3714 (March 6, 2012)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 6290, 6303 (June 1, 2012).

27 DCMR § 1534 [RESERVED]

History

SOURCE: As amended by Notice of Emergency and Proposed Rulemaking published at 59 DCR 3714 (March 6, 2012)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 6290, 6304 (June 1, 2012).

27 DCMR § 1535 MINOR INFORMALITIES OR IRREGULARITIES IN BIDS

1535.1 The contracting officer may determine that it is in the best interest of the District to waive a minor informality or irregularity in a bid or to give a bidder an opportunity to cure the deficiency.

The contracting officer may determine that the following, among others, are minor informalities or irregularities:

(a) When a bidder fails to return the number of copies of signed bids required by the IFB;

(b) When the bidder fails to furnish information concerning the number of its employees;

(1) The unsigned bid is accompanied by other material indicating the bidder's intention to be bound by the unsigned bid (such as the submission of a bid guarantee or a letter signed by the bidder, with the bid, referring to and clearly identifying the bid itself); or

(2) The firm submitting the bid has formally adopted or authorized, before the time set for bid opening, the execution of documents by typewritten, printed or stamped signature; submits evidence of that authorization; and the bid carries the proper signature; or

When a bidder fails to acknowledge receipt of an amendment to the IFB, but only if one (1) of the following applies:

The bid received clearly indicates that the bidder received the amendment (such as where the amendment added another item to the IFB and the bidder submitted a bid on the item); or

The amendment involves only a matter of form or has either no effect or merely a negligible effect on price, quantity, quality, or delivery of the item bid upon.

1535.3 When a bidder fails to provide timely certifications or information with respect to Equal Opportunity and Affirmative Action Programs, the contracting officer may allow additional time to submit the information prior to contract award.

History

SOURCE: Final Rulemaking published at 35 DCR 1435 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 59 DCR 3714 (March 6, 2012)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 6290, 6304 (June 1, 2012).

27 DCMR § 1536 MISTAKES IN BIDS BEFORE AWARD

1536.1 After bid opening, the contracting officer shall examine each bid for mistakes.

1536.2 In cases of apparent mistakes and when the contracting officer has reason to believe that a mistake may have been made, the contracting officer shall request from the bidder a verification of the bid and call attention to the suspected mistake.

1536.3 If the bidder alleges a mistake, the matter shall be processed before award in accordance with this section.

1536.4 If the mistake and the intended correct bid are clearly evident on the face of the bid document, the bid shall be corrected to the intended correct bid and may not be withdrawn. Examples of mistakes that may be clearly evident on the face of the bid document are typographical errors, errors in extending unit prices, transposition errors, and arithmetical errors.

1536.5 If the mistake and the intended correct bid are not clearly evident, a bidder may be permitted to withdraw a low bid if:

(a) A mistake is clearly evident on the face of the bid document but the intended correct bid is not similarly evident; or

(b) The bidder submits proof of evidentiary value which clearly and convincingly demonstrates that a mistake was made.

1536.6 The authority to permit corrections of bids is limited to bids that, as submitted, are responsive to the IFB, and shall not be used to permit correction of bids to make them responsive.

1536.7 Correction of bids submitted by electronic means shall be effected by including in the electronic solicitation file the original bid, the verification request, and the bid verification.

1536.8 When a bid is corrected or withdrawn, or correction or withdrawal is denied, the contracting officer shall prepare a determination showing that the relief was granted or denied in accordance with this section.

History

SOURCE: Final Rulemaking published at 35 DCR 1436 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 59 DCR 3714 (March 6, 2012)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 6290, 6305 (June 1, 2012).

27 DCMR § 1537 MISTAKES IN BIDS AFTER AWARD

1537.1 If a mistake in a bid is not discovered until after award, the mistake may be corrected by contract amendment if correcting the mistake would be favorable to the District without changing the essential requirements of the specifications.

1537.2 In addition to the cases contemplated in § 1537.1, or as otherwise authorized by law, if a mistake in a bid is not discovered until after the contract is awarded, the Director shall make one (1) of the following determinations:

(a) Rescind the contract;

Reform the contract to delete the items involved in the mistake or to reform the contract to increase the price if the contract price, as corrected, does not exceed that of the next lowest acceptable bid under the original IFB; or

1537.3 Determinations made under §§ 1537.2(a) and 1537.2(b) shall be made only on the basis of clear and convincing evidence that a mistake was mutual or unilaterally made by a contractor, and was so apparent as to give the contracting officer notice of the probability of the mistake.

History

SOURCE: Final Rulemaking published at 35 DCR 1437 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 59 DCR 3714 (March 6, 2012)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 6290, 6305 (June 1, 2012).

27 DCMR § 1538 [RESERVED]

History

SOURCE: As amended by Notice of Emergency and Proposed Rulemaking published at 59 DCR 3714 (March 6, 2012)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 6290, 6306 (June 1, 2012).

27 DCMR § 1539 [RESERVED]

History

SOURCE: As amended by Notice of Emergency and Proposed Rulemaking published at 59 DCR 3714 (March 6, 2012)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 6290, 6306 (June 1, 2012).

27 DCMR § 1540 BID EVALUATION

1540.1 The contracting officer shall determine whether a prospective contractor is responsible and whether the prices offered are reasonable.

1540.2 Prompt payment discounts shall not be considered in the evaluation of bids. However, any discount offered shall form a part of the award and shall be taken by the District if payment is made within the discount period specified by the bidder.

History

SOURCE: Final Rulemaking published at 35 DCR 1438 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 59 DCR 3714 (March 6, 2012)[EXPIRED]; as amended by Notice of Final Rulemaking published 59 DCR 6290, 6306 (June 1, 2012).

27 DCMR § 1541 CONTRACT AWARDS

1541.1 The contracting officer shall award each contract to the responsible and responsive bidder whose bid meets the requirements set forth in the IFB, and is the lowest bid price or lowest evaluated bid price, considering only price and price-related factors included in the IFB.

1541.2 A bid shall not be evaluated for any criterion that is not set forth in the IFB.

1541.3 A contract shall not be awarded until all required approvals have been obtained by the contracting officer.

1541.4 The contracting officer shall award a contract by written notice within the time for acceptance specified in the bid or an extension.

1541.5 The date of contract award shall be the date that the contracting officer signed the contract.

History

SOURCE: Final Rulemaking published at 35 DCR 1438 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 59 DCR 3714 (March 6, 2012)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 6290, 6306 (June 1, 2012).

27 DCMR § 1542 ECONOMIC PRICE ADJUSTMENTS

1542.1 If a solicitation does not contain an economic price adjustment clause, but a bidder proposes an adjustment clause with a ceiling that the price will not exceed, the contracting officer shall evaluate the bid on the basis of the maximum possible economic price adjustment of the quoted base price.

1542.2 If a bid received with an unsolicited economic price adjustment clause is eligible for award, the contracting officer shall request the bidder to agree to the inclusion in the award of a standard District economic price adjustment clause, approved by the Director, which is subject to the same ceiling. If the bidder will not agree to an approved clause, the contracting officer may award the contract on the basis of the bid as originally submitted.

1542.3 The contracting officer shall reject a bid that contains an economic price adjustment with no ceiling unless a clear basis for evaluation exists.

1542.4 If an IFB contains an economic price adjustment clause and no bidder takes exception to the provisions, the contracting officer shall evaluate bids on the basis of the quoted prices without the addition of the allowable economic price adjustment.

1542.5 If a bidder increases the maximum percentage of economic price adjustment stipulated in the IFB or limits the downward economic price adjustment provisions of the IFB, the contracting officer shall reject the bid as nonresponsive.

1542.6 If a bid indicates deletion of the economic price adjustment clause, the contracting officer shall reject the bid as nonresponsive.

1542.7 If a bidder decreases the maximum percentage of economic price adjustment stipulated in the IFB, the contracting officer shall evaluate the bid at the base price on an equal basis with bids that do not reduce the stipulated ceiling. However, after evaluation, if the bidder offering the lower ceiling is in a position to receive the award, the award shall reflect the lower ceiling.

History

SOURCE: Final Rulemaking published at 35 DCR 1438 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 59 DCR 3714 (March 6, 2012)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 6290, 6307 (June 1, 2012).

27 DCMR § 1543 RESOLVING TIE BIDS

1543.1 When two (2) or more low bids are equal in all respects, priority shall be given in the following order of priority to:

(a) A certified small business enterprise certified by the DSLBD; and

(b) A certified business enterprise other than a small business enterprise described in § 1543.1(a).

1543.2 If two (2) or more bidders remain equally eligible for contract award, award shall be made by a drawing by lot limited to those bidders.

1543.3 The drawing shall be witnessed by at least three (3) persons, and the contract file shall contain the names and addresses of the witnesses and the person supervising the drawing.

History

SOURCE: Final Rulemaking published at 35 DCR 1439 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 59 DCR 3714 (March 6, 2012)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 6290, 6308 (June 1, 2012).

27 DCMR § 1544 NOTICE OF CONTRACT AWARD

1544.1 The contracting officer shall send written notice of award to the successful bidder.

1544.2 The contracting officer shall publish notice of contract awards in accordance with the requirements of chapter 13 of this title.

1544.3 The contracting officer shall notify unsuccessful bidders promptly in writing that their bids were not accepted, and shall return any bid security to the unsuccessful bidders.

History

SOURCE: Final Rulemaking published at 35 DCR 1440 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 59 DCR 3714 (March 6, 2012)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 6290, 6308 (June 1, 2012).

27 DCMR § 1545 [RESERVED]

History

SOURCE: As amended by Notice of Emergency and Proposed Rulemaking published at 59 DCR 3714 (March 6, 2012)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 6290, 6308 (June 1, 2012).

27 DCMR § 1546 [RESERVED]

History

SOURCE: As amended by Notice of Emergency and Proposed Rulemaking published at 59 DCR 3714 (March 6, 2012)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 6290, 6308 (June 1, 2012).

27 DCMR § 1547 [RESERVED]

History

SOURCE: As amended by Notice of Emergency and Proposed Rulemaking published at 59 DCR 3714 (March 6, 2012)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 6290, 6308 (June 1, 2012).

27 DCMR § 1548 [RESERVED]

History

SOURCE: As amended by Notice of Emergency and Proposed Rulemaking published at 59 DCR 3714 (March 6, 2012)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 6290, 6308 (June 1, 2012).

27 DCMR § 1549 [RESERVED]

History

SOURCE: As amended by Notice of Emergency and Proposed Rulemaking published at 59 DCR 3714 (March 6, 2012)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR _____ (June 1, 2012).

27 DCMR § 1550 TWO-STEP SEALED BIDDING

1550.1 A two-step sealed bidding method may be used for procurements requiring technical proposals, particularly those involving complex procurements.

1550.2 The two-step sealed bidding method shall be conducted as follows:

(a) The first step shall involve the solicitation of technical proposals, evaluation of proposals, and if necessary, discussions of the proposals; and

(b) The second step shall involve the submission of sealed bid prices by those who submitted acceptable technical proposals in step one.

1550.3 The contracting officer shall not request, and a bidder shall not submit, price or price information in step one.

1550.4 The contracting officer shall determine the acceptability of the goods or services offered through clarification and discussion, if necessary, relating to technical proposals.

1550.5 Bids submitted shall be evaluated and awards made in accordance with the provisions of this chapter.

History

SOURCE: Final Rulemaking published at 35 DCR 1440 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 59 DCR 3714 (March 6, 2012)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 6290, 6308 (June 1, 2012).

27 DCMR § 1551 CONDITIONS FOR USE OF TWO-STEP SEALED BIDDING

1551.1 The two-step sealed bidding method may be used when all of the following conditions are present:

Available specifications or purchase descriptions are not definite or complete, or may be too restrictive without technical evaluation, and discussion of the technical aspects of the requirement is needed to ensure mutual understanding between each prospective bidder and the District;

Definite criteria exist for evaluating technical proposals;

More than one (1) technically qualified source is expected to be available;

Sufficient time will be available for use of the two-step method; and

(e) A firm-fixed-price contract or a fixed-price contract with economic price adjustment will be used.

1551.2 None of the following issues shall preclude the use of two-step sealed bidding:

(a) Multiyear contracting;

(b) District-owned facilities to be made available to the successful bidder; or

History

SOURCE: Final Rulemaking published at 35 DCR 1441 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 59 DCR 3714 (March 6, 2012)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 6290, 6309 (June 1, 2012).

27 DCMR § 1552 TWO-STEP BIDDING SOLICITATION

1552.1 Each request for technical proposals shall be publicized and distributed in accordance with chapters 13 and 16 of this title, and shall include, at least, the following:

(a) A description of the goods or services required;

(b) A statement of intent to use the two-step bidding method;

(d) The evaluation criteria;

(e) A statement that the technical proposals shall not include prices or pricing information;

(f) The date and time by which the proposal must be received;

A statement that, in the second step, only bids based upon technical proposals determined to be acceptable, either initially or as a result of discussions, shall be considered for awards;

A statement that each bid in the second step must be based on the bidder's own technical proposal;

A statement that bidders must submit proposals that are acceptable without additional explanation or information;

A statement that the District may make a final determination regarding the acceptability of the proposal solely on the basis of the proposal as submitted;

A statement that the District may proceed with the second step without requesting further information from any bidder; however, the District may request additional information from one (1) or more bidders that it considers reasonably susceptible of being made acceptable, and may discuss the proposals with the bidders;

A statement that a notice of unacceptability will be forwarded to the bidder upon completion of the proposal evaluation and final determination of unacceptability;

A statement that advises the bidders whether they may submit only one (1) technical proposal, or whether a bidder may submit multiple technical proposals; and

A statement that information provided on delivery or performance requirements is not binding on the District, and that the actual delivery or performance requirements shall be contained in the IFB issued under step two.

1552.2 When specifications permit different technical approaches, multiple proposals may be authorized if it would be in the best interest of the District.

History

SOURCE: Final Rulemaking published at 35 DCR 1442 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 59 DCR 3714 (March 6, 2012)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 6290, 6310 (June 1, 2012).

27 DCMR § 1553 RECEIPT AND EVALUATION OF STEP ONE PROPOSALS

1553.1 Upon receipt of proposals, the contracting officer shall:

(a) Safeguard the proposals against disclosure to unauthorized persons;

(b) Accept and handle data with restrictive disclosure procedures in accordance with chapter 31 of this title; and

1553.2 The contracting officer shall establish a time period for evaluating technical proposals. The time period may vary with the complexity and the number of proposals received.

1553.3 Proposal evaluations shall be based on the criteria specified in the request for technical proposals without consideration of responsibility.

1553.4 Proposals shall be categorized as one (1) of the following:

(a) Acceptable;

(b) Reasonably susceptible of being made acceptable; or

1553.5 Any proposal which modifies or fails to conform to the essential requirements or specifications of the request for technical proposals shall be considered nonresponsive and categorized as unacceptable.

1553.6 The contracting officer may proceed directly with step two if:

There are a sufficient number of acceptable proposals to ensure adequate price competition under step two; and

Further time, effort and delay to make additional proposals acceptable, and thereby increase competition, would not be in the best interest of the District.

1553.7 If it is not in the best interest of the District to proceed directly with step two, the contracting officer shall request bidders whose proposals may be made acceptable to submit additional clarifying or supplemental information.

1553.8 If discussions are held, the contracting officer must identify the nature of the deficiencies in the proposal or the nature of the additional information required.

1553.9 No proposal shall be discussed with any bidder other than the submitting bidder.

1553.10 When initiating a request for additional information, the contracting officer shall fix an appropriate time for bidders to conclude discussions, if any, submit all additional information, and incorporate that additional information as part of their proposals.

1553.11 The time for completing the actions under § 1553.10 may be extended at the contracting officer’s discretion.

1553.12 If the additional information incorporated as part of a proposal within the final time fixed by the contracting officer establishes that the proposal is acceptable, it shall be so categorized. Otherwise, it shall be categorized as unacceptable.

1553.13 If a technical proposal is found unacceptable, either initially or after clarification, the contracting officer shall promptly notify the bidder of the basis of the determination and notify the bidder that a revision of its proposal will not be considered.

1553.14 Upon written request, and as soon as possible after award, the contracting officer may debrief unsuccessful bidders in accordance with the provisions of chapter 16 of this title.

1553.15 If it is necessary to discontinue the two-step sealed bidding method, the contracting officer shall include a statement of the facts and circumstances in the contract file.

1553.16 Each bidder shall be notified, in writing, of a discontinuance of the two- step sealed bidding process.

History

SOURCE: Final Rulemaking published at 35 DCR 1443 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 59 DCR 3714 (March 6, 2012)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 6290, 6311 (June 1, 2012).

27 DCMR § 1554 STEP TWO PROCEDURES

1554.1 Competitive sealed bidding procedures shall be followed except as follows:

(a) An IFB shall be issued only to those bidders which submitted acceptable technical proposals in step one;

(b) The IFB shall prominently state that a bidder shall comply with the specifications and the bidder's technical proposal; and

History

SOURCE: Final Rulemaking published at 35 DCR 1444 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 59 DCR 3714 (March 6, 2012)[EXPIRED]; as amended Notice of Final Rulemaking published at 59 DCR 6290, 6313 (June 1, 2012).

27 DCMR § 1555 PAYMENT OF STIPENDS

PAYMENT OF STIPENDS

Agencies may pay stipends to compensate one or more unsuccessful bidders for a portion of bid development costs, the use of information contained in their bids, and to encourage competition.

1555.2 Stipends shall be paid only to bidders which have submitted responsive bids complying with the conditions of the solicitation.

1555.3 The solicitation must include a provision describing the amount, conditions, and the process of distribution for stipends. The stipend provision must include the following at a minimum:

The agency’s commitment to pay a stipend;

The amount and timing of stipend payment;

Conditions to qualify for a stipend;

A requirement that the bidder submit a responsive bid;

A requirement that the bid meet a minimum quality;

A statement that the District may retain the right to use ideas from unsuccessful bidders if they accept the stipends;

An agreement form; and

(h) A statement advising the bidders that the acceptance of a stipend is optional on the part of the unsuccessful bidder.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 59 DCR 3714 (March 6, 2012)[EXPIRED]; as amended Notice of Final Rulemaking published at 59 DCR 6290, 6313 (June 1, 2012).

27 DCMR § 1556 REVERSE AUCTIONS

1556.1 The contracting officer may procure goods or services through reverse auctioning when it is determined that the reverse auction bidding method is the most effective and advantageous method for the District.

1556.2 The contracting officer may place any requirement for goods or non- professional services on the District’s procurement software or an established Internet reverse auction exchange that would allow bidders to competitively bid down the price of that good or service over a set period of time established by the contracting officer.

1556.3 The contracting officer may require bidders to register before the opening date and time and, as part of that registration, to agree to any terms, conditions or other requirements of the solicitation.

1556.4 An IFB conducted through reverse auctioning must otherwise comply with the requirements of this chapter.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 59 DCR 3714 (March 6, 2012)[EXPIRED]; as amended Notice of Final Rulemaking published at 59 DCR 6290, 61314 (June 1, 2012).

27 DCMR § 1599 DEFINITIONS

1599.1 When used in this chapter, the following terms have the meanings ascribed:

Apparent clerical mistake - clerical or typographical mistake apparent on the face of a bid.

Bid samples - a sample to be furnished by a bidder to show the characteristics of the product offered in a bid.

Descriptive literature - information (such as cuts, illustrations, drawings, and brochures) which shows the characteristics or construction of a product or explains its operation.

Director - the agency head of the Office of Contracting and Procurement (OCP) or the Chief Procurement Officer (CPO).

Lowest evaluated bid price - the lowest bid price after considering all price related factors.

Minor informality or irregularity – an immaterial defect in a bid or variation of a bid from the exact requirements of the IFB that can be corrected or waived without being prejudicial to other bidders. The defect or variation is immaterial when the effect on price, quantity, quality, or delivery is negligible when contrasted with the total cost or scope of the requirement.

Responsive bid - a bid that conforms in all material respects to the invitation for bids.

Reverse auction – an on-line procurement method wherein bidders bid on specified goods or non-professional services through electronic competitive bidding. During the bidding process, bidders’ prices are public and are revealed electronically, and bidders have the opportunity to modify their bid prices for the duration of the time period established for the auction.

Two-step sealed bidding - a method of contracting designed to obtain the benefits of competitive sealed bidding when adequate specifications are not initially available.

History

SOURCE: Final Rulemaking published at 35 DCR 1445 (February 26, 1988); as amended by Notice of Emergency and Proposed Rulemaking published at 59 DCR 3714 (March 6, 2012)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 6290, 6314 (June 1, 2012).

27-16 PROCUREMENT BY COMPETITIVE SEALED PROPOSALS

27 DCMR § 1600 USE OF COMPETITIVE SEALED PROPOSALS

1600.1 If the contracting officer determines competitive sealed bidding is not practicable or advantageous to the District, a procurement may be conducted using the competitive sealed proposal (CSP) method.

Proposals shall be solicited from the maximum number of qualified sources, and in a manner consistent with the nature of, and the need for, the goods or services being acquired.

History

SOURCE: Final Rulemaking published at 35 DCR 1446 (February 26, 1988); as amended by Final Rulemaking published at 60 DCR 1136 (February 1, 2013).

27 DCMR § 1601 SOLICITATIONS FOR INFORMATION AND PLANNING PURPOSES

1601.1 When information necessary for planning purposes cannot be obtained from potential sources by more economical and less formal means, the contracting officer may use a solicitation for information or planning.

1601.2 A request for information (RFI) shall include the following:

(a) A description of the information to be furnished in the response;

(b) An indication of whether the notice will be followed by a conference and a formal solicitation; and

1601.3 The contracting officer shall safeguard all information received in response to an RFI from unauthorized disclosure.

History

SOURCE: Final Rulemaking published at 35 DCR 1446 (February 26, 1988); as amended by Final Rulemaking published at 60 DCR 1136 (February 1, 2013).

27 DCMR § 1602 PRESOLICITATION NOTICES AND CONFERENCES

1602.1 The contracting officer may use presolicitation notices and conferences as preliminary steps in procurements by CSP in order to accomplish any of the following:

(a) Develop or identify interested sources;

(b) Request preliminary information based on a general description of the goods or services involved;

(d) Explain complicated specifications and requirements to interested sources; or

(e) Aid prospective offerors in later submitting proposals without undue expenditure of effort, time, and money.

1602.2 If presolicitation notices are used, the contracting officer shall publicize the notice on the OCP Internet and, if the Director deems appropriate, in newspapers of general circulation and trade publications.

1602.3 At a minimum, the notice shall contain sufficient information to permit a potential offeror to make an informed decision about whether to participate in the acquisition.

1602.4 In complex procurements, the presolicitation notice may request information pertaining to management, engineering, or production capabilities.

History

SOURCE: Final Rulemaking published at 35 DCR 1446 (February 26, 1988); as amended by Final Rulemaking published at 60 DCR 1136 (February 1, 2013).

27 DCMR § 1603 [RESERVED]

History

SOURCE: Final Rulemaking published at 35 DCR 1447 (February 26, 1988); as amended by Final Rulemaking published at 60 DCR 1136 (February 1, 2013).

27 DCMR § 1604 SOLICITATION OF PROPOSALS

1604.1 A request for proposals (RFP) shall be the solicitation used to communicate the District's requirements to prospective contractors when the CSP method is used.

1604.2 The contracting officer shall issue solicitations which contain all information necessary to enable prospective contractors to prepare proposals properly.

1604.3 The contracting officer shall furnish identical information concerning a proposed procurement to all prospective contractors.

1604.4 District personnel shall not provide advance knowledge or information about a future solicitation to any prospective contractor.

1604.5 Except for solicitations for information or planning purposes, the contracting officer shall not solicit proposals unless there is a definite intention to award a contract.

1604.6 Each RFP shall be publicized in accordance with the provisions of chapter 13 of this title.

1604.7 An RFP shall not be used as a solicitation for information or planning purposes.

History

SOURCE: Final Rulemaking published at 35 DCR 1447 (February 26, 1988); as amended by Final Rulemaking published at 60 DCR 1136 (February 1, 2013).

27 DCMR § 1605 REQUESTS FOR PROPOSALS IN THE SET-ASIDE MARKET

1605.1 Before the contracting officer restricts a CSP procurement to the small business set-aside market, the contracting officer shall determine that:

(a) There is a reasonable expectation that proposals will be obtained from at least two (2) responsible small business enterprises certified by the Department of Small and Local Business Development (DSLBD); and

(b) An award will be made at reasonable prices.

History

SOURCE: Final Rulemaking published at 35 DCR 1448 (February 26, 1988); as amended by Final Rulemaking published at 60 DCR 1136 (February 1, 2013).

27 DCMR § 1606 [RESERVED]

History

SOURCE: Final Rulemaking published at 60 DCR 1136 (February 1, 2013).

27 DCMR § 1607 [RESERVED]

History

SOURCE: Final Rulemaking published at 35 DCR 1449 (February 26, 1988); as amended by Final Rulemaking published at 60 DCR 1136 (February 1, 2013).

27 DCMR § 1608 UNSOLICITED PROPOSALS

1608.1 Unsolicited proposals may be considered by agencies in order to obtain innovative or unique methods or approaches to accomplishing their missions from sources outside the District.

1608.2 A valid unsolicited proposal shall meet all of the following criteria:

(a) Be innovative or unique;

(b) Be independently originated and developed by the offeror;

(d) Include sufficient detail to permit a determination that District support would be worthwhile; and

(e) Show that the proposed work could benefit the mission of the agency.

1608.3 Unsolicited proposals shall contain the following information to permit consideration in an objective and timely manner:

(a) Offeror's name, address, and type of organization, such as profit, non- profit, educational or certified business enterprise;

(b) Names of and contact information for technical and business personnel to be contacted for evaluation or negotiation purposes;

(d) Signature of a person authorized to represent and contractually obligate the offeror;

(e) Proposed price or total estimated cost for the effort in sufficient detail for meaningful evaluation;

(f) The period of time for which the proposal is valid;

(g) The type of contract preferred; and

(h) The proposed duration of effort.

History

SOURCE: Final Rulemaking published at 35 DCR 1449 (February 26, 1988); as amended by Final Rulemaking published at 60 DCR 1136 (February 1, 2013).

27 DCMR § 1609 EVALUATION OF UNSOLICITED PROPOSALS

1609.1 The agency shall consider the following factors when evaluating a valid unsolicited proposal:

(a) Unique or innovative methods, approaches, or concepts demonstrated by the proposal;

(b) Overall scientific, technical, or socio-economic merits of the proposal;

(d) The offeror's capabilities, related experience, facilities, techniques, or unique combinations of these which are integral factors for achieving the proposal objectives; and

(e) Qualifications, capabilities, and experience of the proposed team leader or key personnel who are critical to achieving the proposal objective.

1609.2 An agency shall return an unsolicited proposal to an offeror, citing reasons, when its substance meets any of the following criteria:

(a) It is available to the District without restriction from another source;

(b) It closely resembles a pending competitive requirement; or

1609.3 A favorable evaluation of an unsolicited proposal shall not, by itself, justify awarding a contract without full and open competition.

1609.4 The contracting officer may commence negotiations only when all of the following conditions are met:

(a) The unsolicited proposal has received a favorable comprehensive evaluation;

(b) The unsolicited proposal is not disqualified under the provisions of § 1609.2;

(c) The agency supports its recommendations with facts and circumstances that preclude competition, and has the necessary funds;

(d) The agency has obtained written approval from the Director; and

(e) The contracting officer has publicized the requirement in accordance with Chapter 13 of this title.

History

SOURCE: Final Rulemaking published at 35 DCR 1450 (February 26, 1988); as amended by Final Rulemaking published at 60 DCR 1136 (February 1, 2013).

27 DCMR § 1610 PRICES FOR SERVICES PROVIDED UNDER THE DISTRICT’S TEMPORARY ASSISTANCE TO NEEDY FAMILIES (TANF) PROGRAM

1610.1 Notwithstanding the requirements of § 1612.1 of this chapter, effective on October 1, 2024, the Director sets the following prices to be paid to providers of services provided under the District’s Temporary Assistance to Needy Families (TANF) Program:

(a) Base compensation:

(1) The District shall make the monthly base payments set out in the table below depending on the provider’s number of not-enrolled and not-employed point-in-time (PIT) caseload:

Caseload

Monthly Base Compensation

Not-enrolled PIT of fifty (50)

$110,000

Not-employed PIT of one hundred fifty (150)

(2) For the purposes of this subsection, the term:

(A) “Not-enrolled” means an educational and occupational training services customer who is not enrolled in an education or occupational training program.

(B) “Not-employed” means a job placement services customer who is not in unsubsidized employment.

(3) The actual caseload of a provider may vary from the caseload numbers set forth in the chart without affecting the monthly base compensation amount payable to the provider. Allowable variations shall be set forth in the solicitation for providers or in the task order with a provider.

(b) Educational and Occupational Training Services Compensation:

(1) Outcome-based compensation: The District shall pay the following outcome-based compensation based on the provider’s achievement of specific outcomes for which the provider provides appropriate documentation:

(A) Outcome #1: Education and training participation payment

Performance Standard

The provider is eligible to receive an educational and occupational training (EOT) participation payment for an EOT customer for a federal month if the following conditions are met:

(1) The EOT customer was an enrolled customer for at least one (1) day in the federal month;

(2) The EOT customer met at least fifty percent (50%) of their weekly hours requirement in the federal month from EOT activities or unsubsidized employment; and

(3) At least forty percent (40%) of the EOT customer’s weekly hours requirement for the federal month came from EOT activities.

Payment

The District shall pay the provider four hundred dollars ($400) per customer who meets the standard per federal month.

Restrictions, Conditions, and Notes

There are no restrictions on the number of EOT participation payments that a provider is eligible to receive for an EOT customer.

(B) Outcome #2: Education and training completion payment

Performance Standard

The provider is eligible to receive an EOT program completion payment when the EOT customer completes the EOT course(s) specified in the customer’s Individual Responsibility Plan (IRP), and the provider deems the customer employable and eligible to receive job placement services.

Payment

The District shall pay the provider the following for each customer who completes nationally certified courses:

Category 1 (7–11 months): $2,000

Category 2 (4–6 months): $1,200

Category 3 (1–3 months): $800

Category 4 (30 days): $400

Category 5 (1 day): $50

Restrictions, Conditions, and Notes

EOT completion payments are subject to the following conditions:

(1) The provider can receive a maximum of five (5) EOT completion payments for an EOT customer per period of twelve (12) federal months; and

(2) The provider can receive a maximum of two (2) EOT completion payments of the same category for an EOT customer per period of twelve (12) federal months.

(2) Reimbursable costs: The District shall reimburse the provider the following amounts for allowable incentives, stipends, and discrete work-related expenses for which the provider provides appropriate documentation:

Incentives: The District shall reimburse the following incentive payments made by the provider to customers:

(i) Completion of a Category 1 level course (course which has a duration of between seven (7) and eleven (11) months): One thousand dollars ($1,000) per customer who completes a Category 1 level course;

(ii) Completion of a Category 2 level course (course which has a duration of between four (4) and six (6) months): Six hundred dollars ($600) per customer who completes a Category 2 level course;

(iii) Completion of a Category 3 level course (course which has a duration of between one (1) and three (3) months): Four hundred dollars ($400) per customer who completes a Category 3 level course;

(iv) Completion of a Category 4 level course (course which has a duration of thirty (30) days): Two hundred dollars ($200) per customer who completes a Category 4 level course; and

(v) Completion of a Category 5 level course (course which can be competed in one (1) day): Fifty dollars ($50) per customer who completes a Category 5 level course;

(B) Stipends: The District shall reimburse stipends paid by the provider to customers of up to twenty dollars ($20) per day per customer who participates in approved core and non-core TANF activities for at least four (4) hours per day. Stipends shall not be reimbursed for a customer once the customer enters unsubsidized employment and has received their first paycheck; and

(C) Discrete work-related expenses: The District shall reimburse up to three hundred dollars ($300) per customer for actual and allowable costs to enable the customer to defray significant, discrete customer work-related expenses such as obtaining a medical test not covered by Medicaid or purchasing uniforms for customers who have a firm job offer. The total discrete work-related expense reimbursed by the District shall not exceed three hundred dollars ($300) per customer per twelve (12)-federal month calendar period, unless pre-approved in writing by the Department of Human Services.

(A) Outcome #1: Job placement participation payment

Performance Standard

The provider is eligible to receive a job placement (JP) participation payment for a JP customer in a federal month if the following conditions are met:

(1) The JP customer was not employed for at least one day, not including Saturdays and Sundays, in the federal month; and

(2) The JP customer met their work weekly hours requirement in the Federal Month.

Payment

The District shall pay three hundred dollars ($300) per federal month per customer who meets this performance standard.

Restrictions, Conditions, and Notes

If the provider is eligible to receive a JP participation payment and an employment retention payment for the same customer in a federal month, the provider shall only receive the employment retention payment.

There are no restrictions on the number of JP participation payments that a provider can receive for a JP customer.

(B) Outcome #2: Work placement payment

Performance Standard

The provider is eligible to receive a work placement payment for a JP customer if the following conditions are met:

(1) The provider has placed the JP customer in unsubsidized employment;

(2) The JP customer has met their weekly hours requirement for two (2) weeks following the start date of the employment placement; and

(3) The JP customer’s hours from that employment placement met or exceeded the JP customer’s weekly hours requirement in each of those two (2) weeks.

Payment

The District shall pay the provider a maximum of two (2) work placement payments of six hundred dollars ($600) per customer per period of twelve (12) federal months.

Restrictions, Conditions, and Notes

The two (2) weeks do not have to be consecutive.

The provider can receive a work placement payment and a higher wage payment for the same JP customer and for the same placement in unsubsidized employment.

Performance Standard

The provider is eligible to receive a higher wage payment for a JP customer if the following conditions are met:

(1) The provider has placed the JP customer in unsubsidized employment;

(2) The JP customer has met their weekly hours requirement for two (2) weeks following the start date of the employment placement;

(3) The JP customer’s hours from that employment placement met or exceeded the JP customer’s weekly hours requirement in each of those two (2) weeks; and

(4) The JP customer’s wages equal or exceed the then-current DC Living Wage.

Payment

The District shall pay the provider eight hundred dollars ($800) per customer who meets this performance standard.

Restrictions, Conditions, and Notes

The two (2) weeks do not have to be consecutive.

If the provider becomes eligible to receive multiple higher wage payments for the same customer in a twelve (12) federal month period, the District shall pay the provider a maximum of two (2) higher wage payments per customer per twelve (12) federal month period.

The provider can receive a work placement payment and a higher wage payment for the same JP customer and for the same placement in unsubsidized employment.

(D) Outcome #4: Case closure due to earnings

Performance Standard

The provider is eligible to receive a case closure due to earnings payment for a JP customer if the following conditions are met:

(1) The JP customer was assigned to the provider on the day the JP customer’s case closed;

(2) The JP customer’s TANF case closed because of earnings from employment regardless of whether the provider placed the JP customer in employment or not; and

(3) The JP customer does not re-apply for TANF benefits for at least one-hundred twenty (120) days after the date the JP customer’s case closed because of earnings from employment.

Payment

The District shall pay the provider two thousand dollars ($2000) per customer who meets this performance standard.

Restrictions, Conditions, and Notes

A provider can receive a maximum of one (1) case closure due to earnings payment for a JP customer per twelve (12) federal month period.

(E) Outcome #5: Employment retention payment (months 1–12)

Performance Standard

The provider is eligible to receive an employment retention incentive if the following conditions are met:

(1) The customer was employed for at least one (1) day in the federal month;

(2) The customer met one hundred percent (100%) of their weekly hours requirement in the federal month from unsubsidized employment or nationally certified courses; and

(3) At least eighty percent (80%) of the customer’s weekly hours requirement for the federal month come from unsubsidized employment.

Payment

The District shall pay the provider four-hundred dollars ($400) per federal month for federal months one (1) through eleven (11) per customer who meets the performance standard.

The District shall pay the provider one thousand dollars ($1,000) for federal month twelve (12) per customer who meets the performance standard for the prior eleven (11) months.

Restrictions, Conditions, and Notes

If a customer is continuously employed, employment retention payments will end after the provider has received a federal month 12 payment.

If the provider receives a federal month twelve (12) employment retention payment, the provider is not eligible to receive any additional employment retention payments for that customer. However, if that customer remains on TANF (Open Case), the employment retention sequence may restart the next month if DHS provides prior written approval.

(A) Incentives: The District shall reimburse the following incentive payments made by the provider:

(i) Employment retention incentives: The District shall reimburse the provider for the payment of the following employment retention incentive payments made to customers for which the provider can document that the customer achieved the incentive goals described below. The provider shall pay the following employment retention incentives to each customer who enters unsubsidized employment and retains the unsubsidized job for the time periods indicated:

(I) Two (2)-week employment retention incentive: One hundred fifty dollars ($150) when the customer enters an unsubsidized job and works for at least two (2) weeks and has met his or her full work participation requirements over these two (2) weeks. Participation weeks do not have to be consecutive;

(II) One (1)-month employment retention incentive: One hundred fifty dollars ($150) when the customer retains the unsubsidized job and has met his or her full work participation requirements for one (1) federal month;

(III) Two (2)-month employment retention incentive: One hundred fifty dollars ($150) when the customer retains the unsubsidized job and has met his or her full work participation requirements for two (2) federal months. Participation months do not have to be consecutive;

(IV) Three (3)-month employment retention incentive: One hundred fifty dollars ($150) when the customer retains the unsubsidized job and has met his or her full work participation requirements for three (3) federal months. Participation months do not have to be consecutive;

(V) Four (4)-month employment retention incentive: One hundred fifty dollars ($150) when the customer retains the unsubsidized job and has met his or her full work participation requirements for four (4) federal months. Participation months do not have to be consecutive;

(VI) Five (5)-month employment retention incentive: One hundred fifty dollars ($150) when the customer retains the unsubsidized job and has met his or her full work participation requirements for five (5) federal months. Participation months do not have to be consecutive;

(VII) Six (6)-month employment retention incentive: One hundred fifty dollars ($150) when the customer retains the unsubsidized job and has met his or her full work participation requirements for six (6) federal months. Participation months do not have to be consecutive;

(VIII) Seven (7)-month employment retention incentive: One hundred fifty dollars ($150) when the customer retains the unsubsidized job and has met his or her full work participation requirements for seven (7) federal months. Participation months do not have to be consecutive;

(IX) Eight (8)-month employment retention incentive: One hundred fifty dollars ($150) when the customer retains the unsubsidized job and has met his or her full work participation requirements for eight (8) federal months. Participation months do not have to be consecutive;

(X) Nine (9)-month employment retention incentive: One hundred fifty dollars ($150) when the customer retains the unsubsidized job and has met his or her full work participation requirements for nine (9) federal months. Participation months do not have to be consecutive;

(XI) Ten (10)-month employment retention incentive: One hundred fifty dollars ($150) when the customer retains the unsubsidized job and has met his or her full work participation requirements for ten (10) federal months. Participation months do not have to be consecutive;

(XII) Eleven (11)-month employment retention incentive: One hundred fifty dollars ($150) when the customer retains the unsubsidized job and has met his or her full work participation requirements for eleven (11) federal months. Participation months do not have to be consecutive; and

(XIII) Twelve (12)-month employment retention incentive: Five hundred dollars ($500) when the customer retains the unsubsidized job and has met his or her full work participation requirements for twelve (12) federal months. Participation months do not have to be consecutive.

(ii) TANF Case Closure Due to Earnings Incentive: Five hundred dollars ($500) for a successful case closure and for remaining off the TANF rolls for a minimum of one hundred twenty (120) days from the date the customer’s case is closed because of earnings from employment.

(B) Stipends: The District shall reimburse the provider for the following stipend payments made to customers for which the provider can document that the customer has participated in the following activities:

JP customers who are not in unsubsidized employment: JP customers who are not in unsubsidized employment are eligible to receive stipends of twenty dollars ($20) per day for participation for at least four (4) hours per day in approved core and non-core TANF activities. Hours for 2Gen activities in a day care may not be used to determine the four (4) hours.

JP customers who are in unsubsidized employment: JP customers who are in unsubsidized employment are eligible to receive stipends of twenty dollars ($20) per day for participation for at least four (4) hours per day in approved core and non-core TANF activities. Hours for 2Gen activities in a day care may not be used to determine the four (4) hours. JP customers who are in unsubsidized employment are only eligible to receive stipends for the first twenty-eight (28) days of employment.

(C) Discrete work-related expenses: The District shall reimburse a provider for the payment of no more than three hundred dollars ($300) per customer for actual and allowable costs to enable the customer to defray significant, discrete customer work-related expenses such as obtaining a medical test not covered by Medicaid or purchasing a uniform for a customer who has a firm job offer. The total discrete work-related expense reimbursed by the District shall not exceed three hundred dollars ($300) per customer per twelve (12)-month calendar period, unless pre-approved in writing by the Department of Human Services.

(d) Two-Generation (2Gen) incentives for EOT And JP Customers:

(1) The District shall reimburse a provider for the payment of 2Gen incentives to customers after they complete specific 2Gen activities or achieve specific 2Gen milestones for each of the five (5) 2Gen components:

(A) Economic supports and assets;

(B) Health and well-being;

(3) Social capital;

(4) Early childhood education; and

(5) K through 12 and beyond education and support.

(2) Payment of a 2Gen incentive by the provider to the customer, and reimbursement of the provider’s payment by the District, is contingent on the customer providing documentation that supports the fact that the customer completed the task or achieved the milestone.

(3) The following tables lists 2Gen incentives that customers are eligible to receive and the dollar value of each incentive:

Economic Supports and Assets

2Gen Milestone

Incentive

Limit

Open an individual development account through Capital Area Asset Builders (matched funds) or Open education savings account

$50

Maximum of 1 per 12-federal month period

Complete a financial education class

$50

Maximum of 1 per 12- federal month period

File both federal and state taxes

$50

Maximum of 1 per 12-federal month period

Open a bank account, credit card, or debit card

$50

Maximum of 1 per 12- federal month period

Enroll in a baby bond program

$50

Maximum of 2 per 12- federal month period

Health and Wellbeing

2Gen Milestone

Incentive

Limit

Complete a Department of Behavioral Health behavioral health assessment

$25

Maximum of 2 per 12- federal month period

Attend a therapy/medical appointment (includes well-child visits)

$25

Maximum of 4 per 12- federal month period

Complete family physical activity 3 days a week (jogging, aerobic, basketball, football, etc.)

$25

Maximum of 4 per 12- federal month period

Attend all prenatal appointments (pregnant customers only)

$25

Maximum of 4 per 12- federal month period

Social Capital

2Gen Milestone

Incentive

Limit

Get a library card

$25

Maximum of 2 per 12- federal month period

Attend support group consecutively for 3 months

$25

Maximum of 1 per 12- federal month period

Attend support group consecutively for 6 months

$25

Maximum of 1 per 12- federal month period

Attend support group consecutively for 9 months

$25

Maximum of 1 per 12- federal month period

Attend support group consecutively for 12 months

$25

Maximum of 1 per 12- federal month period

Create a chart for building Social capital

$25

Maximum of 1 per 12- federal month period

Early Childhood Education

2Gen Milestone

Incentive

Limit

Enroll in childcare

$50

Maximum of 2 per 12- federal month period

Enroll in preK3

$25

Maximum of 2 per 12- federal month period

Complete a StrongStart evaluation

$25

Maximum of 2 per 12- federal month period

K through 12 and Beyond – Education and Support

2Gen Milestone

Incentive

Limit

Child enrolls in college

$50

Maximum of 2 per 12- federal month period

Child completes college prep exam (e.g., SAT)

$50

Maximum of 2 per 12- federal month period

Attend parent-teacher conference

$25

Maximum of 2 per 12- federal month period

Obtain a Kids Ride Free fare card

$50

Maximum of 2 per 12- federal month period

1610.2 (a) For the purposes of this section, a federal month differs from a calendar month in that all seven (7) days of a week are included in a federal month if the Friday of that week falls in the calendar month, regardless of whether an earlier day of the week falls within the prior calendar month. In addition, no days of a week are included in the federal month if the Friday of that week falls after the end of the calendar month, even if some days of the week fall within the calendar month.

(b) In addition, for the purposes of determining a federal month, each week is considered to start on Sunday and end on Saturday. Therefore, the first day of a federal month is the Sunday of the first week included in the federal month, and the last day of a federal month is the Saturday of the last week included in the federal month.

(c) For example, December 1, 2023, was a Friday. Consequently, each day of the week starting Sunday, November 26, 2023, is included in the December 2023 federal month (even though some of those days occur in the calendar month of November 2023). Moreover, since December 31, 2023 was the Sunday of the week ending Saturday, January 6, 2024, and the Friday of that week occurred in January 2024, December 31, 2023 is not considered part of the December 2023 federal month (and is instead considered part of the January 2024 federal month).

(d) The December 2023 federal month consisted of five (5) weeks starting on Sunday, November 26, 2023, and ending on Saturday, December 30, 2023.

(e) Note: A federal month consists of either four (4) or five (5) full weeks.

History

SOURCE: Final Rulemaking published at 35 DCR 1451 (February 26, 1988); as amended by Final Rulemaking published at 60 DCR 1136 (February 1, 2013); as amended by Final Rulemaking published at 65 DCR 8763 (August 24, 2018); as amended by Final Rulemaking published at 68 DCR 6504 (June 25, 2021); as amended by Final Rulemaking published at 68 DCR 012619 (December 3, 2021); as amended by Final Rulemaking published at 69 DCR 013500 (November 4, 2022); as amended by Final Rulemaking published at 71 DCR 009620 (August 2, 2024). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 1610

27 DCMR § 1611 PRICES FOR SERVICES PROVIDED UNDER THE DISTRICT’S MEDICAID MANAGED CARE PROGRAM

1611.1 Notwithstanding the requirements of § 1612.1, for services provided under the District’s Medicaid Managed Care Program, for the period of October 1, 2018, through September 30, 2019, the Director sets the following monthly capitation rates per person enrolled in a contractor’s MCO to be paid to contractors selected through the solicitation, and no price evaluation factor will be required for procurement of these services:

CLIN

Rate Cohort

DHCF Actuarially Sound Lower Bound Rates

0001 DC Healthy Families Program (DCHFP)

0001AA

Under 1 Year of Age

$454.66

0001AB

Delivery Payment

$10,025.57

0001AC

Birth Payment

$6,714.27

0001AD

Children Ages 1 through 12 Years

$196.55

0001AE

Females Ages 13 through 18 Years

$275.74

0001AF

Males Ages 13 through 18 Years

$215.73

0001AG

Females Ages 19 through 36 Years

$313.27

0001AH

Males Ages 19 through 36 Years

$228.08

0001AI

Females Ages 37 through 49 Years

$523.64

0001AJ

Males Ages 37 through 49 Years

$409.94

0001AK

Females Ages 50+ Years

$707.34

0001AL

Males Ages 50+ Years

$751.34

CLIN

Rate Cohort

DHCF Actuarially Sound Lower Bound Rates

0002 DC Healthcare Alliance Program

0002AA

Females Ages 19 through 36 Years

$234.72

0002AB

Males Ages 19 through 36 Years

$186.45

0002AC

Females Ages 37 through 49 Years

$374.22

0002AD

Males Ages 37 through 49 Years

$336.57

0002AE

Females, Ages 50+ Years

$723.97

0002AF

Males, Ages 50+ Years

$828.98

CLIN

Rate Cohort

DHCF Actuarially Sound Lower Bound Rates

0003 271 Population2

0003AA

Females Ages 19 through 36 Years

$228.33

0003AB

Males Ages 19 through 36 Years

$176.77

0003AC

Females Ages 37 through 49 Years

$497.91

0003AD

Males Ages 37 through 49 Years

$331.96

0003AE

Females Ages 50+ Years

$694.63

0003AF

Males Ages 50+ Years

$558.75

History

SOURCE: Emergency Rulemaking published at 52 DCR 10423 (November 25, 2005) [EXPIRED]; as amended by Emergency Rulemaking published at 53 DCR 684 (February 3, 2006) [EXPIRED]; as amended by Emergency Rulemaking published at 54 DCR 6783 (July 13, 2007) [EXPIRED]; as amended by Final Rulemaking published at 55 DCR 12141 (November 28, 2008); as amended by Final Rulemaking published at 60 DCR 1136 (February 1, 2013); as amended by Final Rulemaking published at 66 DCR 7157 (June 14, 2019). Immigrant Children’s Program services are included under the rate cohort for DCHFP. 2 271 Population (childless adults) are included within the DCHFP, but have a separate set of rates than the DCHFP rate cohort. District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 1611

27 DCMR § 1612 SOURCE SELECTION

1612.1 Selection of a contractor through the use of CSPs shall be based on the following:

(a) Cost or price competition among proposals that meet the District's minimum requirements stated in the solicitation; or

(b) Competition involving an evaluation and comparison of cost or price and other factors.

1612.2 The contracting officer shall be responsible for source selection.

1612.3 The contracting officer shall be responsible for contractual actions related to the CSP process, including, but not limited to, the following:

Issuing solicitations in accordance with the provisions of this chapter;

Conducting or controlling all negotiations concerning cost or price, technical requirements, and other terms and conditions; and

Selecting the contractor for contract award.

History

SOURCE: Final Rulemaking published at 35 DCR 1452 (February 26, 1988); as amended by Final Rulemaking published at 60 DCR 1136 (February 1, 2013).

27 DCMR § 1613 EVALUATION FACTORS OF PROPOSALS

1613.1 The evaluation factors that will be considered in evaluating proposals shall be tailored to each procurement and shall include only those factors that will have an impact on the source selection decision.

1613.2 The contracting officer shall include in the solicitation the evaluation factors, including price or cost, and any significant subfactors. The solicitation shall include the minimum requirements that apply to particular evaluation factors or significant subfactors.

1613.3 The contracting officer shall include in the solicitation the numerical weights that will be used in the evaluation of the proposals.

1613.4 Evaluation factors shall be stated in descending order of importance.

1613.5 While the lowest price or lowest total cost to the District may be an important or even a deciding factor in most source selections, the District may select the source whose proposal is more advantageous to the District in terms of technical merit and other factors.

History

SOURCE: Final Rulemaking published at 35 DCR 1453 (February 26, 1988); as amended by Final Rulemaking published at 60 DCR 1136 (February 1, 2013).

27 DCMR § 1614 Program of All-Inclusive Care for the Elderly (PACE)

1614.1 Notwithstanding the requirements of § 1612.1, for services provided under the District’s Medicaid Managed Care Program, for the period of October 1, 2020, through December 31, 2021, the Director sets the following monthly capitation rates per person enrolled in a contractor’s Program of All-Inclusive Care for the Elderly (PACE) organization to be paid to a contractor selected through the solicitation, and no price evaluation factor will be required for procurement of these services:

Rate Cohort

Per-member, Per-month Rate

Full-benefit dual (all genders; ages 55+)

$7,146.32

Medicaid-only participant (all genders; ages 55+)

$10,618.35

History

SOURCE: Final Rulemaking published at 35 DCR 1454 (February 26, 1988); as Final Rulemaking published at 46 DCR 8464 (October 22, 1999); as Final Rulemaking published at 48 DCR 2168 (March 9, 2001); as Final Rulemaking published at 49 DCR 3038 (April 5, 2002); as Emergency Rulemaking published at 51 DCR 10653 (November 19, 2004)[EXPIRED]; as Emergency Rulemaking published at 52 DCR 5767 (June 17, 2005) [EXPIRED]; as Final Rulemaking published at 52 DCR 6354 (July 8, 2005); as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 5199 (June 17, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 6411 (July 29, 2011); as amended by Final Rulemaking published at 60 DCR 1136 (February 1, 2013); as amended by Final Rulemaking published at 68 DCR 6514 (June 25, 2021). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 1614

27 DCMR § 1615 REQUEST FOR QUALIFICATIONS BEFORE ISSUING A REQUEST FOR PROPOSALS

1615.1 The contracting officer may issue a request for qualifications (RFQ) before an RFP when the contracting officer determines that the RFQ process will be the most advantageous to the District. This selection process will determine which prospective contractors are qualified to receive RFPs and submit responses to the RFPs, based on financial and professional responsibility criteria established by the contracting officer for pre-qualification of a prospective contractor.

1615.2 The District shall issue an RFQ to firms to determine whether they have the expertise, ability, and entrepreneurship to:

(a) Assemble the labor and capital necessary for the completion of the procurement;

(b) Manage all components of the procurement; and

1615.3 The contracting officer shall give public notice of the RFQ in accordance with Chapter 13 of this title.

1615.4 The RFQ shall invite interested prospective contractors to respond in writing with a statement of their qualifications to perform the required services, including financial and professional responsibility information. The RFQ shall provide, at a minimum:

(a) A detailed description of the statement of work;

(b) The District’s intent of the project;

(c) The selection process, schedule, and criteria to be used by the District in determining which prospective contractors are qualified;

(d) Submission requirements and evaluation criteria that will be used to determine whether each prospective contractor is qualified;

(e) The deadline for submission of information; and

(f) A statement of the number of the highest ranked offerors determined to be most qualified that will be selected to submit proposals in the subsequent RFP.

1615.5 The contracting officer may conduct oral or written discussions with prospective contractors who submitted responses to the RFQ. If the contracting officer conducts discussions, he or she shall conduct discussions with all prospective contractors who submitted responses to the RFQ.

1615.6 The contracting officer may provide the information submitted by all prospective contractors in response to the RFQ to an evaluation panel who may recommend to the contracting officer, based upon the panel’s analysis of the information according to the criteria set forth in the RFQ, whether or not a prospective contractor should be among the highest ranked offerors to proceed to the second step.

1615.7 The contracting officer shall determine the financial and professional responsibility of each prospective contractor and rank them in writing from the most qualified to the least qualified on the basis of the information provided. Notwithstanding the provisions of § 1629, prior to the issuance of the RFP the contracting officer may make available the identities of the highest-ranked offerors who will be issued an RFP.

1615.8 The contracting officer shall then issue an RFP in accordance with the provisions of Section 1612 to at least three (3) of the highest-ranked offerors who have been determined most qualified. The RFP shall not be advertised in newspapers or publicly posted.

1615.9 If there are fewer than three (3) offerors, the contracting officer may issue the RFP to the highest-ranked offeror(s).

1615.10 The contracting officer’s decision regarding how many proposals to solicit shall not be subject to review.

History

SOURCE: Final Rulemaking published at 35 DCR 1455 (February 26, 1988); as amended by Final Rulemaking published at 60 DCR 1136 (February 1, 2013); as amended by Final Rulemaking published at 61 DCR 3991 (April 18, 2014). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 1615

27 DCMR § 1616 ALTERNATIVE TECHNICAL CONCEPTS

1616.1 An RFP for the construction of a road, bridge or other transportation system, or a facility or structure appurtenant to a road, bridge, or other transportation system, may allow prospective contractors to submit alternative technical concepts (ATCs) for preapproval by the date specified within the RFP.

1616.2 An RFP allowing prospective contractors to submit ATCs must specifically state the requirements for ATC content, submission, review, and pre-approval; and procedures for confidential meetings (if used); and methods for evaluating ATCs in the proposal review process.

1616.3 An ATC shall be eligible for pre-approval only if it would result in performance and quality of the end product that are equal or better than the performance and quality that would result from the agency-supplied base design configuration, project scope, design criterion, or construction criterion, as determined by the contracting officer, and if they have been used successfully elsewhere under comparable circumstances as determined by the contracting officer.

1616.4 A proposed ATC shall not be eligible for pre-approval if it is premised upon or would require:

A reduction in the project scope, performance or reliability;

The addition of a separate project to the RFP;

(d) Any other requirements that the contracting officer does not deem necessary for a particular project.

1616.5 In addition, a proposed ATC is not eligible for pre-approval if it would conflict with criteria agreed upon in the environmental decision-making process, as incorporated in the RFP.

1616.6 An ATC that, if implemented, would require further environmental evaluation of the project, may be allowed, provided that the prospective contractor will bear the schedule and cost risk associated with such additional environmental evaluation. If the prospective contractor is not able to obtain the approvals necessary to implement the ATC, it will be obligated to develop the project in accordance with existing approvals without additional cost or extension of time.

1616.7 To be authorized for inclusion with a prospective contractor’s proposal, an ATC must be submitted by the prospective contractor for pre-approval pursuant to the terms of the RFP and pre-approved in writing by the contracting officer. All technical proposals must include the contracting officer’s pre-approval letters for consideration of the ATCs.

1616.8 The prospective contractor’s price proposal shall reflect any incorporated ATCs.

1616.9 Except for incorporating approved ATCs, the proposal may not contain exceptions to or deviations from the requirements of the RFP.

1616.10 The RFP shall not distinguish between a proposal that does not include any ATCs and proposals that include ATCs. Both types of proposals shall be evaluated against the same technical evaluation factors, and an award determination shall be made in the same manner.

1616.11 Each submittal of an ATC for pre-approval shall include the following:

(a) A detailed description and schematic drawings of the configuration of the ATC or other appropriate descriptive information, including necessary design exceptions and an operational analysis, if applicable;

(b) Where and how the ATC would be used on the project;

(c) References to requirements of the RFP documents that are inconsistent with the proposed ATC, an explanation of the nature of the deviations from said requirements, and a request for approval of such deviations;

(d) An analysis justifying use of the ATC and why the deviation(s) from the requirements of the RFP documents should be allowed;

(e) A discussion of potential impacts on vehicular traffic, environmental impacts identified on appropriate environmental documents, community impact, safety and life-cycle project impacts, and infrastructure costs (including impacts on the cost of repair and maintenance);

(f) A description of other projects where the ATC has been used, the success of such usage, and names and contact information for project owner representatives that can confirm such statements;

(g) A description of added or reduced risks to the District or third parties associated with implementing the ATC; and

(h) Estimated price and cost impacts.

1616.12 A prospective contractor may incorporate one or more pre-approved ATCs into its technical and price proposal. However, each prospective contractor may submit only one technical and price proposal.

1616.13 An approved ATC that is incorporated into a prospective contractor’s proposal will become part of the contract upon award of the contract.

1616.14 To the extent authorized by law, ATCs properly submitted by the prospective contractor and all subsequent communications regarding its ATCs will be considered confidential prior to the award of the contract.

History

SOURCE: Final Rulemaking published at 35 DCR 1456 (February 26, 1988); as amended by Final Rulemaking published at 60 DCR 1136 (February 1, 2013); as amended by Final Rulemaking published at 62 DCR 14064 (October 30, 2015). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 1616

27 DCMR § 1617 VISUAL QUALITY CONCEPTS

1617.1 An RFP for the construction of a road, bridge, or other transportation system, or a facility or structure appurtenant to a road, bridge, or other transportation system, may require offerors to submit visual quality concepts (VQCs) prior to the submission of their final technical proposals, for review and comment by the date specified in the RFP.

1617.2 A VQC shall represent the offeror’s approach to meeting the project design appearance goals set forth in the RFP.

1617.3 An RFP requiring offerors to submit VQCs must specifically state the requirements for the content of a VQC; procedures for submission and resubmission of VQCs, including the date by which the VQCs must be submitted; procedures for review of and comment on VQCs; procedures for confidential meetings related to the VQCs; and methods for evaluating VQCs.

1617.4 Before an offeror’s submission of its technical proposal, the contracting officer shall meet with the offeror and discuss, on a confidential basis, whether the offeror’s VQC meets each of the project design appearance goals set forth in the RFP. The contracting officer may invite to confidential meetings other attendees that the contracting officer deems useful for the purpose of assisting in the review of the VQC submitted by an offeror.

1617.5 The contracting officer may also seek confidential review of a VQC by anyone deemed useful by the contracting officer, including independent technical advisors, for the purpose of assisting in the evaluation of the VQC. Any such confidential review shall be subject to the requirements contained in § 1629.4 of this chapter.

1617.6 Following the confidential meeting and any confidential review, the contracting officer shall provide written comments to the offeror regarding whether the offeror’s VQC meets each of the project design appearance goals set forth in the RFP. If the contracting officer determines that it is in the best interests of the District, the contracting officer may provide an offeror a reasonable opportunity to submit revisions to its VQC in response to the results of the confidential meeting or written comments issued to the offeror after the meeting. The written comments of the contracting officer shall set the date by which revisions to the VQC must be submitted by the offeror in order to be considered by the contracting officer.

1617.7 For as many times as the contracting officer determines it to be in the best interests of the District, the contacting officer may permit the offeror to submit revisions to a VQC in response to the results of a confidential meeting or written comments issued to the offeror after the meeting. When the offeror is permitted to submit a revised VQC, the contracting officer shall meet with the offeror and discuss, on a confidential basis, whether the offeror’s revised VQC meets each of the project design appearance goals set forth in the RFP. Following each confidential meeting and any confidential review, the contracting officer shall provide written comments to the offeror regarding whether the offeror’s revised VQC meets each of the projects design appearance goals set forth in the RFP.

1617.8 The contracting officer shall not discuss any offeror’s VQC at a confidential meeting other than the VQC of the offeror with whom the contracting officer is meeting.

1617.9 Nothing stated in a confidential meeting or included in a written record or summary of a meeting will modify the RFP unless it is incorporated into an amendment to the RFP.

1617.10 The offeror shall be solely responsible for ensuring that the final technical proposal complies with the requirements of the RFP.

1617.11 If an amendment to the RFP causes previously approved VQCs to become non-compliant with the project design appearance goals set forth in the RFP, then the offeror shall revise and resubmit its VQC for review and comment, in compliance with the terms of the amendment.

History

SOURCE: Final Rulemaking published at 35 DCR 1456 (February 26, 1988); as Final Rulemaking published at 46 DCR 8464 (October 22, 1999); as Final Rulemaking published at 48 DCR 2168 (March 9, 2001); as Final Rulemaking published at 49 DCR 3038 (April 5, 2002); as Emergency Rulemaking published at 51 DCR 10653 (November 19, 2004)[EXPIRED]; as Emergency Rulemaking published at 52 DCR 5767 (June 17, 2005) [EXPIRED]; as Final Rulemaking published at 52 DCR 6354 (July 8, 2005); as amended by Final Rulemaking published at 60 DCR 1136 (February 1, 2013); as amended by Final Rulemaking published at 63 DCR 9527 (July 15, 2016); as amended by Final Rulemaking published at 64 DCR 1091 (February 3, 2017). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 1617

27 DCMR § 1618 [RESERVED]

History

SOURCE: Final Rulemaking published at 35 DCR 1457 (February 26, 1988); as amended by Final Rulemaking published at 60 DCR 1136 (February 1, 2013).

27 DCMR § 1619 [RESERVED]

History

SOURCE: Final Rulemaking published at 35 DCR 1458 (February 26, 1988); as amended by Final Rulemaking published at 60 DCR 1136 (February 1, 2013).

27 DCMR § 1620 [RESERVED]

History

SOURCE: Final Rulemaking published at 35 DCR 1459 (February 26, 1988); as amended by Final Rulemaking published at 60 DCR 1136 (February 1, 2013).

27 DCMR § 1621 PRE-PROPOSAL CONFERENCES

1621.1 The contracting officer may conduct a pre-proposal conference to brief prospective offerors after a solicitation has been issued but before offers are submitted.

1621.2 The contracting officer or designated representative shall:

(a) Conduct the pre-proposal conference;

(b) Furnish all prospective offerors identical information concerning the proposed procurement;

(d) Promptly publish a copy of that record to all prospective offerors.

1621.3 The contracting officer shall inform all pre-proposal conference attendees that:

(a) Remarks and explanations at the conference do not qualify or amend the terms of the solicitation; and

(b) Nothing stated at the pre-proposal conference shall change an RFP unless a change is made by the contracting officer by written amendment.

History

SOURCE: Final Rulemaking published at 35 DCR 1459 (February 26, 1988); as amended by Final Rulemaking published at 60 DCR 1136 (February 1, 2013).

27 DCMR § 1622 CHANGES IN DISTRICT REQUIREMENTS

1622.1 When, either before or after receipt of proposals, the District increases, decreases or otherwise changes its requirements, the contracting officer shall issue a written amendment to the solicitation in accordance with § 1623.

1622.2 In deciding which firms to notify of a change, the contracting officer shall consider the state in the procurement cycle at which the change occurs and the magnitude of the change, as follows:

(a) If proposals are not yet due, the amendment shall be published in the same manner as the solicitation;

(b) If the time for receipt of proposals has passed but proposals have not yet been evaluated, the amendment shall be sent only to the responding offerors; and

(c) If a competitive range has been established, the amendment shall be sent only to those offerors within the competitive range.

1622.3 If a change is so substantial that it warrants complete revision of a solicitation, the contracting officer shall cancel the original solicitation and issue a new one, regardless of the state of the procurement. The new solicitation shall be advertised in accordance with the requirements of Chapter 13 of this title.

1622.4 If the proposal considered to be most advantageous to the District (as determined by using the established evaluation criteria and selection procedure) involves a departure from the stated requirements, the contracting officer shall provide all offerors an opportunity to submit new or amended proposals on the basis of the revised requirements, if this can be done without revealing to the other offerors the solution proposed in the original departure or any other information that is entitled to protection.

History

SOURCE: Final Rulemaking published at 35 DCR 1460 (February 26, 1988); as amended by Final Rulemaking published at 60 DCR 1136 (February 1, 2013).

27 DCMR § 1623 AMENDMENT OF SOLICITATION BEFORE CLOSING DATE

1623.1 After the issuance of a solicitation, but before the date set for receipt of proposals, the contracting officer may make changes in the solicitation to reflect any of the following:

(a) Significant changes in quantity, specifications, or delivery schedules;

(b) The correction of defects or ambiguities;

(d) Any other appropriate purpose affecting the procurement.

1623.2 The contracting officer shall determine if the closing date and time needs to be changed when amending a solicitation, and shall notify all prospective offerors of any change in the closing date necessitated by an amendment.

1623.3 The contracting officer shall not award a contract unless all amendments made to the RFP have been issued in sufficient time to be considered by prospective offerors.

History

SOURCE: Final Rulemaking published at 35 DCR 1461 (February 26, 1988); as amended by Final Rulemaking published at 60 DCR 1136 (February 1, 2013).

27 DCMR § 1624 PROPOSAL SUBMISSION REQUIREMENTS

1624.1 The procedures for submitting proposals shall be in accordance with the RFP and requirements of § 1521 of this title.

History

SOURCE: Final Rulemaking published at 35 DCR 1461 (February 26, 1988); as amended by Final Rulemaking published at 60 DCR 1136 (February 1, 2013).

27 DCMR § 1625 RECEIPT AND SAFEGUARDING OF PROPOSALS

1625.1 The procedures for receipt and handling of proposals shall be in accordance with the requirements of § 1526 of this title.

History

SOURCE: Final Rulemaking published at 35 DCR 1461 (February 26, 1988); as amended by Final Rulemaking published at 60 DCR 1136 (February 1, 2013).

27 DCMR § 1626 [RESERVED]

History

SOURCE: Final Rulemaking published at 35 DCR 1462 (February 26, 1988); as amended by Final Rulemaking published at 60 DCR 1136 (February 1, 2013).

27 DCMR § 1627 LATE PROPOSALS, LATE MODIFICATIONS, AND LATE WITHDRAWALS

1627.1 Any proposal or modification to proposal received at the location designated in the RFP after the time and date set for receipt of proposals shall be considered "late" unless it was received prior to the contract award and any of the following applies:

(a) It was sent by registered or certified mail not later than five (5) calendar days before the date and time specified for receipt of offers;

(b) It was sent by mail and the contracting officer determines that the late receipt was due solely to mishandling by the District after receipt at the location specified in the RFP;

(c) It was sent electronically by the offeror prior to the time and date specified and there is objective evidence in electronic form confirming that the offer was received prior to the date and time specified for receipt; or

(d) It was the only proposal received.

1627.2 Any request for withdrawal or request for modification of an offer received after the time and date set for receipt of proposals is late.

1627.3 A late proposal, late request for modification, or late request for withdrawal shall not be considered, except as provided in this section.

1627.4 A late modification of a successful proposal which makes its terms more favorable to the District shall be considered at any time it is received and may be accepted.

1627.5 A late proposal, late modification of offer, or late withdrawal of offer that is not considered shall be held unopened, unless opened for identification, until after award and then retained with unsuccessful offers.

1627.6 If any information received electronically is unreadable, the contracting officer immediately shall notify the offeror and permit the offeror to resubmit the unreadable portion of the information. The method and time for resubmission shall be prescribed by the contracting officer after consultation with the offeror, and documented in the contract file. The resubmission shall be considered as if it were received at the date and time of the original unreadable submission for the purpose of determining timeliness, provided the offeror complies with the time and format requirements for resubmission prescribed by the contracting officer.

History

SOURCE: Final Rulemaking published at 35 DCR 1463 (February 26, 1988); as amended by Final Rulemaking published at 60 DCR 1136 (February 1, 2013).

27 DCMR § 1628 [RESERVED]

History

SOURCE: Final Rulemaking published at 35 DCR 1463 (February 26, 1988); as amended by Final Rulemaking published at 60 DCR 1136 (February 1, 2013).

27 DCMR § 1629 DISCLOSURE AND USE OF INFORMATION BEFORE AWARD

1629.1 After receipt of proposals, the information contained in them and the number or identity of offerors shall not be made available to the public or to anyone in the District not required to have access to the information in the performance of his or her duties.

1629.2 During the pre-award period of a CSP procurement, only the contracting officer and others specifically authorized may transmit technical or other information and conduct discussions with prospective contractors.

1629.3 No District employee or agent shall furnish information to a prospective contractor if, alone or together with other information, it might give the prospective contractor an advantage over others. However, general information that is not prejudicial to others may be furnished upon request.

1629.4 The contracting officer may release proposals outside the District for evaluation, consistent with the following requirements:

(a) The outside evaluator shall provide a written agreement stating that the information contained in the qualifications or proposal will be used only for evaluation purposes and will not be further disclosed; and

(b) Any authorized restrictive legends placed on the proposal by the prospective contractor or subcontractor, or by the District, shall be affixed to any reproduction or abstracted information made by the evaluator.

History

SOURCE: Final Rulemaking published at 35 DCR 1464 (February 26, 1988); as amended by Final Rulemaking published at 60 DCR 1136 (February 1, 2013).

27 DCMR § 1630 PROPOSAL EVALUATION

1630.1 The contacting officer shall evaluate each proposal using only the evaluation criteria stated in the RFP and in accordance with the weightings provided in the RFP.

1630.2 The contracting officer shall evaluate the cost or price to determine reasonableness.

1630.3 If any technical evaluation is necessary beyond ensuring that the proposal meets the minimum requirements in the solicitation, the contracting officer shall forward the proposals to the appropriate technical official for technical evaluation.

1630.4 If a technical evaluation is done, a technical evaluation report shall be prepared by the technical official and shall contain the following:

(a) The basis for evaluation;

(b) An analysis of the technically acceptable and unacceptable proposals, including an assessment of each offeror's ability to accomplish the technical requirements;

(d) A summary of findings.

1630.5 When evaluating a cost-reimbursement contract, the cost proposal shall not be controlling. The contracting officer shall consider which offeror can perform the contract in a manner most advantageous to the District as determined by evaluation of proposals according to the established evaluation criteria.

1630.6 The contracting officer may reject all proposals received in response to a solicitation by a written determination that to do so would be in the best interest of the District. The contracting officer's determination shall be approved by the Director.

1630.7 The reasons given for rejection may include, but are not limited to, the following:

(a) All otherwise acceptable proposals received are at unreasonable prices; or

(b) The proposals were not independently arrived at in open competition, were collusive or were submitted in bad faith.

1630.8 When all proposals are rejected and no award will be made as a result of the RFP, the contracting officer shall cancel the RFP.

1630.9 The contracting officer shall prepare supporting documentation for the selection decision that shows the relative differences among the proposals and their strengths, weaknesses, and risks in terms of the evaluation factors. The supporting documentation shall include the basis for the selection.

History

SOURCE: Final Rulemaking published at 35 DCR 1464 (February 26, 1988); as amended by Emergency and Proposed Rulemaking published at 58 DCR 150 (January 7, 2011)[EXPIRED]; as amended by Emergency Rulemaking published at 58 DCR 4039 (May 6, 2011)[EXPIRED]; as amended by Emergency and Proposed Rulemaking published at 58 DCR 8080 (September 16, 2011)[EXPIRED]; as amended by Final Rulemaking published at 58 DCR 9826 (November 18, 2011); as amended by Final Rulemaking published at 60 DCR 1136 (February 1, 2013); as amended by Final Rulemaking published at 61 DCR 11164 (October 24, 2014). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 1630

27 DCMR § 1631 DISCLOSURE OF MISTAKES BEFORE AWARD

1631.1 The contracting officer shall examine all proposals before award for minor informalities or irregularities and apparent clerical mistakes.

1631.2 Limited exchanges to clarify or resolve ambiguities, apparent minor mistakes or irregularities shall be only for clarification, not discussion. If the resulting communication prejudices the interest of other offerors, and the contracting is proceeding under § 1632.1(c), the contracting officer shall not make award without discussions with all offerors within the competitive range.

History

SOURCE: Final Rulemaking published at 60 DCR 1136 (February 1, 2013).

27 DCMR § 1632 SELECTION OF NEGOTIATION PROCESS

1632.1 After evaluation of the proposals using only the criteria stated in the RFP and in accordance with weightings provided in the RFP, the contracting officer may elect to proceed with:

(a) Award of the contract without negotiations or discussions in accordance with § 1633;

(b) Negotiations with the highest ranked offeror in accordance with § 1634;

(d) Negotiations with the highest ranked offeror after discussions with offerors in the competitive range or after receipt of best and final offers in accordance with § 1634.

History

SOURCE: Notice of Final Rulemaking published at 56 DCR 9555 (December 25, 2009); as amended by Final Rulemaking published at 60 DCR 1136 (February 1, 2013).

27 DCMR § 1633 AWARD WITHOUT DISCUSSIONS

1633.1 Discussions are not necessary:

(a) If prices are fixed by law or regulation; or

(b) It can be clearly demonstrated from the existence of full and open competition or prior cost experience with the goods or services that acceptance of the most advantageous initial proposal without discussion would result in a fair and reasonable price.

1633.2 If discussions are not held pursuant to § 1633.1(b), the contracting officer may elect to award the contract to the highest ranked offeror, provided that:

(a) All offerors have been notified of the possibility that an award might be made without discussions; and

(b) The terms of the contract are within the scope of the RFP; and

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 58 DCR 150 (January 7, 2011)[EXPIRED]; as amended by Notice of Emergency Rulemaking published at 58 DCR 4039 (May 6, 2011)[EXPIRED]; as amended by Notice of Emergency and proposed Rulemaking published at 58 DCR 8080 (September 16, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 9826 (November 18, 2011); as amended by Final Rulemaking published at 60 DCR 1136 (February 1, 2013).

27 DCMR § 1634 NEGOTIATIONS WITH THE HIGHEST RANKED OFFEROR

1634.1 Pursuant to § 1632.1(b) or § 1632.1(d), the contracting officer may elect to proceed with negotiations with the highest-ranked offeror on price or technical matters within the scope of the RFP.

1634.2 During negotiations the contracting officer shall do the following:

(a) Control all negotiations;

(b) Advise the offeror of deficiencies in its proposal so that the offeror is given an opportunity to satisfy the District's requirements;

(c) Attempt to resolve any uncertainties concerning the technical proposal and other terms and conditions of the proposal;

(d) Resolve any suspected mistakes by calling them to the offeror's attention as specifically as possible; and

(e) Provide the offeror a reasonable opportunity to submit any cost or price, technical, or other revisions to its proposal that may result from the negotiations.

1634.3 If a satisfactory contract cannot be negotiated with the highest-ranked offeror, the contracting officer may enter negotiations on price or technical matters within the scope of the RFP, as provided under §§ 1634.2 and 1634.3, with the lower-ranked offerors in order of ranking until a satisfactory contract can be awarded.

1634.4 If a contract cannot be negotiated, the contracting officer may reopen negotiations with any offeror with whom negotiations were terminated.

1634.5 If the contracting officer makes changes to the general scope of the RFP after negotiations, the contracting officer shall issue a request for best and final offers to all of the offerors which submitted proposals to the RFP.

1634.6 After evaluation of the best and final offers under §1634.5, the contracting officer shall award to the highest-ranked offeror whose best and final offer is most advantageous to the District, considering only price and other factors included in the solicitation. The contracting officer may negotiate further with the highest-ranked offeror prior to award, provided that the terms of the contract are within the scope of the RFP.

History

SOURCE: Final Rulemaking published at 60 DCR 1136 (February 1, 2013).

27 DCMR § 1635 [RESERVED]

History

SOURCE: Final Rulemaking published at 60 DCR 1136 (February 1, 2013).

27 DCMR § 1636 DISCUSSIONS WITH OFFERORS WITHIN THE COMPETITIVE RANGE

1636.1 If the contracting officer elects not to award without discussions under § 1633, or not to negotiate with the highest ranked offeror before determining a competitive range under § 1634, the contracting officer may choose to conduct written or oral discussions with all offerors in the competitive range pursuant to § 1632.1(c).

1636.2 If this process is chosen, the contracting officer shall determine which proposals are in the competitive range, and shall conduct written or oral discussions with the offerors which submitted those proposals.

History

SOURCE: Final Rulemaking published at 60 DCR 1136 (February 1, 2013).

27 DCMR § 1637 DETERMINATION OF THE COMPETITIVE RANGE

1637.1 The competitive range shall be determined on the basis of price and other factors, in accordance with the evaluation criteria that were stated in the RFP, and shall include all of the most highly rated proposals.

1637.2 If all offerors have been notified in the solicitation of the possibility that the competitive range can be limited for purposes of efficiency, the contracting officer may determine to limit the number of proposals in the competitive range to the greatest number that will permit an efficient competition among the most highly rated proposals.

1637.3 If the contracting officer decides that an offeror’s proposal should no longer be included in the competitive range, the proposal shall be eliminated from consideration for award.

1637.4 The contracting officer shall notify, in writing, an unsuccessful offeror at the earliest practicable time that its proposal is no longer being considered for award.

History

SOURCE: Final Rulemaking published at 60 DCR 1136 (February 1, 2013).

27 DCMR § 1638 CONDUCT OF DISCUSSIONS WITH OFFERORS WITHIN THE COMPETITIVE RANGE

1638.1 The contracting officer shall ensure that, if discussions are held with any offeror within the competitive range pursuant to § 1636, discussions are held with all offerors in the competitive range.

1638.2 During discussions with offerors, the contracting officer shall do the following:

(a) Control all discussions;

(b) Advise each offeror of weaknesses and deficiencies in its proposal so that the offeror is given an opportunity to revise its proposal to satisfy the District's requirements;

(c) Attempt to resolve any uncertainties concerning the technical proposal and other terms and conditions of the proposal;

(d) Resolve any suspected mistakes by calling them to the offeror's attention as specifically as possible without disclosing information concerning other offerors' proposals or the evaluation process; and

(e) Provide each offeror a reasonable opportunity to submit any price, technical, or other revisions to its proposal that may result from the discussions.

1638.3 The contracting officer shall not assist an offeror to bring its proposal up to the level of other proposals through successive rounds of discussion, such as pointing out weaknesses resulting from the offeror's lack of diligence, competence, or inventiveness in preparing the proposal.

1638.4 The contracting officer shall not disclose technical information pertaining to a proposal that results in improvement of a competing proposal.

1638.5 The contracting officer shall not indicate to an offeror a price it must meet to obtain further consideration, advise an offeror of its standing relative to another offeror, or otherwise furnish information about any other offeror's prices.

1638.6 If, after discussions have begun, an offeror originally in the competitive range is no longer considered to be among the most highly rated offerors being considered for award, that offeror may be eliminated from the competitive range whether or not all material aspects of the proposal have been discussed, or whether or not the offeror has been afforded an opportunity to submit a proposal revision.

History

SOURCE: Final Rulemaking published at 60 DCR 1136 (February 1, 2013).

27 DCMR § 1639 BEST AND FINAL OFFERS OF OFFERORS WITHIN THE COMPETITIVE RANGE

1639.1 Upon completion of discussions, the contracting officer shall issue to all offerors within the competitive range a request for best and final offers.

1639.2 The request for best and final offers shall include the following:

(a) Notice that discussions are concluded;

(b) Notice that this is the opportunity to submit a best and final offer;

(c) A common cut-off date and time that allows a reasonable opportunity for submission of written best and final offers; and

(d) Notice that if any modification is submitted, it must be received by the date and time specified and is subject to the provisions of this chapter covering late proposals.

1639.3 After evaluation of the best and final offers, the contracting officer may award the contract to the highest-ranked offeror, considering only price and other factors included in the solicitation. The contracting officer may negotiate further with the highest-ranked offeror prior to award in accordance with §1634.

History

SOURCE: Final Rulemaking published at 60 DCR 1136 (February 1, 2013).

27 DCMR § 1640 [RESERVED]

History

SOURCE: Final Rulemaking published at 60 DCR 1136 (February 1, 2013).

27 DCMR § 1641 PRICE NEGOTIATION WITH OFFERORS

1641.1 Among other areas of negotiations under § 1634 and discussions under §1638, the contracting officer may enter into price negotiations with the offeror with the intent of agreeing on a fair and reasonable price.

1641.2 The contracting officer shall not be required to reach agreement on every element of cost, and may make reasonable compromises if necessary.

History

SOURCE: Final Rulemaking published at 60 DCR 1136 (February 1, 2013).

27 DCMR § 1642 SUBSTANTIATING OFFERED PRICES

1642.1 The contracting officer shall select whatever price or cost analysis techniques will ensure a fair and reasonable price.

1642.2 The contracting officer may request factual information reasonably available to the offeror to substantiate that the price or cost offered, or some portion of it, is reasonable, if:

The price is not:

Based on adequate price competition;

Based on an established catalogue or market prices; or

Set by law or regulation; or

(b) The price or cost exceeds an amount established by law or regulation.

1642.3 The offeror shall submit the requested factual information at the time and in the manner specified by the contracting officer.

1642.4 If an offeror refuses to supply the requested information, the contracting officer may disqualify the offeror, or delay the award pending further analysis.

History

SOURCE: Final Rulemaking published at 60 DCR 1136 (February 1, 2013).

27 DCMR § 1643 [RESERVED]

History

SOURCE: Final Rulemaking published at 60 DCR 1136 (February 1, 2013).

27 DCMR § 1644 CANCELLATION OF REQUESTS FOR PROPOSALS

1644.1 An RFP shall not be canceled unless the Director determines in writing that cancellation is in the best interest of the District.

1644.2 If an RFP is canceled before the date and time set for receipt of proposals, the contracting officer shall:

(a) Return to the offerors unopened proposals that have been received via mail or hand-delivery; or

(b) Purge all bids that have been received electronically from primary and backup data storage systems.

1644.4 If an RFP is canceled after opening of proposals, the proposals shall be retained in the procurement file.

1644.5 The contracting officer shall post on the Internet a notice of cancellation which shall briefly explain the reason the RFP is being canceled.

History

SOURCE: Final Rulemaking published at 60 DCR 1136 (February 1, 2013).

27 DCMR § 1645 PAYMENT OF STIPENDS

1645.1 Agencies may pay stipends to compensate one or more unsuccessful offerors for a portion of proposal development costs, the use of information contained in their proposals, and to encourage competition.

1645.2 Stipends shall be paid only to offerors which have submitted acceptable proposals complying with the conditions of the RFP.

1645.3 The solicitation must include a provision describing the amount, conditions, and the process of distribution for stipends. The stipend provision must include the following at a minimum:

The agency’s commitment to pay a stipend;

The amount and timing of stipend payment;

Conditions to qualify for a stipend;

A requirement that the offeror submit an acceptable proposal complying with the conditions of the RFP;

A requirement that the proposal meet a minimum quality;

A statement that the District may retain the right to use ideas from unsuccessful offerors if they accept the stipends;

An agreement form; and

(h) A statement advising the offerors that the acceptance of a stipend is optional on the part of the unsuccessful offeror.

History

SOURCE: Final Rulemaking published at 60 DCR 1136 (February 1, 2013).

27 DCMR § 1646 NOTIFICATIONS

1646.1 The contracting officer shall notify each offeror whose proposal is determined to be unacceptable before award unless disclosure might prejudice the best interest of the District.

1646.2 The contracting officer shall award a contract by transmitting written notice of the award with reasonable promptness to the responsible offeror whose proposal will be the most advantageous to the District.

1646.3 Promptly after the award of each contract, the contracting officer shall notify unsuccessful offerors in writing, unless notice was given before award.

History

SOURCE: Final Rulemaking published at 60 DCR 1136 (February 1, 2013).

27 DCMR § 1647 PREAWARD DEBRIEFINGS

1647.1 Offerors excluded from the competitive range or otherwise excluded from the competition before award may submit a written request for a preaward debriefing to the contracting officer.

1647.2 The contracting officer shall make reasonable efforts to debrief the unsuccessful offeror as soon as practicable, unless the Director determines that to do so is not in the best interest of the District.

1647.3 A preaward debriefing shall include, at a minimum:

The District’s evaluation of significant elements in the offeror’s proposal;

A summary of the rationale for eliminating the offeror from the competition; and

Reasonable responses to relevant questions about whether source selection procedures contained in the solicitation, applicable regulations, and other applicable authorities were followed.

1647.4 A preaward debriefing shall not disclose:

The number of offerors;

The identity of another offeror;

The content of another offeror’s proposal;

The ranking of other offerors;

The evaluation of other offerors; or

Any information prohibited by § 1648.3(b) of this chapter.

History

SOURCE: Final Rulemaking published at 60 DCR 1136 (February 1, 2013); as amended by Final Rulemaking published at 62 DCR 9252 (July 3, 2015). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 1647

27 DCMR § 1648 POSTAWARD DEBRIEFINGS

1648.1 If a contract is awarded on a basis other than price alone, the contracting officer shall provide a postaward debriefing for any unsuccessful offeror that submits a written request for a debriefing, unless the Director determines that to do so is not in the best interest of the District.

1648.2 If a postaward debriefing is held, the information provided shall include, at a minimum:

The District’s evaluation of the significant weak or deficient factors in the unsuccessful offeror’s proposal;

The overall evaluated cost or price (including unit prices), the numeric technical rating, if applicable, of the successful offeror and the debriefed offeror, and past performance information on the debriefed offeror;

The overall numeric ranking of all offerors, if any ranking was developed by the procuring agency during the evaluation;

A summary of the rationale for award; and

Reasonable responses to relevant questions about whether source selection procedures contained in the solicitation, applicable regulations and other applicable authorities were followed.

1648.3 The postaward debriefing shall not:

Include point-by-point comparisons of the debriefed offeror's proposal with those of other offerors; or

Reveal any information prohibited from disclosure by Section 417 of the Procurement Practices Reform Act of 2010, effective April 8, 2011 (D.C. Law 18-371; D.C. Official Code § 2-354.17 (2012 Repl.)) or exempt from release under the District of Columbia Freedom of Information Act, effective March 25, 1977 (D.C. Law 1-96; D.C. Official Code §§ 2-531 et seq. (2012 Repl.)), including:

Information which has been designated as confidential and proprietary by an offeror;

Trade secrets and commercial or financial information where disclosure would impair the competitive position of an offeror, including cost breakdowns, profit, indirect cost rates, and similar information;

Inter-agency or intra-agency memoranda or letters which would not be available by law to a party other than an agency in litigation with the agency, including the names and written comments of the members of the evaluation panel;

Information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy, including offerors’ employees’ names, résumés, contact information, the names of offerors’ partners and the names of individuals providing reference information about an offeror's past performance; and

(5) Federal tax identification numbers or other information specifically exempted from disclosure by statute.

History

SOURCE: Final Rulemaking published at 60 DCR 1136 (February 1, 2013); as amended by Final Rulemaking published at 62 DCR 9252 (July 3, 2015). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 1648

27 DCMR § 1699 DEFINITIONS

1699.1 When used in this chapter, the following words and terms shall have the meanings ascribed:

Alternate technical concept – a proposed change to a District-supplied base design configuration, project scope, design criterion, or construction criterion that the District determines is equal to or better than a requirement in a request for proposals.

Base compensation – a fixed monthly payment that the District pays the providers of employment services in support of the District’s TANF Employment Program for performing specific duties and delivering specific services. Base compensation varies depending on the size of the provider’s not-employed PIT.

Clarification – communication with an offeror for the sole purpose of eliminating minor irregularities, informalities, or apparent clerical mistakes in the proposal. It is achieved by explanation or substantiation, either in response to District inquiry or as initiated by the offeror.

Customer – a recipient of human care services.

Deficiency – a material failure of a proposal to meet a District requirement or a combination of significant weaknesses in a proposal that increase the risk of unsuccessful contract performance to an unacceptable level.

Director – the Director of the Office of Contracting and Procurement (OCP) or the District of Columbia Chief Procurement Officer (CPO).

Discussion – any oral or written communication between the District and an offeror (other than communications conducted for the purpose of minor clarification) whether or not initiated by the District, that involves information essential for determining the acceptability of a proposal, or provides the offeror an opportunity to revise or modify its proposal.

Individual Responsibility Plans (IRP) – a written agreement developed jointly by a TANF customer and the providers of employment services in support of the District’s TANF Employment Program that acts as the customer’s roadmap to securing employment and becoming self-sufficient. The IRP outlines specific steps that the customer agrees and commits to take in order to address and remove barriers, and find and retain employment.

Outcome-based compensation – a variable monthly payment that the District pays the providers of employment services in support of the District’s TANF Employment Program for achieving outcomes defined by the District.

Point-In-Time caseload (PIT) –the number of TANF customers (or cases) that the provider of employment services in support of the District’s TANF Employment Program is serving in a given period or at a given time.

Pre-qualification – the process by which the contracting officer determines whether a prospective service provider under a human care agreement is responsible.

Price – cost plus any fee or profit applicable to the contract type.

Solicitation – request for proposals (RFP), except as provided otherwise in § 1601 of this chapter.

Technical analysis – the examination and evaluation by personnel having specialized knowledge, skills, experience, or capability in factors set forth in a proposal.

Unsolicited proposal – a written proposal that is submitted to an agency on the initiative of the submitter for the purpose of obtaining a contract with the District that is not in response to a solicitation.

Voucher – a written authorization, to a service provider who has been awarded a human care agreement, to provide the services authorized in the agreement and described in the voucher directly to a customer identified in writing.

Visual quality concept – an offeror’s description of its approach to meeting the project design appearance goals set forth in the RFP.

History

SOURCE: Final Rulemaking published at 35 DCR 1465 (February 26, 1988); as amended by Emergency and Proposed Rulemaking published at 58 DCR 5199, 5208 (June 17, 2011)[EXPIRED]; as amended by Final Rulemaking published at 58 DCR 6411, 6420 (July 29, 2011); as amended by Final Rulemaking published at 60 DCR 1136 (February 1, 2013); as amended by Final Rulemaking published at 62 DCR 14064 (October 30, 2015); as amended by Final Rulemaking published at 63 DCR 9527 (July 15, 2016); as amended by Final Rulemaking published at 65 DCR 8763 (August 24, 2018). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 1699

27-17 SOLE SOURCE AND EMERGENCY PROCUREMENTS

27 DCMR § 1700 SOLE SOURCE PROCUREMENT

1700.1 The contracting officer may award a contract through a sole source procurement when there is only one (1) source for the required goods or services.

1700.2 The contracting officer shall prepare a determination and findings (D&F) justifying the use of a sole source procurement which shall include:

(a) Identification of the agency and specific identification of the document as a sole source D&F;

(b) A statement that the requirement is a sole source;

(d) A description of the factors that establish the proposed vendor is the only source of the required goods or services;

(e) A statement that the anticipated costs to the District will be fair and reasonable;

(f) A specific citation to section 404 of the Procurement Practices Reform Act of 2010, effective April 8, 2011 (D.C. Law 18-371; D.C. Official Code § 2-354.04 (2011 Repl.)) (Act) and applicable provisions of this chapter that provide legal authority for the sole source procurement;

(g) A description of the market survey conducted and the results, including a list of the potential sources contacted by the contracting officer or which expressed, in writing, an interest in the procurement. If no market survey was done, a statement of the reasons why a market survey was not conducted; and

(h) Any other relevant facts to support the use of a sole source procurement.

1700.3 A sole source contract shall not be justified on the basis of:

(a) The lack of adequate advance planning for the procurement of the required goods or services;

(b) Delays in the procurement caused by administrative delays, lack of sufficient procurement personnel, or improper handling of procurement requests or competitive procedures; or

1700.4 The Director shall approve all sole source D&Fs in excess of the noncompetitive limit established in chapter 18.

1700.5 Justification for a sole source procurement shall cover all of the goods or services being procured under a single contract. The justification for the sole source procurement of goods or services shall not be used to avoid competitive procedures for obtaining other goods or services which do not qualify as a sole source procurement under the same contract.

History

SOURCE: Final Rulemaking published at 35 DCR 1467 (February 26, 1988); repealed and replaced by Final Rulemaking published at 59 DCR 8757 (July 27, 2012).

27 DCMR § 1701 SOLE SOURCE PROCUREMENT POSTING REQUIREMENTS

1701.1 The contracting officer shall publicize the District’s intent to enter into a sole source contract in accordance with the provisions of chapter 13 of this title.

1701.2 The contracting officer shall publicize all sole source contracts in accordance with the provisions of chapter 13.

1701.3 If a grant or law requires a specific vendor to provide certain goods or services for a requirement, the contracting officer does not have to publicize the notice of intent to enter into a sole source contract.

History

SOURCE: Final Rulemaking published at 35 DCR 1467 (February 26, 1988); repealed and replaced by Final Rulemaking published at 59 DCR 8757, 8758 (July 27, 2012).

27 DCMR § 1702 EMERGENCY PROCUREMENTS

1702.1 The contracting officer may award a contract on an emergency basis when there is an imminent threat to the public health, welfare, property, or safety, or to prevent or minimize serious disruption in District services or when an emergency condition exists as defined in section 1799.

1702.2 The contracting officer shall prepare a D&F that sets forth the justification for the emergency procurement. The D&F shall include:

(a) Identification of the agency and specific identification of the document as an emergency D&F;

(b) A statement that emergency procurement procedures will be used for the procurement;

(d) A description of the emergency;

(e) A description of the efforts made to ensure that proposals or bids are received from as many potential sources as possible;

(f) The estimated value or cost;

(g) A determination that the anticipated costs to the District will be fair and reasonable in light of the emergency;

(h) A specific citation to section 405 of the Act (D.C. Official Code § 2-354.05) and the applicable provisions of this chapter that provide legal authority for the emergency procurement; and

(i) Any other pertinent facts that support the emergency justification.

1702.3 An emergency contract shall not be justified on the basis of:

(a) The lack of adequate advance planning for the procurement of the required goods or services;

(b) Delays in the procurement caused by administrative delays, lack of sufficient procurement personnel, or improper handling of procurement requests or competitive procedures; or

1702.4 Emergency procurements shall be limited to those goods or services necessary to meet the emergency.

1702.5 Emergency procurements shall be made with as much competition as is practicable under the circumstances, based on the judgment and determination of the contracting officer.

1702.6 The contracting officer shall have the authority to issue oral orders or notices to proceed to contractors to provide goods or services to the District, provided the directive is reduced to writing within three (3) business days after issuance and the funding for the goods or services provided is certified by the appropriate fiscal official.

1702.7 Emergency procurement procedures shall not be used for contracts exceeding ninety (90) days; provided that if the development time for the goods or services exceeds ninety (90) days, the contract shall not exceed one hundred twenty (120) days.

1702.8 A contract procured on an emergency basis shall not be modified to expand the scope or extend the time of the procurement unless a limited number of additional goods or services are needed to fill an on-going emergency requirement until regular procurement action procedures can be completed.

1702.9 Notice of all emergency procurements, including D&Fs, shall be publicized in accordance with the provisions of chapter 13.

History

SOURCE: Final Rulemaking published at 35 DCR 1468 (February 26, 1988); repealed and replaced by Final Rulemaking published at 59 DCR 8757, 8759 (July 27, 2012).

27 DCMR § 1703 COMPETITION EXEMPTIONS

1703.1 The procurements that are exempt from competition cited in Section 413 of the Act (D.C. Official Code § 2-354.13) are not subject to the requirements of §§ 1700, 1701, and 1702.

1703.2 The exemption for artistic services or works of art, cited in Section 413(1) of the Act, includes, but is not limited to: services provided by teaching artists; voice-over artists; models; songwriters; musical producers or arrangers; writers; directors; producers; production executives; choreographers; videographers; composers; conductors; stage managers; lighting, costume, scenic, or sound designers; or services for the conservation and preservation of works of art.

1703.3 The exemption from competition when procuring legal services or negotiation services in connection with proceedings before administrative agencies or state or federal courts, including experts, attorneys, and mediators, cited in Section 413(3) of the Act, includes services in connection with present or anticipated proceedings, and services to provide advice or to prevent litigation.

1703.4 The exemption from competition when procuring entertainers, cited in Section 413(6) of the Act, includes entertainers and speakers.

1703.5 The exemption from competition when procuring job-related seminars and training for District employees, cited in Section 413(7) of the Act, applies to job-related seminars and trainings that are intended to enhance District employees’ knowledge, skill, and ability to perform the duties of their position.

1703.6 The exemption from competition when procuring maintenance and support of existing software and technology to the extent that the creator of the intellectual property is still protected and is the only source of the maintenance and support of the existing software and technology, cited in Section 413(8) of the Act, applies to renewal of existing software licenses purchased either directly from the creator or from an authorized dealer.

1703.7 The exemption from competition when procuring personal property or services provided by another public entity, agency, or authority, cited in Section 413(10) of the Act, includes personal property and services provided by another governmental entity, public entity, agency, or authority, or an organization consisting of such entities, agencies, or authorities.

History

SOURCE: Final Rulemaking published at 35 DCR 1470 (February 26, 1988); repealed and replaced by Final Rulemaking published at 59 DCR 8757, 8760 (July 27, 2012); as amended by Final Rulemaking published at 71 DCR 009636 (August 2, 2024). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 1703

27 DCMR § 1799 DEFINITIONS

1799.1 When used in this chapter, the following terms have the meanings ascribed:

Director - the agency head of the Office of Contracting and Procurement (OCP) or the Chief Procurement Officer (CPO).

Emergency Condition – A situation which creates a threat to public health, welfare, or safety such as may arise by reason of floods, epidemics, riots, or equipment failures. The existence of such condition creates an immediate and serious need for goods or services that cannot be met through normal procurement methods and the lack of which would seriously threaten: (a) the function of District government; (b) the preservation or protection of property; or (c) the health or safety of any person.

History

SOURCE: Final Rulemaking published at 35 DCR 1475 (February 26, 1988); repealed and replaced by Final Rulemaking published at 59 DCR 8757, 8761 (July 27, 2012).

27-18 SMALL PURCHASE AND OTHER SIMPLIFIED PURCHASE PROCEDURES

27 DCMR § 1800 USE OF SMALL PURCHASE PROCEDURES

1800.1 The Director may use small purchase procedures for goods or services being procured if the total amount of the procurement does not exceed one hundred thousand dollars ($100,000).

1800.2 Requirements procured under this chapter shall not be parceled, split, divided, or purchased over a period of time in order not to exceed the small purchase limit.

1800.3 The contracting officer may make a procurement for an amount of ten thousand dollars ($10,000) or less without obtaining competitive quotations.

1800.4 For each procurement in an amount over ten thousand dollars ($10,000) but less than or equal to one hundred thousand dollars ($100,000), a contracting officer shall obtain at least three (3) written quotations.

1800.5 In determining whether or not to obtain quotations from more or fewer vendors than required in § 1800.4, the contracting officer shall consider the following factors:

(a) The nature of the item or service to be purchased and whether it is highly competitive and readily available in several makes or brands, or if it is relatively non-competitive;

(b) Information obtained in making recent purchases of the same or similar item;

(d) The dollar value of the proposed purchase; and

(e) Past experience concerning specific contractor prices.

1800.6 For procurements in excess of the amounts specified in §1800.3, a contracting officer may award a small purchase solicitation on a sole source basis when the contracting officer determines that the conditions in Section 404(a) of the Act are satisfied, in accordance with Chapter 17 of this title.

History

SOURCE: Final Rulemaking published at 35 DCR 1476 (February 26, 1988); as amended by Emergency Rulemaking published at 44 DCR 4450 (August 1, 1997) [EXPIRED]; as amended by Emergency Rulemaking published at 44 DCR 7181 (November 21, 1997) [EXPIRED]; as amended by Emergency Rulemaking published at 47 DCR 1261 (February 25, 2000) [EXPIRED]; as amended by Final Rulemaking published at 47 DCR 9882 (December 15, 2000); as amended by Emergency Rulemaking published at 50 DCR 3186 (April 25, 2003) [EXPIRED]; Final Rulemaking published at 50 DCR 8179 (October 3, 2003); as amended by Emergency Rulemaking published at 53 DCR 445 (January 20, 2006) [EXPIRED]; as amended by Final Rulemaking published at 53 DCR 5876 (July 21, 2006); as amended by Final Rulemaking published at 56 DCR 9558 (December 25, 2009); as amended by Final Rulemaking published at 60 DCR 9716 (June 28, 2013).

27 DCMR § 1801 DETERMINATION OF REASONABLE PRICE AND AWARD

1801.1 The contracting officer shall determine that the price to be paid for small purchases made pursuant to this chapter to the successful offeror is fair and reasonable.

History

SOURCE: Final Rulemaking published at 35 DCR 1476 (February 26, 1988); as amended by Emergency Rulemaking published at 44 DCR 4450 (August 1, 1997) [EXPIRED]; as amended by Emergency Rulemaking published at 44 DCR 7181 (November 21, 1997) [EXPIRED]; as amended by Emergency Rulemaking published at 47 DCR 1261 (February 25, 2000) [EXPIRED]; as amended by Final Rulemaking published at 47 DCR 9882 (December 15, 2000); as amended by Emergency Rulemaking published at 50 DCR 3186 (April 25, 2003) [EXPIRED]; Final Rulemaking published at 50 DCR 8179 (October 3, 2003); as amended by Emergency Rulemaking published at 53 DCR 445 (January 20, 2006) [EXPIRED]; as amended by Final Rulemaking published at 53 DCR 5876 (July 21, 2006); as amended by Final Rulemaking published at 56 DCR 9558, 9559 (December 25, 2009); as amended by Final Rulemaking published at 60 DCR 9716 (June 28, 2013).

27 DCMR § 1802 BLANKET PURCHASE AGREEMENTS

1802.1 A blanket purchase agreement (BPA) is not a contract and may be established without a purchase requisition or the obligation of funds.

1802.2 The contracting officer may use a BPA as a small purchase procedure to fill anticipated repetitive needs for goods or services by establishing charge accounts with sources of supply if at least one (1) of the following criteria apply:

(a) There is a wide variety of items in a broad class of goods or services that are generally purchased, but the exact items, quantities, and delivery requirements are not known in advance and may vary considerably; or

(b) The administrative cost of writing numerous purchase orders can be avoided through the use of this procedure.

1802.3 The contracting officer shall not use a BPA to:

(a) Procure goods or services for which a requirements type contract has been issued by the District; or

(b) Avoid the small purchase authority limitation.

1802.4 The contracting officer shall include the following information in each BPA:

(b) A statement that the District is obligated only to the extent that authorized purchases are actually made under the BPA;

(c) A statement that the prices to the District shall be as low or lower than those charged to the supplier's most favored customer for comparable quantities under similar terms and conditions, in addition to any discounts for prompt payment;

(d) A statement that specifies the dollar limitation for purchases under the BPA (not to exceed the small purchase limit); and

(e) A requirement that all deliveries or shipments under the BPA shall be accompanied by delivery tickets or sales slips which contain the following minimum information:

(i) The name of the supplier;

(ii) The BPA number;

(iii) The date of purchase;

(iv) The purchase order number;

(v) An itemized list of goods or services furnished;

(vi) The quantity, unit price, and extension of each item, less applicable discounts; and

(vii) The date of delivery or shipment.

1802.5 To the extent practicable, BPAs for items of the same type shall be placed concurrently with more than one (1) supplier. All competitive sources shall be given an equal opportunity to furnish goods, services, or other items under a BPA.

1802.6 When there are an insufficient number of vendors with BPAs to ensure maximum practicable competition for a particular purchase, the contracting officer shall:

(a) Solicit quotations from other sources and make the purchase as appropriate; and

(b) Establish additional BPA's to facilitate future purchases when recurring requirements for the same or similar items or services seem likely, when qualified sources are willing to accept a BPA, or when it is otherwise practical to do so.

1802.7 A BPA shall be considered terminated when the procurements under it are equal to its total dollar limitation or when the stated time period expires.

History

SOURCE: Final Rulemaking published at 35 DCR 1476 (February 26, 1988); as amended by Emergency Rulemaking published at 44 DCR 4450 (August 1, 1997) [EXPIRED]; as amended by Emergency Rulemaking published at 44 DCR 7181 (November 21, 1997) [EXPIRED]; as amended by Emergency Rulemaking published at 47 DCR 1261 (February 25, 2000) [EXPIRED]; as amended by Final Rulemaking published at 47 DCR 9882 (December 15, 2000); as amended by Emergency Rulemaking published at 50 DCR 3186(April 25, 2003) [EXPIRED]; Final Rulemaking published at 50 DCR 8179 (October 3, 2003); as amended by Emergency Rulemaking published at 53 DCR 445 (January 20, 2006) [EXPIRED]; as amended by Final Rulemaking published at 53 DCR 5876 (July 21, 2006); as amended by Final Rulemaking published at 56 DCR 9558, 9559 (December 25, 2009); as amended by Final Rulemaking published at 60 DCR 9716 (June 28, 2013).

27 DCMR § 1803 UNPRICED PURCHASE ORDERS

1803.1 The contracting officer shall use an unpriced purchase order only under the following circumstances:

(a) When the transaction will not exceed the small purchase limit;

(b) When it is impractical to obtain pricing in advance of issuance of the purchase order; and

(c) When the purchase is for repairs to equipment requiring disassembly to determine the nature and extent of repairs, material is available from only one (1) source, and for which cost cannot be readily established, or goods or services for which prices are known to be competitive but exact prices are not known.

1803.2 The contracting officer shall issue each unpriced purchase order by using a purchase order form and shall set a realistic dollar ceiling, either for each line item or for the total order. The dollar limitation shall be an obligation subject to adjustment when the firm price is established.

History

SOURCE: Final Rulemaking published at 35 DCR 1476 (February 26, 1988); as amended by Emergency Rulemaking published at 44 DCR 4450 (August 1, 1997) [EXPIRED]; as amended by Emergency Rulemaking published at 44 DCR 7181 (November 21, 1997) [EXPIRED]; as amended by Emergency Rulemaking published at 47 DCR 1261 (February 25, 2000) [EXPIRED]; as amended by Final Rulemaking published at 47 DCR 9882 (December 15, 2000); as amended by Emergency Rulemaking published at 50 DCR 3186(April 25, 2003) [EXPIRED]; Final Rulemaking published at 50 DCR 8179 (October 3, 2003); as amended by Emergency Rulemaking published at 53 DCR 445 (January 20, 2006) [EXPIRED]; as amended by Final Rulemaking published at 53 DCR 5876 (July 21, 2006); as amended by Final Rulemaking published at 56 DCR 9558, 9560 (December 25, 2009); as amended by Final Rulemaking published at 60 DCR 9716 (June 28, 2013).

27 DCMR § 1804 MODIFICATION, TERMINATION, AND CANCELLATION OF PURCHASE ORDERS

1804.1 Each purchase order modification shall identify the order it modifies and shall contain an appropriate modification number.

1804.2 The contracting officer shall obtain a contractor's written acceptance of a purchase order modification if the contracting officer determines the written acceptance necessary to ensure the contractor's compliance with the revised purchase order.

1804.3 If a purchase order that has been accepted in writing by the contractor is to be terminated, the contracting officer shall process the termination action in accordance with the provisions of Chapter 37 of this title.

1804.4 If a purchase order that has not been accepted in writing by the contractor is to be canceled, the contracting officer shall notify the contractor in writing that the purchase order has been canceled, request the contractor's written acceptance of the cancellation, and proceed in accordance with the provisions of §§ 1804.5 and 1804.6.

1804.5 If the contractor accepts the cancellation and does not claim that costs were incurred as a result of beginning performance under the purchase order, no further action shall be required and the purchase order shall be considered canceled.

1804.6 If the contractor does not accept the cancellation or claims that costs were incurred as a result of beginning performance under the purchase order, the contracting officer shall treat the action as a termination in accordance with the provisions of Chapter 37 of this title.

History

SOURCE: Final Rulemaking published at 60 DCR 9716 (June 28, 2013).

27 DCMR § 1805 [RESERVED]

27 DCMR § 1806 [RESERVED]

27 DCMR § 1807 [RESERVED]

27 DCMR § 1808 [RESERVED]

27 DCMR § 1809 [RESERVED]

27 DCMR § 1810 REPEALED

History

SOURCE: Final Rulemaking published at 35 DCR 1481 (February 26, 1988); as amended by Final Rulemaking published at 60 DCR 9716 (June 28, 2013).

27 DCMR § 1811 REPEALED

History

SOURCE: Final Rulemaking published at 35 DCR 1482 (February 26, 1988); as amended by Final Rulemaking published at 60 DCR 9716 (June 28, 2013).

27 DCMR § 1812 [RESERVED]

27 DCMR § 1813 [RESERVED]

27 DCMR § 1814 [RESERVED]

27 DCMR § 1815 REPEALED

History

SOURCE: Final Rulemaking published at 35 DCR 1484 (February 26, 1988); as amended by Final Rulemaking published at 60 DCR 9716 (June 28, 2013).

27 DCMR § 1816 [RESERVED]

27 DCMR § 1817 [RESERVED]

27 DCMR § 1818 [RESERVED]

27 DCMR § 1819 [RESERVED]

27 DCMR § 1820 REPEALED

History

SOURCE: Final Rulemaking published at 35 DCR 1485 (February 26, 1988); as amended by Final Rulemaking published at 60 DCR 9716 (June 28, 2013).

27 DCMR § 1821 REPEALED

History

SOURCE: Final Rulemaking published at 35 DCR 1486 (February 26, 1988); as amended by Final Rulemaking published at 60 DCR 9716 (June 28, 2013).

27 DCMR § 1822 REPEALED

History

SOURCE: Final Rulemaking published at 35 DCR 1487 (February 26, 1988); as amended by Final Rulemaking published at 60 DCR 9716 (June 28, 2013).

27 DCMR § 1823 REPEALED

History

SOURCE: Final Rulemaking published at 35 DCR 1487 (February 26, 1988); as amended by Final Rulemaking published at 60 DCR 9716 (June 28, 2013).

27 DCMR § 1899 DEFINITIONS

1899.1 When used in this chapter, the following terms and phrases shall have the meanings ascribed:

Blanket purchase agreement - a pre-contractual agreement with a vendor which allows an agency to make small purchases by issuing a purchase order for each individual purchase.

Director - the Director of the Office of Contracting and Procurement (OCP) or the District of Columbia Chief Procurement Officer (CPO).

Purchase order - an offer by the District to buy certain goods or services from commercial sources upon specified terms and conditions.

Quotation - a citation of price and delivery terms or a period of performance by a contractor in response to a contracting officer's request on procurements of one hundred thousand dollars ($100,000) or less.

Small purchase - a procurement of goods or services in an aggregate amount not exceeding the small purchase authority limitations set forth in this chapter.

Unpriced purchase order - an order for goods or services, the price of which is not established at the time of issuance of the order.

History

SOURCE: Final Rulemaking published at 35 DCR 1488 (February 26, 1988); as amended by Emergency Rulemaking published at 44 DCR 4450 (August 1, 1997) [EXPIRED]; as amended by Emergency Rulemaking published at 44 DCR 7181 (November 21, 1997) [EXPIRED]; as amended by Final Rulemaking published at 60 DCR 9716 (June 28, 2013); as amended by Final Rulemaking published at 62 DCR 10415 (July 31, 2015). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 1899

27-19 CONTRACTING FOR SERVICES

27 DCMR § 1900 GENERAL PROVISIONS

1900.1 The provisions of this chapter apply to contracts for the provision of “services,” as that term is defined in § 104(58) of the District of Columbia Procurement Practices Reform Act of 2010, effective April 8, 2011 (D.C. Law 18-371; D.C. Official Code § 2-351.04(58) (2012 Repl.)) (the “Act”).

1900.2 The provisions of the Act and this title requiring competition and setting forth the requirements and procedures for competitive procurement shall apply to the procurement of services.

1900.3 A contract for services may provide for services to be performed by professional or non-professional personnel on an individual or organizational basis.

1900.4 A contract may be used to provide services including, but not limited to, the following:

(a) Maintenance, overhaul, and repair;

(b) Routine or recurring maintenance of real property;

(d) Expert and consulting services;

(e) Engineering and technical services;

(f) Operation of District-owned equipment, facilities, and systems;

(g) Communications services;

(h) Architectural and engineering services (in accordance with Chapter 26 of this title);

(i) Transportation and related services;

(j) Day care services;

(k) Janitorial services;

(l) Stenographic reporting services;

(m) Human care services (in accordance with §§ 1905 to 1908 of this chapter); and

(n) Real property appraisal services.

1900.5 The contracting officer shall ensure that the applicable provisions of the Service Contract Act of 1965 (41 U.S.C. §§ 6702 to 6707), the Davis-Bacon Act of 1931 (40 U.S.C. §§ 3141 to 3148), the Way to Work Amendment Act of 2006, effective June 9, 2006 (D.C. Law 16-118; D.C. Official Code §§ 2-220.01 et seq.), and any applicable wage determination, are incorporated in accordance with federal regulations into all solicitations and awards.

History

SOURCE: Final Rulemaking published at 35 DCR 1489 (February 26, 1988); as amended by Emergency and Proposed rulemaking published at 47 DCR 8590 (October 20, 2000) [EXPIRED]; as amended by Final Rulemaking published at 48 DCR 5819 (June 22, 2001); as amended by Final Rulemaking published at 62 DCR 8047 (June 5, 2015). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 1900

27 DCMR § 1901 EXPERT AND CONSULTING SERVICES

1901.1 A contracting officer may contract for expert and consulting services when essential to the agency’s mission, when necessary to comply with a court order, or when those services would improve the agency’s effectiveness or economy of operations. Expert and consulting services may include, but are not limited to, the following:

(a) Specialized opinions or professional or technical advice not available within the agency or from another District agency;

(b) Outside points of view, to avoid too limited a judgment on critical issues;

(d) The opinions, special knowledge, or skills of noted experts;

(e) Assistance with the understanding of, and development of alternative solutions to, complex issues;

(f) Advice on making the operation of managerial or hardware systems more efficient or effective; or

(g) Citizen advisory participation in developing or implementing District programs that by their nature or by statutory provision require citizen participation.

1901.2 Except as provided in § 1901.4, a contracting officer shall not contract for expert or consulting services for any of the following purposes:

(a) To perform work of a policy-making, decision-making, or managerial nature that is the direct responsibility of agency officials;

(b) To bypass or undermine personnel ceilings, pay limitations, or competitive employment procedures; or

1901.3 Except as provided in § 1901.4, the contracting officer shall ensure that a contract for expert or consulting services does not establish or allow any of the following:

(a) An employer-employee relationship between the District and the contractor;

(b) Detailed control or supervision by District personnel of the contractor or its employees with respect to the day-to-day operations of the contractor or the methods of accomplishment of the services;

(d) Supervision of District employees by the contractor.

1901.4 When an expert or consultant is engaged by a court-appointed receiver or, upon review by and the concurrence of the Attorney General, by any other contracting officer pursuant to or in order to comply with a court order, §§ 1901.2 and 1901.3 shall not apply.

1901.5 The contracting officer shall not award a contract for consulting or expert services in a manner that gives preferential treatment to former District employees.

History

SOURCE: Final Rulemaking published at 35 DCR 1489 (February 26, 1988); as amended by Emergency and Proposed Rulemaking published at 47 DCR 8590 (October 20, 2000) [EXPIRED]; as amended by Emergency and Proposed Rulemaking published at 48 DCR 548 (January 19, 2001) [EXPIRED]; as amended by Final Rulemaking published at 62 DCR 8047 (June 5, 2015). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 1901

27 DCMR § 1902 [REPEALED]

History

SOURCE: Emergency and Proposed Rulemaking published at 47 DCR 8590 (October 20, 2000) [EXPIRED]; as amended by Emergency Rulemaking published at 48 DCR 8989 (September 28, 2001) [EXPIRED]; as amended by Final Rulemaking published at 50 DCR 1531 (February 14, 2003); as amended by Emergency Rulemaking published at 51 DCR 5265 (May 21, 2004) [EXPIRED]; as amended by Final Rulemaking published at 62 DCR 8047 (June 5, 2015). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 1902

27 DCMR § 1903 [RESERVED]

27 DCMR § 1904 [RESERVED]

27 DCMR § 1905 HUMAN CARE SERVICES

1905.1 If an agency intends to provide human care services through a human care agreement, the contracting officer shall give public notice of a request for qualifications that:

(a) States the general requirements of the service; and

(b) Requests interested service providers to respond in writing with a statement of their qualifications to perform the service.

1905.2 The contracting officer shall use the procedures set forth in §§ 1905 through 1908 to procure human care services rather than the solicitation or source selection procedures specified elsewhere in this title, if the human care service is:

(a) To be negotiated on a fee-for-service or unit-rate basis using benchmarks and quantifiable measurements that are uniformly provided to providers of the same service;

(b) To be purchased at rates adopted by rule; or

(c) One that the agency typically purchases as needs arise, but for which the quantity, rate of utilization, delivery area, or specific beneficiaries of the service cannot be accurately estimated at the outset of the procurement process.

1905.3 Compliance with §§ 1905 through 1908 of this chapter shall constitute a competitive procedure for the procurement of human care services.

1905.4 The contracting officer shall certify the financial and professional responsibility of each service provider based on the following criteria:

(a) The type of business or organization and its history;

(b) The resumes and professional qualifications of the business or organization’s staff, including relevant professional or business licenses, affiliations, and specialties;

(d) Specialized experience and technical competence in the type of work required;

(e) Capacity to accomplish the work in the required time;

(f) A summary of similar contracts awarded to the service provider, and the service provider’s performance of those contracts;

(g) A certification of compliance with all applicable tax and filing requirements;

(h) A statement attesting to compliance with wage, hour, workplace safety and other standards of labor law;

(i) A statement attesting to compliance with federal and District equal employment opportunity law;

(j) Information about pending lawsuits or investigations, and judgments, indictments, or convictions against the service provider or its proprietors, partners, directors, officers, or managers; and

(k) Acceptability under other appropriate characteristics of a prospective service provider.

History

SOURCE: Final Rulemaking published at 35 DCR 1492 (February 26, 1988); as amended by Emergency and Proposed Rulemaking published at 47 DCR 8590 (October 20, 2000) [EXPIRED]; as amended by Final Rulemaking published at 48 DCR 5819 (June 22, 2001); as amended by Final Rulemaking published at 62 DCR 8047 (June 5, 2015). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 1905

27 DCMR § 1906 SELECTION OF HUMAN CARE SERVICES PROVIDERS

1906.1 Prior to conducting discussions with a service provider who has submitted a statement of qualifications, the contracting officer shall make a written determination that the service provider is qualified, based on the criteria in § 1905.4.

1906.2 Following pre-qualification of service providers, the contracting officer may:

(a) Conduct discussions with all qualified service providers, and negotiate a price on a unit rate or fee for service basis using benchmarks and quantifiable measurements that are uniformly applied, including, but not limited to, each service provider’s cost data attributable to provision of the services and consideration of each service provider’s maximum customer capacity; and

(b) Award a human care agreement to one or more qualified service providers to satisfy all or part of the District’s anticipated requirements at a price that is reasonable.

1906.3 The contracting officer shall retain statements of qualifications for approved service providers, and consider those providers for award of human care agreements, for a period of three years following pre-qualification of the providers.

History

SOURCE: Final Rulemaking published at 35 DCR 1492 (February 26, 1988); as amended by Emergency and Proposed Rulemaking published at 47 DCR 8590 (October 20, 2000) [EXPIRED]; as amended by Final Rulemaking published at 48 DCR 5819 (June 22, 2001); as amended by Final Rulemaking published at 62 DCR 8047 (June 5, 2015). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 1906

27 DCMR § 1907 HUMAN CARE AGREEMENT

1907.1 The human care agreement shall identify the services to be rendered during the term of the agreement and shall set forth the terms and conditions of any orders that may be issued pursuant to the agreement.

1907.2 A human care agreement is not a commitment to purchase any quantity of a particular service covered under the agreement.

1907.3 The District is obligated only to the extent that authorized purchases are made pursuant to the human care agreement.

1907.4 When ordering services under a human care agreement, the contracting officer shall issue a task order for required services under each human care agreement, and secure all appropriate approvals and funding prior to execution of the task order.

1907.5 As much as practicable, the contracting officer shall give qualified service providers fair and equal treatment with respect to the issuance of task orders.

History

SOURCE: Final Rulemaking published at 35 DCR 1492 (February 26, 1988); as amended by Emergency and Proposed Rulemaking published at 47 DCR 8590 (October 20, 2000) [EXPIRED]; as amended by Final Rulemaking published at 48 DCR 5819 (June 22, 2001); as amended by Final Rulemaking published at 62 DCR 8047 (June 5, 2015). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 1907

27 DCMR § 1908 VOUCHERS

1908.1 Upon a written determination by the Director approving the use of vouchers for a human care agreement, the contracting officer following award of the agreement may issue vouchers to eligible customers to use for the purchase of human care services.

History

SOURCE: Final Rulemaking published at 35 DCR 1492 (February 26, 1988); as amended by Emergency and Proposed Rulemaking published at 47 DCR 8590 (October 20, 2000) [EXPIRED]; as amended by Final Rulemaking published at 48 DCR 5819 (June 22, 2001); as amended by Final Rulemaking published at 62 DCR 8047 (June 5, 2015). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 1908

27 DCMR § 1909 HUMAN CARE AGREEMENTS UNDER THE TEMPORARY ASSISTANCE TO NEEDY FAMILIES (TANF) PROGRAM

1909.1 The Director sets the prices established in § 1610.1(a) of this title, to be paid to contractors selected through the human care procurement method for services provided under the District’s Temporary Assistance to Needy Families (TANF) Program, implementing the Self-Sufficiency Promotion Amendment Act of 1998, effective April 20, 1999 (D.C. Law 12-241; D.C. Official Code § 4-205.54).

History

SOURCE: Final Rulemaking published at 35 DCR 1492 (February 26, 1988); as amended by Emergency and Proposed Rulemaking published at 47 DCR 8590 (October 20, 2000) [EXPIRED]; as amended by Final Rulemaking published at 48 DCR 5819 (June 22, 2001); as amended by Emergency and Proposed Rulemaking published at 58 DCR 5199, 5209 (June 17, 2011) [EXPIRED]; as amended by Final Rulemaking published at 58 DCR 6411, 6421 (July 29, 2011); as amended by Final Rulemaking published at 62 DCR 8047 (June 5, 2015). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 1909

27 DCMR § 1910 [RESERVED]

History

SOURCE: Final Rulemaking published at 35 DCR 1492 (February 26, 1988); as amended by Emergency and Proposed rulemaking published at 47 DCR 8590 (October 20, 2000) [EXPIRED]; as amended by Final Rulemaking published at 48 DCR 5819 (June 22, 2001).

27 DCMR § 1911 [RESERVED]

History

SOURCE: Final Rulemaking published at 35 DCR 1492 (February 26, 1988); as amended by Emergency and Proposed rulemaking published at 47 DCR 8590 (October 20, 2000) [EXPIRED]; as amended by Final Rulemaking published at 48 DCR 5819 (June 22, 2001).

27 DCMR § 1912 [RESERVED]

History

SOURCE: Final Rulemaking published at 35 DCR 1492 (February 26, 1988); as amended by Emergency and Proposed rulemaking published at 47 DCR 8590 (October 20, 2000) [EXPIRED]; as amended by Final Rulemaking published at 48 DCR 5819 (June 22, 2001).

27 DCMR § 1913 [RESERVED]

27 DCMR § 1914 [RESERVED]

27 DCMR § 1915 DISMANTLING, DEMOLITION, OR REMOVAL OF STRUCTURES

1915.1 Contracts for dismantling, demolition, or removal of structures shall be awarded in accordance with either the Service Contract Act 1965 (41 U.S.C. §§ 6702 to 6707), or the Davis-Bacon Act (40 U.S.C. §§ 3141 to 3148), as follows:

(a) When the contract is solely for dismantling, demolition, or removal of a structure, the provisions of the Service Contract Act shall apply.

(b) When the contract is for dismantling, demolition, or removal of a structure, and further work will result in the construction, alteration, or repair of a public building or public work at the same location, even if by separate contract, the provisions of the Davis-Bacon Act shall apply with respect to the contract for dismantling, demolition, or removal of the structure and the contract for the construction, alteration, or repair of the public building or public work.

1915.2 When a contract is solely for dismantling, demolition, or removal of a structure, the contracting officer may require the contractor to furnish a performance bond or other security in accordance with the provisions of Chapter 27 of this title in an amount that the contracting officer considers adequate to do the following:

(a) Ensure completion of the work;

(b) Protect property to be retained by the District;

(d) Protect the District against damage to adjoining property.

History

SOURCE: Final Rulemaking published at 35 DCR 1492 (February 26, 1988); as amended by Emergency and Proposed Rulemaking published at 47 DCR 8590 (October 20, 2000) [EXPIRED]; as amended by Final Rulemaking published at 62 DCR 8047 (June 5, 2015). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 1915

27 DCMR § 1916 PAYMENTS FOR SALVAGE AND REMOVAL

1916.1 A contract may provide that the District pay the contractor for the dismantling or demolition of a structure or that the contractor pay the District for the right to salvage and remove the materials resulting from the dismantling or demolition operation.

1916.2 The contracting officer shall determine whether the District shall retain materials resulting from a dismantling or demolition operation in accordance with §§ 1915.3 and 1915.4.

1916.3 If property is determined more useful to the District than its value as salvage to the contractor, the contract shall expressly designate that the property be retained by the District.

1916.4 The contracting officer, on advice of technical personnel, shall determine the fair market value of any property designated as salvage which will be retained by the contractor. The fair market value estimate shall be used in determining the amount of payment, if any, that will be made to the contractor.

History

SOURCE: Final Rulemaking published at 35 DCR 1492 (February 26, 1988); as amended by Emergency and Proposed Rulemaking published at 47 DCR 8590 (October 20, 2000) [EXPIRED]; as amended by Final Rulemaking published at 62 DCR 8047 (June 5, 2015). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 1916

27 DCMR § 1917 [REPEALED]

History

SOURCE: Final Rulemaking published at 35 DCR 1492 (February 26, 1988); as amended by Emergency Rulemaking published at 47 DCR 8590 (October 20, 2000)[EXPIRED]; as amended by Final Rulemaking published at 62 DCR 8047 (June 5, 2015). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 1917

27 DCMR § 1918 [REPEALED]

History

SOURCE: Final Rulemaking published at 35 DCR 1492 (February 26, 1988); as amended by Emergency Rulemaking published at 47 DCR 8590 (October 20, 2000)[EXPIRED]; as amended by Final Rulemaking published at 62 DCR 8047 (June 5, 2015). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 1918

27 DCMR § 1919 [REPEALED]

History

SOURCE: Final Rulemaking published at 35 DCR 1492 (February 26, 1988); as amended by Emergency Rulemaking published at 47 DCR 8590 (October 20, 2000)[EXPIRED]; as amended by Final Rulemaking published at 62 DCR 8047 (June 5, 2015). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 1919

27 DCMR § 1920 [REPEALED]

History

SOURCE: Final Rulemaking published at 35 DCR 1492 (February 26, 1988); as amended by Emergency Rulemaking published at 47 DCR 8590 (October 20, 2000) [EXPIRED]; as amended by Final Rulemaking published at 62 DCR 8047 (June 5, 2015). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 1920

27 DCMR § 1921 [REPEALED]

History

SOURCE: Final Rulemaking published at 35 DCR 1492 (February 26, 1988); as amended by Emergency Rulemaking published at 47 DCR 8590 (October 20, 2000) [EXPIRED]; as amended by Final Rulemaking published at 62 DCR 8047 (June 5, 2015). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 1921

27 DCMR § 1922 [REPEALED]

History

SOURCE: Final Rulemaking published at 35 DCR 1492 (February 26, 1988); as amended by Emergency Rulemaking published at 47 DCR 8590 (October 20, 2000) [EXPIRED]; as amended by Final Rulemaking published at 62 DCR 8047 (June 5, 2015). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 1922

27 DCMR § 1923 [REPEALED]

History

SOURCE: Final Rulemaking published at 35 DCR 1492 (February 26, 1988); as amended by Emergency Rulemaking published at 47 DCR 8590 (October 20, 2000) [EXPIRED]; as amended by Final Rulemaking published at 62 DCR 8047 (June 5, 2015). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 1923

27 DCMR § 1924 [REPEALED]

History

SOURCE: Final Rulemaking published at 35 DCR 1492 (February 26, 1988); as amended by Emergency Rulemaking published at 47 DCR 8590 (October 20, 2000) [EXPIRED]; as amended by Final Rulemaking published at 62 DCR 8047 (June 5, 2015). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 1924

27 DCMR § 1925 [REPEALED]

History

SOURCE: Final Rulemaking published at 35 DCR 1492 (February 26, 1988); as amended by Emergency Rulemaking published at 47 DCR 8590 (October 20, 2000) [EXPIRED]; as amended by Final Rulemaking published at 62 DCR 8047 (June 5, 2015). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 1925

27 DCMR § 1926 [REPEALED]

History

SOURCE: Final Rulemaking published at 35 DCR 1492 (February 26, 1988); as amended by Emergency Rulemaking published at 47 DCR 8590 (October 20, 2000) [EXPIRED]; as amended by Final Rulemaking published at 62 DCR 8047 (June 5, 2015). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 1926

27 DCMR § 1999 DEFINITIONS

1999.1 When used in this chapter, the following words and terms shall have the meanings ascribed:

Appraisal services - services performed by an expert licensed by a state, city, county, or other governmental unit which are associated with the purchase and lease of real property relating to the determination of the value of real property.

Consultant - a firm or individual with knowledge and special abilities not generally available to an agency who renders services of a purely advisory nature relating to governmental functions or agency administration and management.

Consulting services - services of a purely advisory nature relating to governmental functions, agency administration and management, or program management which are normally provided by persons that are considered to have knowledge and expertise not generally available within the agency.

Customer - a recipient of human care services.

Expert - a person with excellent qualifications and a high degree of attainment in a professional, scientific, technical, or other field, whose knowledge and mastery of the principles, practices, problems, methods, and techniques of his or her field of activity, or of a specialized area in the field, are clearly superior to those usually possessed by ordinarily competent persons in that activity, and whose attainment is such that he or she usually is regarded as an authority or as a practitioner of unusual competence and skill by other persons in the profession, occupation, or activity.

Human care services - education or special education, health, human, or social services, to be provided directly to individuals who are disabled, disadvantaged, displaced, elderly, indigent, mentally ill, physically ill, unemployed, or minors in the custody of the District of Columbia.

Pre-qualification - the process by which the contracting officer determines whether a prospective service provider under a human care agreement is responsible.

Voucher - a written authorization, to a service provider who has been awarded a human care agreement, to provide the services authorized in the agreement and described in the voucher directly to a customer identified in writing.

History

SOURCE: Final Rulemaking published at 35 DCR 1492 (February 26, 1988); as amended by Emergency Rulemaking published at 47 DCR 8590 (October 20, 2000)[EXPIRED]; as amended by Final Rulemaking published at 48 DCR 5819 (June 22, 2001); as amended by Emergency Rulemaking published at 48 DCR 8989 (September 28, 2001)[EXPIRED]; as amended by Final Rulemaking published at 50 DCR 1531(February 14, 2003); as amended by Final Rulemaking published at 62 DCR 8047 (June 5, 2015). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 1999

27-20 SPECIAL CONTRACTING METHODS

27 DCMR § 2000 MULTIYEAR CONTRACTS

2000.1 Unless prohibited by an appropriations act, a contracting officer may enter into a multiyear contract to obtain goods and services for any period of time deemed to be in the best interest of the District provided the term of the contract and conditions of renewal or extension, if any, are included in the solicitation and funds are available for the first fiscal period at the time of contracting and the contract is consistent with the requirement of § 2000.2 of this chapter. Payment and performance obligations for succeeding fiscal periods shall be subject to availability and appropriations of funds.

2000.2 A multiyear contract is authorized where the contracting officer determines that:

Estimated requirements cover the period of the contract and are reasonably firm and continuing; and

The multiyear term would encourage effective competition, promote economies in District procurement, or otherwise be in the best interest of the District.

2000.3 Multiyear contracting may be used in a procurement by competitive sealed bids or competitive sealed proposals or in a sole source procurement.

2000.4 Budget authority to fund a multiyear contract shall be obligated on an annual basis. The initial obligation of funds shall be for the period between the date of contract award through the end of the fiscal year in which the contract award occurs. Thereafter, each subsequent obligation of funds shall be made one (1) fiscal year at a time and must cover the contract amount that will be incurred in the fiscal year in which the contract work will be performed. First fiscal year requirements of the contract, and funds for requirements in each subsequent contract term, shall be obligated one (1) fiscal year at a time.

History

SOURCE: Final Rulemaking published at 35 DCR 1506 (February 26, 1988); as amended by Final Rulemaking published at 62 DCR 9773 (July 17, 2015). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2000

27 DCMR § 2001 CANCELLATION OF MULTIYEAR CONTRACTS

2001.1 At the end of each fiscal year, a multiyear contract shall be canceled if sufficient budget authority is not available to fund the contract during a subsequent fiscal year.

2001.2 If a multiyear contract is canceled due to unavailability of funds, the contractor shall be reimbursed for the reasonable value of any nonrecurring costs incurred but not amortized in the price of the goods delivered or services performed under the contract.

2001.3 If a multiyear contract is terminated for the convenience of the District, including items subject to cancellation, the District’s obligation shall not exceed the amount specified for contract performance plus the reasonable value of any nonrecurring costs incurred but not amortized in the price of the goods delivered or services performed under the contract.

2001.4 The costs of cancellation under §§ 2001.2 or 2001.3 may be paid from appropriations available for such purposes.

History

SOURCE: Final Rulemaking published at 35 DCR 1506 (February 26, 1988); as amended by Final Rulemaking published at 62 DCR 9773 (July 17, 2015). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2001

27 DCMR § 2002 MULTIYEAR CONTRACT SOLICITATIONS

2002.1 A solicitation for a multiyear contract shall include:

The amount of supplies or services required or the proposed contract period;

A unit price for each supply or service, which unit prices shall be the same throughout the contract (except to the extent price adjustments may be provided in the solicitation or resulting contract).

A clause stating that the multiyear contract will be cancelled if funds are not appropriated or otherwise made available to support the continuation of performance in any fiscal period succeeding the first and a statement that this clause does not affect either the District’s rights or the contractor’s rights under any termination clause in the contract; and

Whether bidders or offerors may submit prices for:

(1) The first fiscal period only;

(2) The entire time of performance only; or

(3) Both the first fiscal period and the entire time of performance.

History

SOURCE: Final Rulemaking published at 35 DCR 1506 (February 26, 1988); as amended by Final Rulemaking published at 62 DCR 9773 (July 17, 2015). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2002

27 DCMR § 2003 PURCHASE CARD PROCUREMENTS

2003.1 The Director may establish and administer a purchase card program to be used by District employees to perform their agency’s programmatic functions.

History

SOURCE: Final Rulemaking published at 35 DCR 1506 (February 26, 1988); as amended by Final Rulemaking published at 62 DCR 9773 (July 17, 2015); as amended by Final Rulemaking published at 63 DCR 9530 (July 15, 2016). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2003

27 DCMR § 2004 [RESERVED]

History

SOURCE: Final Rulemaking published at 35 DCR 1506 (February 26, 1988); as amended by Final Rulemaking published at 62 DCR 9773 (July 17, 2015). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2004

27 DCMR § 2005 USE OF OPTIONS

2005.1 The period within which an option may be exercised may extend beyond the date specified for completion of the services in a contract for services, but in no event shall the option be exercised after the contract term has expired.

2005.2 The base period in a contract for services or goods shall not exceed one (1) year, unless the contract is funded from an appropriation that is available for more than one (1) year or is a multiyear contract. The total of the base and option periods in a contract for services or goods shall not exceed five (5) years unless:

(a) Prior to solicitation, the Director determines in writing that it is in the best interest of the District, and the solicitation for the contract specifies the total of the base and option periods of the contract; or

(b) Prior to the expiration of a contract, the Director determines in writing that it is in the best interest of the District to extend the term beyond the total term specified in the contract and the contracting officer provides justification for using a sole source modification in accordance with Chapter 17 of this title.

2005.3 The price of each option shall be readily discernible from the contract provisions.

History

SOURCE: Final Rulemaking published at 35 DCR 1506 (February 26, 1988); as amended by Final Rulemaking published at 41 DCR 398a (January 28, 1994); as amended by Emergency Rulemaking published at 52 DCR 4236(a) (April 29, 2005) [EXPIRED]; as amended by Emergency Rulemaking published at 5 2DCR 5313 (June 3, 2005) [EXPIRED]; as amended by Emergency Rulemaking published at 52 DCR 8847 (September 30, 2005) [EXPIRED]; as amended by Emergency Rulemaking published at 52 DCR 11301 (December 30, 2005) [EXPIRED]; as amended by Emergency Rulemaking published at 53DCR 3140 (April 14, 2006) [EXPIRED]; as amended by Emergency Rulemaking published at 53 DCR 5283 (June 30, 2006) [EXPIRED]; as amended by Final Rulemaking published at 54 DCR 005828 (June 15, 2007); as amended by Emergency Rulemaking published at 54 DCR 006108 (June 22, 2007) [EXPIRED]; as amended by Final Rulemaking published at 62 DCR 9773 (July 17, 2015). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2005

27 DCMR § 2006 [RESERVED]

History

SOURCE: Final Rulemaking published at 35 DCR 1506 (February 26, 1988); as amended by Final Rulemaking published at 62 DCR 9773 (July 17, 2015). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2006

27 DCMR § 2007 [RESERVED]

History

SOURCE: Final Rulemaking published at 35 DCR 1506 (February 26, 1988); as amended by Final Rulemaking published at 62 DCR 9773 (July 17, 2015). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2007

27 DCMR § 2008 EXERCISE OF OPTIONS

2008.1 When exercising an option, the contracting officer shall provide written notice to the contractor within the time period specified in the contract.

History

SOURCE: Final Rulemaking published at 35 DCR 1506 (February 26, 1988); as amended by Final Rulemaking published at 62 DCR 9773 (July 17, 2015). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2008

27 DCMR § 2099 DEFINITIONS

2099.1 When used in this chapter, the following terms and phrases shall have the meanings ascribed:

Director - the Director of the Office of Contracting and Procurement (OCP) or the District of Columbia Chief Procurement Officer (CPO).

Multiyear contract - as used in this chapter, a contract for a period longer than twelve (12) months that is funded by annual appropriations.

Nonrecurring costs - those production costs which are generally incurred on a one-time basis and include costs such as plant or equipment relocation, plant rearrangement, pre-production engineering, initial spoilage and rework, and specialized work force training.

Option - a unilateral right in a contract under which, for a specified time, the District may elect to extend the term of a contract.

Recurring costs - the production costs that vary with the quantity being produced, such as labor and materials.

History

SOURCE: Final Rulemaking published at 35 DCR 1506 (February 26, 1988); as amended by Final Rulemaking published at 41 DCR 398a (January 28, 1994); as amended by Final Rulemaking published at 62 DCR 9773 (July 17, 2015). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2099

27-21 REQUIRED SOURCES OF GOODS AND SERVICES

27 DCMR § 2100 PRIORITIES FOR USE OF REQUIRED SOURCES

2100.1 Except as otherwise authorized by this title or law, each agency shall satisfy requirements for goods and services from or through the sources listed below in descending order of priority:

(a) Existing agency inventories;

(b) Excess personal property from the Surplus Property Division of the Office of Contracting and Procurement (OCP);

(d) Existing indefinite quantity contracts, to the extent of the minimums stated in those contracts;

(e) For contracts of $250,000 or less, qualified small business enterprises (SBE) on the District of Columbia Supply Schedules (DCSS) in accordance with § 2104;

(f) For contracts of $250,000 or less, qualified certified business enterprises (CBE) on the DCSS in accordance with § 2104;

(g) For contracts of $250,000 or less, qualified small business enterprises (SBE) in accordance with § 2105;

(h) For contracts of $250,000 or less, qualified CBEs, in accordance with § 2105; and

(i) Other sources, including federal schedules and cooperative purchasing agreements.

History

SOURCE: Final Rulemaking published at 35 DCR 1516 (February 26, 1988); as amended by Final Rulemaking published at 62 DCR 9255 (July 3, 2015). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2100

27 DCMR § 2101 EXCESS PERSONAL PROPERTY

2101.1 When requirements cannot be met from existing agency inventories, each agency shall use excess personal property as its first source of supply in fulfilling its requirements.

2101.2 Each agency shall ensure that all personnel make positive efforts to satisfy agency requirements by obtaining and using excess personal property before initiating contract action, including obtaining current information regarding the availability of excess personal property from the Surplus Property Division of the OCP.

History

SOURCE: Final Rulemaking published at 35 DCR 1516 (February 26, 1988); as amended by Final Rulemaking published at 62 DCR 9255 (July 3, 2015). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2101

27 DCMR § 2102 EXISTING REQUIREMENTS CONTRACTS

2102.1 The use of District requirements contracts shall be mandatory for all District agencies listed under the contract as using agencies.

2102.2 When goods or services are available under a District requirements contract, a contracting officer shall not:

(a) Solicit bids, proposals, quotations, or otherwise test the market solely for the purpose of seeking alternative sources to the requirements contract; or

(b) Request formal or informal quotations from other contractors for the purpose of making price comparisons.

History

SOURCE: Final Rulemaking published at 35 DCR 1516 (February 26, 1988); as amended by Final Rulemaking published at 62 DCR 9255 (July 3, 2015). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2102

27 DCMR § 2103 EXISTING INDEFINITE QUANTITY CONTRACTS

2103.1 The use of District indefinite quantity contracts shall be mandatory to the extent of the minimums stated in those contracts.

History

SOURCE: Final Rulemaking published at 35 DCR 1516 (February 26, 1988); as amended by Final Rulemaking published at 62 DCR 9255 (July 3, 2015). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2103

27 DCMR § 2104 DISTRICT OF COLUMBIA SUPPLY SCHEDULES

2104.1 Except as provided by §§ 2101, 2102, 2103, 2104.2 and 2104.3, the contracting officer shall award contracts of $250,000 or less to a qualified SBE on the DCSS.

2104.2 If the contracting officer determines in writing that there are not at least two (2) qualified SBEs on the DCSS that can provide the goods or services, the contracting officer may use a qualified CBE on the DCSS that can provide the goods or services.

2104.3 If the contracting officer determines in writing that the price offered by the SBE or CBE is believed to be 12% or more above the likely price in the open market, the contracting officer may decline to award a contract under this section, and may issue the solicitation in the set-aside market under § 2105.

2104.4 A copy of each determination made under this section shall be submitted promptly to the Director of the Department of Small and Local Business Development (DSLBD).

History

SOURCE: Final Rulemaking published at 35 DCR 1516 (February 26, 1988); as amended by Final Rulemaking published at 62 DCR 9255 (July 3, 2015). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2104

27 DCMR § 2105 MANDATORY SET-ASIDES

2105.1 Except as provided by §§ 2101, 2102, 2103, 2104 and 2105.2 and 2105.3, the contracting officer shall award contracts of $250,000 or less to a qualified SBE.

2105.2 If the contracting officer determines in writing that there are not at least two (2) qualified SBEs that can provide the goods or services, the contracting officer may use a qualified CBE that can provide the goods or services.

2105.3 If the contracting officer determines in writing that the price offered by the SBE or CBE is believed to be 12% or more above the likely price in the open market, the contracting officer may decline to award a contract under this section, and issue the solicitation in the open market.

2105.4 A copy of each determination made under this section shall be submitted promptly to the Director of the DSLBD.

History

SOURCE: Final Rulemaking published at 35 DCR 1516 (February 26, 1988); as amended by Final Rulemaking published at 62 DCR 9255 (July 3, 2015). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2105

27 DCMR § 2106 FEDERAL SCHEDULES

2106.1 Except as provided by §§ 2101, 2102, 2103, 2104 and 2105, the contracting officer may utilize federal schedules that offer programs to the District following the applicable schedule procedures.

2106.2 Except as otherwise provided in a federal schedule, all schedule contract terms and conditions apply to contracts between the schedule contractor and the District.

History

SOURCE: Final Rulemaking published at 55 DCR 491 (January 18, 2008); as amended by Final Rulemaking published at 62 DCR 9255 (July 3, 2015). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2106

27 DCMR § 2107 SALES DISCOUNT UNDER DISTRICT OF COLUMBIA SUPPLY SCHEDULE PROGRAM

2107.1 The Director may charge and collect, on a quarterly basis, a sales discount in the amount of one percent (1%), on all sales, purchase orders, delivery orders, task orders, and purchase card transactions invoiced under contracts awarded under the DCSS.

History

SOURCE: Final Rulemaking published at 62 DCR 9255 (July 3, 2015). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2107

27 DCMR § 2108 [RESERVED]

27 DCMR § 2109 [RESERVED]

27 DCMR § 2110 [REPEALED]

History

SOURCE: Final Rulemaking published at 35 DCR 1519 (February 26, 1988); as amended by Final Rulemaking published at 62 DCR 9255 (July 3, 2015). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2110

27 DCMR § 2111 [REPEALED]

History

SOURCE: Final Rulemaking published at 35 DCR 1519 (February 26, 1988); as amended by Final Rulemaking published at 62 DCR 9255 (July 3, 2015). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2111

27 DCMR § 2112 [REPEALED]

History

SOURCE: Final Rulemaking published at 35 DCR 1519 (February 26, 1988); as amended by Final Rulemaking published at 62 DCR 9255 (July 3, 2015). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2112

27 DCMR § 2113 [RESERVED]

27 DCMR § 2114 [RESERVED]

27 DCMR § 2115 [REPEALED]

History

SOURCE: Final Rulemaking published at 35 DCR 1519 (February 26, 1988); as amended by Final Rulemaking published at 62 DCR 9255 (July 3, 2015). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2115

27 DCMR § 2116 [REPEALED]

History

SOURCE: Final Rulemaking published at 35 DCR 1519 (February 26, 1988); as amended by Final Rulemaking published at 62 DCR 9255 (July 3, 2015). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2116

27 DCMR § 2199 DEFINITIONS

2199.1 When used in this chapter, the following terms and phrases shall have the meaning ascribed:

Director - the Director of the Office of Contracting and Procurement (OCP) or the District of Columbia Chief Procurement Officer (CPO).

Excess personal property - any personal property under the control of a District agency that the agency head or a designee determines is not required for its needs and for the discharge of its responsibilities.

District of Columbia Supply Schedule - indefinite quantity contracts made with more than one (1) CBE supplier for comparable goods and services at varying prices.

History

SOURCE: Final Rulemaking published at 35 DCR 1519 (February 26, 1988); as amended by Final Rulemaking published at 62 DCR 9255 (July 3, 2015). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2199

27-22 CONTRACTORS

27 DCMR § 2200 RESPONSIBLE PROSPECTIVE CONTRACTORS

2200.1 The contracting officer shall make purchases from and award contracts to responsible contractors only.

2200.2 For all contracts that exceed one hundred thousand dollars ($100,000), the contracting officer shall not make a purchase or an award unless the contracting officer has determined in writing that the prospective contractor is responsible in accordance with the provisions of this chapter.

2200.3 In the absence of information clearly indicating that the prospective contractor is responsible, the contracting officer shall make a determination of non-responsibility.

2200.4 To be determined responsible, a prospective contractor shall meet all of the following requirements:

(a) Financial resources adequate to perform the contract or the ability to obtain those resources;

(b) Ability to comply with the required or proposed delivery or performance schedule, taking into consideration all of its existing commercial and government contract commitments;

(d) A satisfactory record of integrity and business ethics;

(e) A satisfactory record of compliance with the law, including labor and civil rights laws and rules, the First Source Employment Agreement Act of 1984, effective June 29, 1984 (D.C. Law 5-9; D.C. Official Code §§ 2-219.01 et seq.), the Small and Certified Business Enterprise Development and Assistance Act of 2005, as amended (D.C. Official Code §§ 2-218.01 et seq.), licensing, and tax laws;

(f) The necessary organization, experience, accounting, operational control, and technical skills, or the ability to obtain them;

(g) The necessary production equipment, construction equipment, technical equipment, and facilities, or the ability to obtain them;

(h) Has not exhibited a pattern of overcharging the District;

(i) Does not have an outstanding debt with the District or the federal government in a delinquent status of more than the greater of one thousand dollars ($1,000) or one percent (1%) of the contract value, up to twenty-five thousand dollars ($25,000); and

(j) Is qualified and eligible to receive an award under applicable laws and regulations.

2200.5 If the contracting officer determines that the price included in a prospective contractor’s bid or offer is so low as to appear unreasonable or unrealistic, the contracting officer may determine the prospective contractor to be non-responsible.

2200.6 The contracting officer shall refer a prospective contractor determined to be non-responsible to the Director for consideration as to whether the prospective contractor should be proposed for debarment or suspension.

History

SOURCE: Final Rulemaking published at 35 DCR 1525 (February 26, 1988); as amended by Final Rulemaking published at 66 DCR 14414 (November 1, 2019). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2200

27 DCMR § 2201 SPECIAL STANDARDS OF RESPONSIBILITY

2201.1 The contracting officer shall develop special standards of responsibility for a solicitation when experience has demonstrated that unusual expertise or specialized facilities are needed for adequate contract performance. The contracting officer may seek the advice of appropriate specialists to develop special standards of responsibility.

2201.2 The contracting officer shall include any special standards of responsibility in the solicitation.

2201.3 The special standards of responsibility included in the solicitation shall apply to all bidders or offerors.

History

SOURCE: Final Rulemaking published at 35 DCR 1525 (February 26, 1988); as amended by Final Rulemaking published at 66 DCR 14414 (November 1, 2019). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2201

27 DCMR § 2202 APPLICATION OF GENERAL STANDARDS

2202.1 The contracting officer shall require, and the prospective contractor shall promptly provide, acceptable evidence that the prospective contractor has, or has the ability to obtain sufficient resources.

2202.2 Acceptable evidence of the prospective contractor’s ability to obtain sufficient resources shall consist of a commitment or explicit arrangement that will be in existence prior to the time of contract award, to rent, purchase, or otherwise acquire the needed facilities, equipment, personnel, or other resources.

2202.3 A prospective contractor that is or recently has been seriously deficient in contract performance shall be presumed to be non-responsible. The contracting officer may determine the contractor to be responsible if the circumstances of the prior deficiency were properly beyond the contractor’s control or if the contractor has taken appropriate corrective action.

2202.4 An affiliated business shall be considered a separate entity in determining whether the business that is to perform the contract meets the applicable standards of responsibility. However, the contracting officer shall consider an affiliate's past performance and integrity when they may adversely affect the prospective contractor’s responsibility. For the purpose of this subsection the term “affiliated” shall mean associated business concerns or individuals if, directly or indirectly, either one controls or can control the other, or a third party controls or can control both.

History

SOURCE: Final Rulemaking published at 35 DCR 1525 (February 26, 1988); as amended by Final Rulemaking published at 66 DCR 14414 (November 1, 2019). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2202

27 DCMR § 2203 SUBCONTRACTOR RESPONSIBILITY

2203.1 Except as provided in § 2212.8 of this chapter, a prospective contractor shall be accountable for determining the responsibility of prospective subcontractors. The prime contractor shall use the requirements and standards for responsibility set forth in this chapter.

2203.2 Because the determination of a prospective subcontractor’s responsibility may affect the District’s determination of the prospective contractor’s responsibility, a prospective contractor may be required to provide written evidence of a proposed subcontractor’s responsibility.

2203.3 When it is in the best interest of the District, the contracting officer may independently determine a prospective subcontractor’s responsibility using the standards and requirements for responsibility set forth in this chapter.

History

SOURCE: Final Rulemaking published at 35 DCR 1525 (February 26, 1988); as amended by Final Rulemaking published at 66 DCR 14414 (November 1, 2019). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2203

27 DCMR § 2204 OBTAINING INFORMATION FOR DETERMINATION OF RESPONSIBILITY

2204.1 Before making a determination of responsibility, the contracting officer shall possess or obtain information sufficient to satisfy the contracting officer that a prospective contractor currently meets the applicable standards and requirements for responsibility set forth in this chapter.

2204.2 The prospective contractor shall promptly supply information requested by the contracting officer regarding its responsibility.

2204.3 If the prospective contractor fails to supply the information requested under § 2204.2 of this chapter, the contracting officer shall make the determination of responsibility or non-responsibility based upon available information. If the available information is insufficient to make a determination of responsibility, the contracting officer shall determine the prospective contractor to be non-responsible.

2204.4 The contracting officer shall use the following sources of information, as appropriate, to support determinations of responsibility or non-responsibility:

(a) The District’s excluded parties list;

(b) The lists of debarred, suspended, and ineligible contractors maintained by the federal government;

(c) Past performance evaluations, other records regarding past performance, and experience data, including verifiable knowledge of District personnel;

(d) Information supplied by the prospective contractor, including information on bidder/offeror certifications, bid or proposal information, questionnaire replies, financial data, information on production equipment, and personnel information;

(e) Financial information, including but not limited to Dun and Bradstreet reports;

(f) Pre-award survey reports; and

(g) Other sources, such as publications, suppliers, subcontractors, and customers of the prospective contractor, financial institutions, government agencies, and business and trade associations.

2204.5 A prospective contractor that submits a bid or proposal for any contract exceeding one hundred thousand dollars ($100,000) shall submit a certification indicating whether the prospective contractor has complied with the filing requirements of federal and District tax laws, and whether the prospective contractor has paid taxes due to the federal government and the District, or is in compliance with any payment agreement with the federal government, the D.C. Office of Tax and Revenue (OTR), and the D.C. Department of Employment Services (DOES).

2204.6 Before making an affirmative determination of responsibility for a contract exceeding one hundred thousand dollars ($100,000), the contracting officer shall obtain certifications from the OTR and the DOES that the prospective contractor has complied with the filing requirements of the District’s tax laws, and that the prospective contractor has paid taxes due to the District or is in compliance with any payment agreement with the OTR and the DOES.

History

SOURCE: Final Rulemaking published at 35 DCR 1525 (February 26, 1988); as amended by Final Rulemaking published at 66 DCR 14414 (November 1, 2019). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2204

27 DCMR § 2205 DETERMINATIONS AND DOCUMENTATION

2205.1 The contracting officer’s execution of a contract shall constitute a determination that the prospective contractor is responsible with respect to that contract.

2205.2 When an offer on which an award would otherwise be made is rejected because the prospective contractor is found to be non-responsible, the contracting officer shall make and sign a written determination of non-responsibility, which shall state the basis for the determination.

History

SOURCE: Final Rulemaking published at 35 DCR 1525 (February 26, 1988); as amended by Final Rulemaking published at 66 DCR 14414 (November 1, 2019). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2205

27 DCMR § 2206 PRE-AWARD SURVEYS

2206.1 The contracting officer may require a pre-award survey to assist in determining a prospective contractor’s capability to perform a proposed contract.

2206.2 When a pre-award survey discloses unsatisfactory performance, the contracting officer shall determine the extent to which the prospective contractor plans, or has taken, corrective action.

2206.3 The contracting officer shall prepare a written pre-award survey report that documents the results of the pre-award survey and provides support for both the evaluation ratings and the determination of responsibility or non-responsibility.

2206.4 The pre-award survey report shall, as necessary, include information concerning the contractor’s technical capabilities, financial capability, quality assurance procedures, and the quality of the contractor’s accounting system.

History

SOURCE: Final Rulemaking published at 35 DCR 1525 (February 26, 1988); as amended by Final Rulemaking published at 66 DCR 14414 (November 1, 2019). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2206

27 DCMR § 2207 [RESERVED]

27 DCMR § 2208 [RESERVED]

27 DCMR § 2209 [RESERVED]

27 DCMR § 2210 DEBARMENT, SUSPENSION, AND INELIGIBILITY

2210.1 The provisions of §§ 2210 through 2218 of this chapter shall govern the debarment and suspension of persons.

2210.2 Debarment and suspension shall be imposed only in the public interest for the District’s protection and not for the purpose of punishment, and shall be imposed only for the causes set forth in Section 907(a)(1) of the Procurement Practices Reform Act of 2010, effective April 8, 2011 (D.C. Law 18-371; D.C. Official Code § 2-359.07(a)(1)) (Act) or any other applicable statute, regulation, or final decision.

2210.3 A District official who makes a declaration of the ineligibility of a person to contract with the District or subcontract with a District contractor under authority of any District statute or regulation shall inform the Director in writing of the declaration. The notice to the Director shall cite the statutory basis for the declaration and the grounds for the declaration. The Director shall include notice of the ineligibility restrictions on the list issued under § 2211 of this chapter.

History

SOURCE: Final Rulemaking published at 35 DCR 1525 (February 26, 1988); as amended by Final Rulemaking published at 66 DCR 14414 (November 1, 2019). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2210

27 DCMR § 2211 LIST OF DEBARRED, SUSPENDED, AND INELIGIBLE PERSONS

2211.1 The Director shall compile and maintain a current, consolidated list of all persons that have been debarred, suspended, or declared ineligible by the District. The list shall be known as the District’s excluded parties list.

2211.2 Copies of the District’s excluded parties list shall be distributed electronically to the District contracting officers and contract administrators through OCP’s website.

2211.3 The District’s excluded parties list shall include the following:

The name and phone number of the OCP official responsible for maintaining the list;

The names and addresses of all debarred or suspended persons;

The name of the agency that instituted the debarment or suspension;

The cause for the debarment or suspension; and

The dates and terms of each suspension or debarment.

History

SOURCE: Final Rulemaking published at 35 DCR 1525 (February 26, 1988); as amended by Final Rulemaking published at 66 DCR 14414 (November 1, 2019). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2211

27 DCMR § 2212 CONSEQUENCES OF DEBARMENT, SUSPENSION, OR INELIGIBILITY

2212.1 Unless the Director determines in writing that there is a compelling reason to do otherwise, agencies shall not solicit offers from, award contracts to, or consent to a District contractor’s subcontract with a person listed on a current federal excluded parties list or the District’s excluded parties list.

2212.2 A person listed on a current federal excluded parties list or the District’s excluded parties list shall be excluded from receiving District contracts and subcontracts, under the conditions and for the period set forth in the applicable statute, regulation, or final decision, except as provided in Subsections 2212.1 and 2212.3 of this chapter.

2212.3 Bids or proposals received from a person named on a current federal excluded parties list or the District’s excluded parties list shall be rejected unless the Director provides the ineligible person with a written statement before the bid or proposal is submitted of the compelling reason(s) why the bid or proposal should be considered. The Director’s determination shall be appended to the bid or proposal submitted.

2212.4 Immediately before the award of a contract, the contracting officer shall review the most recent versions of the federal and District excluded parties’ lists to ensure that none of the persons being considered for award are named on the lists. If a person being considered for award appears on a federal or District excluded parties list, the contracting officer shall notify the person in writing that the person’s bid or proposal shall be rejected unless the person provides a written statement from the Director in accordance with § 2212.3 of this chapter within fifteen (15) days of receipt of the written notification.

2212.5 If a contract is awarded to a debarred or suspended person, a notice of the award, along with the Director’s determination, shall be published on the OCP’s website within fifteen (15) days of the issuance of the award and published in the District of Columbia Register.

2212.6 The contracting officer may continue contracts or subcontracts in existence at the time a person is debarred, suspended, or declared ineligible, unless the Director determines in writing that the existing contracts or subcontracts should be terminated to protect the best interest of the District for any of the reasons set forth in § 903 of the Act, D.C. Official Code § 2-359.03.

2212.7 The contracting officer shall not exercise an option to renew or otherwise extend a current contract with a debarred or suspended person, or a contract which is being performed in any part by a debarred or suspended subcontractor, unless the Director approves the action in writing based on compelling reasons for exercise of the option or extension.

2212.8 For any subcontract subject to District consent, the contracting officer shall not consent to the award of a subcontract to any debarred or suspended person unless the Director approves the award, in writing, based on compelling reasons for the award.

2212.9 A person that has been debarred twice by the District shall be banned permanently from contracting with the District as set forth in § 907(k) of the Act.

History

SOURCE: Final Rulemaking published at 35 DCR 1525 (February 26, 1988); as amended by Final Rulemaking published at 66 DCR 14414 (November 1, 2019). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2212

27 DCMR § 2213 DEBARMENT

2213.1 The Director may debar a person for any of the causes set forth in § 907(a)(1) of the Act or any other applicable statute, regulation, or final decision, unless the Director makes a finding in writing that it would be contrary to the best interest of the District to do so or the present responsibility of the person is such that a debarment would not be warranted.

2213.2 Debarment shall constitute debarment of all divisions and other organizational elements of the person, and all commodities offered by the person, unless the debarment decision is limited by its terms to specific divisions, organizational elements, or commodities.

2213.3 Debarment shall constitute debarment of any affiliates of the person if the Director specifically names the affiliate in the finding and gives the affiliate written notice of the proposed debarment and an opportunity to respond in accordance with the provisions of this chapter.

2213.4 Debarment shall be for a period commensurate with the seriousness of the cause(s), but shall not exceed five (5) years except as provided in § 2212.9 of this chapter. If suspension precedes a debarment, the suspension period shall be included in the debarment period.

2213.5 The Director may reduce the period or extent of debarment, upon the person’s request supported by documentation, for the following reasons:

(a) Newly discovered material evidence;

(b) Reversal of the conviction or judgment upon which debarment was based;

(d) Elimination of other causes for which the debarment was imposed; or

(e) Other reasons that the Director deems appropriate.

2213.6 The Director may extend the debarment period for an additional period if the Director determines that the extension is necessary to protect the interest of the District. However, a debarment may not be extended solely on the basis of the facts and circumstances upon which the initial debarment was based. The extension of debarment shall be subject to the procedures set forth in § 2214 of this chapter.

History

SOURCE: Final Rulemaking published at 35 DCR 1525 (February 26, 1988); as amended by Final Rulemaking published at 66 DCR 14414 (November 1, 2019). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2213

27 DCMR § 2214 DEBARMENT PROCEEDINGS

2214.1 The Director shall initiate debarment proceedings by notifying the person and any specifically named affiliates by certified mail, return receipt requested, of the following:

(a) The reason(s) for the proposed debarment in sufficient detail to put the person on notice of the conduct or transaction(s) upon which the proposed debarment is based;

(b) The cause(s), as set forth in § 907(a) of the Act, D.C. Official Code § 2-359.07(a), or any other applicable statute, regulation, or final decision relied upon for the proposed debarment;

(c) That, within fifteen (15) calendar days after receipt of the notice, the person may submit, in person, in writing, or through a representative, information or written facts in opposition to the proposed debarment, and request an informal meeting in person or by telephone, to present information or facts in opposition;

(d) The District’s procedures governing debarment decision-making;

(e) The effect of the proposed debarment;

(f) That a fact-finding proceeding may be conducted; and

(g) That the District will not solicit offers from, award contracts to renew, extend contracts with, or consent to subcontracts with the person pending a debarment decision.

2214.2 In response to the proposed debarment, the person may submit in writing information and facts in opposition or may schedule an in-person or telephonic meeting to present its information and facts in opposition. All matters that a person wants considered must be presented in writing. Unless otherwise approved by the Director, this response must be made within fifteen (15) calendar days of receiving notice of the proposed debarment.

2214.3 In actions based upon a conviction or civil judgment, or in which there is no genuine issue of material fact, the person may only present information or facts in opposition related to responsibility, mitigating circumstances, and remedial measures.

2214.4 The person, who may be represented or assisted by counsel, must address in writing all defenses, contested facts, admissions, remedial actions taken, and mitigating factors that it wishes the Director to consider.

2214.5 The Director shall review all materials presented and arguments made and determine whether or not the person has raised a genuine dispute regarding a fact material to the proposed debarment. A general denial of the allegations will not be sufficient to raise a genuine dispute regarding a material fact.

2214.6 In debarment actions not based upon a conviction or civil judgment, if the Director finds that the person’s submission in opposition raises a genuine dispute regarding a fact material to the proposed debarment, the Director shall then conduct an informal fact-finding proceeding at which the person or its counsel may present evidence and may call and question witnesses. The fact-finding proceeding shall be transcribed unless the person and the Director agree otherwise. The person may purchase a copy of the transcript.

2214.7 The fact-finding proceeding is an informal evidentiary hearing and the rules of evidence and civil procedure shall not apply. Documentary evidence shall be taken into the record along with any testimony.

2214.8 In debarment actions not based upon a conviction or civil judgment, the cause(s) for debarment shall be established by a preponderance of the evidence. The Director shall base the debarment decision on the facts as found, together with all information in the administrative record.

2214.9 In debarment actions based upon a conviction or civil judgment, or in which there is no genuine issue of material fact, the Director shall make a decision on the basis of all the information in the administrative record, including any submission made by the person.

2214.10 If the person fails to provide a response to the notice within the fifteen (15) day period, or arrange an extension of time within that time, the Director shall make a final decision on the basis of the available information in the Director’s possession.

2214.11 The Director shall issue a written decision within thirty (30) business days after receipt of all information and facts in opposition submitted by the person, unless the Director extends this period for good cause.

2214.12 If the Director decides to impose debarment, the person and any affiliates involved shall be given notice of the debarment action by certified mail, return receipt requested. The notice shall:

(a) State the relevant facts and the reasons for the action taken;

(b) Describe the present responsibility of the person;

(d) State the period of debarment, including effective dates;

(e) Include a statement advising that the debarment is effective for all District government agencies; and

(f) Inform the person of the right to appeal the decision to the Contract Appeals Board within sixty (60) days of receipt of the decision.

2214.13 All information considered by the Director will form the administrative record and a list of each document containing such information shall be included in the final decision.

2214.14 If debarment is not imposed, the Director shall promptly notify the person and any involved affiliates by certified mail, return receipt requested.

History

SOURCE: Final Rulemaking published at 35 DCR 1525 (February 26, 1988); as amended by Emergency and Proposed Rulemaking published at 58 DCR 7564 (August 19, 2011)[EXPIRED]; as amended by Final Rulemaking published at 58 DCR 8574, 8575 (October 7, 2011); as amended by Final Rulemaking published at 66 DCR 14414 (November 1, 2019). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2214

27 DCMR § 2215 SUSPENSION

2215.1 The Director shall suspend a person for any of the causes set forth in § 907(b)(1) of the Act, D.C. Official Code § 2-359.07(b)(1), unless the Director makes a finding in writing that it would be contrary to the best interest of the District to do so.

2215.2 The Director may suspend a person for any of the causes set forth in § 907(b)(2) of the Act, D.C. Official Code § 2-359.07(b)(2), if the Director makes a finding in writing that it would be in the best interest of the District to do unless the present responsibility of the person is such that a suspension would not be warranted.

2215.3 The Director may suspend a person for any other cause set forth in an applicable statute, regulation, or final decision.

2215.4 Suspension shall constitute suspension of all divisions and other organizational elements of the person, and all commodities offered by the person, unless the suspension decision is limited by its terms to specific divisions, organizational elements, or commodities.

2215.5 Suspension shall constitute suspension of any affiliates of the person if the Director specifically names the affiliate in the finding and gives the affiliate written notice of the proposed debarment and an opportunity to respond in accordance with the provisions of this chapter.

2215.6 Suspension shall be for a temporary period pending the completion of an investigation and any resulting judicial or administrative proceeding, unless terminated sooner by the Director. If judicial or administrative proceedings are not initiated within one (1) year after the date of the suspension notice, the suspension shall be terminated unless the Director determines that it is in the best interest of the District to extend the suspension, in which case it may be extended for not more than an additional six (6) months.

History

SOURCE: Final Rulemaking published at 35 DCR 1525 (February 26, 1988); as amended by Final Rulemaking published at 66 DCR 14414 (November 1, 2019). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2215

27 DCMR § 2216 SUSPENSION PROCEEDINGS

2216.1 The Director shall initiate suspension proceedings by notifying the person and any specifically named affiliates by certified mail, return receipt requested, of the following:

(a) Reasons for the suspension in sufficient detail to put the person on notice of the conduct or transaction(s) upon which the suspension is based;

(b) Cause(s), as set forth in § 907(b) of the Act, D.C. Official Code § 2-359.07(b), or any other applicable statute, regulation or final decision relied upon for the suspension;

(c) That, within fifteen (15) calendar days after receipt of the notice, the person may submit, in person, in writing, or through a representative, information or written facts in opposition to the suspension, and request an informal meeting in person or by telephone, to present information or facts in opposition;

(d) The District’s procedures governing suspension decision-making;

(e) The effect of the suspension; and

(f) That a fact-finding proceeding may be conducted; and

(g) That the District will not solicit offers from, award contracts to renew, extend contracts with, or consent to subcontracts with the person pending the completion of an investigation and any resulting judicial or administrative proceedings, unless sooner terminated by the Director.

2216.2 In response to the notice of suspension, the person may submit written information and facts in opposition or may schedule an informal in-person or telephonic meeting to present information and facts in opposition. All matters that a person wants considered must be presented in writing. Unless otherwise approved by the Director, this response must be made within fifteen (15) calendar days of receiving notice of suspension.

2216.3 The person, who may be represented or assisted by counsel, must address all defenses, contested facts, admissions, remedial actions taken, and mitigating factors that it wishes the Director to consider.

2416.4 The Director shall review all materials presented and determine whether or not the person has raised a genuine dispute regarding a material fact. A general denial of the allegations will not be sufficient to raise a genuine dispute over facts.

2216.5 In suspension actions based on an indictment in which the person’s submission does not raise any genuine issue of material fact, or in which additional proceedings to determine disputed material facts have been denied on the basis of the advice of the prosecuting authority, the Director’s decision shall be based on all the information in the administrative record, including any submission made by the person.

2216.6 In suspension actions not based upon an indictment, if the Director finds that the person’s submission in opposition raises a genuine dispute over a fact material to the suspension, the Director shall then conduct an informal fact-finding proceeding at which the person or its counsel may present evidence and may call and question witnesses. The fact-finding proceeding shall be transcribed unless the person and the Director agree otherwise. The person may purchase a copy of the transcript.

2216.7 The fact-finding proceeding is an informal evidentiary hearing and the Rules of Evidence and Civil Procedure shall not apply. Documentary evidence will be taken into the record along with any testimony.

2216.8 Upon the conclusion of the fact-finding proceeding, the Director shall review the administrative record, prepare written findings of fact, and issue a written decision based on the facts as found.

2216.9 If the person fails to provide a response to the notice within the fifteen (15) day period, or arrange an extension of time, the Director shall make a final decision on the basis of the available information in the Director’s possession.

2216.10 The Director shall issue a written decision within thirty (30) business days after receipt of all information and facts in opposition submitted by the person, unless the Director extends this period for good cause.

2216.11 The Director’s decision shall maintain, modify, or terminate the suspension. The Director shall provide notice of his decision to the person and any affiliates involved by certified mail, return receipt requested. The notice shall:

(a) State the relevant facts and the reasons for the action taken;

(b) Describe the present responsibility of the person;

(d) State the period of suspension, including effective dates; and

(e) Include a statement advising that the suspension is effective for all District government agencies; and

(f) Inform the person of the right to appeal the decision to the Contract Appeals Board within sixty (60) days of receipt of the decision.

2216.12 All information considered by the Director shall form the administrative record and a list of each document containing such information shall be included in the final decision.

2216.13 If judicial or administrative proceedings are not initiated within one (1) year after the date of the suspension notice, the suspension shall be terminated unless the Director determines that it is in the best interest of the District to extend the suspension, in which case it may be extended for not more than an additional six (6) months. In no event may a suspension extend beyond eighteen (18) months, unless judicial or administrative proceedings have been initiated within that period.

History

SOURCE: Final Rulemaking published at 35 DCR 1525 (February 26, 1988); as amended by Final Rulemaking published at 66 DCR 14414 (November 1, 2019). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2216

27 DCMR § 2217 SCOPE OF DEBARMENT OR SUSPENSION

2217.1 The scope of any debarment or suspension shall be based upon the conduct of the persons or contractors involved, in accordance with the provisions of this section.

2217.2 The fraudulent, criminal, or other seriously improper conduct of any officer, director, shareholder, partner, employee, or other individual associated with a contractor may be imputed to the contractor when the conduct occurred in connection with the individual's performance of duties for or on behalf of the contractor, or with the contractor's knowledge, approval, or acquiescence. The contractor's acceptance of the benefits derived from the conduct shall be evidence of knowledge, approval, or acquiescence.

2217.3 The fraudulent, criminal, or other seriously improper conduct of a contractor may be imputed to any officer, director, shareholder, partner, employee, or other individual associated with the contractor who participated in, knew of, or had reason to know of the contractor's conduct.

2217.4 The fraudulent, criminal, or other seriously improper conduct of one contractor participating in a joint venture or similar arrangement may be imputed to other participating contractors if the conduct occurred for or on behalf of the joint venture or similar arrangement, or with the knowledge, approval, or acquiescence of these contractors. Acceptance of the benefits derived from the conduct shall be evidence of knowledge, approval, or acquiescence.

History

SOURCE: Final Rulemaking published at 35 DCR 1525 (February 26, 1988). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2217

27 DCMR § 2218 DEBARMENT AND SUSPENSION PANEL

2218.1 This section shall apply to any debarment or suspension that is required to be heard by the Debarment and Suspension Panel ("Panel") in accordance with the Debarment Procedures Amendment Act of 2004, D.C. Law 15-327, effective April 12, 2005 ("Act").

2218.2 For any debarment or suspension that the Panel hears, the Chief Procurement Officer ("CPO") shall transmit to the Panel his debarment or suspension recommendation and any supporting documentation.

2218.3 Upon receipt of the documentation specified in section 2218.2 from the CPO, the Chair of the Panel shall convene the Panel to conduct a hearing of the debarment or suspension in accordance with Title 27 D.C. Municipal Regulations, sections 2213 through 2217, except as provided in section 2218.4. The term "Director," as it appears in sections 2213 through 2217, shall mean the "Panel."

2218.4 For any debarment or suspension that the Panel hears, the period of time provided in section 2214.1(c) shall be shortened to fifteen (15) days after receipt of the notice.

2218.5 The Panel shall hear and decide, de novo, all debarments and suspensions required to be heard in accordance with this section and the Act.

2218.6 The attendance of at least five (5) members of the Panel shall constitute a quorum to hear a debarment or suspension.

2218.7 A majority vote of those present and voting shall be necessary and sufficient for any action taken by the Panel. Each Panel member in favor of the debarment or suspension decision of the Panel shall indicate his or her agreement with the decision by signing the decision.

2218.8 Ex parte communications, as defined in section 2299.1, shall be prohibited. Excluded from ex parte communications are those that:

(a) Are specifically authorized by law to be made on an ex parte basis;

(b) Relate to the Panel's administrative functions or procedures; or

A Panel member or staff member for the Panel who receives an ex parte communication prohibited by this section shall immediately report its receipt to the Chair of the Panel and prepare a memorandum describing in detail the substance of the communication. The memorandum shall be placed in the debarment or suspension file, along with the actual communication if it is in written form. The Panel shall provide a copy of the memorandum to all parties.

2218.9 Panel members shall promptly advise the Chair of the Panel of any conflict of interest, or appearance thereof, relating to any debarment or suspension action under consideration by the Panel. Each member of the Panel shall disqualify himself or herself from acting on matters in which he or she has a conflict of interest, or the appearance thereof, in accordance with Chapter 18 of the District of Columbia Personnel Regulations.

2218.10 The Panel shall keep and maintain a case docket of current debarments or suspensions under the Panel's jurisdiction; copies of decisions and final orders of the Panel; and copies of the Panel's rules. The case docket, updated monthly, shall provide the names of the companies or individuals proposed for debarment or suspension, the case number, the date the Panel received the debarment or suspension, and the date of any scheduled hearing on the merits of the debarment or suspension. The case docket, copies of decisions, final orders, and rules shall be available for inspection by the public at the office of the Chair of the Panel.

History

SOURCE: Final Rulemaking published at 53 DCR 7383 (September 8, 2006).

27 DCMR § 2219 [RESERVED]

History

SOURCE: Final Rulemaking published at 35 DCR 1384, 1525 (February 26, 1988); as amended by Emergency and Proposed Rulemaking published at 56 DCR 9343 (December 11, 2009)[EXPIRED]; as amended by Emergency and Proposed Rulemaking published at 57 DCR 1783 (February 26, 2010)[EXPIRED]; as amended by Emergency Rulemaking published at 57 DCR 309 (June 18, 2010)[EXPIRED; as amended by Emergency and Proposed Rulemaking published at 57 DCR 9816 (October 15, 2010)[EXPIRED]; as amended by Emergency and Proposed Rulemaking published at 58 DCR 1660 (March 4, 2011)[EXPIRED]; as amended by Emergency and Proposed Rulemaking at 58 DCR 6102 (July 22, 2011)[EXPIRED]; as amended by Final Rulemaking published at 58 DCR 7980 (September 9, 2011); as amended by Final Rulemaking published at 66 DCR 14414 (November 1, 2019). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2219

27 DCMR § 2220 ORGANIZATIONAL CONFLICTS OF INTEREST

2220.1 The contracting officer shall analyze each planned procurement in order to identify and evaluate potential organizational conflicts of interest early in the procurement process and avoid, neutralize, or mitigate potential conflicts prior to contract award.

2220.2 A contractor that provides systems engineering and technical direction for a system, but does not have overall contractual responsibility for its development, integration, assembly and checkout, or production, shall not be awarded any of the following:

(a) A contract to supply the system or any of its major components;

(b) A subcontract to supply the system or any of its major components; or

2220.3 If a contractor prepares and furnishes complete specifications covering non-developmental items to be used in a competitive procurement, that contractor shall not be allowed to furnish those items, either as a prime contractor or as a subcontractor, for a reasonable period of time to include at least the duration of the initial production contract. This subsection shall not apply to the following:

(a) Contractors that furnish, at District request, specifications or data regarding a product they provide, even though the specifications or data may have been paid for separately or in the price of the product; or

(b) Contractors acting as industry representatives that assist District agencies prepare, refine, or coordinate specifications, regardless of source, when the assistance is supervised and controlled by District representatives.

2220.4 If a contractor prepares, or assists in preparing, a work statement to be used in competitively procuring a system or services, or provides material leading directly, predictably, and without delay to this type of work statement, that contractor shall not supply the system or services unless one (1) or more of the following apply:

(a) The contractor is the sole source;

(b) The contractor has participated in the developmental and design work; or

2220.5 A contract involving technical evaluation of other contractors’ offers, products, or consulting services shall not be awarded to a contractor that would evaluate or advise the District concerning its own products or activities, or those of a competitor, without proper safeguards to ensure objectivity and protect the District’s interest.

2220.6 When a contractor requires proprietary information from others to perform a District contract and can use the leverage of the contract to obtain it, the contractor may gain an unfair competitive advantage unless restrictions are imposed. These restrictions protect the information and encourage companies to provide it when necessary for contract performance. They are not intended to protect information that is:

(a) Furnished voluntarily without limitations on its use; or

(b) Available to the District or contractor from other sources without restriction.

2220.7 A contractor that gains access to proprietary or confidential information of its competitors or other companies, firms, individuals, or District contractors in performing advisory and assistance services for the District shall agree with its competitors or other companies, firms, individuals, or District contractors to protect all proprietary or confidential information from unauthorized use or disclosure for as long as it remains proprietary or confidential and refrain from using the information for any purpose other than that for which it was furnished.

2220.8 Any solicitation that may involve a significant potential organizational conflict of interest shall contain a provision which describes the following:

(a) The nature of the potential conflict as seen by the contracting officer;

(b) The nature of the proposed restraint upon future contractor activities; and

(c) Depending on the nature of the procurement, whether the terms of any proposed conflicts clause and the application of § 2220 of this chapter to the contract are subject to negotiation.

2220.9 If, as a condition of award, a contractor’s eligibility for future prime contract or subcontract awards would be restricted, or a contractor would have to agree to some other restraint, the solicitation shall contain a conflicts clause that specifies both the nature and duration of the proposed restraint. The contracting officer shall include the conflicts clause in the contract.

2220.10 The Director may waive any requirement of this section if he determines that the application of the rule of procedure in a particular situation would not be in the best interest of the District. Each waiver shall be in writing, and describe the nature of the conflict and the justification for the waiver.

History

SOURCE: Final Rulemaking published at 35 DCR 1384, 1525 (February 26, 1988); as amended by Final Rulemaking published at 66 DCR 14414 (November 1, 2019). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2220

27 DCMR § 2221 [RESERVED]

History

SOURCE: Final Rulemaking published at 35 DCR 1384, 1525 (February 26, 1988); as amended by Final Rulemaking published at 66 DCR 14414 (November 1, 2019). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2221

27 DCMR § 2222 [RESERVED]

History

SOURCE: Final Rulemaking published at 35 DCR 1384, 1525 (February 26, 1988); as amended by Final Rulemaking published at 66 DCR 14414 (November 1, 2019). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2222

27 DCMR § 2223 [RESERVED]

27 DCMR § 2224 [RESERVED]

27 DCMR § 2225 CONTRACTOR TEAM ARRANGEMENTS

2225.1 The District may recognize the integrity and validity of contractor team arrangements when those arrangements are identified and company relationships are fully disclosed in an offer or, for an arrangement entered into after submission of an offer, before the arrangement becomes effective. The District shall not require or suggest the dissolution of contractor team arrangements unless those arrangements are in violation of any law or regulation, or are not in the best interest of the District.

2225.2 Nothing in this section shall authorize any contractor team arrangement in violation of antitrust statutes or limit the District’s rights to do any of the following:

(a) Require consent to subcontract;

(b) Determine, on the basis of the stated contractor team arrangement, the responsibility of the prime contractor;

(d) Pursue policies on competitive contracting, subcontracting, and component breakout after initial production, or at any other time; or

(e) Hold the prime contractor fully responsible for contract performance, regardless of any team arrangement between the prime contractor and its subcontractors.

History

SOURCE: Final Rulemaking published at 35 DCR 1384, 1525 (February 26, 1988); as amended by Final Rulemaking published at 66 DCR 14414 (November 1, 2019). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2225

27 DCMR § 2299 DEFINITIONS

2299.1 When used in this chapter, the following terms and phrases shall have the meanings ascribed:

Contractor team arrangement – An arrangement under which two (2) or more persons form a partnership or joint venture to act as a potential prime contractor, or an arrangement under which a potential prime contractor agrees with one (1) or more other persons to have those persons act as the contractor’s subcontractor(s) under a specified District contract or procurement program.

Conviction – A judgment of guilt of a criminal offense by any court of competent jurisdiction, whether entered upon a verdict or a plea, including a judgment entered upon a plea of nolo contendere.

Debarment – Action taken by the Director to exclude a person from District contracting and subcontracting for a specified period.

Director – The Director of the Office of Contracting and Procurement (OCP) or the District of Columbia Chief Procurement Officer (CPO).

Indictment – An accusation in writing found and presented by a grand jury to the court charging that a named person has committed a criminal offense, including any information or other filing by a competent prosecuting authority charging a criminal offense.

Ineligible – Excluded from District contracting or subcontracting under authority of federal statute or regulation applicable to the District (such as the Davis-Bacon Act, 40 USC §§ 3141–3148, the Service Contract Act, 41 USC §§ 6702–6707, or the Equal Employment Opportunity Act of 1972, 5 USC §§ 5108, 5314 et seq., and 42 USC § 2000e), or excluded under authority of a District statute or regulation other than the Act or this title.

Judicial or administrative proceedings – Any civil judicial or administrative proceeding to which the District or federal government is a party or any criminal proceeding, including appeals from these proceedings.

Organizational conflict of interest – When the nature of the work to be performed under a proposed District contract might, without some restraint on future activities, result in an unfair competitive advantage to a contractor or impair a contractor’s objectivity in performing contract work.

Person – Any business, individual, corporation, partnership, association, or legal entity, however organized.

Pre-award survey – A detailed review (sometimes on-site) of a prospective contractor to ascertain information sufficient to make a determination regarding responsibility.

Preponderance of the evidence – Proof by information that, compared with information opposing it, leads to the conclusion that the fact at issue is more probably true than not.

Suspension – An immediate but temporary action taken by the Director which renders a person ineligible to receive new contracts, renewed contracts, extended contracts, or subcontracts pending the outcome of judicial or administrative proceedings that could give rise to a debarment action.

Systems engineering – Developmental, analytical, or other non-production activities, including determining specifications, identifying and resolving interface problems, developing test requirements, evaluating test results, or supervising design.

Technical direction – A combination of activities including developing work statements, determining parameters, directing other contractors’ operations, and resolving technical controversies.

History

SOURCE: Final Rulemaking published at 35 DCR 1384, 1525 (February 26, 1988); as amended by Final Rulemaking published at 53 DCR 7383 (September 8, 2006); as amended by Emergency and Proposed Rulemaking published at 58 DCR 7564 (August 19, 2011)[EXPIRED]; as amended by Final Rulemaking published at 58 DCR 8574, 8575 (October 7, 2011); as amended by Final Rulemaking published at 66 DCR 14414 (November 1, 2019). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2299

27-23 DELIVERY AND PERFORMANCE

27 DCMR § 2300 GENERAL PROVISIONS

2300.1 The time of delivery or performance is an essential contract element and shall be clearly stated in each solicitation and contract.

2300.2 The contracting officer shall ensure that a delivery or performance schedule is realistic and meets the requirements of the procurement.

2300.3 Except when clearly unnecessary, a solicitation shall inform bidders or offerors of the basis on which their bids or proposals will be evaluated with respect to time of delivery or performance.

History

SOURCE: Final Rulemaking published at 35 DCR 1547 (February 26, 1988); as amended by Final Rulemaking published at 65 DCR 00385 (January 19, 2018). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2300

27 DCMR § 2301 DELIVERY AND PERFORMANCE SCHEDULES

2301.1 When establishing a contract delivery or performance schedule for goods or services, the contracting officer shall consider applicable factors, including the following:

(a) Urgency of need;

(b) Production time;

(d) Transportation time;

(e) Industry practices;

(f) Capabilities of certified business enterprises;

(g) Time for obtaining and evaluating bids or offers and awarding contracts;

(h) Time for contractors to comply with any condition precedent to contract performance; and

(i) Time for the District to perform its obligations under the contract, such as furnishing government property to the contractor.

2301.2 When scheduling the time for completion of a construction contract, the contracting officer shall consider applicable factors, such as the following:

(a) The nature and complexity of the project;

(b) The construction seasons involved;

(d) The availability of materials and equipment;

(e) The capacity of the contractor to perform; and

(f) The use of multiple completion dates.

2301.3 In any contract, different completion or delivery dates may be established for separable items of work or deliverables.

2301.4 When multiple completion or delivery dates are used, the contracting officer shall evaluate requests for extensions of time with respect to each item, and shall modify the affected completion or delivery dates when appropriate.

2301.5 The contracting officer may establish contract delivery or performance schedules on the basis of any of the following:

(a) A specific calendar date or dates;

(b) A specific period or periods from the date of the contract;

(c) A specific period or periods from the date agreed upon by the parties and set forth in the contract for actual commencement of performance on the contract; or

(d) In contracts containing indefinite delivery provisions (such as term contracts or federal supply schedules), a specific time for delivery after receipt by the contractor of each order issued under the contract.

2301.6 The time specified for contract performance shall not be curtailed to the prejudice of the contractor because of delay by the District in giving notice of award or acceptance.

History

SOURCE: Final Rulemaking published at 35 DCR 1547 (February 26, 1988); as amended by Final Rulemaking published at 65 DCR 00385 (January 19, 2018). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2301

27 DCMR § 2302 IMPLEMENTATION OF DELIVERY AND PERFORMANCE SCHEDULES

2302.1 The contracting officer shall provide to the contractor a copy of the executed contract, notice of award, or notice of acceptance of proposal not later than the date of the contract, or as soon thereafter as possible.

2302.2 If the delivery or performance schedule is based on the date of the contract, the contracting officer shall provide a copy of the executed contract or actual notice of contract execution not later than one (1) business day following the date of the contract.

History

SOURCE: Final Rulemaking published at 35 DCR 1547 (February 26, 1988); as amended by Final Rulemaking published at 65 DCR 00385 (January 19, 2018). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2302

27 DCMR § 2303 LIQUIDATED DAMAGES

2303.1 The contracting officer may use a liquidated damages clause in a contract when the following factors apply:

(a) The time of delivery or performance is such an important factor in the performance of the contract that the District may reasonably expect to suffer damages if the delivery or performance is delinquent; or

(b) The extent or amount of damages would be difficult or impossible to ascertain or prove.

2303.2 When deciding whether to include a liquidated damages clause in a contract, the contracting officer shall consider the probable effect on pricing, competition, and the costs and difficulties of contract administration.

2303.3 In order to avoid setting an unenforceable penalty, liquidated damages shall not be fixed without reference to probable actual damages. The contracting officer shall determine a reasonable rate of liquidated damages on a case by case basis.

2303.4 The contracting officer shall set the rate of liquidated damages based on the recommendations and justifications provided by the agency initiating the procurement request and the contracting officer's assessment of all applicable factors.

2303.5 A contract may include an overall maximum dollar amount or period of time during which liquidated damages may be assessed, or both, to prevent an unreasonable assessment of liquidated damages.

2303.6 The contracting officer shall take all reasonable steps to mitigate liquidated damages.

2303.7 If a liquidated damages clause is included in a contract and a basis for termination for default exists, the contracting officer shall take appropriate action expeditiously to obtain performance by the contractor or to terminate the contract.

2303.8 If delivery or performance is desired after termination for default, efforts shall be made to obtain the delivery or performance from another source within a reasonable time.

2303.9 If a contract provides for liquidated damages for delay, the contracting officer, shall be authorized to waive all or part of the damages if, in the discretion of the contracting officer, the waiver would be just and equitable.

History

SOURCE: Final Rulemaking published at 35 DCR 1547 (February 26, 1988); as amended by Final Rulemaking published at 65 DCR 00385 (January 19, 2018). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2303

27 DCMR § 2304 VARIATION IN QUANTITY: SUPPLY CONTRACTS

2304.1 A fixed-price supply contract may authorize District acceptance of a variation in the quantity of items if the variation is caused by conditions of loading, shipping, packing, or by allowances in manufacturing processes.

2304.2 Except as provided in § 2304.3 of this chapter, any permissible variation shall be stated as a percentage. The variation may be an increase, a decrease, or a combination of both.

2304.3 Contracts for perishable food items may use other applicable terms of variations in quantity.

2304.4 There shall be no standard or usual variation percentage.

2304.5 The overrun or underrun permitted in each contract shall be based upon the normal commercial practices of a particular industry for a particular item, and the permitted percentage shall be no larger than is necessary to afford a contractor reasonable protection.

2304.6 Contractors shall be responsible for delivery of the specified quantity of items in a fixed-price contract, within allowable variations, if any.

History

SOURCE: Final Rulemaking published at 35 DCR 1547 (February 26, 1988); as amended by Final Rulemaking published at 65 DCR 00385 (January 19, 2018). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2304

27 DCMR § 2305 VARIATION IN QUANTITY: CONSTRUCTION CONTRACTS

2305.1 Construction contracts may authorize a variation in estimated quantities of unit-priced items.

2305.2 When the variation between the estimated quantity and the actual quantity of a unit-priced item is more than plus or minus fifteen percent (15%), an equitable adjustment in the contract price shall be made upon demand of either the contracting officer or the contractor. The contracting officer shall base the adjustment on the increase or decrease in the contractor's costs due to the variation in quantity.

2305.3 The contractor may request an extension of time if the quantity variation will increase the time necessary for completion of the contract. The contractor shall ensure that the contracting officer receives the request no later than ten (10) days after the beginning of the period of delay.

2305.4 Pursuant to a request in accordance with §2305.3, the contracting officer may extend the time limit based on a determination that an extension would be in the best interests of the District.

History

SOURCE: Final Rulemaking published at 35 DCR 1551 (February 26, 1988).

27 DCMR § 2306 [RESERVED]

27 DCMR § 2307 SUSPENSION OF WORK

2307.1 Suspension of work under a construction or architect-engineer contract may be ordered by the contracting officer for a reasonable period of time.

2307.2 If the contractor believes that the suspension is unreasonable, the contractor may submit a written claim for increases in the cost of performance due to the suspension, excluding profit, in accordance with the provisions of Chapter 38 of this title.

History

SOURCE: Final Rulemaking published at 35 DCR 1551 (February 26, 1988).

27 DCMR § 2308 STOP WORK ORDERS

2308.1 A contracting officer may issue a stop-work order, when appropriate, if work stoppage is required to protect the best interests of the District in circumstances such as advancement in the state-of-the-art production, engineering breakthroughs, or realignment of programs.

2308.2 A contracting officer may issue a stop-work order only if it is advisable to suspend work pending the contracting officer's decision regarding continuation of the work and a contract modification providing for the suspension is not feasible.

2308.3 A contracting officer shall not use a stop-work order in place of a termination notice after a decision to terminate has been made.

2308.4 Each stop-work order shall include the following:

(a) A description of the work to be stopped;

(b) Instructions concerning the contractor's issuance of further orders for materials or services;

(d) Any applicable suggestions to the contractor for minimizing costs.

2308.5 Promptly after issuing the stop-work order, the contracting officer shall discuss the stop-work order with the contractor and may, if necessary, modify the order based on the discussion.

2308.6 As soon as feasible after a stop-work order is issued, but before its expiration, the contracting officer shall take appropriate action to do one (1) of the following:

(a) Terminate the contract;

(b) Cancel the stop-work order; or

History

SOURCE: Final Rulemaking published at 35 DCR 1552 (February 26, 1988).

27 DCMR § 2309 DISTRICT DELAY OF WORK

2309.1 If the District unreasonably delays the performance on a contract, the contractor may submit a written claim for equitable adjustment of the contract price based on increases in the cost of performance due to the work delay, in accordance with the procedures set forth in Chapter 38 of this title.

2309.2 The contracting officer shall keep a record of all negotiations leading to any equitable adjustment, along with information substantiating the change in cost or price.

History

SOURCE: Final Rulemaking published at 35 DCR 1547 (February 26, 1988); as amended by Final Rulemaking published at 65 DCR 00385 (January 19, 2018). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2309

27 DCMR § 2399 DEFINITIONS

2399.1 When used in this chapter, the following terms and phrases shall have the meanings ascribed:

Date of contract – the date on which the contract is signed by the contracting officer.

Director – the Director of the Office of Contracting and Procurement or the District of Columbia Chief Procurement Officer.

Stop-work order – a written document issued by the contracting officer advising a contractor to cease work.

History

SOURCE: Final Rulemaking published at 35 DCR 1547 (February 26, 1988); as amended by Final Rulemaking published at 65 DCR 00385 (January 19, 2018). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2399

27-24 TYPES OF CONTRACTS

27 DCMR § 2400 GENERAL PROVISIONS

2400.1 The contracting officer shall use the type of contract, or combination of types of contracts, in accordance with the provisions of this chapter that is most appropriate to the circumstances of each procurement, and that serves the best interests of the District.

2400.2 In accordance with § 501 of the Procurement Practices Reform Act of 2010, D.C. Official Code § 2-355.01, a cost-plus-a-percentage-of-cost type contract shall not be used. Except where a prime contract is a firm-fixed-price contract, a cost-plus-percentage-of-cost type subcontract shall not be used.

History

SOURCE: Final Rulemaking published at 35 DCR 1554 (February 26, 1988); as amended by Final Rulemaking published at 65 DCR 00390 (January 19, 2018). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2400

27 DCMR § 2401 SELECTING CONTRACT TYPES

2401.1 The contracting officer shall identify the type of contract, or combination of types of contracts, to be used prior to solicitation. The solicitation shall inform bidders of the type of contract, or combination of types of contracts, to be used.

2401.2 In selecting the type of contract to be used, the contracting officer shall consider the following factors:

(a) The type and complexity of the good or service being procured;

(b) Price competition;

(d) The administrative costs to both the contractor and the District;

(e) The urgency of the requirement;

(f) The length of contract performance;

(g) Any concurrent contracts;

(h) The risk involved;

(i) The stability of material or commodity market prices or wage levels;

(j) The contractor’s technical capability and financial responsibility; and

(k) Any other factor the consideration of which the contracting officer believes will better inform the choice of contract type.

History

SOURCE: Final Rulemaking published at 35 DCR 1554 (February 26, 1988); as amended by Final Rulemaking published at 65 DCR 00390 (January 19, 2018). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2401

27 DCMR § 2402 FIXED-PRICE CONTRACTS

2402.1 Fixed-price contracts may provide for a firm price or, in appropriate cases, an adjustable price.

2402.2 The contracting officer shall use a firm-fixed-price contract when the risk involved is minimal (or can be predicted with an acceptable degree of certainty) and when fair and reasonable prices can be established. However, if a reasonable basis for firm-fixed pricing does not exist, the contracting officer may consider other contract types, or combination of types.

2402.3 Fixed-price contracts providing for an adjustable price may include a price ceiling, a target price (including target cost), or both. Unless otherwise specified in the contract, the price ceiling or target price shall be subject to adjustment only by operation of contract clauses providing for equitable adjustment or other revision of the contract price under stated circumstances.

2402.4 A firm-fixed-price contract shall not provide for a price that is subject to any adjustment on the basis of the contractor’s cost experience in performing the contract.

History

SOURCE: Final Rulemaking published at 35 DCR 1554 (February 26, 1988); as amended by Final Rulemaking published at 65 DCR 00390 (January 19, 2018). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2402

27 DCMR § 2403 FIXED-PRICE CONTRACTS WITH ECONOMIC PRICE ADJUSTMENTS

2403.1 The contracting officer shall not use a fixed-price contract with economic price adjustment unless the contracting officer determines that it is necessary to protect the contractor and the District against significant fluctuations in labor or material costs, or to provide for contract price adjustment in the event of changes in the contractor’s established prices.

2403.2 A fixed-price contract with economic price adjustment shall provide for upward and downward revision of the stated contract price upon the occurrence of certain contingencies that are specifically defined in the contract.

2403.3 An economic price adjustment may be one (1) of the following general types:

(a) Adjustment based on increases or decreases from an agreed-upon level in published or otherwise established prices of specific items or the contract end items;

(b) Adjustment based on increases or decreases in specified costs of labor or material that the contractor actually experiences during contract performance; or

(c) Adjustment based on increases or decreases in labor or material cost standards or indexes that are specifically identified in the contract.

2403.4 For use of economic price adjustments in procurements by competitive sealed bids, the contracting officer shall follow the procedures set forth in § 1542 of Chapter 15 (Procurement by Competitive Sealed Bidding) of this title.

2403.5 The contracting officer may use a fixed-price contract with economic price adjustment when the following factors are applicable:

(a) There is serious doubt concerning the stability of market or labor conditions that will exist during an extended period of contract performance; and

(b) Contingencies that would otherwise be included in the contract price can be identified and covered separately in the contract.

2403.6 Price adjustments based on established catalog prices shall be restricted to industry-wide contingencies. Industry-wide contingencies shall be those affecting a particular industry as a whole, and shall not depend upon circumstances within the contractor’s control.

2403.7 Price adjustments based on labor and material costs shall be limited to contingencies beyond the contractor’s control.

2403.8 When establishing the base level from which adjustment will be made, the contracting officer shall ensure that contingency allowances are not duplicated by inclusion in both the base price and the adjustment requested by the contractor under the economic price adjustment clause.

2403.9 In contracts that do not require submission of cost or pricing data, the contracting officer shall obtain adequate information to establish the base level from which adjustment will be made and may require verification of data submitted.

History

SOURCE: Final Rulemaking published at 35 DCR 1554 (February 26, 1988); as amended by Final Rulemaking published at 65 DCR 00390 (January 19, 2018). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2403

27 DCMR § 2404 FIXED-PRICE CONTRACTS WITH PROSPECTIVE PRICE REDETERMINATION

2404.1 The contracting officer may use a fixed-price contract with prospective price redetermination in procurements of quantity production or services for which it is possible to negotiate a fair and reasonable firm-fixed-price for an initial period, but not for subsequent periods of contract performance as provided in § 2404.4 of this chapter.

2404.2 The contracting officer shall not use a fixed-price contract with prospective price redetermination unless all of the following apply:

(a) The contracting officer has determined that the conditions for use of a firm-fixed-price contract are not present and a fixed-price incentive contract would not be more appropriate;

(b) The contractor’s accounting system is adequate for price redetermination;

(d) There is reasonable assurance that price redetermination actions will take place promptly at the specified times.

2404.3 When the contracting officer uses a fixed-price contract with prospective price redetermination, the initial period shall be the longest period for which it is possible to negotiate a fair and reasonable firm-fixed-price. Each subsequent pricing period shall be at least twelve (12) months.

2404.4 A fixed-price contract with prospective price redetermination may provide for a price ceiling based on evaluation of the uncertainties involved in performance and their possible cost impact. The price ceiling shall provide for assumption of a reasonable proportion of the risk by the contractor and, once established, may be adjusted only by operation of provisions for an equitable adjustment or other revision of the contract price under stated circumstances.

History

SOURCE: Final Rulemaking published at 35 DCR 1554 (February 26, 1988); as amended by Final Rulemaking published at 65 DCR 00390 (January 19, 2018). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2404

27 DCMR § 2405 COST-REIMBURSEMENT CONTRACTS

2405.1 The contracting officer may use a cost-reimbursement contract only when:

(a) Uncertainties involved in contract performance either do not permit costs to be estimated with sufficient accuracy to use any type of fixed-price contract; or

(b) Circumstances prevent requirements from being sufficiently defined to allow for a fixed-price contract.

2405.2 The contracting officer may use a cost-reimbursement contract only when the following circumstances apply:

(a) The contractor’s accounting system is adequate for determining costs applicable to the contract;

(b) Appropriate District surveillance during performance will provide reasonable assurance that efficient methods and effective cost controls are used; and

(c) The use of a cost-reimbursement contract is likely to be less costly than any other type of contract, or it is impractical to obtain goods or services of the kind or quality required without the use of a cost-reimbursement contract.

2405.3 Each cost-reimbursement contract shall contain a clause that:

(a) Indicates that only those costs determined by the contracting officer to be reasonable, allowable, and allocable in accordance with Chapter 33 (Contract Cost Principles) of this title, will be reimbursable; and

(b) Establishes a stated price ceiling.

2405.4 The contracting officer may use a cost-plus-fixed-fee contract when contracting for efforts that might otherwise present too great a risk to the contractor, such as when the contract is for the performance of research, preliminary exploration or a study, and the level of effort is unknown. The contract shall set a maximum allowable fee.

2405.5 A cost-plus-fixed-fee contract may be in either a completion form or term form. When using the completion form, the contracting officer shall describe the scope of work by stating a definite goal or target and specifying an end product. When using the term form, the contracting officer shall describe the scope of work in general terms and obligate the contractor to devote a specified level of effort for a stated time period.

2405.6 When using a cost-plus-fixed-fee contract, the completion form shall be preferred over the term form whenever the work, or specific milestones for the work, can be defined well enough to permit development of estimates within which the contractor can be expected to complete the work. The term form shall not be used unless the contractor is obligated by the contract to provide a specific level of effort within a definite time period.

History

SOURCE: Final Rulemaking published at 35 DCR 1554 (February 26, 1988); as amended by Final Rulemaking published at 65 DCR 00390 (January 19, 2018). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2405

27 DCMR § 2406 INCENTIVE CONTRACTS

2406.1 The contracting officer may use an incentive contract when a firm-fixed-price contract is not appropriate and the required goods or services can be procured at lower costs and, in certain instances, with improved delivery or technical performance, by relating the amount of profit or fee payable under the contract to the contractor’s performance.

2406.2 The contracting officer may use an incentive contract when it is necessary to establish reasonable and attainable targets that are clearly understandable by the contractor, and to provide appropriate incentive arrangements designed to motivate contractor efforts and discourage contractor inefficiency and waste.

2406.3 When predetermined formula-type incentives on technical performance or delivery are included, increases in profit or fee shall be provided only for achievement that surpasses the targets, and decreases shall be provided for to the extent that targets are not met.

2406.4 The contracting officer shall apply incentive increases or decreases to performance targets rather than minimum performance requirements.

2406.5 Incentive contracts may be fixed-price incentive contracts or cost-reimbursement incentive contracts.

2406.6 Cost-reimbursement incentive contracts shall be subject to the provisions of § 2405 of this chapter. Fixed-price incentive contracts shall be subject to the provisions of § 2408 of this chapter.

History

SOURCE: Final Rulemaking published at 35 DCR 1554 (February 26, 1988); as amended by Final Rulemaking published at 65 DCR 00390 (January 19, 2018). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2406

27 DCMR § 2407 TYPES OF INCENTIVES

2407.1 Incentive contracts shall include cost incentives, which take the form of a profit or fee adjustment formula. No incentive contract shall provide for other incentives without also providing for a cost incentive.

2407.2 Except for cost-plus-award-fee contracts, incentive contracts shall include a target cost, a target profit or fee, and a profit or fee adjustment formula that (within the constraints of a price ceiling or minimum and maximum fee) provides for the following:

(a) Actual cost that meets the target will result in the target profit or fee;

(b) Actual cost that exceeds the target will result in downward adjustment of the target profit or fee; and

2407.3 Technical performance incentives may be considered in connection with specific product characteristics or other specific elements of the contractor’s performance.

2407.4 Technical performance incentives shall be designed to tailor profit or fee to results achieved by the contractor, compared with specified target goals. The contract shall be specific in establishing performance test criteria (such as testing conditions, instrumentation precision, and data interpretation) in order to determine the degree of attainment of performance targets.

2407.5 The contracting officer may consider delivery incentives when meeting a required delivery schedule is a significant District objective.

2407.6 The contracting officer shall specify in incentive arrangements the application of the reward-penalty structure in the event of District-caused delays, or other delays beyond the control and without the fault or negligence of the contractor or a subcontractor.

History

SOURCE: Final Rulemaking published at 35 DCR 1554 (February 26, 1988); as amended by Final Rulemaking published at 65 DCR 00390 (January 19, 2018). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2407

27 DCMR § 2408 FIXED-PRICE INCENTIVE CONTRACTS

2408.1 A fixed-price incentive contract may be used when the following factors apply:

(a) A firm-fixed-price contract is not suitable;

(b) The nature of the goods or services being procured, and the specific circumstances of the procurement, are such that the contractor’s assumption of a degree of cost responsibility will provide a positive profit incentive for effective cost control and performance;

(c) If the contract also includes incentives on technical performance or delivery, the performance requirements provide a reasonable opportunity for the incentives to have a meaningful impact on the contractor’s management of the work;

(d) The contractor’s accounting system is adequate for providing data for negotiating firm targets and a realistic profit adjustment formula, as well as later negotiation of final costs; and

(e) Adequate cost or pricing information for establishing a reasonable firm target is reasonably expected to be available at the time of initial contract negotiations.

2408.2 A fixed-price incentive contract shall specify a target cost, a target profit, a price ceiling (but not a profit ceiling or floor), and a profit adjustment formula, which shall yield the following results:

(a) If the final cost is less than the target cost, application of the formula will result in a final profit greater than the target profit;

(b) If the final cost is more than the target cost, application of the formula will result in a final profit less than the target profit, or a net loss; or

2408.3 In a fixed-price incentive contract with a firm target, the price ceiling shall be the maximum that may be paid to the contractor, except for any adjustment made pursuant to other contract clauses.

2408.4 When the contractor completes performance, the contracting officer and the contractor shall negotiate the final cost, and apply the profit adjustment formula to determine final price.

History

SOURCE: Final Rulemaking published at 35 DCR 1554 (February 26, 1988); as amended by Final Rulemaking published at 65 DCR 00390 (January 19, 2018). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2408

27 DCMR § 2409 COST-PLUS-AWARD-FEE CONTRACTS

2409.1 A cost-plus-award-fee contract is a type of cost reimbursement contract and may only be used when the criteria set forth in § 2405.1 of this chapter are satisfied.

2409.2 A cost-plus-award-fee contract may be used when the following factors apply:

(a) The work to be performed is such that it is neither feasible nor effective to devise predetermined objective incentive targets applicable to cost, technical performance, or schedule;

(b) The likelihood of meeting the procurement objective will be enhanced by using a contract that effectively motivates the contractor toward exceptional performance and provides the District with the flexibility to evaluate both actual performance and the conditions under which it was achieved; and

(c) Any additional administrative effort and cost required to monitor and evaluate performance are justified by the expected benefits.

2409.3 A cost-plus-award-fee contract shall provide for a fee consisting of a base amount fixed at inception of the contract and an award amount that the contractor may earn in whole or in part during performance. Each contract shall state a maximum award amount that may be paid under the contract.

2409.4 The amount of the award fee to be paid shall be determined by the contracting officer’s evaluation of the contractor’s performance in terms of the criteria stated in the contract.

2409.5 The award fee determination shall be made unilaterally by the contracting officer and shall not be subject to appeal or the contractor’s rights under the disputes clause in the contract.

2409.6 A cost-plus-award-fee contract shall provide for evaluation at stated intervals during performance, so that the contractor will periodically be informed of the quality of its performance and the area in which improvement is expected.

History

SOURCE: Final Rulemaking published at 35 DCR 1554 (February 26, 1988); as amended by Final Rulemaking published at 65 DCR 00390 (January 19, 2018). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2409

27 DCMR § 2410 [RESERVED]

27 DCMR § 2411 [RESERVED]

27 DCMR § 2412 [RESERVED]

27 DCMR § 2413 [RESERVED]

27 DCMR § 2414 [RESERVED]

27 DCMR § 2415 DEFINITE-QUANTITY CONTRACTS

2415.1 The contracting officer may use a definite-quantity contract when it can be determined in advance that a specific quantity of goods or services will be required during the contract period, and the goods or services are regularly available or will be available after a short lead time.

History

SOURCE: Final Rulemaking published at 35 DCR 1554 (February 26, 1988); as amended by Final Rulemaking published at 65 DCR 00390 (January 19, 2018). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2415

27 DCMR § 2416 TERM CONTRACTS

2416.1 The contracting officer may use a term contract (either a requirements contract or an indefinite-quantity contract) when the exact quantities of goods or services are not known at the time of contract award. Term contracts shall be subject to the provisions of this section and § 2103 of Chapter 21 (Required Sources of Goods and Services) of this title.

2416.2 A term contract may also specify maximum or minimum quantities that the District may order under each individual order and the maximum that the District may order during a specified period of time.

2416.3 The contracting officer may use a requirements contract when the contracting officer anticipates recurring requirements but cannot predetermine the precise quantities of goods or services that designated District agencies will need during a definite period.

2416.4 Each agency designated in a requirements contract shall be required to fill all actual purchase requirements for the specific goods or services from the requirements contract.

2416.5 The contracting officer shall include the following in each contract and solicitation for a requirements contract:

(a) A realistic estimate of the total quantity that will be ordered, based on the most current information available; and

(b) A clause stating that the estimate is not a representation to a bidder, offeror, or contractor that the estimated quantity will actually be required or ordered, or that conditions affecting the requirements, will be stable or normal.

2416.6 If feasible, a requirements contract shall state the maximum limit of the contractor's obligation to deliver and the District’s obligation to order.

2416.7 For requirements contracts, the contracting officer shall execute the contract without the obligation of funds. Funds shall be obligated by each agency at the time orders are issued under the contract.

2416.8 The contracting officer may use an indefinite-quantity contract when the contracting officer cannot predetermine, above a specified minimum, the precise quantity of goods or services that will be required during the contract period.

2416.9 An indefinite-quantity contract shall require the District to order and the contractor to furnish at least the stated minimum quantity of goods or services. The contractor shall also be required to furnish, if and as ordered, any additional quantities, not to exceed a stated maximum.

History

SOURCE: Final Rulemaking published at 35 DCR 1554 (February 26, 1988); as amended by Final Rulemaking published at 65 DCR 00390 (January 19, 2018). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2416

27 DCMR § 2417 ORDERING UNDER TERM CONTRACTS

2417.1 The contracting officer shall include in the schedule of requirements in each term contract the names of the agency or agencies authorized to issue orders under the contract.

2417.2 Each order placed under a term contract shall contain the following information:

(a) Date of the order;

(b) Contract number and an order number;

(d) Delivery or performance date;

(e) Place of delivery or performance;

(f) Packaging, packing, and shipping instructions, if any;

(g) Accounting and appropriations data; and

(h) Any other pertinent information.

History

SOURCE: Final Rulemaking published at 35 DCR 1554 (February 26, 1988); as amended by Final Rulemaking published at 65 DCR 00390 (January 19, 2018). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2417

27 DCMR § 2418 [RESERVED]

27 DCMR § 2419 [RESERVED]

27 DCMR § 2420 TIME-AND-MATERIALS CONTRACTS

2420.1 A time-and-materials contract may be used only when:

(a) It is not possible at the time of executing the contract to estimate accurately the extent or duration of the work or to anticipate costs with any reasonable degree of confidence; and

(b) The contracting officer determines, in writing, that no other type of contract is suitable.

2420.2 A time and materials contract shall include a price ceiling that the contractor exceeds at its own risk.

2420.3 A time-and-materials contract shall include direct labor hours at specified fixed hourly rates that include wages, overhead, general and administrative expenses, profit, and materials required at cost.

2420.4 When the nature of the work to be performed requires the contractor to furnish material that it regularly sells to the general public in the normal course of its business, a time and materials contract may provide for charging material on a basis other than cost if the following factors apply:

(a) The total estimated contract price does not exceed fifty thousand dollars ($50,000), or the estimated price of material charged does not exceed twenty percent (20%) of the estimated contract price;

(b) The material to be charged is identified in the contract;

(d) The contract provides that the price to be paid for the material shall be based on an established catalog or list price in effect when material is furnished, less all applicable discounts to the District, and that in no event shall the price exceed the contractor’s sales price to its most-favored customer for the same item in like quantity, or the current market price, whichever is lower.

History

SOURCE: Final Rulemaking published at 35 DCR 1554 (February 26, 1988); as amended by Final Rulemaking published at 65 DCR 00390 (January 19, 2018). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2420

27 DCMR § 2421 LABOR-HOUR CONTRACTS

2421.1 When materials are not required, the contracting officer may use a labor-hour contract in accordance with the provisions of § 2420 of this chapter.

History

SOURCE: Final Rulemaking published at 35 DCR 1554 (February 26, 1988); as amended by Final Rulemaking published at 65 DCR 00390 (January 19, 2018). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2421

27 DCMR § 2422 [RESERVED]

27 DCMR § 2423 [RESERVED]

27 DCMR § 2424 [RESERVED]

27 DCMR § 2425 LETTER CONTRACTS

2425.1 The contracting officer may use a letter contract when the District’s interests require that the contractor be given a binding commitment so that work can start immediately and executing a definitive contract is not possible in sufficient time to meet the requirement. Each letter contract shall be as complete and definite as possible under the circumstances.

2425.2 A letter contract is always associated with a definitive contract, and a letter contract by itself cannot be the sole document used for a complete procurement.

2425.3 A letter contract shall not commit the District to a definitive contract in excess of the funds available at the time the letter contract is executed.

2425.4 [Reserved].

2425.5 A letter contract shall not be amended to add a new requirement unless the new requirement is inseparable from the existing letter contract.

2425.6 When a letter contract is executed, the contracting officer shall include a price ceiling for the anticipated definitive contract. The price ceiling shall not be exceeded. Each letter contract shall also include a clause indicating the maximum liability of the District under the letter contract.

2425.7 The maximum liability to the District under a letter contract shall be the estimated amount necessary to cover the contractor’s requirement for funds before execution of the definitive contract. However, the District’s maximum liability shall not exceed fifty percent (50%) of the overall price ceiling for the term of the definitive contract pursuant to § 2425.5 of this chapter.

2425.8 The contracting officer shall execute a definitive contract within one hundred and twenty (120) days after the date of execution of the letter contract or before completion of fifty percent (50%) of the work to be performed, whichever occurs first. The contracting officer may extend the letter contract but shall nevertheless execute a definitive contract prior to completion of fifty percent (50%) of the work to be performed.

2425.9 In procurements by other than competitive sealed bids, if the contracting officer and the contractor cannot negotiate a definitive contract because of failure to reach agreement regarding price, the contractor shall be required to continue the work and the contracting officer may, with the approval of the Director, determine a reasonable price, subject to review in accordance with Chapter 38 (Protests, Claims, and Disputes) of this title.

2425.10 Prior to the execution of a letter contract, the contracting officer shall ensure that funds are encumbered for obligation in the amount of the maximum District liability for the term of the letter contract.

History

SOURCE: Final Rulemaking published at 35 DCR 1554 (February 26, 1988); as amended by Final Rulemaking published at 65 DCR 00390 (January 19, 2018); as amended by Final Rulemaking published at 73 DCR 007346 (May 15, 2026). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2425

27 DCMR § 2499 DEFINITIONS

2499.1 When used in this chapter, the following words and terms shall have the meanings ascribed:

Commercial-type products – a product such as an item, material, component, subsystem or system, sold or traded to the general public in the course of normal business operations at prices based on established catalog or market prices.

Cost – the amount paid or charged for something, excluding the contractor’s profit.

Cost-plus-award-fee – a cost-reimbursement type contract that provides for a fee consisting of an amount fixed at the beginning of the contract and potential award of additional fee amounts based upon a judgmental evaluation by the contracting officer, sufficient to provide motivation for excellence in contract performance.

Cost-plus-fixed-fee contract – a cost-reimbursement type contract which provides for the payment of a fixed fee to the contractor. The fixed fee, once negotiated, does not vary with actual cost, but may be adjusted as a result of any subsequent changes in the work or services to be performed under the contract.

Cost-plus-incentive-fee contract – a cost-reimbursement type contract that provides for an initially negotiated fee to be adjusted later by a formula based on the relationship of total allowable costs to total target costs. After performance of the contract, the fee payable to the contractor is determined in accordance with a negotiated formula.

Cost-reimbursement contract – a contract which provides for payment of allowable costs incurred in the performance of a contract, to the extent prescribed in the contract. This type of contract establishes an estimate of total cost for the purpose of obligating funds, and establishes a ceiling which the contractor may not exceed (except at its own risk) without prior approval of, or subsequent ratification by, the contracting officer.

Definite-quantity contract – a contract that provides for delivery of a definite quantity of specific goods or services for a fixed period, with deliveries to be scheduled at designated locations.

Definitive contract – the contract executed pursuant to letter contract commitment.

Director – the Director of the Office of Contracting and Procurement or the District of Columbia Chief Procurement Officer.

Firm-fixed-price contract – a fixed-price contract that provides for a price that is not subject to any adjustment on the basis of the contractor's cost experience in performing the contract. This type of contract places maximum risk and full responsibility for all costs and resulting profit or loss upon the contractor, and provides maximum incentive for the contractor to control cost and perform effectively.

Fixed-price contract with economic price adjustment – a fixed-price contract that provides for the upward and downward revision of the stated contract price upon the occurrence of certain contingencies that are specifically defined in the contract.

Fixed-price contract with prospective price redetermination – a contract type which provides for a firm-fixed-price for an initial period of contract deliveries or performance and for a redetermination of the price for subsequent periods of performance at a stated time or times during performance.

Fixed-price incentive contract – a fixed-price type contract that provides for adjusting profit and establishing the final contract price by a formula based on the relationship of final negotiated total costs to total target costs. After performance of the contract, the final cost is negotiated and the final contract price is then established in accordance with the formula.

Incentive contract – a fixed-price or cost-reimbursement type contract which provides for relating the amount of profit or fee payable under the contract with the contractor’s performance in order to obtain specific procurement objectives.

Indefinite-quantity contract – a contract that provides for an indefinite quantity, within written stated limits, of specific goods or services to be furnished during a fixed period, with deliveries to be scheduled by placing orders with the contractor. The contract requires the District to order and the contractor to furnish at least a stated minimum of goods or services.

Labor-hour contract – a contract that is a variant of the time-and-materials contract differing only in that materials are not supplied by the contractor.

Letter contract – a written preliminary contractual instrument that authorizes the contractor to begin immediately manufacturing or delivering goods or performing services

Maximum liability – the amount, not to exceed fifty percent (50%) of the overall contract price ceiling, obligated by a letter contract over which the District cannot be liable if the letter contract is terminated.

Price – the amount the District anticipates it will pay the contractor for full performance under the terms of a contract, including costs and profit.

Price ceiling - an amount established during negotiations or at the discretion of the contracting officer which constitutes the maximum that may be paid to the contractor for performance of a contract.

Requirements contract – a contract that provides for the filling of all actual purchase requirements of designated District agencies for specific goods or services during a specified contract period, with deliveries to be scheduled by placing orders with the contractor as required.

Target price – an amount established by the contracting officer during negotiations to encourage the contractor to control contract costs. The contractor’s final profit varies inversely with the final cost of the contract.

Term contract – a requirements contract or an indefinite-quantity contract.

Time-and-materials contract – a type of contract that provides for the procurement of goods or services on the basis of direct labor hours at specified fixed hourly rates (which include wages, overhead, general and administrative expenses, and profit) and material at cost.

History

SOURCE: Final Rulemaking published at 35 DCR 1554 (February 26, 1988); as amended by Final Rulemaking published at 65 DCR 00390 (January 19, 2018). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2499

27-25 SPECIFICATIONS, STANDARDS, AND OTHER PURCHASE DESCRIPTIONS

27 DCMR § 2500 GENERAL PROVISIONS

2500.1 The District shall specify procurement needs in a manner designed to promote competition to the maximum extent possible.

2500.2 The District shall develop specifications and purchase descriptions using market research in a manner designed to promote competition to the maximum extent possible, with due regard to the nature of the goods or services to be procured.

2500.3 Solicitations shall contain specifications and purchase descriptions that include restrictive provisions or conditions only to the extent necessary to satisfy the minimum needs of the District, or as authorized or required by law.

2500.4 Plans, drawings, specifications, standards, or purchase descriptions for procurements shall state only the District’s actual minimum needs and describe the goods or services in a manner designed to promote competition to the maximum extent possible.

2500.5 Specifications and purchase descriptions shall reflect the minimum needs of the District and the market available to meet those needs. Specifications and purchase descriptions may be stated in terms of the following:

(a) Function, so that a variety of products or services may qualify;

(b) Performance, including specifications of the range of acceptance characteristics or the minimum acceptable standards; or

2500.6 Responsibility for the preparation and issuance of standard specifications shall be in accordance with § 204 of the Procurement Practices Reform Act of 2010 (“Act”), D.C. Official Code § 2-352.04.

History

SOURCE: Final Rulemaking published at 35 DCR 1572 (February 26, 1988); as amended by Final Rulemaking published at 65 DCR 7556 (July 20, 2018). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2500

27 DCMR § 2501 SELECTING SPECIFICATIONS OR DESCRIPTIONS FOR USE

2501.1 Items to be procured shall be described by citing the applicable specifications and standards or by a description containing the necessary requirements.

2501.2 The using agency shall review and select from available specifications, standards, and related documents those specifications and standards which have application to a particular procurement. The specification or standard shall be modified or tailored to state the District’s minimum requirement.

2501.3 When authorized in accordance with this chapter, or when no applicable specification exists, the using agency may use a purchase description.

2501.4 Each purchase description shall set forth the essential physical and functional characteristics of the materials or services required.

2501.5 Each purchase description shall include the following characteristics, when applicable:

(a) Common nomenclature;

(b) Kind of material, such as type, grade, or alternatives;

(d) Dimensions, size, or capacity;

(e) Principles of operation;

(f) Restrictive environmental conditions;

(g) Intended use, such as location within an assembly and essential operating condition;

(h) Equipment with which the item is to be used; and

(i) Other pertinent information that further describes the item, materials, or service required.

2501.6 A purchase description shall not be written to specify a product, or a particular feature of a product, that is peculiar to a single manufacturer (thereby precluding consideration of a product manufactured by another company) unless the particular feature is essential to the District’s requirements, and that other sources’ similar products lacking that particular feature would not meet the minimum requirements for the items.

2501.7 Purchase descriptions of services shall outline the specific services the contractor is expected to perform to the greatest degree practicable.

2501.8 When applicable, the using agency shall include in the purchase description requirements for adequate packaging and marking of goods to prevent deterioration and damage during shipping, handling, and storage.

2501.9 The contracting officer shall ensure that the specifications and standards included in the solicitation are not unduly restrictive and promote competition to the maximum extent possible.

History

SOURCE: Final Rulemaking published at 35 DCR 1573 (February 26, 1988); as amended by Final Rulemaking published at 65 DCR 7556 (July 20, 2018). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2501

27 DCMR § 2502 BRAND NAME OR EQUAL

2502.1 The minimum acceptable purchase description shall be the identification of a requirement by use of a brand name followed by the words “or equal.” This purchase description shall be used only when adequate specifications or a more detailed purchase description cannot be made available.

2502.2 When using a brand name description or equal purchase description, the using agency shall also provide a list of salient characteristics, or the minimum acceptable features.

History

SOURCE: Final Rulemaking published at 35 DCR 1574 (February 26, 1988); as amended by Final Rulemaking published at 65 DCR 7556 (July 20, 2018). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2502

27 DCMR § 2503 SPECIFICATIONS AND STANDARDS

2503.1 Using agencies and contracting officers shall use the specifications and standards prepared and issued by the Director for goods and services required by the District, unless otherwise authorized by law or approved in accordance with this chapter.

2503.2 Specifications and standards issued by the Director shall be used by all agencies when procuring goods and services covered by those specifications and standards except as follows:

(a) When the service or work to be performed or the item to be furnished is procured under emergency circumstances, as defined in the Act and Chapter 17 of this title, and the use of standard specifications would cause unacceptable delay in obtaining the requirement;

(b) When items are procured using small purchase methods;

(c) When nationally recognized industry or technical source specifications and standards are used to procure construction or new installations of equipment; and

(d) When the using agency can state its needs in a purchase description for a commercial product.

2503.3 Commercial products may be procured whenever those products adequately satisfy the District’s needs and a description of the District’s need is stated in functional terms of sufficient detail.

History

SOURCE: Final Rulemaking published at 35 DCR 1574 (February 26, 1988); as amended by Final Rulemaking published at 65 DCR 7556 (July 20, 2018). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2503

27 DCMR § 2504 DEVIATIONS FROM SPECIFICATIONS AND STANDARDS

2504.1 When the exceptions set forth in § 2503 of this chapter are not applicable, and an existing specification does not meet an agency’s minimum needs, the Director may authorize deviations in accordance with this section.

2504.2 Each contracting officer shall be responsible for ensuring the following:

(a) That District specifications are normally used, and requirements for exceptions and deviations are complied with;

(b) That written justifications for each exception and deviation are subject to prior review and approval by the Director, and that each justification can be fully substantiated if post audit is required; and

History

SOURCE: Final Rulemaking published at 35 DCR 1575 (February 26, 1988); as amended by Final Rulemaking published at 65 DCR 7556 (July 20, 2018). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2504

27 DCMR § 2505 [RESERVED]

History

SOURCE: Final Rulemaking published at 35 DCR 1576 (February 26, 1988); as amended by Final Rulemaking published at 65 DCR 7556 (July 20, 2018). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2505

27 DCMR § 2506 USED OR RECONDITIONED MATERIAL, SURPLUS PROPERTY, AND RESIDUAL INVENTORY

2506.1 The contracting officer may procure used or reconditioned material if the solicitation clearly identifies which goods or components do not have to be new and the necessary requirements for acceptability.

2506.2 The contracting officer shall consider the following when determining whether used or reconditioned materials, former government surplus property, or residual inventory are acceptable:

(a) The safety of persons or property;

(b) The total cost to the District, including maintenance, inspection, testing, and useful life;

(d) The availability and cost of new materials and components.

History

SOURCE: Final Rulemaking published at 35 DCR 1577 (February 26, 1988); as amended by Final Rulemaking published at 65 DCR 7556 (July 20, 2018). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2506

27 DCMR § 2599 DEFINITIONS

2599.1 When used in this chapter, the following terms and phrases shall have the meanings ascribed:

Brand name description – a purchase description that identifies a product by its brand name and model, part number, or other appropriate nomenclature by which the product is offered for sale.

Commercial product – a product, such as an item, material, component, subsystem, or system, sold or traded to the general public in the course of normal business operations at prices based on established catalog or market prices.

Director – the agency head of the Office of Contracting and Procurement (OCP) or the Chief Procurement Officer (CPO).

Market research – the process used for collecting and analyzing information about the entire available market that will satisfy the minimum agency need.

Purchase description – a description of the essential physical characteristics and functions required to meet the District’s minimum needs.

Specification – a description of a physical or functional characteristic of or the nature of a good, service, or construction item. The term “specification” includes a description of a requirement for inspecting, testing, or preparing a good, service, or construction item for delivery.

Standard – a document that establishes engineering and technical limitations and applications of items, materials, processes, methods, designs, and engineering practices. It includes any related criteria deemed essential to achieve the highest practical degree of uniformity in materials or products, or interchangeability of parts. Standards may be used in specifications, invitations for bids, requests for proposals, and contracts.

Using agency – any subordinate or independent agency, department, board, commission, employee, or instrumentality of the District government that utilizes any supplies, services, or construction procured pursuant to the Act and subject to the regulations promulgated thereunder.

History

SOURCE: Final Rulemaking published at 35 DCR 1577 (February 26, 1988); as amended by Final Rulemaking published at 65 DCR 7556 (July 20, 2018). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2599

27-26 CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

27 DCMR § 2600 GENERAL PROVISIONS

2600.1 Contracts for construction shall be awarded in accordance with the provisions of this chapter and other applicable provisions of this title.

2600.2 Contracts for architect-engineer services shall be awarded in accordance with title IX of the Federal Property and Administrative Services Act of 1949, approved October 27, 1972 (86 Stat. 1278; 40 U.S.C. 541-544) and the provisions of §§2620 through 2633 of this chapter.

2600.3 In any instance where the provisions of this chapter are inconsistent with any other provision of this title, the applicable provisions of this chapter shall take precedence and control the process for the award of a construction or architect-engineer contract.

History

AUTHORITY: Unless otherwise noted, the authority for this chapter is the District of Columbia Procurement Practices Act of 1985, D.C. Law 6-85, as amended, D.C. Code §1-1181.1 et seq. (1981).
SOURCE: Final Rulemaking published at 35 DCR 1579 (February 26, 1988).

27 DCMR § 2601 SPECIFICATIONS

2601.1 In addition to the requirements of this section, construction specifications shall conform to the requirements of chapter 25 of this title.

2601.2 Where applicable, contracting officers shall ensure that references in specifications conform to widely recognized standards for specifications promulgated by governments, industries, and technical societies.

2601.3 When "brand name or equal" descriptions are necessary, specifications shall clearly identify and describe the particular physical, functional, or other characteristics of the brand name items that are considered essential to satisfying the requirement.

History

SOURCE: Final Rulemaking published at 35 DCR 1579 (February 26, 1988).

27 DCMR § 2602 ESTIMATE OF CONSTRUCTION COSTS

2602.1 An estimate of construction costs shall be prepared for each proposed contract and for each proposed contract modification estimated to exceed ten thousand dollars ($10,000).

2602.2 The estimate shall be prepared by the agency requesting the proposed contract or contract modification, or by a contractor or District employee under the direction of the contracting officer at the request of that agency.

2602.3 The agency estimate, or request for an estimate, shall be forwarded to the contracting officer with the request for preparation of the contract solicitation.

2602.4 Each estimate shall be prepared in detail, as though the District were competing for the contract.

2602.5 If two-step sealed bidding is used, the estimate shall be prepared after step one is completed, in accordance with chapter 15 of this title.

2602.6 Access to information concerning the District estimate shall be limited to District personnel or agents of the District whose official duties require knowledge of the estimate.

2602.7 The overall amount of the District estimate shall not be disclosed, except as otherwise permitted by this title.

History

SOURCE: Final Rulemaking published at 35 DCR 1579 (February 26, 1988).

27 DCMR § 2603 NOTICE OF THE SCOPE OF CONSTRUCTION PROJECTS

2603.1 Any pre-solicitation notices and each solicitation shall state the approximate scope of the construction requirement in terms of physical characteristics and estimated price range.

2603.2 In no event shall the notice of the scope of a project disclose the District's estimate of costs.

2603.3 Unless narrower price ranges are specified by the contracting officer, the estimated price shall be described in terms of one (1) of the following price ranges:

(a) Less than $10,000;

(b) Between $10,000 and $100,000;

(d) Between $250,000 and $500,000;

(e) Between $500,000 and $1,000,000;

(f) Between $1,000,000 and $5,000,000;

(g) Between $5,000,000 and $10,000,000; or

(h) More than $10,000,000, in increments of $5,000,000 or more, as deemed appropriate by the contracting officer.

History

SOURCE: Final Rulemaking published at 35 DCR 1580 (February 26, 1988).

27 DCMR § 2604 LIQUIDATED DAMAGES IN CONSTRUCTION CONTRACTS

2604.1 In accordance with §507(a) of the Act (D.C. Code, §1-1185.7), in all construction contracts estimated to exceed fifty thousand dollars ($50,000), the contracting officer shall include a liquidated damages clause approved by the Director.

2604.2 In addition to the provisions of §2303 of this title, the provisions of this section shall apply to all liquidated damages clauses included in construction contracts.

2604.3 When liquidated damages clauses are required or used, if different completion periods for separate parts or stages of the work are specified in the contract, the contracting officer shall include a provision, approved by the Director, providing for liquidated damages for delay of or failure to perform each separate part or stage of the work compensating the District for damages incurred.

2604.4 The contracting officer shall base the minimum amount of liquidated damages on the estimated cost of inspection and superintendence for each day of delay in completion.

2604.5 Whenever the District would suffer other specific losses due to failure of the contractor to complete the work on time, the contracting officer shall also include in the contract the amount of these specific losses.

2604.6 If liquidated damages are used in a contract, the contracting officer shall include an appropriate, reasonable rate or rates of liquidated damages.

History

SOURCE: Final Rulemaking published at 35 DCR 1581 (February 26, 1988).

27 DCMR § 2605 PRICING CONSTRUCTION CONTRACTS

2605.1 Unless otherwise authorized under this chapter, a contracting officer shall use firm-fixed-price contracts to procure construction.

2605.2 A contract may be priced on a lump-sum basis (when a lump sum is paid for the total work or defined parts of the work), on a unit-price basis (when a unit price is paid for a specified quantity of work units), or a combination of both methods.

2605.3 The contracting officer shall use lump-sum pricing in preference to unit pricing except when any one (1) of the following circumstances exists:

(a) Large quantities of work (such as excavation, grading, paving, building outside utilities, or site preparation) are involved which cannot be estimated with sufficient confidence to permit a lump-sum offer without a substantial contingency;

(b) Estimated quantities of work required may change significantly during construction; or

2605.4 If an economic price adjustment provision is customary in contracts for the type of work being procured, or when omission of an adjustment provision would preclude a significant number of firms from submitting bids or would result in bidders including unwarranted contingencies in proposed prices, fixed-price contracts with economic price adjustments may be used in accordance with the applicable provisions of chapters 15 and 24 of this title.

History

SOURCE: Final Rulemaking published at 35 DCR 1581 (February 26, 1988).

27 DCMR § 2606 CONCURRENT PERFORMANCE OF CONSTRUCTION CONTRACTS

2606.1 Because of potential labor and administrative problems, cost-plus-fixed-fee, price-incentive, or other types of contracts with cost variation or cost adjustment features shall not be permitted concurrently at the same work site with firm-fixed-price, lump-sum, or unit-price contracts without the prior written approval of the Director.

History

SOURCE: Final Rulemaking published at 35 DCR 1582 (February 26, 1988).

27 DCMR § 2607 CONSTRUCTION CONTRACTS WITH ARCHITECT-ENGINEERING FIRMS

2607.1 Except as provided in §2607.2, a contracting officer shall not award a contract for the construction of a project to the firm that designed the project or its subsidiaries or affiliates without the prior written approval of the Director.

2607.2 If a proposed construction contract will use a design build or turnkey method of construction, the contracting officer may award the construction contract to an affiliate of the architect-engineer firm that designed the project without prior approval by the Director.

History

SOURCE: Final Rulemaking published at 35 DCR 1582 (February 26, 1988).

27 DCMR § 2608 INSPECTION AND SITE EXAMINATION OF DATA

2608.1 The contracting officer shall make appropriate arrangements for prospective bidders to inspect the work site and to have the opportunity to examine data available to the District which may provide information concerning the performance of the work, such as boring samples, original boring logs, and records and plans of previous construction. The data should be assembled in a single place and made available for examination.

2608.2 The solicitation shall notify bidders of the time and place for the site inspection and data examination.

2608.3 If it is not feasible for bidders to inspect the site or examine the data on their own, the solicitation shall designate an individual who will show the site or data to the bidders.

2608.4 The contracting officer shall make available to all bidders in the same manner significant site information and the work performance data, including information regarding any utilities to be furnished during construction.

2608.5 The contracting officer shall keep a record of the identity and affiliation of each bidder's representative who inspects the site or examines the data.

History

SOURCE: Final Rulemaking published at 35 DCR 1583 (February 26, 1988).

27 DCMR § 2609 DISTRIBUTION OF PRE-SOLICITATION NOTICES

2609.1 The contracting officer may distribute pre-solicitation notices in a manner designed to reach as many prospective bidders as practicable.

2609.2 The contracting officer may send pre-solicitation notices to organizations that maintain, without charge to the public, display rooms for the benefit of prospective bidders, subcontractors, and material suppliers.

History

SOURCE: Final Rulemaking published at 35 DCR 1583 (February 26, 1988).

27 DCMR § 2610 INVITATIONS FOR BIDS

2610.1 An invitation for bids ("IFB") for construction shall allow a reasonable time for bidders to prepare and submit their bids, but in no event less than thirty (30) days. Each IFB shall be publicized in accordance with the provisions of the Act and chapter 13 of this title.

2610.2 In determining what is a reasonable time, the contracting officer shall consider the construction season and the time necessary for bidders to inspect the site, obtain subcontract bids, examine data concerning the work, and prepare estimates based on plans and specifications.

2610.3 The contracting officer shall ensure that each IFB includes the following information, when applicable:

(a) The appropriate wage determination as issued by the U.S. Department of Labor; or, if the IFB must be issued before the wage determination is received, a notice that the schedule for minimum wage rates to be paid under the contract will be issued as an amendment to the IFB;

(b) The scope of the proposed construction project;

(d) Arrangements for bidders to inspect the site and examine the data concerning performance of the work;

(e) Information concerning any facilities, such as utilities, office space, and warehouse space, to be furnished during the construction period;

(f) Any special qualifications or experience requirements that will be considered;

(g) Any special instructions concerning bids, alternate bids, and award;

(h) Any instructions concerning reporting requirements; and

(i) Any other clauses required by the Act or this title.

2610.4 The contracting officer shall provide notice of the IFB in accordance with chapter 13 of this title.

2610.5 The contracting officer shall send IFBs to prospective bidders who request them.

History

SOURCE: Final Rulemaking published at 35 DCR 1583 (February 26, 1988).

27 DCMR § 2611 NOTICE OF INTENT TO AWARD

2611.1 Each notice of intent to award shall include the following:

(a) The identity of the IFB;

(b) The prospective contractor's bid;

(d) A statement notifying the prospective contractor that all required performance and payment bonds must be properly executed by the prospective contractor and sureties and returned to the contracting officer by the prospective contractor within the time period specified in the IFB, or, if no time period is specified in the IFB, within ten (10) days after the bond forms are presented by the District to the prospective contractor for signature;

(e) A statement notifying the prospective contractor that the required contract form must be properly executed by the prospective contractor and returned to the contracting officer by the prospective contractor within the time period specified in the IFB, or, if no time period is specified in the IFB, within ten (10) days after the District government contract form is presented by the District to the prospective contractor for signature; and

(f) A statement that a notice to proceed will be issued, contingent upon the contracting officer's receipt of executed performance and payment bonds and executed contract form that is in compliance with the requirements of the IFB and this title.

2611.2 The District may, without any liability upon the District, rescind the notice of intent to award at any time prior to approval of a formal written contract signed by the prospective contractor and the contracting officer.

History

SOURCE: Final Rulemaking published at 35 DCR 1584 (February 26, 1988).

27 DCMR § 2612 EVALUATION OF CONTRACTOR PERFORMANCE

2612.1 The contract administrator shall evaluate contractor performance and prepare a performance report for each construction contract of ten thousand dollars ($10,000) or more in the following circumstances:

(a) When any element of performance was either unsatisfactory or outstanding;

(b) When the contract was terminated for default; or

2612.2 The contract administrator shall prepare the evaluation performance report at the time of final acceptance of the work, at the time of contract termination, or at other times determined appropriate by the contracting officer.

2612.3 If the contract administrator concludes that a contractor's overall performance was unsatisfactory, the contracting officer shall advise the contractor in writing that a report of unsatisfactory performance is being prepared and shall state the basis for the report.

2612.4 If, after receiving the contract administrator's report, the contractor submits any written comments, the contract administrator shall include them in the report, consider them in resolving any alleged factual discrepancies, and make any appropriate changes in the report. The contracting officer shall include the performance report in the contract file.

2612.5 Before making a determination of responsibility in accordance with chapter 22 of this title, the contracting officer may consider performance reports from any agency or other entity of the District.

History

SOURCE: Final Rulemaking published at 35 DCR 1585 (February 26, 1988).

27 DCMR § 2613 PRE-CONSTRUCTION CONFERENCE

2613.1 The contracting officer may conduct a pre-construction conference to inform the contractor about the labor standards provisions of the contract and other pre-construction matters deemed appropriate by the contracting officer.

History

SOURCE: Final Rulemaking published at 35 DCR 1586 (February 26, 1988).

27 DCMR § 2614 [RESERVED]

27 DCMR § 2615 [RESERVED]

27 DCMR § 2616 [RESERVED]

27 DCMR § 2617 [RESERVED]

27 DCMR § 2618 [RESERVED]

27 DCMR § 2619 [RESERVED]

27 DCMR § 2620 ARCHITECT-ENGINEER SERVICES

2620.1 The contracting officer shall publicize all requirements for architect-engineer services in accordance with chapter 13 of this title, and negotiate contracts for these services based on the demonstrated competence and qualifications of prospective contractors to perform the services required at fair and reasonable prices.

2620.2 If the District accepts funding assistance for a project from a federal or other source, and a condition of assistance is that a nonprice competitive procedure for selection of architect-engineers which is in compliance with Public Law 6-85, §304(g), but that differs from the procedures specified in this section, a modified architect-engineer selection procedure, approved by the Director, may be used which is in compliance with both the Act and the assistance agreement.

2620.3 The contracting officer shall select a contractor for architect-engineer services in accordance with the provisions of this section rather than the solicitation or source selection procedures specified elsewhere in this title.

2620.4 Compliance with the provisions of §§2620 through 2633 of this chapter shall constitute a competitive procedure for the procurement of architect-engineer services.

2620.5 The contracting officer shall evaluate each potential contractor based on the following criteria:

(a) Professional qualifications necessary for satisfactory performance of the required services;

(b) Specialized experience and technical competence in the type of work required;

(d) Past performance on contracts with the District, other governmental entities, and private industry in terms of cost control, quality of work, and compliance with performance schedules; and

(e) Acceptability under other appropriate evaluation criteria.

2620.6 When the use of design competition is approved by the head of the using agency, the contracting officer may evaluate firms on the basis of their conceptual design of the project.

2620.7 Design competition may be used in the following circumstances:

(a) When unique situations exist involving prestigious projects, such as the design of memorials or structures of unusual national or local significance;

(b) When sufficient time is available for the production and evaluation of conceptual designs; and

History

SOURCE: Final Rulemaking published at 35 DCR 1586 (February 26, 1988),

27 DCMR § 2621 ARCHITECT-ENGINEER EVALUATION BOARD

2621.1 When procuring architect-engineer services, the head of the contracting agency shall appoint one (1) or more permanent or ad hoc architect-engineer evaluation boards composed of members who, collectively, have experience in architecture, engineering, construction, and District and related procurement matters.

2621.2 Members of evaluation boards shall include highly qualified professional employees of the District and may include private practitioners of architecture, engineering, or related professions. The head of the contracting agency shall designate one (1) District employee member of each board as the chairperson.

2621.3 No firm shall be eligible for award of an architect-engineer contract during the period in which any of its principals or associates are participating as members of the awarding evaluation board.

History

SOURCE: Final Rulemaking published at 35 DCR 1588 (February 26, 1988).

27 DCMR § 2622 ARCHITECT-ENGINEER EVALUATION BOARD FUNCTIONS

2622.1 The evaluation board established pursuant to §2621 shall perform the following functions under the general direction of the contracting officer:

(a) Review the current data files on eligible firms and responses to notice of the particular project;

(b) Evaluate the firms in accordance with the prescribed criteria in §2620;

(c) Hold discussions with at least three (3) of the most highly qualified firms about concepts and the relative utility of alternative methods of furnishing the required services (but not concerning architect-engineer fees) when the prospective architect-engineer contract is estimated to exceed ten thousand dollars ($10,000); and

(d) Prepare a selection report for the contracting officer recommending, in order of preference, at least three (3) firms that are evaluated to be the most highly qualified to perform the required services.

2622.2 The selection report shall include a description of the discussions and evaluation conducted by the board to allow the contracting officer to review the considerations upon which the recommendations are based.

History

SOURCE: Final Rulemaking published at 35 DCR 1588 (February 26, 1988),

27 DCMR § 2623 ARCHITECT-ENGINEER SELECTION

2623.1 The contracting officer shall review the recommendations of the evaluation board and shall, with the advice of appropriate technical and staff representatives, make the final selection.

2623.2 The final selection shall be a listing, in order of preference, of the firms considered most highly qualified to perform the work.

2623.3 If the firm listed as the most preferred is not recommended as the most highly qualified by the evaluation board, the contracting officer shall include in the contract file a written explanation of the reason for the selection. All firms on the final selection list shall be considered "selected firms" with which the contracting officer may negotiate.

2623.4 The contracting officer shall not add firms to the selection report. If the firms recommended in the report are not deemed to be qualified or the report is considered inadequate for any reason, the contracting officer shall record the reasons and return the report through channels to the evaluation board for appropriate revision.

2623.5 The contracting officer shall promptly inform the evaluation board of the final selection.

History

SOURCE: Final Rulemaking published at 35 DCR 1589 (February 26, 1988).

27 DCMR § 2624 ARCHITECT-ENGINEER SELECTION PROCESS FOR SMALL PURCHASES

2624.1 When authorized by the contracting officer, the short process set forth in this section may be used as an alternative to the processes set forth in §§2622 and 2623 to select firms for contracts not estimated to exceed ten thousand dollars ($10,000).

2624.2 When the contracting officer decides that formal action by the board is not necessary in connection with a particular selection, the following procedures shall be used:

(a) The chairperson of the board shall perform the functions of the board in accordance with §2622;

(b) The contracting officer shall review the report and approve it or return it to the chairperson for appropriate revision; and

(c) Upon receipt of an approved report, the chairperson of the board shall furnish the contracting officer a copy of the report which will serve as an authorization for the contracting officer to commence negotiations.

History

SOURCE: Final Rulemaking published at 35 DCR 1589 (February 26, 1988).

27 DCMR § 2625 ARCHITECT-ENGINEER QUALIFICATIONS

2625.1 Each agency with construction contract authority shall receive and maintain data on firms that request to be considered for District architect-engineer contracts.

2625.2 To be considered for an architect-engineer contract, a firm shall file an appropriate architect-engineer qualification data form with the agency soliciting the services.

2625.3 The office maintaining the architect-engineer qualification data files shall classify each firm with respect to the following:

(a) Location;

(b) Specialized experience;

(d) Capacity, with respect to the scope of work that the firm can undertake.

2625.4 The office maintaining qualifications data files shall review and update each file at least once each year. The process shall include the following:

(a) Encouraging firms to submit annually an updated statement of qualifications and performance report;

(b) Reviewing and updating each firm's classification;

(d) Ensuring that the file contains a copy of each pertinent performance evaluation report;

(e) If it is no longer pertinent, discarding any material that has not been updated within the precious three (3) years; and

(f) Posting the date of the review in the file.

2625.5 Evaluation boards and other appropriate District employees or agents shall have access to data files.

History

SOURCE: Final Rulemaking published at 35 DCR 1590 (February 26, 1988).

27 DCMR § 2626 COST ESTIMATE FOR ARCHITECT-ENGINEER CONTRACTS

2626.1 An independent District estimate of the cost of architect-engineer services shall be prepared by or under the direction of the contracting officer before commencing negotiations in accordance with §2627 for each proposed contract or contract modification estimated to exceed ten thousand dollars ($10,000).

2626.2 The estimate shall be prepared by the agency requesting the services, or under the direction of the contracting officer at the request of that agency.

2626.3 The agency estimate, or request for an estimate, shall be forwarded to the contracting officer with the request for the services.

2626.4 Access to information concerning the District estimate shall be limited to District personnel and agents whose official duties require knowledge of the estimate. The overall amount of the District's estimate shall not be disclosed except as permitted by this title.

2626.5 The contracting officer may make an exception to §2626.4 during contract negotiations to allow the contracting officer to identify a specialized task and disclose the associated cost breakdown figures in the District estimate, but only to the extent deemed necessary to arrive at a fair and reasonable price. The overall amount of the District's estimate shall not be disclosed.

History

SOURCE: Final Rulemaking published at 35 DCR 1591 (February 26, 1988).

27 DCMR § 2627 NEGOTIATIONS OF ARCHITECT-ENGINEER CONTRACTS

2627.1 Based upon the report submitted by the evaluation board, the contracting officer shall begin negotiations in accordance with this chapter.

2627.2 The contracting officer (or designee) shall first attempt to negotiate a contract with the highest rated qualified firm for the required services at a price which the contracting officer determines in writing to be fair and reasonable to the District.

2627.3 The contracting officer shall inform the firm that no construction contract may be awarded to the firm that designed the project, excepted as provided in §2607.2.

2627.4 The contracting officer shall ensure that the firm has a clear understanding of the scope of work, specifically, the essential requirements involved in providing the required services, and shall determine whether the firm will make available the necessary personnel and facilities to perform the services within the required time.

2627.5 During negotiations, the contracting officer shall seek advance agreement in accordance with chapter 33 of this title on any charges for computer-assisted design.

2627.6 The contracting officer shall limit the firm's subcontracting to firms agreed upon during negotiations or through a formal contract modification.

2627.7 If a mutually satisfactory contract cannot be negotiated, the contracting officer shall notify the firm that negotiations are terminated. The contracting officer shall then initiate negotiations with the next rated qualified firm on the list. This procedure shall be continued until a mutually satisfactory contract has been negotiated.

2627.8 If the contracting officer is unable to negotiate a satisfactory contract with any of the selected firms, he or she shall request a listing of additional firms from the evaluation board and continue negotiations in accordance with this section until an agreement is reached.

History

SOURCE: Final Rulemaking published at 35 DCR 1591 (February 26, 1988).

27 DCMR § 2628 RELEASE OF INFORMATION

2628.1 After final selection has taken place under §2623, the contracting officer may release information identifying the highest rated architect-engineer firm with which a contract will be negotiated.

2628.2 If negotiations are terminated without awarding a contract to the highest rated firm, the contracting officer may release that information and state that negotiations will be undertaken with another named architect-engineer firm.

2628.3 When an award has been made, the contracting officer shall publicize the award in accordance with the provisions of chapter 13 of this title.

History

SOURCE: Final Rulemaking published at 35 DCR 1592 (February 26, 1988).

27 DCMR § 2629 [RESERVED]

27 DCMR § 2630 LIABILITY FOR DESIGN ERRORS OR DEFICIENCIES

2630.1 The firm shall be responsible for the professional quality, technical accuracy, and coordination of all services required under its contract. The firm shall be liable for costs to the District resulting from errors or deficiencies in designs furnished under its contract.

2630.2 When modification of a construction contract is required because of an error or deficiency in the services provided under an architect-engineer contract, the contracting officer shall consider the extent to which the architect-engineer contractor may be liable.

2630.3 If the contracting officer determines that the firm is liable, and the recoverable cost will exceed the administrative cost involved or collection is otherwise in the best interests of the District, the contracting officer shall initiate procedures to collect the amount due.

2630.4 The contracting officer shall include in the contract file a written statement of the reasons for the decision whether to recover costs from the firm.

History

SOURCE: Final Rulemaking published at 35 DCR 1592 (February 26, 1988).

27 DCMR § 2631 DESIGN WITHIN FUNDING LIMITATIONS

2631.1 The District may require the architect-engineer contractor to design the project so that construction costs will not exceed a contractually specified dollar limit. The amount of the construction funding limitation shall be established during negotiations between the firm and the contracting officer.

2631.2 In negotiating the funding limitation amount, the contracting officer shall make available to the firm the information upon which the District has based its initial construction estimate and subsequently acquired information that may affect the construction costs.

2631.3 If the price of construction proposed in response to a District solicitation exceeds the construction specified dollar funding limit in the architect-engineer contract, the firm shall be solely responsible for redesigning the project within the funding limitation.

2631.4 Any redesign services required by §2631.3 shall be performed at no increase in the price of the architect-engineer contract. However, if the cost of proposed construction is affected by events beyond the firm's reasonable control (such as an increase in material cost which could not have been anticipated or an undue delay by the District in issuing a construction solicitation), the District may be obligated for any additional costs.

2631.5 If an architect-engineer firm's design fails to meet the contractual limitation on construction cost and the District determines that the firm should not redesign the project, the contracting officer shall place a written statement of the reasons for that determination in the contract file.

History

SOURCE: Final Rulemaking published at 35 DCR 1593 (February 26, 1988).

27 DCMR § 2632 REDESIGN RESPONSIBILITY FOR DESIGN ERRORS OR DEFICIENCIES

2632.1 The architect-engineer firm shall make necessary corrections at no cost to the District if the designs, drawings, specifications, or other items or services furnished by the firm contain any errors, deficiencies, or inadequacies.

2632.2 If the contracting officer does not require a firm to correct errors, the contracting officer shall include a written statement of the reasons for that decision in the contract file.

History

SOURCE: Final Rulemaking published at 35 DCR 1594 (February 26, 1988).

27 DCMR § 2633 ARCHITECT-ENGINEER PERFORMANCE EVALUATION

2633.1 The contract administrator shall prepare a performance evaluation report for contracts of more than ten thousand dollars ($10,000) and may prepare a report for contracts of ten thousand dollars ($10,000) or less.

2633.2 The contract administrator shall prepare a performance report after final acceptance of the work or after contract termination, as appropriate.

2633.3 If the contract administrator concludes that a firm's overall performance is unsatisfactory, the contracting officer shall advise the firm in writing that a report of unsatisfactory performance is being prepared and shall state the basis for the report.

2633.4 If, after receiving the contract administrator's report, the firm responds with any written comments, the contract administrator shall include them in the report, and consider them in resolving any alleged factual discrepancies, and make any appropriate changes in the report.

2633.5 The contracting officer shall review each performance report for accuracy and reasonableness.

2633.6 The contracting officer shall include the performance evaluation report in the contract file, and shall send a copy to the office responsible for maintenance of the firm's qualifications data. The office shall retain the report for at least six (6) years after the date of the report.

History

SOURCE: Final Rulemaking published at 35 DCR 1594 (February 26, 1988).

27 DCMR § 2699 DEFINITIONS

2699.1 When used in this chapter, the following words and terms shall have the meanings ascribed:

Affiliate - an individual or firm that controls, is controlled by, or is under common control with another individual or firm.

Award information - information regarding the name of the contractor and the amount of the contract award.

Contract administrator - the individual or individuals, other than the contracting officer, responsible for overseeing the progress of a contract after it is awarded. The contract administrator does not give instructions to the contractor that will alter terms, conditions, or costs of the contract.

Design competition - that part of the architect-engineer solicitation which relates to the requirement for a conceptual design only.

Firm - any individual, partnership, corporation, association, or other legal entity permitted by law to practice the professions of architecture or engineering.

Notice of intent to award - a written notice to the apparent awardee advising of intent to award the contract contingent upon the execution of required bonds and the formal contract, and the obtaining of all necessary approvals.

Plans and specifications - drawings, text, and other descriptions of the physical or functional characteristics required for and preliminary to the construction.

History

SOURCE: Final Rulemaking published at 35 DCR 1594 (February 26, 1988).

27-27 BONDS, OTHER SECURITY, AND INSURANCE

27 DCMR § 2700 GENERAL PROVISIONS

2700.1 In addition to the requirements for bonds and other security under the provisions of Title V of the D.C. Procurement Practices Act of 1985 (the "Act"), D.C. Law 6-85, D.C. Code § 1-1185 (1981), the Director or any contracting officer may require any of the following types of security for any solicitation or contract subject to the provisions of the Act and this title, other that a small purchase under chapter 18, regardless of the estimated amount of the contract:

(a) Bid bonds;

(b) Other bid or proposal security;

(d) Performance or payment bonds or other security on non-construction contracts.

2700.2 The contracting officer shall determine whether security of any type would be in the best interests of the District in all contracts other than small purchases. In non-construction contracts, the contracting officer shall consider the following factors:

(a) Whether District property or funds are to be provided to the contractor for use in performing the contract or as partial compensation (such as in retention of salvaged material);

(b) When a contractor sells assets to or merges with another business entity, whether the District (after recognizing the other entity as the successor in interest) needs assurance that it is financially capable;

(d) Whether the contract is for dismantling, demolition, or removal of improvements; or

(e) Any other factors which might favor the use of security to protect the best interests of the District.

2700.3 A payment security shall be required only when a performance security is required and the use of the payment security is in the best interests of the District, unless the contracting officer determines in writing that either type of security would, by itself, protect the best interests of the District.

2700.4 When a security is required by the contracting officer under the Act or this chapter, the contracting officer may accept any of the following types of security:

(a) A bond provided by a surety in accordance with §2708;

(b) A certified check or irrevocable letter of credit issued by an insured financial institution in the equivalent amount of the security: or

(c) United States government securities that are assigned to the District which pledge the full faith and credit of the United States.

2700.5 The contracting officer shall determine a contractor's responsibility even though security has been or can be obtained.

2700.6 A solicitation shall not bar bidders or offerors from using any of the types of surety or security permitted by this chapter, unless otherwise prohibited by law or regulation.

2700.7 When required by federal law or regulation or as a condition of federal assistance, the contracting officer shall require security, and the solicitation shall state the requirement.

History

AUTHORITY: Unless otherwise noted, the authority for this chapter is the District of Columbia Procurement Practices Act of 1985, D.C. Law 6-85, as amended, D.C. Code §1-1181.1 et seq. (1981).
SOURCE: Final Rulemaking published at 35 DCR 1596 (February 26, 1988).

27 DCMR § 2701 BID BONDS AND OTHER SECURITY

2701.1 The contracting officer may require bid security in connection with any solicitation, regardless whether any payment or performance security will be required under the contract.

2701.2 When the District independent price estimate for a construction contract exceeds one hundred thousand dollars ($100,000), the contracting officer shall require a bid security for the invitation for bids or request for proposals.

2701.3 When the District's independent price estimate for a construction project is less than one hundred thousand dollars ($100,000), the contracting officer may require a bid security.

2701.4 The bid security for a construction contract shall be in an amount equal to at least five percent (5%) of the amount of the bid or price proposal. The bid security for non-construction contracts shall be in an amount set by the contracting officer.

2701.5 When a bid security is requiring the solicitation shall contain the following:

(a) A statement that bid security is required;

(b) Notice that the bid security will remain in effect for as long as the bid or proposal is required to remain effective; and

2701.6 No action shall be taken against the bid security of a bidder or offeror that is permitted to withdraw a bid or proposal prior to award due to a mistake in the bid or proposal, in accordance with the applicable provisions of chapters 15 or 16.

History

SOURCE: Final Rulemaking published at 35 DCR 1597 (February 26, 1988).

27 DCMR § 2702 NONCOMPLIANCE WITH BID SECURITY REQUIREMENTS

2702.1 If a bid fails to comply with the bid security requirements set forth in the solicitation, the contracting officer shall reject the bid. However, the contracting officer may accept the bid if the contracting officer determines in writing that both of the following apply:

(a) The bid or proposal meets the criteria set forth in this section; and

(b) Acceptance of the bid or proposal would be in the best interests of the District.

2702.2 If only one bid is received, the bid may be accepted and the contracting officer shall require the furnishing of the bid security before the contract is signed.

2702.3 If the amount of the bid security is less than required, but is equal to or greater than the difference between the bid price and the next higher acceptable bid, the bid may be accepted.

2702.4 If the amount of the bid security submitted, although less than that required by the solicitation for the maximum quantity bid upon, is sufficient for a quantity for which the bidder is otherwise eligible for award, the bid may be accepted. Any award to the bidder or offeror shall not exceed the quantity covered by the bid security.

2702.5 If the bid security becomes inadequate as a result of the correction of a mistake, the bid may be accepted if the bidder agrees to increase the bid security to the level required for the corrected bid.

2702.6 If the bid security is received late, and late receipt is waived in accordance with §1523 of this title, the bid may be accepted.

History

SOURCE: Final Rulemaking published at 35 DCR 1598 (February 26, 1988).

27 DCMR § 2703 PERFORMANCE AND PAYMENT SECURITY

2703.1 The contracting officer shall require a contractor to furnish performance and payment bonds or other security on any construction contract when the District’s independent estimate of the cost of the contract exceeds one hundred thousand dollars ($100,000), in accordance with the provisions of this section.

2703.2 The contracting officer may require a contractor to furnish a payment or performance bond or other security for any construction or non-construction contract, regardless of amount, when the contracting officer determines that the security is necessary or advisable to protect the interests of the District. The security shall be furnished in accordance with the provisions of this section.

2703.3 The amount of the performance security on any construction contract shall be one hundred percent (100%) of the portion of the original contract price that does not include the costs of operation, maintenance, and finance; provided, the contracting officer may reduce the amount of the performance security to fifty percent (50%) of the original contract price that does not include the costs of operation, maintenance, and finance, if the contracting officer determines that the lesser amount or percentage would be adequate for the protection of the District. The contracting officer shall state the amount or percentage in the solicitation.

2703.4 The contracting officer shall require additional performance security on any construction contract when a contract price is increased. The increase in performance security shall equal one hundred percent (100%) of the increase in the contract price, unless the contracting officer determines that a lesser amount or percentage is adequate for the protection of the District.

2703.5 The contracting officer may require additional performance security by directing a contractor to increase the original sum of the existing security or to obtain an additional security.

2703.6 The payment security on any construction contract shall be in an amount equal to one hundred percent (100%) of the portion of the original contract price that does not include the costs of operation, maintenance, and finance; provided, the contracting officer may reduce the amount of the payment security to fifty percent (50%) of the portion of the contract price that does not include the costs of operation, maintenance, and finance, if the contracting officer determines that the lesser amount or percentage would be adequate for the protection of the District. The contracting officer shall state the amount or percentage in the solicitation.

2703.7 When a construction contract price is increased, the District may require additional payment security in an amount adequate to protect suppliers of labor and material. However, in no event shall the amount of payment security fall below fifty percent (50%) of the portion of the increased contract price that does not include the costs of operation, maintenance, and finance.

2703.8 When performance or payment security is required, the solicitation shall contain the following:

(a) A statement that security is required;

(b) The amount of the security expressed as a fixed sum or percentage of the contract price that does not include the costs of operation, maintenance, and finance; and

2703.9 In construction contracts, the contractor shall furnish all performance and payment bonds (or other securities) by the deadline for submitting bonds (or other securities) as stated in the solicitation. The bonds (or other securities) must be submitted before a notice to proceed is issued.

2703.10 No performance security or payment security shall be required after the contract has been executed if it was not specifically required in the contract, except when determined necessary by the contracting officer for a contract modification.

2703.11 If the contracting officer uses a letter contract to allow the contractor to proceed with work before execution of the definitive contract, no payments shall be made under the letter contract until the required payment and performance securities have been received.

2703.12 In construction contracts, the contracting officer may substitute for a bond required under this chapter, a letter of credit in an amount equal to at least ten percent (10%) of the portion of the contract price that does not include the cost of operation, maintenance, and finance, in cases in which the contractor:

(a) Is a nonprofit corporation, as defined in D.C. Official Code § 29-401.02(6), or an entity controlled, directly or indirectly, by a nonprofit corporation;

(b) Had a net worth of at least one million dollars ($1,000,000) in the preceding fiscal year;

(d) Has done business as a construction contractor for at least five (5) years.

History

SOURCE: Final Rulemaking published at 35 DCR 1599 (February 26, 1988); as amended by Final Rulemaking published at 65 DCR 5814 (May 25, 2018). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2703

27 DCMR § 2704 REDUCTION OF SHELTERED MARKET SECURITY REQUIREMENTS

2704.1 The Director may approve the reduction of the amount of any type of security required in a solicitation designated for the sheltered market, as follows:

(a) Up to twenty percent (20%) of the amount of each type of security required in amounts of five hundred thousand ($500,000) or less;

(b) Up to ten percent (10%) of the amount of each type of security required in amounts over five hundred thousand ($500,000) but less than two million dollars ($2,000,000); and

(c) Up to five percent (5%) of the amount of each type of security required in amounts of two million dollars ($2,000,000) or more.

2704.2 The types of security to be reduced and the amount of reduction of security shall be approved by the Director, based on a determination by the contracting officer that the risks to the District from the security reduction are minimal, and that the reduction of security is needed to provide for maximum competition in the sheltered market.

2704.3 The contracting officer shall give notice to prospective contractors of the security reduction in the solicitation or an amendment to the solicitation.

History

SOURCE: Final Rulemaking published at 35 DCR 1601 (February 26, 1988).

27 DCMR § 2705 [RESERVED]

27 DCMR § 2706 [RESERVED]

27 DCMR § 2707 SURETY BONDS AND OTHER SECURITY

2707.1 A new surety bond covering all or part of the obligation on a security previously approved may be substituted for the original security, if approved by the contracting officer.

2707.2 When a new surety bond is approved, the contracting officer shall notify the principal and surety on the original bond of the effective date of the new bond.

2707.3 In addition to the requirements of §505(b) of the Act, D.C. Code §1-1185.2(b) (1981), when a payment security has been provided, the contracting officer shall, upon request, furnish the name and address of the surety or sureties to any subcontractor or supplier who has furnished or been requested to furnish labor or material for a contract. In addition, general information concerning the work progress, payments, and the estimated percentage of completion may be furnished to persons who have provided labor or material and have not been paid.

2707.4 During contract performance of contracts requiring payment and performance security, agencies shall not withhold payments that are due to contractors or assignees because subcontractors or suppliers have not been paid.

2707.5 If, after completion of the work of a contract requiring payment and performance security, the District receives written notice from the surety regarding the contractor's failure to meet its obligation to its subcontractors or suppliers, the contracting officer shall withhold final payment. However, the surety shall agree to hold the District harmless from any liability resulting from withholding the final payment. The contracting officer shall authorize final payment upon agreement between the contractor and surety or upon a judicial or other binding determination of the rights of the parties.

2707.6 If the amount of security exceeds the surety's underwriting limit, as established by the U.S. Department of the Treasury or a list established by the District, the security shall be acceptable only if:

(a) The amount that exceeds the specified limit is coinsured or reinsured; and

(b) The amount of coinsurance or reinsurance does not exceed the underwriting limit of each coinsurer or reinsurer.

History

SOURCE: Final Rulemaking published at 35 DCR 1601 (February 26, 1988).

27 DCMR § 2708 SURETIES

2708.1 Agencies shall obtain adequate security for bonds (including coinsurance and reinsurance agreements), required or used with a contractor for goods or services, including construction.

2708.2 A bond security may be obtained from a corporate or individual surety, provided that an individual surety shall not be used for any construction contract in excess of one hundred thousand dollars ($100,000).

2708.3 Each corporate surety shall be a company authorized to do business in the District of Columbia.

2708.4 The contracting officer shall determine the acceptability of all individuals proposed as sureties.

2708.5 At least two (2) individual sureties shall be required to execute a security. The net worth of each individual surety shall equal or exceed the amount of the security.

2708.6 When determining the acceptability of an individual surety, the contracting officer shall consider the number and amounts of other bonds upon which a proposed individual surety is bound, and the status of the contracts for which those securities were furnished.

2708.7 Each individual surety shall execute an affidavit of financial responsibility on a form prescribed by the Director.

2708.8 In accordance with §2 of the Act of June 11, 1878, D.C. Code §1-301 (1981), no person, corporation, partnership, or other entity shall act as a surety under this chapter at any time during the period when that person, corporation, partnership, or other entity is a party to a contract with the District of Columbia.

History

SOURCE: Final Rulemaking published at 35 DCR 1602 (February 26, 1988).

27 DCMR § 2709 CONSENT OF SURETY

2709.1 If a contract is modified, the contracting officer shall obtain the consent of surety in the following circumstances:

(a) When an additional bond is obtained from another surety;

(b) When no additional bond is required and the modification is beyond the scope of the original contract; or

(c) When no additional bond is required and the modification does not change the scope of the contract but increases or decreases the contract price by more than twenty-five percent (25%) or fifty thousand dollars ($50,000).

2709.2 The contracting officer shall obtain the consent of surety for a novation agreement.

2709.3 The contracting officer shall obtain the consent of surety when a contract is to be awarded after the deadline set for contract award unless the written commitment of the surety extends to or beyond the date the contract is signed.

History

SOURCE: Final Rulemaking published at 35 DCR 1603 (February 26, 1988).

27 DCMR § 2710 INSURANCE

2710.1 The District shall require each contractor to obtain insurance, by purchase, for the risks to which the contractor is exposed, except when the contract specifically relieves the contractor of liability for loss of or damage to District property.

2710.2 The contracting officer shall have the right to disapprove the purchase of any insurance coverage not in the best interests of the District.

2710.3 Insurance shall be mandatory when commingling of property, the type of operation, circumstances of ownership, or conditions of the contract make it necessary for the protection of the District.

2710.4 When the District requires a contractor to provide insurance coverage, the policies shall contain an endorsement that any cancellation or material change in the coverage or terms and conditions of the coverage shall not be effective unless the insurer or the contractor gives prior written notice of the cancellation or change to the District in the manner required by the contract or the contracting officer.

2710.5 When the District requires or approves insurance to cover loss of or damage to District property, it may be provided by specific insurance policies or by inclusion of the risks in the contractor's existing policies. The policies shall disclose the District's interests in the property.

2710.6 The Director may establish risk-pooling arrangements. These arrangements shall be designed to use the services of the insurance industry for safety engineering and the handling of claims at minimum cost to the District. The agency responsible shall appoint a single point of contact for each arrangement.

2710.7 The contracting officer may specify insurance requirements under fixed-price contracts, as follows:

(a) When the contractor is engaged principally in District work;

(b) When the contractor has a separate operation engaged principally in District work;

(d) In other circumstances when insurance coverage is in the best interests of the District.

2710.8 Employee group insurance plans shall not be reimbursable under cost-reimbursement type contracts unless the plans have first been approved by the contracting officer and are otherwise deemed reimbursable under the terms of the contract. Whenever an approved plan is materially changed during the course of the contract, the plan shall be resubmitted for approval, and no costs shall be reimbursable unless approval of the revised plan has first been obtained.

2710.9 Group insurance plans under §2710.8 shall provide for the District to share in any premium refunds or credits paid or otherwise allowed to the contractor. In determining the extent of the District's share in any premium refunds or credits, any special reserves and other refunds to which the contractor may be entitled in the future shall be taken into account.

History

SOURCE: Final Rulemaking published at 35 DCR 1603 (February 26, 1988).

27 DCMR § 2711 REINSURANCE

2711.1 If reinsurance is contemplated, the contracting officer may require reinsurance agreements to be executed and submitted with the securities before making a final determination on the securities.

2711.2 When specified in the solicitation, the contracting officer may accept a security from the direct writing company in satisfaction of the total bond requirement of the contract. This shall be permissible until necessary reinsurance agreements are executed, even though the total security requirement may exceed the insurer's underwriting limitation.

2711.3 The contractor shall execute and submit necessary reinsurance agreements to the contracting officer within the time specified in the solicitation, which shall not exceed forty-five (45) calendar days after the execution of the security.

History

SOURCE: Final Rulemaking published at 35 DCR 1605 (February 26, 1988).

27 DCMR § 2712 LIABILITY

2712.1 The contracting officer shall require contractors to comply with applicable federal and District workers' compensation and occupational disease statutes. If occupational diseases are not compensable under those statutes, they shall be covered under the employer's liability section of the insurance policy, except when contract operations are so commingled with a contractor's commercial operations that it would not be practical to require the coverage.

2712.2 Each contractor shall be required to carry employer's liability coverage of at least one hundred thousand dollars ($100,000).

2712.3 The contracting officer shall require each contractor to have bodily injury liability insurance coverage written on the comprehensive form of policy of at least five hundred thousand dollars ($500,000) per occurrence.

2712.4 Property damage liability insurance shall be required only in special circumstances, as determined by the contracting officer.

2712.5 The contracting officer shall require automobile liability insurance written on the comprehensive form of policy. The policy shall provide for bodily injury and property damage liability covering the operation of all automobiles used in connection with performing the contract.

2712.6 Policies covering automobiles shall provide coverage of at least two hundred thousand dollars ($200,000) per person and five hundred thousand dollars ($500,000) per occurrence for bodily injury and twenty thousand dollars ($20,000) per occurrence for property damage.

2712.7 When an aircraft is used in connection with performing a contract, the contracting officer shall require aircraft public and passenger liability insurance. Coverage shall be at least two hundred thousand dollars ($200,000) per person and five hundred thousand dollars ($500,000) per occurrence for bodily injury, other than passenger liability, and two hundred thousand dollars ($200,000) per occurrence for property damage. Coverage for passenger liability bodily injury shall be at least two hundred thousand dollars ($200,000) multiplied by the number of seats or passengers, whichever is greater.

History

SOURCE: Final Rulemaking published at 35 DCR 1605 (February 26, 1988).

27 DCMR § 2799 DEFINITIONS

2799.1 When used in this chapter, the following terms and phrases shall have the meanings ascribed:

Attorney-in-fact - an agent, independent agent, underwriter, or any other company or individual holding a power of attorney granted by a surety.

Bid bond - a bid security in the form of a bond.

Bid security - a form of guarantee assuring that the bidder or offeror will not withdraw a bid or proposal within the period specified for acceptance and will execute a written contract and furnish required bonds or other security, including any necessary coinsurance or reinsurance agreements, within the time specified in the solicitation, unless a longer time is allowed, after receipt of the specified forms.

Bond - a written instrument executed by a bidder or contractor (the "principal"), and a second party (the "surety" or "sureties"), to assure fulfillment of the principal's obligations to a third party (the "obligee" or "District"), identified in the bond. If the principal's obligations are not met, the bond assures payment, to the extent stipulated, for any loss sustained by the obligee.

Corporate surety - a corporation licensed under District insurance laws which, under its charter, has legal power to act as surety for others.

Co-surety - one (1) of two (2) or more sureties that are jointly liable for the penal sum of the bond. A limit of liability for each surety may be stated.

Consent of surety - an acknowledgment by a surety that its bond given in connection with a contract continues to apply to the contract as modified.

Direct writing company - the surety actually executing the bond or other security (as opposed to a source of reinsurance or secondary underwriter).

Executed - agreed to and signed by the parties to a transaction.

Individual surety - a natural person, as distinguished from a business entity, who is liable for the entire penal amount of the bond.

Insurance - a contract which provides that, for a stipulated consideration, the insurer undertakes to indemnify the insured party against risk of loss, damage, or liability arising from an unknown or contingent event.

Payment bond - a bond that ensures payment as required by law to all persons supplying labor or material in the performance of the work provided for in the contract.

Performance bond - a bond that secures performance and fulfillment of the contractor's obligations under the contract.

Penal sum or penal amount - the amount of money specified in a security (or a percentage of the bid price in a bid security) as the maximum payment for which the surety is obligated.

Power of attorney - the authority given to a person or corporation to act for and obligate another as specified in the instrument creating the power. In corporate suretyship, an instrument under seal which appoints an attorney-in-fact to act on behalf of a surety company in signing bonds.

Reinsurance - a transaction which provides that a surety, for a consideration, agrees to indemnify another surety against loss which the latter may sustain under a bond which it has issued.

Risk-pooling arrangements - arrangement by which the risks of underwriting any security are shared by two or more securities.

Surety - a party legally liable for the debt, default, or failure of a principal to satisfy a contractual obligation.

Underwriting limitation - the maximum amount for which a surety can be liable under a bond or other security.

History

SOURCE: Final Rulemaking published at 35 DCR 1606 (February 26, 1988).

27-28 SUBCONTRACTING

27 DCMR § 2800 CONSENT TO SUBCONTRACT

2800.1 The contracting officer may require consent to subcontract in any instance where the contracting officer determines that it would be in the best interest of the District.

2800.2 The contracting officer shall require consent to subcontract in those instances where approval of subcontractors is required by the Procurement Practices Reform Act of 2010, effective April 8, 2011 (D.C. Law 18-371; D.C. Official Code §§ 2-351.01, et seq.) (2011 Repl.)) (Act) or this title.

History

AUTHORITY: Unless otherwise noted, the authority for this chapter is the District of Columbia Procurement Practices Act of 1985, D.C. Law 6-85, as amended, D.C. Code §1-1181.1 et seq. (1981).
SOURCE: Final Rulemaking published at 35 DCR 1609 (February 26, 1988); as amended by Final Rulemaking published at 59 DCR 7493 (June 22, 2012).

27 DCMR § 2801 CONTRACTING OFFICER'S RESPONSIBILITIES

2801.1 The contracting officer shall ensure that any requirements for consent to subcontract are included in the solicitation for the prime contract.

2801.2 The contracting officer's consent to subcontract shall not constitute a determination of the acceptability of the subcontract terms, price, or allowability of costs, unless the consent to subcontract specifies otherwise.

2801.3 The contracting officer shall not consent to subcontract in any of the following instances:

(a) When the fee in a cost-reimbursement subcontract exceeds any applicable fee limitations;

(b) When a payment under the subcontract is on a cost-plus-a-percentage-of- cost basis;

(d) When the results of arbitration, judicial determination, or voluntary settlement between the prime contractor and subcontractor are made binding on the District; or

(e) When there is a repetitive or unduly protracted use of cost-reimbursement, time-and-materials, or labor-hour subcontracts.

2801.4 The contracting officer shall not refuse consent to subcontract merely because the subcontract contains a clause giving the subcontractor the right of indirect appeal to the Contract Appeals Board if the subcontractor is affected by a dispute between the District and the prime contractor.

History

SOURCE: Final Rulemaking published at 35 DCR 1610 (February 26, 1988); as amended by Final Rulemaking published at 59 DCR 7493 (June 22, 2012).

27 DCMR § 2802 REVIEW OF REQUESTS FOR CONSENT

2802.1 When a solicitation contains a requirement for consent to subcontract, the contractor shall be required to submit a request for consent to subcontract.

2802.2 The contracting officer shall review the request for consent to subcontract and supporting data, and shall consider the following issues:

(a) Whether the selection of the particular goods, equipment, or services is technically justified;

(b) Whether the contractor has complied with the prime contract requirements regarding subcontracting with certified minority businesses or District-based businesses;

(d) Whether the contractor adequately assessed and disposed of subcontractor alternate proposals, if offered;

(e) Whether the contractor has a sound basis for selecting and determining the responsibility of the particular subcontractor;

(f) Whether the contractor performed adequate cost or price analysis or price comparisons and obtained accurate, complete, and current cost or pricing data, including any required certification;

(g) Whether the proposed subcontract type is appropriate for the risks involved and is consistent with current policy;

(h) Whether adequate consideration has been obtained for any proposed subcontract that will involve the use of District-furnished facilities;

(i) Whether the contractor has adequately and reasonably translated the prime contract technical requirements into subcontract requirements; and

(j) Whether the subcontractor has been suspended, debarred, or is otherwise ineligible for award.

History

SOURCE: Final Rulemaking published at 35 DCR 1611 (February 26, 1988).

27 DCMR § 2899 DEFINITIONS

2899.1 As used in this chapter, the following terms and phrases shall have the meanings ascribed:

Consent to subcontract - the contracting officer's written consent for the prime contractor to enter into a particular subcontract.

Facilities contract - a contract under which District facilities are provided to a contractor or subcontractor by the District for use in connection with performing one (1) or more related contracts for goods or services.

Subcontract - a contract between a prime contractor (or, in some instances, a subcontractor) and a subcontractor to furnish goods or services for performance of a part of a prime contract or another subcontract, including, but not limited to, purchase orders, and changes and modifications to purchase orders.

Subcontractor - a supplier, distributor, vendor, or firm that furnishes goods or services to or for a prime contractor or another subcontractor.

History

SOURCE: Final Rulemaking published at 35 DCR 1612 (February 26, 1988).

27-29 SPECIAL PILOT PROJECT PROCUREMENTS

27 DCMR § 2900 PRELIMINARY PREPARATIONS

2900.1 Special pilot projects (SPPs) may be proposed for goods, services, or construction.

2900.2 SPPs may be initiated by an unsolicited proposal or by an agency on its own initiative.

2900.3 An agency may engage in preliminary discussions with a prospective contractor to explore the feasibility of an SPP. Such discussions are not negotiations for award.

2900.4 A summary of any prior discussions shall be disclosed to the contracting officer prior to final negotiations.

2900.5 All negotiations for contract award shall be conducted by the contracting officer.

2900.6 An SPP shall be made with as much competition as practicable.

2900.7 Prior to award of a contract for an SPP, the Director shall prepare a determination and findings that shall include:

(a) The reasons warranting an SPP procurement and the selection of the proposed contractor;

(b) A statement that the product, approach, or technology cannot be reasonably acquired through a competitive solicitation, if applicable, and the potential advantages to the District for using this method of source selection;

(c) A statement that testing or experimentation is advisable to evaluate a new and unique District requirement or new technology;

(d) A statement that the term of the contract is reasonable to test and evaluate the product, approach, or technology for the SPP;

(e) A statement that the District intends to competitively acquire the product, approach, or technology if, after testing and evaluation, a decision is reached to continue its use within the District; and

(f) A statement that the proposed price is fair and reasonable.

History

SOURCE: Final Rulemaking published at 63 DCR 9374 (July 8, 2016). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2900

27 DCMR § 2901 CONTRACT AWARD

2901.1 The contracting officer shall post the determination and findings with the notice of award on the Internet within seven (7) days of award.

2901.2 The term of a contract for an SPP shall not exceed one (1) year, unless otherwise approved by the Director.

2901.3 At the conclusion of the contract term, the using agency shall assess whether to acquire the product, approach, or technology under the provisions of another chapter in this title, or to discontinue the use of the product, approach, or technology.

History

SOURCE: Final Rulemaking published at 63 DCR 9374 (July 8, 2016). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2901

27 DCMR § 2999 DEFINITIONS

2999.1 When used in this chapter, the following terms have the meanings ascribed:

Director – the Director of the Office of Contracting and Procurement or the District of Columbia Chief Procurement Officer.

Special pilot project – a short-term, carefully planned, pilot exercise designed to test and evaluate the feasibility of a new and unique District requirement or to obtain a new technology.

History

SOURCE: Final Rulemaking published at 63 DCR 9374 (July 8, 2016). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 2999

27-30 INHERENTLY GOVERNMENTAL FUNCTIONS

27 DCMR § 3000 GENERAL PROVISIONS

3000.1 The contracting officer shall not award a contract or otherwise obligate the District for any service that is an inherently governmental function.

3000.2 The contracting officer may award a contract for the performance of a function closely associated with an inherently governmental only if the head of a using agency benefited by the performance of the contract:

(a) Finds that appropriate District government employees cannot reasonably perform the function at issue;

(b) Ensures that appropriate District government employees supervise contractor performance of the contract and perform all inherently governmental functions associated with the contract; and

(c) Addresses any organizational conflict of interest of the contractor in the performance of the functions closely associated with an inherently governmental function under the contract.

History

SOURCE: Final Rulemaking published at 66 DCR 13656 (October 18, 2019). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 3000

27 DCMR § 3001 INHERENTLY GOVERNMENTAL FUNCTIONS

3001.1 An inherently governmental function involves, among other things, the interpretation and execution of the laws of the District to:

(a) Bind the District to take or not to take some action by contract, policy, regulation, authorization, order, or otherwise;

(b) Appoint, direct, or control officials or employees of the District;

(d) Approve the final selection or non-selection of individuals for District government employment;

(e) Approve position descriptions or performance standards of District government employees;

(f) Exert ultimate control over the acquisition, use, or disposition of the property, real or personal, tangible or intangible, of the District, including the control, or disbursement of, appropriated and other District funds;

(g) With respect to contracts to procure goods or services for the District:

(1) Determine what supplies or services are to be acquired by the District, and at what prices; provided, that the Director or his or her designee may give a contractor authority to acquire supplies for the District at prices within specified ranges or quantities and subject to other reasonable conditions considered appropriate;

(2) Participate as a voting member on any source-selection board, unless the contractor has:

(A) Been retained by the District for its specific technical expertise; and

(B) No conflict of interest exists with regard to the contract or vendors under consideration by the source-selection board.

(3) Approve any contractual documents, including documents defining requirements, incentive plans, and evaluation criteria;

(4) Award contracts;

(5) Administer contracts, including ordering changes in contract performance or contract quantities, taking action based on evaluations of contractor performance, and accepting or rejecting contractor products or services;

(6) Terminate contracts;

(7) Determine whether contract costs are reasonable, allocable, or allowable; or

(8) Evaluate a contractor’s performance when the evaluation is to be used to determine whether payment should be made to the contractor and in what amount.

(h) Make a final adjudication in a civil or criminal proceeding or perform adjudicatory functions other than those relating to arbitration or other methods of alternative dispute resolution;

(i) Control criminal prosecutions;

(j) Direct the conduct of criminal investigations;

(k) Approve final agency responses to Freedom of Information Act requests including the determination to either withhold or release documents or approve agency responses to administrative appeals of Freedom of Information Act requests;

(l) Collect, control, and disburse fees, royalties, fines, taxes, and other public funds, unless authorized by law; and

(m) Command public safety, fire, emergency response, and homeland security employees.

3001.2 Inherently governmental functions do not normally include, among other things, services that involve or relate to:

(a) Gathering information for or providing advice, opinions, recommendations, or ideas to District government employees or officials;

(b) Budget analyses, including activities such as workload modeling, fact finding, efficiency studies, and cost analyses;

(c) Conducting analyses or feasibility studies, or providing strategy options to be used by agency personnel in developing policy;

(d) Providing research, analysis, draft language, or administrative support to District employees on regulations;

(e) Supporting contract management;

(f) Supporting agency responses to Freedom of Information Act requests, provided that such support is primarily technical or administrative in nature and does not involve making final decisions about document release or production;

(g) Providing information regarding agency policies or regulations, such as attending conferences on behalf of an agency, conducting community relations campaigns, or conducting agency training courses;

(h) Providing alternative dispute resolution services such as arbitration or mediation;

(i) Inspection services;

(j) Providing legal advice and interpretations of regulations and statutes to District officials, provided that District or an instrumentality thereof retains final decision-making authority on all dispositive matters;

(k) Representing the District as outside litigation counsel, bond counsel, or disclosure counsel, or in any legal proceedings, provided that District or an instrumentality thereof retains final decision-making authority on all dispositive matters;

(l) Special non-law enforcement, security activities that do not directly involve criminal investigations, such as prisoner detention or transport and non-military national security details;

(m) Routine voucher and invoice examination; and

(n) Functions that are primarily ministerial and internal in nature, such as building security, mail operations, operation of cafeterias, housekeeping, facilities operations and maintenance, warehouse operations, motor vehicle fleet management operations, or other routine electrical or mechanical services.

History

SOURCE: Final Rulemaking published at 66 DCR 13656 (October 18, 2019). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 3001

27 DCMR § 3002 FUNCTIONS CLOSELY ASSOCIATED WITH AN INHERENTLY GOVERNMENTAL FUNCTION

3002.1 Functions closely associated with inherently governmental functions include services that involve or relate to:

(a) The evaluation of another contractor’s performance when the evaluation is not to be used to determine whether payment should be made to the contractor and in what amount;

(b) The use of or access to confidential information or proprietary information;

(d) Supporting government reorganization activities;

(e) Evaluating contract proposals, participating as a technical advisor to a source selection board, or serving as a nonvoting member of a source selection board; and

(f) Developing, but not approving, statements of work.

History

SOURCE: Final Rulemaking published at 66 DCR 13656 (October 18, 2019). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 3002

27 DCMR § 3003 WAIVER

3003.1 The Director may waive compliance with any of the requirements of this chapter for any contract in effect on October 8, 2016, and for any option period exercised under such contract, so long as the option period was provided for in the contract as of October 8, 2016.

3003.2 Notwithstanding § 3003.1 of this chapter, the requirements of this chapter shall apply to any contract or option period in effect on October 8, 2021.

History

SOURCE: Final Rulemaking published at 66 DCR 13656 (October 18, 2019). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 3003

27 DCMR § 3099 DEFINITIONS

3099.1 The following terms used in this chapter shall have the following meanings ascribed:

Confidential information – any information which is available to an employee of the District of Columbia only because of the employee’s status as an employee of the District of Columbia and is not a matter of public knowledge or available to the public upon request.

Director – the Director of the Office of Contracting and Procurement or the District of Columbia Chief Procurement Officer.

Function closely associated with an inherently governmental function – means a function that is not an inherently governmental function, but is similar to an inherently governmental function because of the nature of the function, the manner in which the contractor performs the function, or the manner in which the government administers the contractor’s performance of the function, as determined by application of the criteria set forth under D.C. Official Code § 2-352.05a.

Inherently governmental function – means a function that is so intimately related to the public interest as to require performance by District government employees, as determined by application of the criteria set forth under D.C. Official Code § 2-352.05a.

Proprietary information – information, including trade secrets, data, formulas, patterns, compilations, programs, devices, methods, techniques, or processes, which have the following characteristics:

(a) The information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; or

(b) The information is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

History

SOURCE: Final Rulemaking published at 66 DCR 13656 (October 18, 2019). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 3099

27-31 PATENTS, COPYRIGHTS, AND PROPRIETARY INFORMATION

27 DCMR § 3100 GENERAL PROVISIONS

3100.1 The District shall honor rights in patents, copyrights, and proprietary information. Contracting officers shall comply with the requirements of applicable federal laws and regulations, in addition to the requirements of this chapter, in acquiring or using these rights.

3100.2 A contractor shall obtain written permission from the lawful owner(s) of patented or copyrighted materials before including all or part of any patented or copyrighted material in any item to be delivered under a contract, unless permission is not required under the fair use or other applicable provisions of federal law or regulations.

3100.3 The District shall not unreasonably restrict the commercial use, outside of the performance of the contract with the District, of inventions made while performing District contracts.

3100.4 The District shall limit its demands for rights in patents, copyrights, and proprietary information resulting from private developments to those reasonable for present and future use by the District.

History

SOURCE: Final Rulemaking published at 35 DCR 1614 (February 26, 1988); as amended by Final Rulemaking 65 DCR 11919 (October 26, 2018). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 3100

27 DCMR § 3101 NOTICE AND ASSISTANCE

3101.1 A contractor shall notify the contracting officer of all claims of patent or copyright infringement or misappropriation of proprietary information that come to the contractor’s attention in connection with performing a District contract.

3101.2 A contractor shall, upon request, assist the District with any evidence and information in its possession in connection with any claim or lawsuit against the District due to any alleged patent or copyright infringement or misappropriation of proprietary information arising out of or resulting from the performance of a contract.

History

SOURCE: Final Rulemaking published at 35 DCR 1614 (February 26, 1988); as amended by Final Rulemaking 65 DCR 11919 (October 26, 2018). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 3101

27 DCMR § 3102 INDEMNIFICATION

3102.1 The contracting officer shall not include in any solicitation or contract any provision by which the District expressly agrees to indemnify the contractor against liability for patent or copyright infringement or misappropriation of proprietary information.

3102.2 The contracting officer shall include a clause in all solicitations and contracts that requires a contractor to indemnify the District against infringement of rights in patents, copyrights, or proprietary information and to reimburse the District for any liability incurred as the result of an infringement of rights in patents, copyrights, or proprietary information.

3102.3 If it is in the best interests of the District to exempt one (1) or more specific United States patents from a patent indemnity clause, the contracting officer may grant the exemption upon written approval of the Director.

History

SOURCE: Final Rulemaking published at 35 DCR 1615 (February 26, 1988); as amended by Final Rulemaking 65 DCR 11919 (October 26, 2018). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 3102

27 DCMR § 3103 [RESERVED]

27 DCMR § 3104 [RESERVED]

27 DCMR § 3105 LICENSING AND ROYALTY INFORMATION

3105.1 Upon the request of the contracting officer, a contractor or a prospective contractor shall furnish to the contracting officer licensing and royalty information and reports sufficient to determine whether royalties or licenses anticipated or actually paid under District contracts are excessive, improper, or inconsistent with any District rights in particular inventions, patents, patent applications, copyrights, or proprietary information.

3105.2 If the contracting officer determines that the District has paid or will pay royalties under an existing or prospective contract that are inconsistent with the District’s rights, are excessive, or are otherwise improper, and if it is in the best interests of the District, the contracting officer shall obtain a refund or negotiate for a reduction of royalties.

History

SOURCE: Final Rulemaking published at 35 DCR 1616 (February 26, 1988); as amended by Final Rulemaking 65 DCR 11919 (October 26, 2018). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 3105

27 DCMR § 3106 PATENT RIGHTS UNDER DISTRICT CONTRACTS

3106.1 If the contract permits the contractor to retain title to an invention, and the contractor elects to retain title, the District shall have at least a nonexclusive, non-transferable, irrevocable, paid-up license to use or have used, for or on behalf of the District, any invention made in the performance of work under a District contract. The District may have additional rights to sublicense the invention if provided in the contract.

3106.2 The District shall have the right to receive title to any invention made in the performance of a contract unless the contract provides otherwise. If the contract extends a limited right to the contractor to acquire patent rights, the District shall have the right nevertheless to receive title to an invention in the following circumstances:

(a) If the contractor does not disclose the invention within the time specified in the contract;

(b) In any instance where the contractor does not elect to retain rights or fails to elect to retain rights to the invention within the time specified in the contract;

(d) In any instance where the contractor decides not to continue prosecution of a patent application, pay maintenance fees, or defend in a re-examination or opposition proceeding on the patent; and

(e) In any instance where the contractor no longer desires to retain title.

3106.3 If the contract gives a limited right to the contractor to acquire patent rights, the contractor may request greater rights to an invention within the period specified in the contract. The contracting officer may grant a request for greater rights if the contracting officer determines that the grant of greater rights is in the best interests of the District. In making the determination, the contracting officer shall consider the following objectives:

(a) Ensuring that inventions are used in a manner that will promote full and open competition and free enterprise; and

(b) Ensuring that the District obtains sufficient rights in District-supported inventions to meet the needs of the District and protect the public against nonuse or unreasonable use of inventions.

3106.4 If the contract permits the contractor to retain title to an invention and the contractor elects not to retain title, the District may, after consultation with the contractor, grant a request for retention of rights by the inventor.

3106.5 If a District employee is a co-inventor of an invention made under a contract and the District acquires all or part of the rights to the invention, the Director may take any of the following actions that are consistent with the best interests of the District:

(a) Assign all or part of the District’s rights to its employee while retaining for the District any rights set forth in § 3106.2 of this chapter;

(b) Assign all or part of the District’s rights to the contractor for reasonable consideration, after negotiation by the contracting officer of a reasonable consideration;

(c) If the contractor is a nonprofit organization or is a certified business enterprise, assign all or part of the District’s rights without consideration; or

(d) Retain the District’s rights.

History

SOURCE: Final Rulemaking published at 35 DCR 1617 (February 26, 1988); as amended by Final Rulemaking 65 DCR 11919 (October 26, 2018). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 3106

27 DCMR § 3107 PATENT RIGHTS PROCEDURES

3107.1 A contract may require the contractor to do any or all of the following:

(a) Provide periodic reports (but not more frequently than annually) listing all inventions required to be disclosed during the period covered by each report;

(b) Provide a report prior to the closeout of the contract listing all inventions or stating that there were none;

(c) Provide, upon request, the patent application filing date, serial number and title, a copy of the patent application, and patent number and issue date for any subject invention in any country in which the contractor has applied for patents; and

(d) Furnish the District an irrevocable power to inspect and make copies of the patent application file.

3107.2 The contractor shall submit to the contracting officer a document confirming all rights to which the District is entitled, and shall furnish to the contracting officer an irrevocable power to inspect and make copies of the patent application file six (6) months after filing each patent application or within six (6) months after submitting the invention disclosure if the application has been previously filed.

3107.3 If the contracting officer determines in writing that it is in the best interests of the District, the contracting officer may modify, waive, or omit any of the rights set forth in § 3106.2 of this chapter. The modification, waiver, or omission shall be in writing and shall be accompanied by a written statement of facts justifying the determination. The statement of facts shall include the following:

(a) A description of the extent to which the District’s rights are to be modified, waived, or omitted:

(b) The facts and justification for the modification, waiver, or omission; and

(c) A statement explaining how the interests of the District will be better served by the modification, waiver, or omission.

3107.4 The contractor shall establish and maintain effective procedures to ensure that its patent rights obligations are met, that subject inventions are timely identified and disclosed, and that patent applications are filed when required.

3107.5 Contractors shall submit all reports required by the contracting officer in accordance with the contract.

3107.6 The contracting officer shall establish follow-up procedures to protect the District’s interests and to ensure that subject inventions are identified and disclosed; that, when required, patent applications are filed; and that the District’s rights are established and protected.

History

SOURCE: Final Rulemaking published at 35 DCR 1619 (February 26, 1988); as amended by Final Rulemaking 65 DCR 11919 (October 26, 2018). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 3107

27 DCMR § 3108 [RESERVED]

27 DCMR § 3109 [RESERVED]

27 DCMR § 3110 RIGHTS TO COPYRIGHTED MATERIAL AND PROPRIETARY INFORMATION

3110.1 A contracting officer may acquire title to, or obtain or limit access to, copyrighted materials, materials subject to copyright protection, and proprietary information developed under or used in the performance of contracts.

3110.2 Unless specifically authorized by the contracting officer, access to copyrighted materials, materials subject to copyright protection, and proprietary information developed under or used in the performance of contracts shall be limited to District employees who are directly involved with the performance of the contract or who otherwise need access in order to properly perform their duties in connection with the contract or the items or services provided under the contract.

History

SOURCE: Final Rulemaking published at 35 DCR 1620 (February 26, 1988); as amended by Final Rulemaking 65 DCR 11919 (October 26, 2018). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 3110

27 DCMR § 3111 PROPRIETARY OR CONFIDENTIAL INFORMATION IN BIDS AND PROPOSALS

3111.1 In accordance with § 417 of the Procurement Practices Reform Act of 2010, D.C. Official Code § 2-354.17, a bidder or offeror shall designate information contained in a response to the invitation for bids or request for proposals as proprietary or confidential by specifically identifying that information in writing in the bid or proposal.

3111.2 A bidder or offeror including proprietary or confidential information in its bid or offer shall conspicuously display the following information on the first page of the bid or offer if the bidder or offeror does not want the proprietary or confidential information disclosed to the public for any purpose or used by the District except within the procurement process:

(a) That the bid or offer includes proprietary or confidential information that shall not be disclosed outside the District government without prior written notice and shall not be duplicated, used, or disclosed, in whole or in part, for any purpose other than the procurement process;

(b) That if a contract is awarded to the bidder or offeror, the District shall have the right to duplicate, use, or disclose the proprietary or confidential information to the extent provided in the contract;

(c) That this restriction does not limit the District’s right to use the proprietary or confidential information if it is obtained from another source without restriction; and

(d) That the bidder or offeror has conspicuously identified the proprietary or confidential information within each page subject to the restriction.

3111.3 In addition to the requirements of § 3111.2 of this chapter, the bidder or offeror shall conspicuously mark each separate sheet containing proprietary or confidential information with a notation to the effect that use or disclosure of proprietary or confidential information contained and specifically designated in the sheet is subject to the restriction set forth on the first page of the bid or offer.

3111.4 The bidder or offeror shall not designate as confidential or proprietary the name of the bidder or offeror, the bid or proposal price, or any information that is not actually proprietary or confidential.

History

SOURCE: Final Rulemaking published at 35 DCR 1621 (February 26, 1988); as amended by Final Rulemaking 65 DCR 11919 (October 26, 2018). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 3111

27 DCMR § 3199 DEFINITIONS

3199.1 When used in this chapter, the following terms and phrases shall have the meanings ascribed:

Data – recorded information, regardless of form or the media on which it may be recorded, including technical data and computer software. Data does not include information incidental to contract administration, such as financial, administrative, cost or pricing, or management information.

Director – the Director of the Office of Contracting and Procurement or the District of Columbia Chief Procurement Officer.

Invention – any device, process, design, or other discovery that is or may be patentable or otherwise protectable under Title 35 of U.S. Code.

Made – the conception or the first actual reduction to practice of an invention.

Nonprofit organization – a domestic university or an organization of higher education or an organization of the type described in Section 501(c)(3) of the Internal Revenue Code of 1954 (26 USC § 501(c)) and exempt from taxation under 26 USC § 501(a), or any domestic nonprofit scientific or educational institution.

Royalties – payments for the use of a patented invention, copyrighted material, or other proprietary information or data under a license granted by the owner.

(b) The information is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

History

SOURCE: Final Rulemaking published at 35 DCR 1623 (February 26, 1988); as amended by Final Rulemaking 65 DCR 11919 (October 26, 2018). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 3199

27-32 CONTRACT FINANCING AND FUNDING

27 DCMR § 3200 PROVIDING CONTRACT FINANCING

3200.1 Generally, private financing shall be considered the most preferable type of financing for all District contracts.

3200.2 Contract financing by the District shall be provided only to the extent actually needed for prompt and efficient performance considering the availability of private financing.

3200.3 Contract financing shall be administered so as to aid, not impede, a procurement.

3200.4 The contracting officer shall avoid any undue risk of monetary loss to the District through contract financing.

3200.5 The contracting officer shall monitor the contractor's financial status and the contractor's use of any contract financing provided under the contract.

3200.6 Contract financing by the District shall be self-liquidating through contract performance.

History

AUTHORITY: Unless otherwise noted, the authority for this chapter is the District of Columbia Procurement Practices Act of 1985, D.C. Law 6-85, as amended, D.C. Code §1-1181.1 et seq. (1981).
SOURCE: Final Rulemaking published at 35 DCR 1625 (February 26, 1988).

27 DCMR § 3201 USES OF CONTRACTING FINANCING

3201.1 Contract financing by the District shall be used only for financing contractor working capital, and shall not be used for the expansion of contractor-owned facilities.

3201.2 Except for contracts under which facilities are being procured for District ownership, contract financing by the District shall not be used for the procurement of fixed assets.

3201.3 Contract financing in the form of advance payments may be used by a contracting officer to assist a contractor that is a certified minority business enterprise.

3201.4 Contract financing in the form of progress payments may be used by a contracting officer to assist a contractor when private financing for a contract is either unavailable or insufficient.

3201.5 The customary progress payment rate shall be ninety percent (90%) applicable to the total costs of performing the contract. The contracting officer may authorize a customary rate of ninety-five percent (95%) for a certified minority business.

3201.6 Any rate higher than the rates authorized under §3201.5 shall be considered an unusual progress payment rate. The contracting officer shall only authorize progress payments at an unusual rate if both of the following apply:

(a) The contract necessitates predelivery expenditures that are large in relation to the contract price and in relation to the contractor's working capital and credit; and

(b) The contractor fully documents the need to supplement any private financing available.

3201.7 To encourage contractors to invest their own funds in performance despite the susceptibility of the contract to termination for the convenience of the District, the contract financing methods set forth in this section may be applied to the financing of terminations either in connection with, or independently of, financing for contract performance.

History

SOURCE: Final Rulemaking published at 35 DCR 1625 (February 26, 1988).

27 DCMR § 3202 NEED FOR CONTRACT FINANCING

3202.1 If a contractor or offeror meets the standards prescribed in this title for responsible prospective contractors, the contracting officer shall not treat the contractor's need for contract financing as a handicap for contract award.

3202.2 A contractor shall not be disqualified from contract financing solely because the contractor failed to indicate a need for contract financing before the contract was awarded.

History

SOURCE: Final Rulemaking published at 35 DCR 1626 (February 26, 1988).

27 DCMR § 3203 [RESERVED]

27 DCMR § 3204 [RESERVED]

27 DCMR § 3205 ADVANCE PAYMENTS

3205.1 The contracting officer shall not authorize the use of advance payments unless the following criteria are met:

(a) There is a need for contract financing;

(b) Private financing is unavailable or insufficient;

(d) The contractor can give adequate security;

(e) The contractor is otherwise qualified as a responsible, certified minority business enterprise;

(f) The use of advance payments would be in the best interests of the District; and

(g) The District of Columbia Local Business Opportunity Commission has recommended the use of advance payments.

(h) Notwithstanding subparagraphs (a) through (g) above, the contracting officer may authorize advance payments to a responsible contractor who is a provider of Medicaid managed healthcare programs. The contractor may be paid a prospective monthly capitation rate for each Medicaid managed care program enrollee that is enrolled with the contractor.

(i) Notwithstanding subparagraphs (a) through (g) above, the contracting officer may authorize advance tuition payments to a responsible contractor who is a provider of special education services. The contractor may be paid tuition in advance of a school semester or session for each student enrolled with the contractor whose tuition has been approved for payment by the Chancellor of the District of Columbia Public Schools, or his or her designee;

(j) Notwithstanding subparagraphs (a) through (g) above, the contracting officer may authorize advance tuition payments to a responsible contractor who is a provider of educational services or programs for Metropolitan Police Department (“MPD”) employees when such tuition payments are authorized by District of Columbia law or regulations. The contractor may be paid in advance of a school semester or session for each MPD employee enrolled with the contractor whose tuition has been approved for payment by the Chief of the MPD, or his or her designee, pursuant to District of Columbia law or regulations;

(k) Notwithstanding subparagraphs (a) through (g) above, the contracting officer may authorize advance payments to a responsible contractor who provides court transcripts, depositions, expert witness testimony, or other litigation or transactional related legal services to the Attorney General upon the Attorney General’s determination that such advance payments are necessary and appropriate to enable the Attorney General to properly represent the District of Columbia;

(l) Notwithstanding subparagraphs (a) through (g) above, the contracting officer may authorize advance payments to a responsible contractor who is a provider of training seminars or programs directly related to the duties of the applicable agency, office or department employees. The contractor may be paid in advance of a training seminar or program for each employee enrolled in a training seminar or program whose tuition or fee has been approved in writing by the applicable agency, office or department director; and

(m) Notwithstanding subparagraphs (a) through (g) above, the contracting officer may authorize advance payments to a responsible contractor who is a provider of food and/or beverages for the agency, office or department employees attending a training seminar or program authorized by the applicable agency, office or department director, or his or her designee, and upon a determination in writing by the applicable agency, office or department director that provision of food and beverages is necessary and appropriate in order for the employees to obtain the full benefit of the training that is directly related to the employees’ duties.

(n) Notwithstanding subparagraphs (a) through (g) above, the contracting officer may authorize advance payments to the Washington Metropolitan Area Transit Authority (WMATA) for support services provided by WMATA to the District Department of Transportation (DDOT) for construction projects or other activities conducted by or on behalf of DDOT on or near WMATA property. WMATA support services shall include, but not be limited to, the provision of flaggers to communicate with trains or other WMATA equipment and the provision of escorts to monitor safety conditions while work is being performed on or near WMATA property.

(o) Notwithstanding subparagraphs (a) through (g) above, the contracting officer may authorize advance payments to a responsible contractor who is a provider of goods or services for a presidential inauguration upon a determination in writing by the Director that the advance payment is in the best interest of the District.

(p) Notwithstanding subparagraphs (a) through (g) above, the contracting officer may authorize advance payments to a responsible contractor who is a provider of non-emergency transportation services to the District’s Medicaid and Eligible Fee-for-Service recipients. The contractor may be paid a prospective capitation rate for each recipient.

(q) Notwithstanding subparagraphs (a) through (g) above, the contracting officer may authorize advance payments to responsible District of Columbia colleges or universities that provide facilities to the Department of Employment Services for summer sessions of the Mayor’s Youth Leadership Institute upon a determination in writing by the Director that the advance payment is in the best interest of the District.

(r) Notwithstanding subparagraphs (a) through (g) above, the contracting officer may authorize advance payments to The Washington Hospitality Foundation to manage and operate the Hospitality High School of Washington, D.C. for the academic year 2014-2015.

(s) Notwithstanding paragraphs (a) through (g) above, the contracting officer may authorize advance payments to a provider of goods or services for the Emancipation Day Parade and activities associated with the celebration and commemoration of District of Columbia Emancipation Day if the contracting officer determines that the advance payment is in the best interest of the District.

3205.2 Before authorizing advance payments, the contracting officer shall obtain the approval of the head of the procuring agency. The request for approval shall be in the form of a written determination and findings which sets forth the contracting officer's findings on each of the criteria set forth in §3205.1 and includes a copy of the DSLDB recommendation.

3205.3 If the request for advance payments is approved, the contracting officer shall ensure that the contractor gives adequate security and that the advance payments do not exceed the unpaid contract price.

3205.4 A contracting officer shall not authorize advance payments to a contractor that is also receiving a bond reduction under the same contract without the prior written approval of the Director based on a determination that the financial risk to the District would not be unreasonable and that the use of both bond reductions and advance payments would be in the best interests of the District.

3205.5 If a contractor requesting advance payments is also receiving advance payments under another District contract, the contracting officer shall include this information in the determination and findings, and shall consider the additional financial risk to the District when making his or her recommendation.

3205.6 When advance payments are made under a contract, the contracting officer shall closely monitor the performance of the contractor and the contractor's financial condition. A contractor receiving advance payments shall be subject to audit at any time, as determined by the contracting officer.

3205.7 The contracting officer may suspend or terminate advance payments if the contractor fails to account adequately for the use of advance funds or fails to use the funds to meet obligations related to the contract, including the following:

(a) Failure to pay wages due to contract personnel;

(b) Failure to escrow withholding and payroll taxes and make required periodic tax deposits; or

3205.8 Advance payments shall be made into a special account established at a District of Columbia banking institution approved by the Director, in accordance with procedures established by the Director and approved by the Deputy Mayor for Finance. A separate account shall be established for each contract.

History

SOURCE: Final Rulemaking published at 35 DCR 1626 (February 26, 1988); as amended by Emergency Rulemaking at 48 DCR 3585 (April 20, 2001)[EXPIRED]; as amended by Final Rulemaking published at 48 DCR 8042 (August 24, 2001); as amended by Final Rulemaking published at 48 DCR 5562 (June 15, 2001); as amended by Emergency Rulemaking at 48 DCR 8457 (September 7, 2001)[EXPIRED]; as amended by Final Rulemaking published at 49 DCR 7918 (August 16, 2002); as amended by Final Rulemaking published at 56 DCR 5564, 5565 (July 10, 2009); as amended by Emergency and Proposed Rulemaking published at 58 DCR 6105 (July 22, 2011)[EXPIRED]; as amended by Final Rulemaking published at 58 DCR 7983 (September 9, 2011); as amended by Final Rulemaking published at 59 DCR 10450 (August 31, 2012); as amended by Final Rulemaking published at 61 DCR 7424 (July 25, 2014); as amended by Final Rulemaking published at 61 DCR 9180 (September 5, 2014); as amended by Final Rulemaking published at 61 DCR 11165 (October 24, 2014); as amended by Final Rulemaking published at 62 DCR 8308 (June 12, 2015). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 3205

27 DCMR § 3206 INTEREST ON ADVANCE PAYMENTS

3206.1 The contracting officer shall charge interest on the daily unliquidated balance of all advance payments at the higher of the following rates:

(a) The published prime rate of the District banking institution in which the advance payments are deposited; or

(b) The rate of interest in the District allowed in judgments and decrees as set forth in the D.C. Code §28-3302(c) (1981).

3206.2 The interest rate for advance payments shall be adjusted for changes in the prime rate or any change in rate established under D.C. Code §28-3302(c) (1981).

3206.3 Interest shall be computed at the end of each month on the daily unliquidated balance of advance payments at the applicable daily interest rate.

3206.4 The contracting officer shall not allow interest charges for advance payments as reimbursable costs under cost-reimbursement contracts, whether the interest charge was incurred by the prime contractor or a subcontractor.

History

SOURCE: Final Rulemaking published at 35 DCR 1628 (February 26, 1988).

27 DCMR § 3207 APPLICATION FOR ADVANCE PAYMENTS

3207.1 An eligible contractor may apply for advance payments before or after the award of a contract.

3207.2 The contractor or prospective contractor shall submit an advance payment request to the contracting officer in writing which provides the following information:

(a) A reference to the contract if the request concerns an existing contract, or a reference to the solicitation if the request concerns a proposed contract;

(b) A cash flow forecast showing estimated disbursements and receipts for the period of contract performance;

(d) The name and address of the bank at which the contractor expects to establish a special depository account for the advance payments;

(e) A description of the contractor's efforts to obtain private financing;

(f) Whether the contractor is receiving or has applied to receive advance payments under any other current District contracts or solicitations; and

(g) Other information appropriate to an understanding of the following:

(1) The contractor's financial condition and need;

(2) The contractor's ability to perform the contract without loss to the District; and

(3) Financial safeguards that will be used to protect the District's interests.

History

SOURCE: Final Rulemaking published at 35 DCR 1628 (February 26, 1988).

27 DCMR § 3208 SECURITY, SUPERVISION, AND COVENANTS

3208.1 If advance payments are approved, the contracting officer shall enter into an agreement with the contractor covering bank accounts and including suitable covenants, approved by the Director, protecting the interests of the District.

3208.2 In the agreement required under §3208.1, the contract officer shall provide for a paramount lien in favor of the District. This lien may supplement or replace other security requirements.

3208.3 The lien required under §3208.2 shall cover the following:

(a) Goods being acquired;

(b) Any credit balance in the special bank account in which advance payments are deposited; and

(c) All property that the contractor acquires for performing the contract, except to the extent to which the District otherwise has valid title to the property.

3208.4 The contracting officer shall ensure that the amounts of advance payments do not exceed the contractor's financial needs, and shall closely supervise the contractor's withdrawal of funds from special bank accounts in which advance payments are deposited.

History

SOURCE: Final Rulemaking published at 35 DCR 1629 (February 26, 1988).

27 DCMR § 3209 [RESERVED]

27 DCMR § 3210 [RESERVED]

27 DCMR § 3211 [RESERVED]

27 DCMR § 3212 [RESERVED]

27 DCMR § 3213 [RESERVED]

27 DCMR § 3214 [RESERVED]

27 DCMR § 3215 PROGRESS PAYMENTS BASED ON COSTS

3215.1 For the purpose of making progress payments and determining the limitations on progress payments, the contract price shall be as follows:

(a) Under firm-fixed-price contracts, the contract price shall be the current contract price plus any unpriced modifications for which funds have been obligated;

(b) If the contract is redeterminable or subject to economic price adjustment, the contract price shall be the initial price until modified;

(c) Under a fixed-price incentive contract, the contract price shall be the target price plus any unpriced modifications for which funds have been obligated. However, if the contractor's properly incurred costs exceed the target price, the contracting officer may provisionally increase the price up to the ceiling or maximum price; and

(d) Under a letter contract, the contract price shall be fifty percent (50%) of the maximum amount of the definitive contract.

3215.2 For the purpose of making progress payments and determining the limitation on progress payments, any portion of the contract specifically providing for reimbursement of costs only shall be excluded from the contract price.

3215.3 The contracting officer shall not make progress payments or increase the contract price beyond the funds obligated under the contract, as amended.

3215.4 Bids conditioned on progress payments when the solicitation does not provide for progress payments shall be rejected as nonresponsive.

3215.5 A contracting officer may provide for customary progress payments if the contractor will not be able to bill for delivery of products (or other performance milestones) for a substantial time (not less than four (4) months) after work must begin and, during the predelivery period, will make expenditures for contract performance that have a significant impact on the contractor's working capital.

3215.6 The contracting officer shall not provide for progress payments on contracts of less than one hundred thousand dollars ($100,000), except in cases where a certified minority contractor is performing multiple contracts which total more than one hundred thousand dollars ($100,000).

3215.7 A contracting officer shall not provide for progress payments if the contract items are quick turnover types for which progress payments are not a customary commercial practice, such as the following:

(a) Subsistence;

(b) Clothing;

(d) Standard commercial items not requiring a substantial accumulation of predelivery expenditures by the contractor.

History

SOURCE: Final Rulemaking published at 35 DCR 1630 (February 26, 1988).

27 DCMR § 3216 CONSIDERATION FOR PROGRESS PAYMENTS

3216.1 There shall be no requirement for a separate consideration for providing progress payments or for changing progress payment or liquidation rates, if coverage is included in the terms of the contract when awarded.

3216.2 Adequate new consideration shall be required when the contract, during contract performance, is amended to provide progress payments.

3216.3 When adequate new consideration is required pursuant to §3216.2, the contractor may provide new consideration by monetary means (such as reduction in contract price) or nonmonetary means (such as incorporating terms in the contract amendment conferring a new benefit on the District).

3216.4 Fair and reasonable consideration shall approximate the amount by which the price would have been smaller if the provision for progress payments had been included in the initial contract.

History

SOURCE: Final Rulemaking published at 35 DCR 1631 (February 26, 1988).

27 DCMR § 3217 SUPERVISION OF PROGRESS PAYMENTS

3217.1 The extent of progress payments supervision, by prepayment review or periodic review, may vary, according to the contractor's experience, performance record, reliability, quality of management, and financial strength, and with the adequacy of the contractor's accounting systems and controls.

3217.2 Supervision shall be of a kind and degree sufficient to provide timely knowledge of the need for, and timely opportunity for, any actions necessary to protect the interests of the District.

3217.3 So far as is practicable, all problems relating to costs that are likely to create disagreements in future administration of the contract shall be identified and resolved at the inception of the contract, in accordance with the provisions of chapter 33 of this title.

3217.4 The contracting officer shall, before approving progress payments, determine the following:

(a) That the contractor will be capable of liquidating any progress payments, or that the District is otherwise protected against loss by additional protective provisions in the contract; and

(b) The contractor's accounting system and controls are adequate for proper administration of progress payments.

3217.5 When the reliability of the contractor and the adequacy of the contractor's accounting system has been established pursuant to §3217.4, the contracting officer may approve progress payment requests.

3217.6 The contracting officer may request an audit review of the contractor's request for progress payment when there is reason to question the reliability or accuracy of the contractor's certification, or if the contracting officer believes that the contract will involve a loss.

3217.7 Progress payments made under a requirements contract or an indefinite quantity contract shall be administered under each individual order as if the order constituted a separate contract. The contracting officer may treat a group of orders as a single unit for administration of progress payments if each order is subject to the same liquidation rate.

3217.8 The contracting officer shall ensure that any excess of unliquidated progress payments over the amount permitted by the liquidated rate specified in the contract is promptly corrected through one (1) or more of the following:

(a) Increasing the liquidation rate;

(b) Reducing the progress payment rate; or

History

SOURCE: Final Rulemaking published at 35 DCR 1631 (February 26, 1988).

27 DCMR § 3218 REVIEW OR AUDIT OF PROGRESS PAYMENTS

3218.1 In each contract providing for progress payments, the contracting officer shall include provisions, approved by the Director, giving the District the right to conduct postpayment reviews or audits at the discretion of the contracting officer, including reviews or audits to determine the following:

(a) Whether the unliquidated progress payments are fairly supported by the value of work accomplished on the undelivered portion of the contract;

(b) Whether the limitation on progress payments has been exceeded;

(c) Whether the unpaid balance of the contract price will be adequate to cover the anticipated cost of completion, or the contractor has adequate resources to complete the contract; and

(d) Whether there is any reason to doubt the adequacy or reliability of the contractor's accounting system, controls, or payment certification.

3218.2 The contracting officer shall conduct progress payment reviews periodically, at intervals of six (6) months or less, and may conduct reviews or audits at any time or upon receipt of any request for a progress payment.

History

SOURCE: Final Rulemaking published at 35 DCR 1633 (February 26, 1988).

27 DCMR § 3219 SUSPENSION OR REDUCTION OF PROGRESS PAYMENTS

3219.1 In each contract that provides for progress payments, the contracting officer shall include provisions, approved by the Director, which assert the District's right to reduce or suspend progress payments, or increase the liquidation rate, as appropriate, in the following circumstances:

(a) If the contractor fails to maintain an efficient and reliable accounting system and controls that are adequate for the proper administration of progress payments;

(b) If the contracting officer determines that contract performance, including full liquidation of progress payments, is endangered by the contractor's financial condition or by a failure to make progress on the performance of the contract;

(d) If the contractor is delinquent in paying the costs of contract performance in the ordinary course of business;

(e) If the unliquidated progress payments exceed the fair value of undelivered work under the contract; and

(f) If the sum of the total costs incurred under a contract, plus the estimated costs to complete performance, are likely to exceed the contract price.

3219.2 Actions under this section shall only be taken in accordance with the contract terms and only after the following:

(a) The contracting officer gives notice to the contractor of the intended action and provides an opportunity for discussion; and

(b) The contracting officer evaluates the effect of the action on the contractor's operations, based on the contractor's financial condition, projected cash requirements, and the existing or available credit arrangements.

3219.3 The contracting officer shall take immediate unilateral action only if warranted by circumstances such as overpayments or unsatisfactory contract performance.

3219.4 In all cases, the contracting officer shall document the contract file with evidence supporting the contracting officer's decisions.

History

SOURCE: Final Rulemaking published at 35 DCR 1633 (February 26, 1988).

27 DCMR § 3220 LIQUIDATION RATES

3220.1 Progress payments shall be recouped by the District through the deduction of liquidations from payments that would otherwise be due the contractor for completed contract items.

3220.2 To determine the amount of the liquidation, the contracting officer shall apply a liquidation rate to the contract price of contract items delivered and accepted.

3220.3 Except as provided in §3220.5, the liquidation rate shall be the same as the progress payment rate established pursuant to §3215. This rate shall always be used at the beginning of a contract.

3220.4 The liquidation rate determined in accordance with §3220.3 shall apply throughout the period of contract performance unless the contracting officer adjusts the liquidation rate under the alternate method set forth in §3220.5.

3220.5 In order to permit the contractor to retain the earned profit element of the contract price for completed items in the liquidation process, the contracting officer may reduce the liquidation rate when all of the following circumstances apply:

(a) The contractor has requested a reduction in the rate;

(b) The rate has not been reduced in the preceding twelve (12) months;

(d) Data on actual costs are available for the products delivered, or, if no deliveries have been made, for a performance period of at least twelve (12) months;

(e) The reduced liquidation rate would result in the District recouping under each invoice the full extent of the progress payments applicable to the costs allocable to that invoice;

(f) The contractor would not be paid for more than the costs of items delivered and accepted (less allocable progress payments) and the earned profit on those items;

(g) The unliquidated progress payments would not exceed the limit prescribed in the contract;

(h) The parties agree on an appropriate rate; and

(i) The contractor agrees to certify annually (or more often if requested by the contracting officer) that the alternate rate continues to meet the conditions of §§3220.5(e) through 3220.5(g). The certificate shall be accompanied by adequate supporting information.

3220.6 The contracting officer may increase the liquidation rate in the following circumstances:

(a) If the contractor experiences a lower profit rate than the rate anticipated at the time the original liquidation rate was established;

(b) If the target profit is changed under a fixed-price incentive contract with successive targets; or

(c) If a redetermined price involves a change in the profit element under a contract with prospective price redetermination at stated intervals.

3220.7 Whenever the liquidation rate is changed, the contracting officer shall issue a contract modification to specify the new rate.

3220.8 If the liquidation rate is increased under §3220.6, the contracting officer shall ensure that the alternate liquidation rate is high enough to result in the recoupment by the District of the applicable progress payments on each billing.

3220.9 Any change in the liquidation rate shall be supported by documentation included in the contract file.

History

SOURCE: Final Rulemaking published at 35 DCR 1634 (February 26, 1988).

27 DCMR § 3221 ADJUSTMENTS FOR PRICE REDUCTION

3221.1 If a retroactive downward price adjustment occurs under a redeterminable contract that provides for progress payments, the contracting officer shall do the following:

(a) Determine the refund due and obtain repayment from the contractor for the excess of payments made for delivered items over amounts due as recomputed at the reduced prices; and

(b) Increase the unliquidated progress payments amount for over-deduction made from the contractor's billings for items delivered.

3221.2 The contracting officer shall increase the unliquidated progress payments amount if the contractor makes an interim or voluntary price reduction under a redeterminable or incentive contract.

History

SOURCE: Final Rulemaking published at 35 DCR 1636 (February 26, 1988).

27 DCMR § 3222 PROTECTION OF DISTRICT TITLE

3222.1 The contracting officer shall include a provision, approved by the Director, with the progress payment provisions in the contract which provides that the District shall receive title to all of the materials, work-in-progress, finished goods, and other items of property under the contract.

3222.2 The contracting officer shall ensure that District title is not compromised by other encumbrances, liens, or hypothecations.

3222.3 The contracting officer shall require additional protective provisions, if deemed necessary, to establish and protect the District's title.

History

SOURCE: Final Rulemaking published at 35 DCR 1636 (February 26, 1988).

27 DCMR § 3223 RISK OF LOSS

3223.1 The contracting officer shall include a provision, approved by the Director, with the progress payment provisions of the contract which provides that, except for normal spoilage, the contractor shall bear the risk of loss, theft, destruction, or damage to property affected by the provision, unless the District has expressly assumed that risk.

3223.2 The contractor shall be obligated to repay the District the amount of unliquidated progress payments based on costs allocable to the property if the loss occurred after the contractor assumed the risk of loss.

3223.3 The contractor shall not be obligated to pay for the loss of property for which the District has assumed the risk of loss.

History

SOURCE: Final Rulemaking published at 35 DCR 1637 (February 26, 1988).

27 DCMR § 3224 PROGRESS PAYMENTS TO SUBCONTRACTORS

3224.1 The contracting officer shall encourage each contractor to provide progress payments to subcontractors on terms that meet the standards in §3215 for customary progress payments.

3224.2 In each contract providing for progress payments, the contracting officer shall include a provision, approved by the Director, which requires the contractor to include in the terms of each subcontract the substance of the progress payment provisions in the prime contract, modified to indicate that the contractor (not the District) awards the subcontract and administers the progress payments.

3224.3 If the contractor makes progress payments to a subcontractor under a cost-reimbursement prime contract, the contracting officer shall accept the progress payments as reimbursable costs of the prime contract only under the following conditions:

(a) When the payments are made under the standards in §3215 for customary progress payments;

(b) When the payments do not exceed the progress payment rate set forth in §3215;

(d) When the subcontract contains progress payments terms as required under §3224.2.

History

SOURCE: Final Rulemaking published at 35 DCR 1637 (February 26, 1988).

27 DCMR § 3225 [RESERVED]

27 DCMR § 3226 [RESERVED]

27 DCMR § 3227 [RESERVED]

27 DCMR § 3228 [RESERVED]

27 DCMR § 3229 [RESERVED]

27 DCMR § 3230 CONTRACT DEBT DETERMINATION AND COLLECTION

3230.1 In addition to the provisions of chapter 38 of this title, the provisions of §§3230 through 3237 shall apply to all debts to the District arising under, or relating to, a procurement contract or subcontract, except as otherwise provided in §803 of the Act, D.C. Official Code §2-308.03 (2001)..

3230.2 In determining the amount of any contract debt, the contracting officer and the Director shall fairly consider both the District's claim and any contract claims by the contractor against the District pursuant to chapter 38 of this title.

3230.3 The contracting officer, or other official designated to administer the collection of contract debts and applicable interest, shall use all proper means available for collecting debts as rapidly as possible.

3230.4 Except in cases in which an agreement has been entered into for deferment of collections, or when bankruptcy proceedings against the contractor have been initiated, the contractor shall liquidate the debt by either of the following methods:

(a) Cash payment in a lump sum on demand; or

(b) Credit against existing payments due to the contractor.

History

SOURCE: Final Rulemaking published at 35 DCR 1638 (February 26, 1988).

27 DCMR § 3231 DEMAND FOR PAYMENT OF CONTRACT DEBT

3231.1 The contracting officer shall make a demand for payment as soon as the amount of contract debt due has been computed.

3231.2 If the debt arises from excess costs for a default determination under chapter 37 of this title, the contracting officer shall make the demand without delay.

3231.3 The demand shall include the following:

(a) A description of the debt, including the debt amount;

(b) If applicable, notification that any amount not paid within thirty (30) days from the date of the demand, or from any earlier date specified in the contract, shall bear interest at the rate set forth in §3236;

(c) A notification that the contractor may submit a proposal for deferment of collection if immediate payment is not practical or if the amount is disputed; and

(d) Identification of the contracting officer or other official designated for determining the amount of the debt and for its collection.

History

SOURCE: Final Rulemaking published at 35 DCR 1638 (February 26, 1988).

27 DCMR § 3232 NEGOTIATION OF REFUND TO RESOLVE CONTRACT DEBT

3232.1 The contracting officer shall attempt to resolve expeditiously the amount of contract debt and refund through negotiations with the contractor.

3232.2 If the contracting officer and contractor agree upon a refund to the District, the contracting officer shall promptly write a memorandum to document the agreement and the contract debt.

3232.3 The memorandum shall be signed by the contracting officer for the District and the contractor.

3232.4 The contracting officer shall execute a contract modification to adjust the contract in accordance with the memorandum of agreement.

History

SOURCE: Final Rulemaking published at 35 DCR 1639 (February 26, 1988).

27 DCMR § 3233 SETOFF AND WITHHOLDING OF PAYMENTS

3233.1 If a disbursing officer is the responsible official for collection of a contract debt, or is notified of the debt by the contracting officer, or other officer designated to collect the debt, and has contractor invoices on hand for payment, the disbursing officer shall make an appropriate setoff.

3233.2 The disbursing officer shall give the contractor written notice of the setoff, including a statement of the reasons for the setoff. The notice shall be delivered to the contractor or mailed by certified mail, return receipt requested.

3233.3 To the extent that the setoff reduces the debt, the explanation of the setoff shall indicate the extent to which the demand amount described in §3231 is reduced.

3233.4 During the thirty (30) days following the issuance of a demand pursuant to §3231, the contracting officer shall consider the advisability of withholding payments otherwise due to the contractor, based on the circumstances of each individual case.

3233.5 If, within thirty (30) days of the issuance of the demand, made pursuant to §3231, the contractor has neither completed payment nor requested deferment, the contracting officer may immediately withhold any contract payment due up to the amount of the debt plus interest.

History

SOURCE: Final Rulemaking published at 35 DCR 1639 (February 26, 1988).

27 DCMR § 3234 DEFERMENT OF COLLECTION

3234.1 If the contracting officer receives a written request from the contractor for a deferment of the debt collection or installment payments, the contracting officer shall promptly review the request to see if the information included in accordance with §3234.2 is adequate for action on the request.

3234.2 With each request for deferment of collection, the contractor shall submit the following information about the contractor:

(a) Financial condition;

(b) Contract backlog;

(d) The feasibility of immediate payment of the debt; and

(e) The probable effect on the contractor of immediate payment in full.

3234.3 The contracting officer may agree to payment of the contract debt in installments if the amount of the debt and other issues are resolved by negotiation in accordance with §3232.

3234.4 The contracting officer may authorize a deferment of debt collection, in accordance with this section, pending the resolution of appeals filed by the contractor under the provisions of chapter 38 of this title and §§3230 through 3233 of this chapter.

3234.5 The contracting officer may grant deferments pending disposition of appeal to financially weak contractors if there would be undue hardship on the contractor, and the District would be reasonably secure against loss.

3234.6 If a contractor has not appealed the debt or filed an appeal under §§904 or 905 of the Act, D.C. Official Code §§2-309.04 or 2-309.05, (2001), the contracting officer may arrange for deferred payments if the contractor is unable to pay at once in full or would be seriously impaired.

3234.7 If a contractor has appealed the debt or filed an appeal under §§904 or 905 of the Act, D.C. Official Code §§2-309.04 or 2-309.05 (2001), debt collection shall not be suspended or delayed. Until the appeal is decided, deferments shall only be granted if, within thirty (30) days after the filing, the contractor presents to the contracting officer a good and sufficient bond, or other collateral acceptable to the contracting officer, in the amount of the claim.

3234.8 Deferred payment arrangements shall be made in accordance with §3235.

History

SOURCE: Final Rulemaking published at 35 DCR 1640 (February 26, 1988).

27 DCMR § 3235 DEFERRED PAYMENT AGREEMENTS

3235.1 The arrangement for deferred payment shall be in the form of a written agreement providing for deferred payment of the debt. The agreement shall be signed by the contracting officer and the contractor.

3235.2 The deferred payment agreement shall include appropriate covenants and securities, in a form approved by the Director, and shall be limited to the shortest practicable maturity.

3235.3 At a minimum, the contracting officer shall include the following in the deferred payment agreement:

(a) A description of the debt;

(b) The date of the first demand for payment;

(d) The method for making payments and the office to which the payments shall be made;

(e) A requirement for the contractor to submit financial information requested by the District, and for reasonable access to the contractor's records and property by District representatives; and

(f) Provisions for termination of the deferred payment arrangement and acceleration of the maturity of the debt if the contractor defaults on the deferred payment agreement or the underlying contract, or if bankruptcy or insolvency proceedings are instituted by or against the contractor.

3235.4 If the contractor's appeal of the debt is pending, the deferred payment agreement shall include a provision, approved by the Director, requiring the contractor to diligently prosecute the appeal and to pay the debt in full either when the appeal is decided or when the contractor and the District agree on the debt amount.

3235.5 If the contractor does not plan to appeal the debt or file an action under the disputes clause of the contract, the deferred payment agreement shall include a specific schedule of payments.

3235.6 The deferred payment agreement shall include a provision, approved by the Director, allowing the contractor to make prepayments without prejudice for refund of overpayments and for crediting of interest.

History

SOURCE: Final Rulemaking published at 35 DCR 1641 (February 26, 1988).

27 DCMR § 3236 CONTRACT DEBT INTEREST CHARGES AND CREDITS

3236.1 The contracting officer shall apply interest charges to any contract debt unpaid after thirty (30) days from the issuance of a demand, unless either of the following applies:

(a) The contract specifies another due date or procedure for charging or collecting interest; or

(b) The contract is excluded under §3236.5.

3236.2 Interest on contract debt shall be made an element of each deferred payment agreement. The interest charge shall be at the rate set forth in the D.C. Code §28-3302(c).

3236.3 The interest charge shall be computed for the actual number of calendar days involved beginning on the due date and ending on whichever of the following dates applies:

(a) The date on which the designated office received payment from the contractor;

(b) The date of issuance of a District check to the contractor from which an amount otherwise payable has been withheld as a credit against the contract debt; or

(c) The date on which an amount withheld and applied to the contract debt would otherwise have become payable to the contractor.

3236.4 An equitable interest credit shall be applied under the following circumstances:

(a) When the amount of debt initially determined is subsequently reduced;

(b) When the collection procedures used result in an over-collection of the debt due; or

(c) When the contracting officer or other official designated to collect the debt determines that the District has unduly delayed payments to the contractor on the same contract at some time during the period to which the interest charge applied, unless an interest penalty was paid for the late payment.

3236.5 The following categories of contracts may be excluded from interest charges:

(a) Small purchases;

(b) Contracts with a state or local government or instrumentality; and

History

SOURCE: Final Rulemaking published at 35 DCR 1642 (February 26, 1988).

27 DCMR § 3237 COMPROMISE OF CONTRACT DEBT COLLECTIONS

3237.1 For debts under ten thousand dollars ($10,000), excluding interest, if further collection is not practical or would cost more than the amount of recovery, the Director may compromise the debt or terminate or suspend further collection action.

3237.2 The Director shall not compromise any debt involving fraud. However, the Director may suspend collection action under this section, regardless of fraud, if the Attorney General determines that the cost of collection would exceed the amount of recovery.

History

SOURCE: Final Rulemaking published at 35 DCR 1643 (February 26, 1988).

27 DCMR § 3238 [RESERVED]

27 DCMR § 3239 [RESERVED]

27 DCMR § 3240 CONTRACT FUNDING

3240.1 In accordance with the Antideficiency Act (31 U.S.C. §665), no contracting officer or other District employee shall make or authorize an encumbrance or expenditure in advance of appropriations or which exceeds the budget authority available under a current appropriation.

3240.2 Before executing any contract, the contracting officer shall obtain certification from an official designated by the Deputy Mayor for Finance that the amount of the contract does not exceed the amount of unencumbered budget authority as of the date on which the contract is executed.

3240.3 For purposes of this section, "unencumbered budget authority" shall mean that portion of an appropriation which has been allocated to the object of the procurement and which has not been reallocated to another purpose, committed to any other procurement, or expended.

3240.4 If the contract provides for expenditures in excess of the amount of unencumbered budget authority, the contracting officer shall not sign the contract unless the contract contains a provision, approved by the Director, which expressly provides that the portion of the contract requiring payment of any amount in excess of available budget authority is conditioned upon the appropriation or allocation of additional budget authority.

3240.5 If the contract provides for expenditures in a future fiscal year, the contracting officer shall not sign the contract unless the contract contains a provision, approved by the Director, which expressly provides that the portion of the contract requiring expenditures in a future fiscal year is conditioned upon the appropriation of budget authority for that fiscal year.

3240.6 Before execution of a contract, the contracting officer shall ensure that the appropriate amount of allocated budget authority is encumbered to cover the cost of the contract.

3240.7 Budget authority shall be encumbered as follows:

(a) In an amount sufficient to cover the price or target price of a fixed-price contract, or the price of that portion of the contract to be performed in the current fiscal year; or

(b) In an amount sufficient to cover the estimated cost and any fee of a cost-reimbursement contract, or that portion of the estimated cost and fee applicable to the current fiscal year.

3240.8 For contracts which extend to a fiscal year for which appropriations have not been made or allocated at the time of contract execution, the contracting officer shall ensure that the appropriate amount of allocated budget authority is encumbered when the appropriation is made.

3240.9 Each encumbrance shall expire at the end of the fiscal year to which it applies. The portion of any contract not performed or delivered during the fiscal year shall be handled as follows:

(a) If the contract does not extend beyond the end of the fiscal year, that portion of the contract shall be cancelled; or

(b) If the contract extends to the following fiscal year, that portion of the contract shall be encumbered against appropriated budget authority in the following fiscal year or cancelled if budget authority is not available.

3240.10 A contractor shall not perform services or deliver goods under a contract conditioned upon the availability of funds until the contracting officer has given written notice to the contractor that funds are available. The contracting officer shall not give notice to the contractor until the appropriate amount of budget authority has been encumbered.

3240.11 The District shall not accept goods or services under a contract conditioned upon the availability of funds until the contracting officer has given written notice to the contractor that funds are available.

History

SOURCE: Final Rulemaking published at 35 DCR 1643 (February 26, 1988).

27 DCMR § 3241 [RESERVED]

27 DCMR § 3242 [RESERVED]

27 DCMR § 3243 LIMITATION OF COST OR FUNDS

3243.1 Upon learning that a partially funded contract will receive no further funds, the contracting officer shall promptly give the contractor notice of the decision not to provide funds.

3243.2 Under a cost-reimbursement contract, the contracting officer, upon learning that the contractor is approaching the estimated cost of the contract or the limit of the budget authority allocated and encumbered, shall promptly obtain information about funding and programming pertinent to the continuation of the contract and notify the contractor in writing of one (1) of the following:

(a) That additional funding is available or the estimated cost has been increased in a specified amount;

(b) That the contract will not be further funded, and that the contractor shall submit a proposal for an adjustment of fee, if any, based on the percentage of work completed in relation to the total work called for under the contract;

(d) That the District is considering whether to allot additional funds or increase the estimated cost, that the contractor is entitled by the contract terms to stop work when the funding or cost limit is reached, and that any work beyond the funding or cost limit will be at the contractor's risk.

3243.3 Under a cost-reimbursement contract, the contracting officer may issue a change order, a direction to replace or repair defective items or work, or a termination notice without immediately increasing the funds available.

3243.4 Under a cost-reimbursement contract, because a contractor is not obligated to incur costs in excess of the estimated cost in the contract, the contracting officer shall ensure availability of funds for directed actions.

3243.5 Under a cost-reimbursement contract, the contracting officer may direct that any increase in the estimated cost or amount allotted to a contract be used for the sole purpose of funding termination or other specified expenses.

History

SOURCE: Final Rulemaking published at 35 DCR 1645 (February 26, 1988).

27 DCMR § 3244 [RESERVED]

27 DCMR § 3245 [RESERVED]

27 DCMR § 3246 [RESERVED]

27 DCMR § 3247 [RESERVED]

27 DCMR § 3248 [RESERVED]

27 DCMR § 3249 [RESERVED]

27 DCMR § 3250 ASSIGNMENT OF CONTRACT PAYMENTS BY CONTRACTORS

3250.1 A contractor may assign moneys due or to become due under a contract if all the following conditions are met:

(a) The contract specifies payments aggregating one thousand dollars ($1,000) or more;

(b) The assignment is made to a bank, trust company, or other financing institution; and

3250.2 Unless otherwise expressly permitted in the contract, an assignment shall cover all unpaid amounts payable under the contract.

3250.3 Unless expressly permitted in the contract, an assignment may be made only to one (1) party, except that any assignment may be made to one (1) party as agent or trustee for two (2) or more parties participating in the financing of the contract.

3250.4 Unless expressly permitted in the contract, an assignment of contract payments shall not be subject to further assignment.

3250.5 The assignee shall be required to send written notice of assignment together with a true copy of the assignment instrument to the following in accordance with §3251.4:

(a) The contracting officer;

(b) The surety on any bond applicable to the contract; and

3250.6 A contract may prohibit the assignment of contract payments if the contracting officer determines that the prohibition is in the best interests of the District.

3250.7 Under a requirements or indefinite quantity type contract that authorizes ordering and payment by multiple District agencies, amounts due based on estimated quantities may be assigned.

3250.8 The District may apply against payments to the assignee any liability of the contractor to the District arising independently of the assigned contract if the liability existed at the time notice of the assignment was received even though that liability had not yet matured so as to be due and payable.

History

SOURCE: Final Rulemaking published at 35 DCR 1646 (February 26, 1988).

27 DCMR § 3251 PROCEDURES FOR ASSIGNMENT OF CONTRACT PAYMENTS

3251.1 Assignments by corporations shall be executed by an authorized representative of the corporation and attested by the secretary or an assistant secretary of the corporation.

3251.2 If the contractor is a partnership, the assignment may be signed by one (1) partner if it is accompanied by an acknowledged certification that the signer is a general partner of the partnership who is authorized to sign the assignment on behalf of all partners.

3251.3 If the contractor is an individual, the assignment shall be signed by that individual, and the signature shall be acknowledged before a notary public or other person authorized to administer oaths.

3251.4 The assignee shall forward to each person identified in §3250.5 an original and three (3) copies of the notice of assignment, together with one (1) true copy of the instrument of assignment.

3251.5 In examining and processing notices of assignment and before acknowledging their receipt, the contracting officer shall ensure that the following conditions have been met:

(a) The contract has been properly approved and executed;

(b) The contract is one under which claims may be assigned; and

3251.6 A release of an assignment shall be required whenever either of the following occurs:

(a) There has been a further assignment or reassignment; or

(b) The contractor wishes to reestablish its right to receive further payments after the contractor's obligations to an assignee have been satisfied and a balance remains due under the contract.

3251.7 The assignee, under a further assignment or reassignment, in order to establish a right to receive payment from the District shall, file the following with the persons listed in §3250.5:

(a) Written notice of release of the contractor by the assignee;

(b) A copy of the release instrument;

(d) A copy of the further assignment or reassignment instrument.

3251.8 If the assignee releases the contractor from an assignment of contract payments, the contractor, in order to establish a right to receive payment of the balance due under the contract, shall file a written notice of release together with a true copy of the release of assignment instrument with the persons listed in §3250.5.

3251.9 The recipient of a notice of release of assignment, or an official acting on behalf of that recipient, shall acknowledge receipt of the notice in writing.

History

SOURCE: Final Rulemaking published at 35 DCR 1647 (February 26, 1988).

27 DCMR § 3299 DEFINITIONS

3299.1 When used in this chapter, the following terms and phrases shall have the meanings ascribed:

Advance payments - payments made prior to performance of services or delivery of goods.

Appropriate fiscal authority - the budget officer, controller, or other designated District official.

Assignment of contract payments - the transfer by a contractor to a financial institution of the contractor's right to receive payments under the contract.

Capitation Rate - The monthly rate per enrollee, fixed annually in advance, paid to a contracted managed care plan for managing the services described in the contracted evidence of coverage, whether or not the enrollee receives services during the period covered by the rate.

Director - the Director of the Office of Contracting and Procurement or the District of Columbia Chief Procurement Officer.

Disbursing officer - the District employee responsible for making payments in settlement of a debt.

Fixed assets - property used in operating a business which will not be consumed or converted into cash or its equivalent. It includes machinery, land, and buildings.

Medicaid Managed Healthcare Program (MMCP) - a program for the provision and management of specified Medicaid services through contracted health maintenance organizations. The MMCP was established pursuant to the Medicaid Managed Care Amendment Act of 1992, effective March 17, 1992 (D.C. Law 9-247, D.C. Official Code. § 1-307.02) as amended.

Partial payment - the reduction of any debt or demand for payment of a sum less than the whole amount originally due.

Progress payment - a payment made on the basis of services completed or goods delivered. Progress payments are either customary or unusual. Customary progress payments are those based on rates specified in §3201.5. Unusual payments are those authorized at rates higher than those specified in §3201.5.

History

SOURCE: Final Rulemaking published at 35 DCR 1648 (February 26, 1988); as Final Rulemaking published at 48 DCR 5562 (June 15, 2001); as Emergency Rulemaking48 DCR 8457 (September 7, 2001) [EXPIRED]; as Final Rulemaking published at 49 DCR 7918 (August 16, 2002).

27-33 CONTRACT COST PRINCIPLES

27 DCMR § 3300 GENERAL PROVISIONS

3300.1 The cost principles and procedures set forth in this chapter shall be used when cost analysis is performed in connection with any contract or solicitation under the District of Columbia Procurement Practices Act of 1985, D.C. Law 6-85 (the "Act"), in accordance with the Act or this title.

3300.2 The cost principles and procedures set forth in this chapter shall be used by the contracting officer to negotiate or to determine reimbursable costs or the allowability of claims for reimbursement of costs in accordance with the clause, approved by the Director, contained in all cost-reimbursement contracts in accordance with §310(b) of the Act.

3300.3 In accordance with §601 of the Act, the cost principles and procedures set forth in this chapter shall be used in the following situations:

(a) The pricing or estimation of costs in contracts based on other than competitive sealed bidding;

(b) The pricing or estimation of costs in change orders or contract modifications;

(d) Allowability of costs under contract provisions which provide for reimbursement of costs.

3300.4 In addition to those contracts where the application of cost principles is required under the Act or this title, the contracting officer may include a clause, approved by the Director, requiring the use of cost principles and procedures set forth in this chapter to determine the allowability of estimated or incurred costs in any contract where the contracting officer determines that the negotiation, allowance, determination, or estimation of costs may be required or necessary.

3300.5 The application of cost principles to fixed-price contracts and subcontracts shall not be construed as a requirement to negotiate agreements on individual elements of cost in arriving at agreement on the total price. The final price accepted by the parties may reflect agreement only on the total price.

3300.6 The cost principles and procedures set forth in this chapter shall not apply to the following:

(a) The establishment of prices under contracts awarded on the basis of competitive sealed bidding;

(b) Prices fixed by law or regulation; or

History

AUTHORITY: Unless otherwise noted, the authority for this chapter is the District of Columbia Procurement Practices Act of 1985, D.C. Law 6-85, as amended, D.C. Code §1-1181.1 et seq. (1981).
SOURCE: Final Rulemaking published at 35 DCR 1650 (February 26, 1988).

27 DCMR § 3301 ADVANCE COST AGREEMENTS

3301.1 Advance cost agreements may be negotiated either before or after contract award. However, advance costs agreements shall be negotiated before a significant portion of the costs covered by the agreement have been incurred.

3301.2 Advance cost agreements shall be in writing, signed by the contracting officer and the contractor, and shall be incorporated by reference in the contract.

3301.3 The contracting officer shall not agree to a treatment of costs that is inconsistent with the cost principles set forth in this chapter, except as provided in §3302.

3301.4 Advance cost agreements may be negotiated with a contractor for a single contract, a group of contracts, or all the contracts between that contractor and the District.

3301.5 Before negotiating an advance cost agreement, the contracting officer shall do the following:

(a) Determine if other contracting offices inside the agency or in other agencies have a significant unliquidated dollar balance in contracts with the same contractor; and

(b) Inform the other offices or agencies identified under §3301.5(a) of the matters under consideration for negotiation and, as appropriate, invite those other offices or agencies to participate in prenegotiation discussions.

History

SOURCE: Final Rulemaking published at 35 DCR 1651 (February 26, 1988).

27 DCMR § 3302 DEVIATION FROM COST PRINCIPLES

3302.1 The contracting officer may recommend to the Director a deviation from the cost principles set forth in this chapter if the contracting officer determines in writing that the deviation would be in the best interests of the District.

3302.2 The contracting officer's recommendation for a deviation shall be in writing and shall set forth the reasons and justifications for the proposed deviation.

3302.3 A deviation shall be effective only upon written approval by the Director and incorporation in the contract.

3302.4 The Director shall not approve a deviation under this section unless the costs agreed to under the deviation are reasonable, lawful, allocable, and accounted for in accordance with generally accepted accounting principles.

History

SOURCE: Final Rulemaking published at 35 DCR 1651 (February 26, 1988).

27 DCMR § 3303 [RESERVED]

27 DCMR § 3304 [RESERVED]

27 DCMR § 3305 TOTAL COSTS

3305.1 The total cost of a contract shall be the sum of the allowable direct and indirect costs allocable to the contract, incurred or to be incurred, less any allocable credits.

3305.2 In ascertaining what constitutes a cost, the contracting officer may consider any generally accepted method of determining or estimating costs that is equitable and is consistently applied, including standard costs properly adjusted for applicable variances.

3305.3 Whenever a contractor is required by the District to submit a price proposal, the contractor shall estimate costs in a manner consistent with generally accepted cost accounting practices which are consistently applied, and which are consistent with the provisions of this chapter.

History

SOURCE: Final Rulemaking published at 35 DCR 1652 (February 26, 1988).

27 DCMR § 3306 DETERMINING ALLOWABILITY

3306.1 When determining whether a cost is allowable, the contracting officer shall consider the following factors:

(a) Reasonableness;

(b) Allocability;

(d) The terms of the contract;

(e) Consistency with the limitations set forth in this chapter; and

(f) Consistency with any applicable law.

3306.2 If a contractor's accounting practices are inconsistent with this chapter, the contracting officer shall not allow costs resulting from those practices in excess of the amount that would have resulted from using practices consistent with this chapter.

History

SOURCE: Final Rulemaking published at 35 DCR 1652 (February 26, 1988).

27 DCMR § 3307 DETERMINING REASONABLENESS

3307.1 The contracting officer shall determine a cost to be reasonable if it does not differ from or exceed in amount that which would be incurred by a prudent person in the conduct of a competitive business, in accordance with the provisions of this chapter.

3307.2 In determining the reasonableness of a given cost, the contracting officer shall consider the following factors:

(a) Whether the cost is of a type generally recognized as ordinary and necessary for the conduct of the contractor's business or the performance of the contract;

(b) The restraints or requirements imposed by generally accepted sound business practices, arms length bargaining, federal and District laws and regulations, and contract terms and specifications;

(c) The action that a prudent business person would take, considering responsibilities to the owner of the business, employees, customers, the District, and the public at large;

(d) Any significant deviations from the established practices of the contractor that may unjustifiably increase the contract costs; and

(e) Any other relevant factors.

3307.3 Reasonableness of specific costs must be examined with particular care in connection with firms or their separate divisions that may not be subject to effective competitive restraints.

3307.4 No presumption of reasonableness shall be attached to the incurrence of costs by a contractor.

3307.5 If an initial review of the facts results in a challenge of a specific cost by the contracting officer or the contracting officer's representative, the burden of proof shall be upon the contractor to establish that such cost is reasonable.

History

SOURCE: Final Rulemaking published at 35 DCR 1653 (February 26, 1988); as Final Rulemaking published at 51 DCR 1429 (February 6, 2004).

27 DCMR § 3308 DETERMINING ALLOCABILITY

3308.1 The contracting officer shall determine that a cost is allocable if the cost is assignable or chargeable to one (1) or more cost objectives on the basis of relative benefits received or other equitable relationship, in accordance with §3308.2.

3308.2 The contracting officer shall consider a cost allocable to a District contract if the cost meets one (1) or more of the following criteria:

(a) The cost is incurred specifically for the contract;

(b) The cost benefits both the contract and other work, and can be distributed to both in reasonable proportion to the benefits received; or

(c) The cost is necessary to the overall operation of the business, although a direct relationship to any particular cost objective may not be evident.

History

SOURCE: Final Rulemaking published at 35 DCR 1653 (February 26, 1988).

27 DCMR § 3309 [RESERVED]

27 DCMR § 3310 CREDITS

3310.1 The contracting officer shall credit to the District as a cost reduction, or by cash refund, the applicable portion of any income, rebate, allowance, or other credit relating to any allowable cost which is received by or accrued to the contractor.

History

SOURCE: Final Rulemaking published at 35 DCR 1654 (February 26, 1988).

27 DCMR § 3311 ACCOUNTING FOR UNALLOWABLE COSTS

3311.1 The contracting officer shall identify and exclude from each billing, claim, and proposal costs that are expressly unallowable under this chapter or mutually agreed to be unallowable under an advance cost agreement.

3311.2 When costs are identified as unallowable or mutually agreed to be unallowable, all directly associated costs shall also be unallowable.

3311.3 Costs and directly associated costs specifically designated as unallowable as a result of a written decision by a contracting officer shall be identified when included in or used in computing any billing, claim, or proposal applicable to a District contract.

3311.4 The contracting officer shall require records as support for claims, billings, and proposals that are adequate to establish and maintain visibility of those costs and directly associated costs which have been identified as unallowable.

3311.5 The contracting officer shall identify unallowable costs involved in determining rates used for standard costs, indirect cost proposals, or billings at the time rates are proposed, established, revised, or adjusted.

History

SOURCE: Final Rulemaking published at 35 DCR 1654 (February 26, 1988).

27 DCMR § 3312 DIRECT COSTS

3312.1 Direct costs associated with District contracts shall be segregated from other costs and recorded in accounts identifying them with the particular contract or cost objective to the maximum extent possible.

3312.2 Costs specifically identified with final cost objectives that are unrelated to District contracts, including other contracts or general business objectives of the contractor, shall not be charged to a District contract directly or indirectly.

3312.3 Any direct cost of a minor dollar amount may be treated as an indirect cost if the accounting treatment used is consistently applied and produces substantially the same result as treating the cost as a direct cost. A minor dollar amount shall be an amount not in excess of one half percent (1/2%) of the contract price.

3312.4 Any cost that has been allocated to any indirect cost pool or objective shall not be allowed as a direct cost.

History

SOURCE: Final Rulemaking published at 35 DCR 1655 (February 26, 1988).

27 DCMR § 3313 INDIRECT COSTS

3313.1 An indirect cost shall not be allocated to a District contract if other costs incurred for the same purpose in like circumstances have been included as a direct cost of that contract or any final cost objective not related to the District contract.

3313.2 Indirect costs shall be accumulated into logical groupings known as "indirect cost pools."

3313.3 The contractor's method of allocating indirect costs shall be in accordance with generally accepted accounting principles which are consistently applied, in accordance with the provisions of this chapter.

3313.4 The contracting officer shall examine the contractor's method of allocating indirect costs when any of the following apply:

(a) A substantial difference exists between the cost patterns of work performed under the contract and the contractor's other work;

(b) A significant change occurs in the nature of the contractor's business, extent of subcontracting, fixed asset improvement programs, inventories, volume of saves and production, manufacturing process, products, or other relevant circumstances; or

(c) Indirect cost groups developed for a contractor's primary location are applied to off-site locations, in which case separate cost groups for costs allocable to off-site locations may be necessary to distribute the contractor's costs on the basis of the benefits accruing to the appropriate cost objective.

3313.5 The contracting officer shall consider the base period for indirect cost allocation as the one in which the costs are incurred and accumulated for distribution to work performed in that period.

History

SOURCE: Final Rulemaking published at 35 DCR 1655 (February 26, 1988).

27 DCMR § 3314 [RESERVED]

27 DCMR § 3315 PRE-CONTRACT COSTS

3315.1 Pre-contract costs shall include costs incurred in anticipation of, and prior to, the effective date of the contract.

3315.2 Pre-contract costs necessary to comply with the proposed contract delivery schedule shall be allowable to the extent that they would have been allowable if incurred after the date of the contract, provided that the contract shall set forth the period of time and maximum amount that will be covered as allowable pre-contract costs.

History

SOURCE: Final Rulemaking published at 35 DCR 1656 (February 26, 1988).

27 DCMR § 3316 BID AND PROPOSAL COSTS

3316.1 Bid and proposal costs shall include costs incurred in preparing, submitting, and supporting bids and proposals.

3316.2 Ordinary and reasonable bid and proposal costs shall be allowable as indirect costs in accordance with the cost principles set forth in this chapter.

3316.3 Bid and proposal costs shall be allowable as direct costs only to the extent that they are specifically permitted by a provision of the contract or solicitation.

3316.4 If bid and proposal costs are allowable as direct costs, the same bid and proposal costs shall not be charged as indirect costs.

History

SOURCE: Final Rulemaking published at 35 DCR 1656 (February 26, 1988).

27 DCMR § 3317 [RESERVED]

27 DCMR § 3318 TERMINATION FOR CONVENIENCE COSTS

3318.1 The costs of items reasonably usable on the contractor's other work shall not be allowable upon termination of a contract for the convenience of the District, unless the contractor submits evidence that the items could not be retained at cost without sustaining a loss.

3318.2 Costs which cannot be discontinued immediately after the effective date of the termination may be allowed. However, any costs continuing after the effective date of the termination due to the negligent or willful failure of the contractor to discontinue the costs shall not be allowable.

3318.3 Initial costs, such as starting load and preparatory costs, shall be allowable in the following circumstances:

(a) When starting load costs not fully absorbed because of termination are nonrecurring labor, material, and related overhead costs incurred in the early part of production and result from factors such as the following:

(1) Excessive spoilage due to inexperienced labor;

(2) Idle time and subnormal production due to testing and changing production methods;

(3) Training; and

(4) Lack of familiarity or experience with the product, materials, or manufacturing processes.

(b) When costs incurred in preparing to perform the terminated contract include costs such as those incurred for initial plant rearrangement and alterations, management and personnel organization, and production planning, but not special machinery and equipment and starting load costs.

3318.4 When initial costs are included in the settlement proposal as direct costs, those costs also shall not be included in overhead. Initial costs attributable only to a single contract shall not be allocated to other contracts.

3318.5 The loss of useful value of special tooling, or special machinery and equipment, shall be allowed if the following factors apply:

(a) The special tooling, or special machinery and equipment, is not reasonably capable of use in the other work of the contractor;

(b) The District's interest is protected by transfer of title to the District or by other means deemed appropriate by the contracting officer; and

(c) The loss of useful value for a single terminated contract is limited to that portion of the procurement cost which bears the same ratio to the total procurement cost as the terminated portion of the contract bears to the entire terminated contract and other District contracts for which the special tooling or special machinery and equipment was procured.

3318.6 Rental costs under an unexpired lease, less the residual value of the lease, shall be allowable when the contracting officer determines that the lease was reasonably necessary for the performance of the terminated contract. The following limitations shall apply:

(a) The amount of rental claimed shall not exceed the reasonable use value of the property leased for the period of the contract and any further period that may be reasonable; and

(b) The contractor shall make all reasonable efforts to terminate, assign, settle, or otherwise reduce the cost of the lease.

3318.7 The contract may provide that the costs of alterations and reasonable restorations required by a lease are allowable.

3318.8 The costs of settlement of the termination (such as accounting, legal, clerical, and similar costs reasonably necessary for the preparation and presentation of settlement claims to the contracting officer) shall be allowable. Indirect costs related to salary and wages incurred as a result of the preparation and presentation of settlement claims shall be allowable.

3318.9 Costs of termination and settlement of subcontracts, as well as subcontractor claims as a result of a termination, shall be allowable except as provided in §3707.

History

SOURCE: Final Rulemaking published at 35 DCR 1657 (February 26, 1988).

27 DCMR § 3319 [RESERVED]

27 DCMR § 3320 AUTOMATIC DATA PROCESSING EQUIPMENT LEASING COSTS

3320.1 The provisions of this section shall apply to all contractor-leased automatic data processing (ADP) equipment procured under operating leases, except as components of an end item to be delivered to the District.

3320.2 The costs of leasing ADP equipment shall be allowable only to the extent that the contractor can demonstrate that the costs meet the following criteria:

(a) The costs are reasonable and necessary for the conduct of the contractor's business in light of factors such as the contractor's requirements for ADP equipment, costs of comparable facilities, the various types of leases available, and the terms of the lease agreement;

(b) The costs do not give rise to a material equity in the equipment, such as an option to renew or purchase at a bargain lease rate or price other than that normally given to industry at large, but represent charges only for the current use of the equipment, including incidental service costs such as maintenance, insurance, and applicable taxes; and

(c) The contracting officer's approval is obtained for the leasing arrangement when the total costs of leasing the ADP equipment is to be allocated to one (1) or more District contracts which require negotiating or determining costs, or the ADP equipment in a single plant or division exceeds five hundred thousand dollars ($500,000) a year, and fifty percent (50%) or more of the total cost is allocated to one (1) or more District contracts which require negotiating or determining costs.

3320.3 If the contractor leases ADP equipment but cannot demonstrate, on the basis of facts existing at the time of the decision to lease or continue leasing and documented in accordance with this section, that leasing will result in less cost to the District over the anticipated useful life of the equipment, then leasing costs shall be allowable only up to the amount that would be allowed if the contractor purchased the equipment.

3320.4 Lease costs under a sale and leaseback arrangement shall be allowable only up to the amount that would have been allowed if the contractor retained title to the ADP equipment.

3320.5 Allowable leasing costs of ADP equipment leased from any division, subsidiary, or organization under a common control shall be limited to the cost of ownership excluding interest or other costs which are not allowable under this chapter.

3320.6 When there is an established practice of leasing the same or similar ADP equipment to unaffiliated lessees, leasing costs shall be allowable in accordance with §§3320.2, 3320.7, 3320.8 and 3320.9, except that the purchase price and costs of ownership shall be determined in accordance with the provisions of §3324.

3320.7 The contractor's estimate of the anticipated useful life of the ADP equipment may represent the application life (utility in a given function), technological life (utility before becoming obsolete in whole or in part), or physical life (utility before wearing out), depending upon the facts, circumstances, and the particular facilities involved.

3320.8 In estimating anticipated useful life, the contractor may use the application life if it can be demonstrated the ADP equipment has utility only in a given function and the duration of the function can be determined.

3320.9 The contractor may use the technological life to determine anticipated useful life if it can demonstrate that existing ADP equipment must be replaced because of one (1) or more of the following reasons:

(a) Specific program objectives or contract requirements cannot be accomplished with existing ADP equipment;

(b) Cost reductions will produce identifiable savings in production or overhead costs;

(d) A consistent pattern of capacity operation, including multiple shifts, exists on existing ADP equipment.

3320.10 In estimating the lease cost to the District for the anticipated useful life of the ADP equipment, the contracting officer shall compare the cumulative costs that would be allowed if the contractor owned the ADP equipment with cumulative costs that would be allowed under any of the various types of leasing arrangements available. For the purposes of this comparison, the costs of ADP equipment shall exclude interest or other unallowable costs.

3320.11 The contractor's justification of a leasing decision, when required by the contracting officer, shall consist of the following data:

(a) Analysis of use of existing ADP equipment;

(b) The application of the criteria to allow cost of leasing ADP equipment as specified in this chapter;

(d) Solicitation of proposals, based on the data system specifications, from qualified sources; and

(e) Proposals received in response to the solicitation, the reasons for selecting the equipment chosen, and the basis of the decision to lease.

History

SOURCE: Final Rulemaking published at 35 DCR 1659 (February 26, 1988).

27 DCMR § 3321 DEPRECIATION AND USE ALLOWANCES

3321.1 Normal depreciation on a contractor's plant, equipment, and other capital facilities shall be allowable. The contracting officer shall require the contractor to demonstrate that the depreciation costs are reasonable and allocable.

3321.2 Depreciation shall be considered reasonable if the contractor demonstrates the following:

(a) The methods for determining depreciation costs are consistent with those followed by businesses (other than the government) with respect to each class of property;

(b) The depreciation costs are reflected in the contractor's books of accounts and financial statements; and

3321.3 The computation of depreciation or use allowances shall be based on acquisition costs. If acquisition costs are unknown, a reasonable estimate may be used.

3321.4 Depreciation shall be computed using any generally accepted accounting method. The method shall be consistently applied and result in equitable charges considering the use of the property.

3321.5 The contracting officer shall accept any method of depreciation which is accepted by the Internal Revenue Service.

3321.6 A use allowance shall be allowable if it is computed in accordance with an established industry or government schedule or other method mutually agreed upon by the contracting officer and the contractor.

History

SOURCE: Final Rulemaking published at 35 DCR 1661 (February 26, 1988).

27 DCMR § 3322 MAINTENANCE, REPAIR, SERVICE, AND WARRANTY COSTS

3322.1 Costs necessary for the upkeep of real or personal property, including District property, unless otherwise provided for, that do not add to the permanent value of the property or appreciably prolong its intended life, but keep it in an efficient operating condition, shall be allowable as follows:

(a) Normal maintenance and repair costs shall be allowable [______________]; and

(b) Extraordinary maintenance and repair costs shall be allowable and allocated to the applicable periods for purposes of determining contract costs.

3322.2 Expenditures for plant and equipment, including rehabilitation that is capitalized and subject to depreciation, shall be allowable only on a depreciation basis.

3322.3 Service and warranty costs that include costs arising from the fulfillment of any contractual obligation to provide services (such as installation, training, correcting defects in the products, replacing defective parts, and making refunds in the case of inadequate performance) shall be allowable when consistent with the terms of the contract and when the allowance of the costs would not result in a double payment by the District for correction of defects.

History

SOURCE: Final Rulemaking published at 35 DCR 1662 (February 26, 1988).

27 DCMR § 3323 MANUFACTURING AND PRODUCTION ENGINEERING COSTS

3323.1 Costs incident to the following activities related to manufacturing and production engineering shall be allowable if required or approved under the contract:

(a) Developing and deploying new or improved materials, systems, processes, methods, equipment, tools, and techniques that are or are expected to be used in producing products or services;

(b) Developing and deploying pilot production lines;

(c) Improving current production functions such as plant layout, production scheduling and control, methods and job analysis, equipment capabilities and capacities, inspection techniques, and tooling analysis, including tooling design and application improvements; and

(d) Material and manufacturing productibility analysis for production suitability and the optimization of manufacturing processes, methods, and techniques.

History

SOURCE: Final Rulemaking published at 35 DCR 1662 (February 26, 1988).

27 DCMR § 3324 MATERIAL COSTS

3324.1 Costs of material shall be allowable.

3324.2 In determining the cost of materials, consideration shall be given to reasonable overruns, spoilage, or defective work.

3324.3 Material costs shall include adjustments for all available discounts, refunds, rebates, and allowances.

3324.4 Material costs shall include adjustments for credits for proceeds the contractor received or reasonably should receive from salvage and material returned to suppliers.

3324.5 Allowance for all materials, goods, and services that are sold or transferred between any divisions, subsidiaries, or affiliates of the contractor under a common control shall be made on the basis of costs incurred in accordance with this chapter.

3324.6 The contracting officer may allow the transfer under §3324.5 at a price agreed to by the contracting officer if the following apply:

(a) The price of the materials is determined to be reasonable by the contracting officer;

(b) The price is not higher than the transferor's current sales price to its most favored customer for a similar quantity under similar payment and delivery conditions; and

(c) The price is established either by established catalog price or the lowest price offer obtained through competitive sealed bidding or competitive sealed proposals with similar businesses.

3324.7 When materials are purchased specifically for and are identifiable solely with performance under a contract, the actual purchase cost of those materials may be charged to the contract. If material is issued from stores, any generally recognized method for pricing the material shall be acceptable if that method is consistently applied and the results are equitable.

History

SOURCE: Final Rulemaking published at 35 DCR 1663 (February 26, 1988).

27 DCMR § 3325 PATENT AND ROYALTY COSTS

3325.1 The following patent costs shall be allowable to the extent that they are incurred as a requirement of a District contract and where title or a royalty-free perpetual license is to be conveyed to the District:

(a) Costs of preparing invention disclosures, reports, and other documents;

(b) Costs for searching the art to the extent necessary to make the invention disclosures; and

3325.2 General counseling services relating to patent matters, such as advice on patent laws, regulations, clauses, and employee agreements, shall be allowable.

3325.3 Royalties on a patent or amortization of the cost of purchasing a patent or patent rights necessary for the proper performance of the contract and applicable to contract products or processes shall be allowable unless one (1) or more of the following apply:

(a) The District has a license or the right to a free use of the patent;

(b) The patent has been adjudicated to be invalid or has been administratively determined to be invalid;

(d) The patent has expired.

3325.4 In any case involving a patent formerly owned by the contractor, the contracting officer shall not allow a royalty amount in excess of the cost which would have been allowed if the contractor had retained title.

History

SOURCE: Final Rulemaking published at 35 DCR 1664 (February 26, 1988).

27 DCMR § 3326 LEASING COSTS OTHER THAN AUTOMATIC DATA PROCESSING EQUIPMENT

3326.1 Except as provided in §3320, leasing costs under operating leases shall be allowable to the extent that the rates are reasonable at the time of the lease decision, after consideration of the following:

(a) Leasing costs of comparable property, if any;

(b) Market conditions in the area;

(d) Alternatives available; and

(e) Other provisions of the lease agreement.

3326.2 Leasing costs under a sale and leaseback arrangement shall be allowable only up to the amount the contractor would be allowed if the contractor retained title.

3326.3 Charges in the nature of leasing costs for property between any divisions, subsidiaries, or organization under common control shall be allowable to the extent that they do not exceed the normal costs of ownership, such as depreciation, taxes, insurance, and maintenance. No part of the costs shall duplicate any other allowed costs.

History

SOURCE: Final Rulemaking published at 35 DCR 1665 (February 26, 1988).

27 DCMR § 3327 SELLING COSTS

3327.1 Selling costs shall be allowable to the extent that they are reasonable and are allocable to the District contract.

3327.2 The contracting officer shall determine allocability of selling costs in the light of reasonable benefit to the District arising from activities, such as technical, consulting, demonstration, and other services, that are the application or adaptation of the contractor's products to District use for its own requirements or similar purposes.

3327.3 Sellers' or agents' compensation, fees, commissions, percentages, or brokerage fees shall be allowable only when paid to bona fide employees or established commercial or selling agencies maintained by the contractor for the purpose of securing business.

History

SOURCE: Final Rulemaking published at 35 DCR 1665 (February 26, 1988).

27 DCMR § 3328 SPECIAL TOOLING AND SPECIAL TEST EQUIPMENT COSTS

3328.1 The cost of special tooling and special test equipment used in performing one (1) or more District contracts shall be allowable and shall be allocated to the specific District contract or contracts for which it was procured.

3328.2 The cost of items procured by the contractor before the effective date of the contract, or the replacement of those items, whether altered or adapted for use in performing the contract, and items which the contract schedule specifically excludes shall be allowable only as depreciation or amortization.

3328.3 If items are disqualified as special tooling or special test equipment because they can be made suitable for general purpose use at relatively minor cost and have a general use value commensurate with their value as special tooling or special test equipment, the cost of adapting the items for use under the contract and the cost of returning them to their prior configuration shall be allowable.

History

SOURCE: Final Rulemaking published at 35 DCR 1666 (February 26, 1988).

27 DCMR § 3329 [RESERVED]

27 DCMR § 3330 BAD DEBTS

3330.1 Bad debts shall not be allowable, including losses arising from uncollectable accounts receivable due from customers and other claims and any directly associated costs such as collection and legal costs.

History

SOURCE: Final Rulemaking published at 35 DCR 1666 (February 26, 1988).

27 DCMR § 3331 BONDING COSTS

3331.1 Bonding costs shall be allowable when required under the terms of the contract.

3331.2 Bonding costs attributable to the performance of District contracts shall be allowable when required by the contractor in the general conduct of its business to the extent that the bonding is in accordance with sound business practice and the rates and premiums are reasonable under the circumstances.

History

SOURCE: Final Rulemaking published at 35 DCR 1666 (February 26, 1988).

27 DCMR § 3332 INSURANCE AND INDEMNIFICATION COSTS

3332.1 The cost of required or approved insurance that is maintained by the contractor pursuant to the contract shall be allowable.

3332.2 The cost of insurance maintained by the contractor in connection with the general conduct of its business shall be allowable, in accordance with the provisions of this section.

3332.3 The contracting officer shall determine that the types and extent of coverage follow sound business practice and that the rates and premiums are reasonable.

3332.4 Costs allowed for business interruption or other similar insurance shall exclude the cost of coverage for loss of profit.

3332.5 The cost of property insurance premiums for insurance coverage in excess of the acquisition cost of the insured assets shall be allowable only when the contractor has a formal written policy assuring that, in the event the insured property is involuntarily converted, the new asset shall be valued at the book value of the replaced asset, plus or minus adjustments for differences between insurance proceeds and actual replacement cost. If the contractor does not have a formal written policy with this assurance, the cost of premiums for insurance coverage in excess of the acquisition cost of the insured asset shall not be allowable.

3332.6 Costs of insurance for the risk of loss of or damage to District property shall be allowable only to the extent that the contractor is liable for loss or damage to District property, and to the extent that insurance does not cover loss or damage that results from willful misconduct or lack of good faith on the part of the contractor, its directors, officers, or agents.

3332.7 Actual losses shall not be allowable unless expressly provided for in the contract except as follows:

(a) Losses incurred under the nominal deductible provisions of purchased insurance, in keeping with sound business practices, shall be allowable when the contractor did not establish a self-insurance program; and

(b) Minor losses, such as spoilage, breakage, and disappearance of small hand tools, that occur in the ordinary course of doing business and that are not covered by insurance shall be allowable.

3332.8 The cost of insurance to protect the contractor against the costs of correcting its own defects in materials or workmanship shall not be allowable. However, insurance costs to cover fortuitous or casualty losses resulting from defects in materials or workmanship shall be allowable as a normal business expense.

History

SOURCE: Final Rulemaking published at 35 DCR 1666 (February 26, 1988),

27 DCMR § 3333 INTEREST AND OTHER FINANCIAL COSTS

3333.1 Interest on borrowings (however represented), bond discounts, costs of financing and refinancing capital (net worth plus long-term liabilities), legal and professional fees paid in connection with preparing prospectuses, costs of preparing and issuing stock rights, and directly associated costs shall not be allowable, except for interest assessed by state or local taxing authorities in accordance with §3335.

History

SOURCE: Final Rulemaking published at 35 DCR 1668 (February 26, 1988).

27 DCMR § 3334 ORGANIZATION COSTS AND OTHER BUSINESS COSTS

3334.1 Expenditures in connection with planning or executing the organization or reorganization of the corporate structure of a business, including mergers and acquisitions, or raising capital (net worth plus long-term liabilities) shall not be allowable.

3334.2 The cost of any change in the contractor's financial structure, excluding administrative costs of short-term borrowings for working capital, or changes that result in alterations in the rights and interests of security holders, whether or not additional capital is raised, shall not be allowable.

3334.3 The following recurring costs shall be allowable when allocated on an equitable basis:

(a) Registry and transfer charges resulting from changes in ownership of securities issued by the contractor;

(b) The cost of shareholders' meetings;

(d) The cost of preparing and publishing reports to shareholders;

(e) The cost of preparing and submitting required reports and forms to taxing and other regulatory bodies;

(f) Incidental costs of directors' and committee meetings; and

(g) Other similar costs.

History

SOURCE: Final Rulemaking published at 35 DCR 1668 (February 26, 1988).

27 DCMR § 3335 TAXES

3335.1 Except as provided in §3335.2, District, federal, state, and local taxes that are required to be and are paid or accrued in accordance with generally accepted accounting principles shall be allowable.

3335.2 The following costs shall not be allowable:

(a) District, federal, state, and local income taxes and federal excess profit taxes;

(b) All taxes from which the contractor could have obtained an exemption but failed to do so, except where the administrative cost of obtaining the exemption would have exceeded the tax savings realized from the exemption;

(c) Any interest, fines, or penalties paid on delinquent taxes unless incurred at the written direction of the contracting officer;

(d) Income tax accruals designed to account for the tax effects of differences between taxable income and pre-tax income as reflected by the contractor's books of accounts and financial statements;

(e) Taxes in connection with financing, refinancing, refunding operations, or reorganization;

(f) Special assessments on land that represent capital improvements;

(g) Taxes (including excise taxes) on real or personal property (or on the value, use, possession, or sale of personal property) which is used solely in connection with work other than on District contracts; and

(h) Taxes on accumulated funding deficiencies of, or prohibited transactions involving, employee deferred compensation plans pursuant to the Internal Revenue Code.

3335.3 Any taxes, interest, or penalties that were allowed as contract costs and are refunded to the contractor shall be credited or paid to the District in the manner the District directs. However, any interest actually paid or credited to a contractor incident to a refund of tax, interest, or penalty shall be paid or credited to the District only to the extent that the interest accrued over the period during which the contractor had been reimbursed by the District for the taxes, interest, or penalties.

3335.4 Direct government charges for services, such as water or capital improvements, are not considered taxes and shall not be allowable.

History

SOURCE: Final Rulemaking published at 35 DCR 1669 (February 26, 1988).

27 DCMR § 3336 LOSSES ON OTHER CONTRACTS

3336.1 An excess of costs over income under any other contract, including the contractor's contributed portion under cost-sharing contracts, shall not be allowable.

History

SOURCE: Final Rulemaking published at 35 DCR 1670 (February 26, 1988).

27 DCMR § 3337 [RESERVED]

27 DCMR § 3338 [RESERVED]

27 DCMR § 3339 [RESERVED]

27 DCMR § 3340 COMPENSATION FOR EMPLOYEE SERVICES

3340.1 Compensation for employee services shall include all remuneration paid or accrued, in any form and whether paid immediately or deferred, for services rendered by employees to the contractor during the period of contract performance.

3340.2 Compensation for employee services shall be allowable when the work is performed by the employee in the current year and does not represent a retroactive adjustment of a prior year's salaries or wages.

3340.3 The total compensation for employee services shall be reasonable for the work performed. Specific restrictions on individual compensation elements shall be observed where they are prescribed in the contract or advance cost agreement.

3340.4 Increases in costs for compensation for employee services shall not be allowable when the contractor introduces new or major revisions to existing compensation plans, unless the contractor does the following before the changes are implemented:

(a) Notifies the contracting officer of the changes; and

(b) Allows the contracting officer an opportunity to review the allowability of the changes.

3340.5 Costs that are not allowable under other sections of this chapter shall not be allowable solely on the basis that they constitute compensation for employee services.

3340.6 Compensation for employee services shall be considered reasonable to the extent that the total amount paid or accrued is commensurate with compensation paid under the contractor's established policy, and the amount conforms generally to compensation paid by other firms of the same size, in the same industry, or in the same geographic area for similar services.

3340.7 The contracting officer shall determine whether compensation of the following persons, and their spouses or children, is reasonable for the services performed or is a distribution of profits;

(a) Owners of closely held corporations;

(b) Partners; and

3340.8 Bonuses and incentive compensation shall be allowable to the extent that the overall compensation is determined to be reasonable, and the costs are paid or accrued pursuant to an agreement entered into in good faith between the contractor and the employee before the services are rendered or pursuant to an established, consistently applied plan followed by the contractor.

3340.9 The contracting officer shall consider severance pay allowable where it is required by law, an employer-employee agreement, established policy that constitutes an obligation of the contractor, or circumstances of the particular employment.

3340.10 The contracting officer shall allow pension costs to the extent that the costs are reasonable and meet the following criteria:

(a) The costs are funded by the time set for filing the federal income tax return or any extension to be considered in the current year; and

(b) The costs are paid pursuant to an agreement between the contractor and employees before the services are rendered and pursuant to an established plan that is consistently applied.

3340.11 The contracting officer shall allow the costs of fringe benefits to the extent that they are reasonable and required by law, by an employer-employee agreement, or as an established, consistently applied policy of the contractor.

3340.12 Legitimate costs incurred on activities designed to improve working conditions, employee morale, and employee performance shall be allowable. If a net profit is generated by these services, it shall be treated as a credit as provided in §3310 of this chapter.

History

SOURCE: Final Rulemaking published at 35 DCR 1670 (February 26, 1988).

27 DCMR § 3341 PERSONNEL COSTS RELATED TO LABOR-MANAGEMENT AGREEMENTS

3341.1 The costs of employee services based on a labor-management agreement shall be allowable only to the extent that the contracting officer determines that the agreement does not discriminate against the District, and the personnel costs are warranted by the character and circumstances of the work performed under the contract. A labor-management agreement shall be deemed to discriminate against the District if it results in employee compensation in any form that is in excess of compensation paid for non-District work under similar circumstances.

3341.2 The contracting officer shall not disallow costs for compensation resulting from labor-management agreements unless the contractor has been permitted an opportunity to justify the costs, and consideration has been given to whether unusual conditions pertain to the District contract work which imposes burdens, hardships, or hazards on the contractor's employees for which compensation that might otherwise appear unreasonable is required to attract and hold necessary personnel,

History

SOURCE: Final Rulemaking published at 35 DCR 1672 (February 26, 1988).

27 DCMR § 3342 COSTS OF BACK PAY

3342.1 The cost of back pay resulting from violations of applicable District law, federal labor laws, or the Civil Rights Act of 1964 where the employee was underpaid shall be allowable.

3342.2 All other back pay resulting from violations of applicable District law, federal labor laws, or the Civil Rights Act of 1964 (such as when the employee was improperly discharged, discriminated against, or other circumstances for which the back pay was not additional compensation for work performed) shall not be allowable.

3342.3 The cost of back pay resulting from payments to union employees for the difference in their past and current wage rates for working without a contract or labor agreement during labor management negotiations shall be allowable.

3342.4 The cost of back pay to non-union employees based on results of labor-management negotiations shall be allowable only if a formal agreement or understanding exists between management and the employees concerning the payment or an established policy or practice exists and is consistently followed by the contractor.

History

SOURCE: Final Rulemaking published at 35 DCR 1672 (February 26, 1988).

27 DCMR § 3343 LABOR RELATIONS COSTS

3343.1 Costs incurred in maintaining satisfactory relations between the contractor and its employees, including costs of shop stewards, labor management committees, employee publications, and other related activities, shall be allowable.

History

SOURCE: Final Rulemaking published at 35 DCR 1673 (February 26, 1988).

27 DCMR § 3344 EXPERT AND CONSULTANT SERVICES COSTS

3344.1 Except as provided in §3344.2, costs of expert and consultant services shall be allowable when reasonable in relation to the services rendered and when not contingent upon recovery of costs from the District.

3344.2 In determining the allowability of expert and consultant services costs, the contracting officer shall consider the following:

(a) The nature and scope of the services rendered in relation to the services required under the contract;

(b) The necessity of contracting for the service considering the contractor's capability in the particular area;

(c) The past pattern of the contractor's incurring this type of costs, particularly in the years prior to the award of District contracts;

(d) The impact of District contracts in the contractor's business;

(e) Whether the proportion of District work to the contractor's total business justifies incurring the cost, particularly when the services rendered are not of a continuing nature and have little relationship to work under District contracts;

(f) Whether the service can be performed more economically by employment rather than by contracting;

(g) The qualifications of the individual or firm rendering the service and the customary fee charged, especially on non-government contracts; and

(h) The adequacy of the contractual agreement for the services, including the description of the service, the estimate the time required, rate of compensation, and termination provisions.

3344.3 Fees for services rendered shall be allowable only when supported by evidence of the nature and scope of the service furnished.

History

SOURCE: Final Rulemaking published at 35 DCR 1673 (February 26, 1988).

27 DCMR § 3345 RECRUITMENT COSTS

3345.1 If the size of the staff recruited and maintained is in keeping with District contract workload requirements, the following costs shall be allowable:

(a) Costs of help-wanted advertising;

(b) Costs of operating an employment office needed to secure and maintain an adequate labor force;

(d) Travel costs of employees engaged in recruiting personnel;

(e) Travel costs of applicants for interviews; and

(f) Costs of employment agencies not in excess of standard commercial rates.

3345.2 Recruitment and advertising costs shall not be allowable when any of the following apply:

(a) The advertising or recruitment is for personnel other than those required to perform obligations under a District contract;

(b) The advertising does not describe specific positions or classes of positions;

(c) The advertising or recruitment is excessive relative to the number and importance of the positions or to the industry practices;

(d) The advertising includes material that is not relevant for recruitment purposes, such as extensive illustrations, the use of color, or descriptions of the company's products or capabilities; or

(e) The advertising or recruitment is designed to hire personnel from another District contractor.

History

SOURCE: Final Rulemaking published at 35 DCR 1674 (February 26, 1988),

27 DCMR § 3346 RELOCATION COSTS

3346.1 Relocation costs incident to the permanent change of duty assignment, for an indefinite period or for a stated period of not less than twelve (12) months, of an existing employee or upon recruitment of a new employee shall not be allowable unless specifically provided for in the contract.

History

SOURCE: Final Rulemaking published at 35 DCR 1675 (February 26, 1988).

27 DCMR § 3347 [RESERVED]

27 DCMR § 3348 [RESERVED]

27 DCMR § 3349 [RESERVED]

27 DCMR § 3350 ADVERTISING COSTS

3350.1 Advertising costs that arise from requirements of a District contract shall be allowable for the following purposes only:

(a) Recruiting personnel required for performing contractual obligations when considered in conjunction with all other recruitment costs under §3345;

(b) Procuring scarce items for contract performance;

(d) Notices or advertisements required by law or regulations.

History

SOURCE: Final Rulemaking published at 35 DCR 1675 (February 26, 1988).

27 DCMR § 3351 CONTINGENCIES

3351.1 The contracting officer shall not allow contingency costs except in the case of a termination.

3351.2 A contingency factor may be allowed in connection with a termination when it is applicable to a past period to give recognition to minor unsettled factors in the interest of expediting settlement.

History

SOURCE: Final Rulemaking published at 35 DCR 1675 (February 26, 1988).

27 DCMR § 3352 CONTRIBUTIONS AND DONATIONS

3352.1 Contributions and donations shall not be allowable.

History

SOURCE: Final Rulemaking published at 35 DCR 1676 (February 26, 1988).

27 DCMR § 3353 ENTERTAINMENT COSTS

3353.1 Costs of amusement, diversion, social activities, and any directly associated costs, such as tickets to shows or sport events, meals, lodging, rentals, transportation, and gratuities, shall not be allowable.

3353.2 Reasonable costs incurred for meetings or conferences, including, but not limited to, the cost of food, rental of facilities, and transportation, where the primary purpose of incurring those costs is the dissemination of technical information or the stimulation of production related to the District contract may be allowed by the contracting officer.

History

SOURCE: Final Rulemaking published at 35 DCR 1676 (February 26, 1988).

27 DCMR § 3354 FINES AND PENALTIES

3354.1 Fines and penalties resulting from violations of, or failure of the contractor to comply with District, federal, state, or local laws, or regulations shall not be allowable costs, except when incurred as a result of compliance with specific terms and conditions of the contract or written instructions from the contracting officer.

History

SOURCE: Final Rulemaking published at 35 DCR 1676 (February 26, 1988),

27 DCMR § 3355 LOBBYING COSTS

3355.1 Costs associated with activities that involve attempts to influence the outcome of any District, federal, state, or local election, referendum, initiative, or similar procedure, including in-kind or cash contributions, endorsements, publicity, or similar activities, shall not be allowable.

3355.2 Costs associated with establishing, administering, contributing to, or paying the expenses of a political party, campaign, political action committee, or other organization established for the purpose of influencing the outcomes of elections shall not be allowable.

3355.3 Costs associated with any attempt to influence the introduction of District, federal, state, or local legislation, or the enactment or modification of any pending District, federal, state, or local legislation through communication with any member or employee of the Council, the Congress, or any state or local legislature, or any government official or employee in connection with a decision to sign or veto enrolled legislation shall not allowable.

3355.4 Costs associated with any attempt to influence the introduction of District, federal, state or local legislation, or the enactment or modification of any pending District, federal, state, or local legislation by preparing, distributing, or using publicity or propaganda, or by urging any member of the public to contribute to or participate in any mass demonstration, march, rally, fundraising drive, lobbying campaign, or letter writing or telephone campaign shall not be allowable.

3355.5 Costs associated with legislative liaison activities, including attendance at legislative sessions or committee hearings, gathering information regarding legislation, and analyzing the effect of legislation, when those activities are carried on in support of or in preparation for an effort to engage in other activities for which costs are not allowed under this section, shall not be allowable.

3355.6 The costs of providing a technical and factual presentation of information on a topic directly related to the performance of a contract through hearing testimony, statements or letters to the Council or the Congress, including any committee, subdivision, member, or staff member, in response to a documented request made by or on behalf of the recipient member or legislative body shall be allowable if the information is readily obtainable and can be readily put in deliverable form.

3355.7 Costs for transportation, lodging, or meals in connection with the activities authorized under §3355.6 shall not be allowable unless incurred for the purpose of offering testimony at a regularly scheduled Council or congressional hearing pursuant to a written request for the presentation from the committee or subcommittee conducting the hearing.

3355.8 The costs of an activity specifically authorized by statute to be undertaken with funds from the contract shall be allowable.

3355.9 When a contractor seeks reimbursement for indirect costs, total costs for the activities set forth in this section shall be separately identified in the indirect cost rate proposal, and shall be treated as unallowable activity costs.

History

SOURCE: Final Rulemaking published at 35 DCR 1676 (February 26, 1988).

27 DCMR § 3356 PLANT PROTECTION COSTS

3356.1 The cost of items such as wages, uniforms, and equipment of personnel engaged in plant protection and the cost of depreciation on plant protection capital assets shall be allowable.

History

SOURCE: Final Rulemaking published at 35 DCR 1678 (February 26, 1988).

27 DCMR § 3357 TRANSPORTATION COSTS

3357.1 Transportation costs, such as freight, express, cartage, and postage charges relating to goods purchased, in process, or delivered, shall be allowable.

3357.2 When identification with the materials received cannot be made, inbound transportation costs may be charged to the appropriate indirect cost accounts if the contractor follows a consistent and equitable procedure. Outbound freight, if reimbursable under the terms of the contract, shall be treated as a direct cost.

History

SOURCE: Final Rulemaking published at 35 DCR 1678 (February 26, 1988).

27 DCMR § 3358 TRAVEL COSTS

3358.1 Costs for transportation, lodging, meals, and incidental expenses incurred by contractor personnel in official company business related to the District contract shall be allowable. Allowable costs may be based on actual cost incurred, per diem or mileage, or a combination if the method used-does not result in an unreasonable charge.

3358.2 Travel costs directly attributable to specific contract performance shall be allowable and may be charged to the contract as a direct cost.

3358.3 Travel costs incurred in the normal course of overall administration of the business shall be allowable and shall be treated as an indirect cost.

3358.4 The difference in cost between first-class air accommodations and less than first-class accommodations shall not be allowable.

History

SOURCE: Final Rulemaking published at 35 DCR 1678 (February 26, 1988).

27 DCMR § 3399 DEFINITIONS

3399.1 When used in this chapter, the following terms and phrases shall have the meanings ascribed:

Actual costs - amounts determined on the basis of costs incurred, as distinguished from forecasted costs. Actual costs include standard costs properly adjusted for applicable variances.

Advance cost agreement - an agreement between the District and a contractor concerning the treatment of special or unusual costs which are expected to be incurred.

Advertising costs - costs of advertising and directly associated costs regardless of the medium employed, when the advertiser has control over the form and content of what will appear, the media in which it will appear, and when it will appear. Advertising media includes conventions, exhibits, free goods, samples, magazines, newspapers, trade papers, direct mail, dealer cards, window displays, outdoor advertising, and radio and television programs.

Allocate - to assign an item of cost or a group of items of cost to one (1) or more cost objectives.

Allowable costs - costs determined to be permissible based on reasonableness, allocability, and generally accepted accounting principles and practices appropriate to the particular circumstances.

Bona fide employee - an employee who is employed in a specific position for a specific purpose relating to promoting or securing business for the contractor.

Business unit - any segment of an organization or an entire business organization that is not divided into segments.

Contingency costs - costs based on a possible future event or condition arising from presently known or unknown causes, the outcome of which is not determinable at the present time.

Cost objective - a function, organizational subdivision, contract, or other work unit for which cost data are desired and for which provision is made to accumulate and measure the cost of processes, products, jobs, and capitalized projects.

Council - the Council of the District of Columbia.

Deferred compensation - an award made by an employer to compensate an employee in a future cost accounting period or periods for services rendered in one (1) or more cost accounting periods before the date of the receipt of compensation by the employee. This term does not include the amount of year end accruals for salaries, wages, or bonuses that are to be paid within a reasonable period of time after the end of a cost accounting period.

Depreciation - a charge to current operations which distributes the cost of a tangible capital asset, less estimated residual value, over the estimated useful life of the asset in a systematic and logical manner. Useful life refers to the prospective period of economic usefulness in a particular contractor's operations as distinguished from physical life, as evidenced by the actual or estimated retirement and replacement practice of the contractor.

Direct cost - any cost that can be identified specifically with a particular final cost objective or is incurred directly for a particular contract.

Directly associated cost - any cost which is generated solely as a result of the incurrence of another cost, and which would not have been incurred had the cost not been incurred.

Director - the Director of the Office of Contracting and Procurement or the District of Columbia Chief Procurement Officer.

Established commercial or selling agency - a firm whose primary products are activities designed to secure business for the contractor such as technical, consulting, or demonstration services.

Estimating costs - the process of forecasting a future result in terms of cost based upon information available at the time.

Expert - a person with excellent qualifications and a high degree of attainment in a professional, scientific, technical, or other field, whose knowledge and mastery of the principles, practices, problems, methods, and techniques of his or her field or activity, or of a specialized area in the field, are clearly superior to those usually possessed by ordinarily competent persons in that activity, and whose attainment is such that he or she usually is regarded as an authority or as a practitioner of unusual competence and skill by other persons in the profession, occupation, or activity.

Expressly unallowable cost - a particular item or type of cost which, under the express provisions of an applicable law, regulation, or contract, is specifically named and stated to be unallowable.

Final cost objective - a cost objective that has allocated to it both direct and indirect costs and, in the contractor's accumulation system, is one of the final accumulation points.

Fiscal year - the accounting period for which annual financial statements are regularly prepared.

Fringe benefits - allowances and services provided by the contractor to its employees as compensation in addition to regular wages and salaries.

Indirect costs - any cost not directly identified with a single contract but identified with two (2) or more final cost objectives or an intermediate cost objective.

Indirect cost pools - groupings of incurred costs identified with two (2) or more cost objectives but not identified specifically with any final cost objective.

Insurance administration expenses - the contractor's costs of administering an insurance program which may include the cost of operating an insurance or risk management department, processing claims, actuarial fees, and service fees paid to insurance companies, trustees, or technical consultants.

Material costs - costs of items such as raw materials, parts, sub-assemblies, components, and manufacturing supplies, whether purchased or manufactured by the contractor, which may include such collateral items as inbound transportation and intransit insurance.

Normal cost - the annual cost attributable to years subsequent to a particular valuation date under the actuarial cost method in use.

Operating lease - the acquisition of real or personal property which is considered normal property to the operations of the contractor by lease or rental.

Organization costs - costs such as incorporation fees and costs of attorneys, accountants, brokers, promoters, organizers, management consultants, and investment counselors, including employees of the contractor.

Pension plan - a deferred compensation plan established and maintained by one (1) or more employers to provide systematically for the payment of benefits to plan participants after their retirements. The benefits are paid for life or are payable for life at the option of the employees. Additional benefits such as permanent and total disability, death payments, and survivorship payments to beneficiaries of deceased employees may be an integral part of a pension plan.

Pension plan participant - any employee or former employee of an employer, or any member or former member of an employee organization, who is or may become eligible to receive a benefit from a pension plan that covers employees of such employer or members of such organization and who have satisfied the plan's participation requirements. Beneficiaries receiving benefits or who may be eligible to receive benefits are included in this term.

Pre-contract costs - costs incurred before the effective date of the contract directly pursuant to the negotiation and in anticipation of the contract award when those costs are necessary to comply with the proposed contract delivery schedule.

Preparatory costs - an initial cost, such as those costs incurred for initial plant rearrangement and alterations, management and personnel organization, and production planning.

Pricing - the process of establishing a reasonable amount or amounts to be paid for goods or services.

Profit center - the smallest organizationally independent segment of a company charged by management with profit and loss responsibilities.

Proposal - any offer or other submission used as a basis for pricing a contract, contract modification, or termination settlement or for securing payments thereunder.

Rental costs - costs of renting or leasing real or personal property, except automatic data processing equipment.

Residual value - the proceeds, less removal and disposal costs, if any, realized upon disposition of a tangible capital asset. It usually is measured by the net proceeds from the sale or other disposition of the asset or its fair market value if the asset is traded in on another asset. The estimated residual value is a current forecast of the residual value.

Selling costs - costs that arise in the marketing of the contractor's products and includes costs of sales promotions, negotiation, liaison between District representatives and the contractor's personnel, and related activities.

Service life - the period of usefulness of a tangible capital asset or group of assets to its current owner. The period may be expressed in units of time or output. The estimated service life of a tangible capital asset or group of assets is a current forecast of its service life and is the period over which depreciation cost is to be assigned.

Special test equipment - single or multi-purpose integrated test units engineered, designed, fabricated, or modified to accomplish special purpose testing in performing a contract. It consists of items or assemblies of equipment that are interconnected and interdependent so as to become a new functional entity for special testing purposes. It does not include material, special tooling, facilities, and plant equipment items used for general plant testing purposes.

Special tooling - jigs, dies, fixtures, molds, patterns, taps, gauges, other equipment and manufacturing aids, all components of these items, and replacement of these items, which are of such a specialized nature that, without substantial modification or alteration, their use is limited to the development or production of particular goods or parts thereof or to the performance of particular services. It does not include material, special test equipment, facilities, general or special machine tools, or similar capital items.

Standard cost - any cost computed with the use of pre-established measures.

Tangible capital asset - an asset that has physical substance, more than minimal value, and is expected to be held by an enterprise for continued use or possession beyond the current accounting period for the services it yields.

Unallowable cost - any cost that, under the provisions of any pertinent law, regulation, or contract, cannot be included in prices, cost-reimbursements, or settlements under a District contract to which it is allocable.

Variance - the difference between a pre-established measure and an actual measure.

History

SOURCE: Final Rulemaking published at 35 DCR 1679 (February 26, 1988).

27-36 CONTRACT MODIFICATIONS

27 DCMR § 3600 GENERAL PROVISIONS

3600.1 Only a contracting officer acting within the scope of the contracting officer's delegated contract authority is authorized to execute a contract modification on behalf of the District. Other District personnel shall not:

(a) Execute contract modifications;

(b) Act in a manner that causes a contractor to believe that they have authority to bind the District; or

3600.2 A contract modification, including a change issued unilaterally by the District, shall be priced and a government estimate shall be prepared before signature by the parties, unless the interest of the District would be adversely affected. If a significant cost increase could result from a contract modification and time does not permit negotiation of a price, the contracting officer shall negotiate a maximum contract price increase and include that price in the modification.

3600.3 The contracting officer shall not execute a contract modification, including a change order, which causes or will cause an increase in the funding level of the contract without having first obtained a certification of the availability of funds. The certification shall be based on the negotiated price or the negotiated maximum price.

3600.4 A modification to a contract may be executed without having first obtained the certification required under § 3600.3 if the modification includes a clause, approved by the Director, which conditions payment upon the availability of funds.

History

SOURCE: Final Rulemaking published at 35 DCR 1684 (February 26, 1988); as amended by Final Rulemaking published at 59 DCR 14956 (December 21, 2012).

27 DCMR § 3601 TYPES OF CONTRACT MODIFICATIONS

3601.1 A contract modification may either be bilateral or unilateral.

3601.2 The contracting officer shall use a bilateral contract modification (also known as a "supplemental agreement") to:

(a) Make negotiated equitable adjustments resulting from the issuance of a change order;

(b) Formalize a letter contract; or

3601.3 The contracting officer shall use a unilateral contract modification to:

(a) Make administrative changes, such as correction of typographical errors or appropriations information;

(b) Issue change orders;

(d) Issue a termination notice.

3601.4 When a contractor considers that the District has effected or may effect a change in the contract that has not been identified as such in writing and signed by the contracting officer, the contractor shall notify the District in writing as soon as possible. The District shall evaluate the alleged change and:

(a) Confirm that it is a change, direct the mode of further performance, and plan for its funding;

(b) Countermand the alleged change; or

History

SOURCE: Final Rulemaking published at 35 DCR 1685 (February 26, 1988); as amended by Final Rulemaking published at 59 DCR 014956 (December 21, 2012).

27 DCMR § 3602 UNAUTHORIZED CONTRACT MODIFICATIONS

3602.1 Employees and agents of the District other than duly appointed contracting officers shall not execute contract modifications or:

(a) Act in a manner that causes or could reasonably cause a contractor to believe that they have authority to bind the District; or

(b) Direct or encourage a contractor to perform work or modify the manner in which work is being performed, which should be the subject of a contract modification.

3602.2 A contractor shall be bound by the terms of the written contract and written contract modifications signed by the contracting officer. A contractor shall not rely upon any written or oral statements or directions of employees or agents of the District, other than the contracting officer, for authority to perform work, alter schedules or specifications, or any other action that would normally require a written contract modification.

3602.3 The District shall not be responsible for any costs incurred by a contractor for any additional work or other actions by a contractor outside the scope of the written contract and written contract modifications signed by the contracting officer.

History

SOURCE: Final Rulemaking published at 35 DCR 1685 (February 26, 1988); as amended by Final Rulemaking published at 59 DCR 14956 (December 21, 2012).

27 DCMR § 3603 CHANGE ORDERS

3603.1 The contracting officer shall include a changes clause, approved by the Director, in each solicitation and contract.

3603.2 Each changes clause shall specify the kinds of contract changes that the contracting officer may make within the scope of the contract by written change order at any time and without notice to sureties, if any.

3603.3 Each changes clause shall include provisions for adjustments in contract price, delivery schedules, or other contract terms which are appropriate to the type of contract.

3603.4 The contracting officer may issue a written change order when a change can be accomplished within the provisions of the changes clause.

3603.5 After the contracting officer issues a change order, the contractor shall continue performance of the contract as changed. In cost-reimbursement contracts, the contractor shall not be obligated to continue performance or incur costs beyond the limits established in the contract.

History

SOURCE: Final Rulemaking published at 35 DCR 1686 (February 26, 1988); as amended by Final Rulemaking published at 14956 (December 21, 2012).

27 DCMR § 3604 EQUITABLE ADJUSTMENTS

3604.1 If the contracting officer and the contractor agree in advance to an equitable adjustment in the contract price, delivery terms, or other contract terms, the contracting officer shall issue a bilateral contract modification and shall not be required to issue a change order.

3604.2 The contracting officer shall negotiate an equitable adjustment resulting from a change order in the shortest practicable time.

3604.3 Failure to agree to any adjustment shall be a dispute under the disputes clause in the contract and shall be resolved in accordance with the procedures set forth in the Procurement Practices Reform Act of 2010, effective April 8, 2011 (D.C. Law 18-371; D.C. Official Code §§ 2-351.01, et seq.) (2011 Repl.) and Chapter 38 of this title. However, nothing in this section shall excuse the contractor from proceeding with the contract as changed, except as provided otherwise in § 3603.5.

History

SOURCE: Final Rulemaking published at 35 DCR 1686 (February 26, 1988); as amended by Final Rulemaking published at 59 DCR 14956 (December 21, 2012).

27 DCMR § 3605 [RESERVED]

History

SOURCE: Final Rulemaking published at 35 DCR 1687 (February 26, 1988); as amended by Final Rulemaking published at 59 DCR 14956 (December 21, 2012).

27 DCMR § 3606 EFFECTIVE DATES OF MODIFICATIONS

3606.1 For a solicitation amendment, change order, or administrative change, the effective date shall be the date on which the contracting officer issues the amendment, change order, or administrative change.

3606.2 For a bilateral modification (supplemental agreement), the effective date shall be the date agreed upon by the contracting officer and the contractor.

3606.3 For a modification converting a termination for default to a termination for the convenience of the District, the effective date shall be the same as the effective date of the termination for default.

3606.4 For a modification issued as a confirming notice of termination for the convenience of the District, the effective date of the confirming notice shall be the same as the effective date of the initial notice.

History

SOURCE: Final Rulemaking published at 35 DCR 1688 (February 26, 1988); as amended by Final Rulemaking published at 59 DCR 14956 (December 21, 2012).

27 DCMR § 3699 DEFINITIONS

3699.1 When used in this chapter, the following terms and phrases shall have the meanings ascribed:

Amendment - any change to a solicitation issued by the contracting officer.

Bilateral contract modification - a contract modification that is signed by the contractor and the contracting officer.

Change order - a written order signed by the contracting officer directing the contractor to make a change that the contracting officer is authorized to order without the contractor's consent pursuant to the contract.

Contract modification - any written change in the terms of a contract.

Supplemental agreement - a bilateral contract modification.

Unilateral modification - a contract modification that is signed only by the contracting officer.

History

SOURCE: Final Rulemaking published at 35 DCR 1688 (February 26, 1988); as amended by Final Rulemaking published at 59 DCR 14956 (December 21, 2012).

27-37 TERMINATION OF CONTRACTS

27 DCMR § 3700 GENERAL PROVISIONS

3700.1 The contracting officer may terminate a contract for the convenience of the District, in whole or in part, if the contracting officer determines that the termination is in the best interests of the District.

3700.2 The contracting officer may terminate a contract for default, in whole or in part, if the termination is in the best interests of the District, and the contractor does any of the following:

(a) Fails to deliver the goods or complete the work or services within the time specified in the contract or any modification;

(b) Fails to make sufficient progress on contract performance so as to endanger performance of the contract within the time specified or in the manner specified in the contract;

(d) Expresses through word or conduct an intention not to complete the work in a timely manner; or

(e) Fails to perform any of the other provisions of the contract.

3700.3 The contracting officer may effect a no-cost settlement instead of issuing a termination notice when the following circumstances apply:

(a) The contracting officer knows that the contractor will accept a no-cost settlement;

(b) District property was not furnished to the contractor; and

3700.4 If the same item is under contract with a business that is not certified with the District of Columbia Local Business Opportunity Commission (“LBOC”) and a business that is certified by the LBOC, and it is necessary to terminate for convenience part of the units still to be delivered, the contracting officer shall give preference to the continuing performance of the certified minority business by terminating all or part of the contract held by the non-certified business unless the Director determines that to do so is not in the best interests of the District.

3700.5 Upon written consent of the contractor, the contracting officer may reinstate the terminated portion of a contract, in whole or in part, by amending the notice of termination if the contracting officer determines that the following circumstances apply:

(a) There is a definite requirement for the terminated items; and

(b) Reinstatement is in the best interests of the District.

3700.6 When the price of the undelivered balance of a contract is less than two thousand dollars ($2,000), the contracting officer shall not terminate the contract for convenience, but shall permit it to run to completion.

3700.7 When a construction contract is terminated, the contracting officer shall take action to ensure site cleanup, protection of serviceable materials, removal of hazards, and other steps necessary to leave a safe and healthful site.

3700.8 In each solicitation and contract, the contracting officer shall include a clause, approved by the Director, giving notice of the District's right to terminate the contract for convenience or default. The contracting officer shall also insert a clause, approved by the Director, which gives notice of exceptions to the District's right to terminate for default when the delay or failure to perform is excusable due to causes beyond the control and without the fault or negligence of the contractor.

History

AUTHORITY: Unless otherwise noted, the authority for this chapter is the District of Columbia Procurement Practices Act of 1985, D.C. Law 6-85, as amended, D.C. Code §1-1181.1 et seq. (1981).
SOURCE: Final Rulemaking publishing at 35 DCR 1689 (February 26, 1988).

27 DCMR § 3701 NOTICE OF TERMINATION

3701.1 The contracting officer shall terminate a contract for convenience or default by giving written notice to the contractor. The notice shall be hand-delivered, sent by telegram, or sent by certified mail, return receipt requested.

3701.2 When the termination notice is delivered by hand, the contracting officer shall obtain a written acknowledgement of receipt from the contractor.

3701.3 If the termination notice is sent by telegram, the contracting officer shall deliver or send a confirming letter to the contractor by certified mail, return receipt requested.

3701.4 In addition to the requirements set forth in §3702.2 (termination for convenience) and §3713.2 (termination for default), the termination notice shall state the following:

(a) The contract number and date;

(b) That the contract is being terminated, either for the convenience of the District or for default under the contract clause authorizing the termination;

(d) If the termination is only partial, the extent of termination;

(e) Any special instructions; and

(f) The steps the contractor should take to minimize the impact on personnel if the termination, together with all other outstanding terminations, will result in a significant reduction in the contractor's work force.

3701.5 When the termination notice is delivered or sent to the contractor, the contracting officer shall simultaneously deliver or send a copy to the using agency or agencies and to any known assignee, guarantor, or surety of the contractor.

3701.6 The contracting officer may amend a termination notice to accomplish any of the following:

(a) Correct nonsubstantive mistakes in the notice;

(b) Add supplemental data or instructions; or

(c) Rescind or modify the notice if it is determined that items terminated had been shipped or completed before the contractor's receipt of the notice.

3701.7 An amendment to a termination notice shall be in writing and shall be delivered or sent to the contractor in the manner set forth in this section.

History

SOURCE: Final Rulemaking publishing at 35 DCR 1690 (February 26, 1988).

27 DCMR § 3702 NOTICE OF TERMINATION FOR CONVENIENCE

3702.1 After receipt of notice of termination for convenience, the contractor shall immediately comply with the notice, except as otherwise directed in writing by the contracting officer.

3702.2 In addition to the requirements of §3701, the notice of termination for convenience shall require the contractor to do the following:

(a) Stop work immediately on the terminated portion of the contract and make no further shipments and place no further orders relating to the terminated portion of the contract;

(b) Perform any continued portion of the contract;

(d) Terminate all subcontracts related to the terminated portion of the contract;

(e) Promptly notify the contracting officer in writing of any legal proceedings growing out of any subcontract or other commitment related to the terminated portion of the contract or in which a lien has been or may be placed against termination inventory to be reported to the District;

(f) Settle any outstanding liabilities and proposals arising out of the termination of subcontracts and obtain any necessary approvals from the contracting officer;

(g) Immediately advise the contracting officer of any special circumstances precluding the stoppage of work;

(h) If applicable, promptly submit a request for an equitable adjustment of price for the continued portion of the contract supported by evidence of any increase in cost;

(i) Take necessary or directed action to protect and preserve property in the contractor's possession in which the District has or may acquire an interest and, as directed by the contracting officer, deliver the property to the District;

(j) Dispose of termination inventory as directed or authorized by the contracting officer; and

(k) Promptly submit the contractor's own settlement proposal supported by appropriate schedules in accordance with §3708.

History

SOURCE: Final Rulemaking publishing at 35 DCR 1692 (February 26, 1988).

27 DCMR § 3703 SETTLEMENT AFTER TERMINATION FOR CONVENIENCE

3703.1 After issuing a notice of termination for convenience, the contracting officer shall be responsible for negotiating any settlement with the contractor. The contracting officer shall attempt to settle in one agreement all rights and liabilities of parties involved in the terminated contract except those arising from any portion of the contract still in effect.

3703.2 Consistent with the notice of termination for convenience, the contracting officer shall do the following:

(a) Direct the action required of the prime contractor;

(b) Examine the settlement proposal of the prime contractor and, when appropriate, the settlement proposals of subcontractors; and

3703.3 If all of the elements of the settlement cannot be agreed upon between the contractor and the contracting officer, the contracting officer shall follow the procedures set forth in §3705 for settlement by determination for those elements that cannot be settled by agreement.

3703.4 After a settlement agreement is completed under §3703.2(c), the contracting officer shall promptly hold a conference with the contractor to develop a definite plan for effecting the settlement.

3703.5 After consulting with the contractor, the contracting officer may request any of the principal subcontractors to attend the settlement conference, if appropriate.

3703.6 The termination settlement shall cover the following:

(a) Any setoffs that the District has against the contractor that may be applied against the terminated contract; and

(b) All settlement proposals of subcontractors, except proposals that are specifically excepted from the agreement and reserved for separate settlement.

3703.7 If any items are excepted from the settlement agreement, the contracting officer shall do the following:

(a) Reserve in the settlement agreement any rights or demands of the parties that are excepted from the settlement;

(b) Ensure that the wording of the reservation does not create any rights for the parties beyond those in existence before execution of the settlement agreement;

(c) Mark each applicable settlement agreement with a legend indicating that the settlement agreement contains a reservation and retain the contract file until the reservation is removed;

(d) Ensure that sufficient funds are retained to cover complete settlement of the reserved items; and

(e) At the appropriate time, prepare a separate settlement of reserved items and include it in a separate settlement agreement.

3703.8 Before execution of a settlement agreement, the contracting officer shall determine the accuracy of the District property account for the terminated contract. If a review discloses property for which the contractor cannot account, the contracting officer shall reserve in the settlement agreement the rights of the District regarding that property or make an appropriate deduction from the amount otherwise due the contractor.

3703.9 When the contracting officer cannot promptly complete settlement under a terminated contract, the contracting officer may enter into a partial settlement in the following situations:

(a) When the issues on which the agreement has been reached are clearly severable from other issues; and

(b) When the partial settlement will not prejudice the District's or contractor's interest in disposing of the unsettled portion of the settlement proposal.

3703.10 The contracting officer responsible for negotiating the final settlement shall establish a separate case file for each termination. This file shall include memoranda and records of all actions relative to the settlement.

History

SOURCE: Final Rulemaking publishing at 35 DCR 1693 (February 26, 1988).

27 DCMR § 3704 SETTLEMENT MEMORANDUM

3704.1 At the conclusion of settlement negotiations, the contracting officer shall prepare a settlement memorandum containing the principal elements of the settlement for inclusion in the contract file.

3704.2 If the settlement was negotiated on the basis of individual items, the contracting officer shall specify the factors considered for each item. If the settlement was negotiated on an overall lump-sum basis, the contracting officer shall not have to evaluate each item or group of items individually, but shall support the total amount of the recommended settlement in reasonable detail.

3704.3 The settlement memorandum shall include explanations of matters involving differences and doubtful questions settled by agreement and the factors considered.

History

SOURCE: Final Rulemaking publishing at 35 DCR 1695 (February 26, 1988).

27 DCMR § 3705 SETTLEMENT BY DETERMINATION

3705.1 If the contractor and the contracting officer cannot agree on a termination settlement under §3703, or if the contractor fails to submit a settlement proposal within the period required by the termination clause, the contracting officer shall issue a determination of the amount due consistent with the termination clause.

3705.2 If the contractor submits a settlement proposal, the contracting officer shall give the contractor notice, either by hand delivery or certified mail, return receipt requested, that the contractor may submit evidence substantiating the settlement amount in its proposal. The notice shall state a date certain by which the evidence must be received by the contracting officer.

3705.3 After reviewing any evidence submitted by the contractor and other available information, the contracting officer shall determine the amount due and shall transmit a copy of the determination to the contractor by certified mail, return receipt requested, or by any other method that provides evidence of receipt.

3705.4 The determination letter shall advise the contractor that the determination is a final decision from which the contractor may appeal under the procedures set forth in the Act, chapter 38 of this title, and the disputes clause in the contract, except as specified in §3705.6. The determination shall specify the amount due to the contractor and shall explain each major item that was not allowed.

3705.5 The contracting officer shall retain all written evidence and other data relied upon in making a determination.

3705.6 The contractor may appeal any settlement by determination under the provisions of the Act, chapter 38 of this title, and the disputes clause in the contract, except when the contractor has failed to submit a settlement proposal within the time provided in the contract and has failed to request an extension of time. The filing of an appeal shall not affect the authority of the contracting officer to enter into a settlement agreement, in whole or in part, by negotiation with the contractor at any time before the appeal is decided.

History

SOURCE: Final Rulemaking publishing at 35 DCR 1695 (February 26, 1988).

27 DCMR § 3706 PAYMENT AFTER SETTLEMENT

3706.1 After execution of a settlement agreement in accordance with §3703, the contractor shall submit a voucher or invoice showing the amount agreed upon less any portion previously paid. The contracting officer shall attach a copy of the settlement agreement to the voucher or invoice and forward the document to the appropriate office for payment.

3706.2 If the settlement is by determination under §3705, payment shall be effected in the following manner:

(a) If there is no appeal within the allowed time, the contractor shall submit a voucher or invoice showing the amount determined due, less any portion previously paid; or

(b) If there is an appeal, the contractor shall submit a voucher or invoice showing the amount finally determined due on the appeal, less any portion previously paid.

3706.3 In the case of construction contracts, before forwarding the final payment voucher, the contracting officer shall ascertain whether there are any outstanding labor violations. If any violations are outstanding, the contracting officer shall determine the amount to be withheld from the final payment.

3706.4 The District shall not pay interest on the amount due under a settlement agreement or a settlement by determination. However, the District shall pay interest on amounts found due to a contractor on claims in accordance with §806 of the Act from the date the Director receives the claim.

3706.5 The total amount payable to the contractor under a settlement, before deducting disposal or other credits, exclusive of settlement costs, shall not exceed the contract price less payments otherwise made or to be made under the contract.

History

SOURCE: Final Rulemaking publishing at 35 DCR 1696 (February 26, 1988).

27 DCMR § 3707 TERMINATION OF SUBCONTRACTS

3707.1 Upon termination of a prime contract, the prime contractor and each subcontractor shall be responsible for the prompt settlement with their immediate subcontractors. A subcontractor shall have no contractual rights against the District upon termination of the prime contract.

3707.2 Prime contractors shall settle with subcontractors in general conformity with the policies relating to settlement of prime contracts as specified in §§3703 - 3706 of this chapter.

3707.3 The failure of a prime contractor to include an appropriate termination clause in any subcontract or the failure of the contractor to exercise the rights of the termination clause shall not affect the District's right to require the termination of the subcontract, and shall not increase the obligation of the District in any way whatsoever.

3707.4 In no event shall the District be required to pay the prime contractor any amount for loss of anticipatory profits or consequential damages resulting from the termination of any subcontract.

History

SOURCE: Final Rulemaking publishing at 35 DCR 1697 (February 26, 1988).

27 DCMR § 3708 SETTLEMENT PROPOSALS AND SETTLEMENT AGREEMENTS

3708.1 The contractor shall submit to the contracting officer a settlement proposal for the amount claimed because of the termination for convenience.

3708.2 The contractor shall submit the settlement proposal within one (1) year from the effective date of the termination, unless the period is extended by the contracting officer.

3708.3 The settlement proposal shall cover all cost elements, including settlements with subcontractors and any proposed profit, and shall include reasonable detail supported by accounting data satisfactory to the contracting officer.

3708.4 For cost-reimbursement contracts, the termination clauses approved by the Director shall provide for settlement of costs and fees, if any. The contract clauses governing costs shall determine what costs are allowable.

3708.5 The settlement agreement may include all demands of the District and proposals of the contractor under the terminated contract. However, no amount shall be allowed for any item of cost disallowed by the contracting officer.

3708.6 If the contracting officer and contractor agree on an overall settlement of costs, agreement on each element of cost shall not be required. When appropriate, the contracting officer may compromise differences and settle doubtful costs by agreement. However, an overall settlement shall not include costs that are clearly not allowable under the terms of the contract.

History

SOURCE: Final Rulemaking publishing at 35 DCR 1697 (February 26, 1988).

27 DCMR § 3709 [RESERVED]

27 DCMR § 3710 TERMINATION FOR DEFAULT

3710.1 Under a termination for default, the District shall not be liable for the contractor's costs on undelivered work, and shall be entitled to the repayment of advance or progress payments, if any, applicable to that work.

3710.2 The default clause approved by the Director shall include a statement that the contracting officer may require the contractor to transfer title and deliver to the District completed goods. However, the contracting officer shall not use the default clause as authority to acquire any completed goods unless it has been ascertained that the District does not already have title under some other provision of the contract.

3710.3 Subject to the provisions of §§3710.4, 3710.5, and 3710.6, the District shall pay to the contractor the contract price for any completed goods and the amount agreed upon by the contracting officer and contractor for any manufacturing materials acquired by the District under the default clause approved by the Director.

3710.4 Before payment is made for completed or delivered goods, services, or materials, the contracting officer shall take one (1) or more of the following measures to protect the District from potential liability to laborers and material suppliers:

(a) Ascertain whether the payment bonds, if any, furnished by the contractor are adequate to satisfy all lienors' claims or whether it is feasible to obtain similar bonds to cover outstanding liens;

(b) Require the contractor to furnish appropriate statements from laborers and material suppliers disclaiming any lien rights they may have to the goods and materials;

(c) Obtain appropriate agreement among the District, the contractor, and lienors ensuring release of the District from any potential liability to the contractor or lienors;

(d) Withhold from the amount due for services, goods, or materials any amount the contracting officer determines necessary to protect the District's interests, but only if the measures set forth in §§3710.4(a)-(c) cannot be accomplished or are inadequate; and

(e) Take other appropriate action considering the circumstances and the degree of the contractors's solvency.

3710.5 The contractor shall be liable to the District for any excess costs incurred in reprocuring goods or materials similar to those to be obtained under the contract terminated for default and for any other damages, whether or not repurchase is effected.

3710.6 If a contract is terminated for default or if a course of action instead of termination for default is followed under §3714, the contracting officer shall promptly ascertain and make demand for any liquidated damages to which the District is entitled under the contract. The contract clause for liquidated damages shall be approved by the Director and shall specify that these damages are in addition to any excess repurchase costs.

History

SOURCE: Final Rulemaking publishing at 35 DCR 1698 (February 26, 1988).

27 DCMR § 3711 TERMINATION FOR DEFAULT PROCEDURES

3711.1 When a termination for default is being considered, the contracting officer shall decide which type of termination action to take after consultation with contracting and technical personnel and legal counsel.

3711.2 Except as provided in §3715.1, when a contractor has defaulted by failure to make delivery of goods or failure to perform the services within the specified time, no notice to the contractor of the failure or the possibility of termination shall be required before the actual notice of termination. However, if the District has taken any action that might be construed as a waiver of the contract delivery and performance date, the contracting officer shall send a notice to the contractor setting a new date for the contractor to make delivery or complete performance. The notice shall reserve the District's rights under the default clause of the contract.

3711.3 When the contractor fails to perform provisions of the contract other than those specified in §3711.2, or fails to make sufficient progress on contract performance so as to endanger performance of the contract, the contracting officer shall give the contractor written notice specifying the failure and providing a period of not less than ten (10) days in which to cure the failure. Upon expiration of the period specified in the cure notice, the contracting officer may issue a notice of termination for default unless it is determined that the failure to perform has been cured.

3711.4 When a termination for default appears imminent, the contracting officer may provide a written notification of that fact to the surety. This notification shall not be a notice of default.

3711.5 If the contractor is a certified minority business, the contracting officer shall forward a copy of any cure notice or show cause notice under §3712 to the District of Columbia Local Business Opportunity Commission.

3711.6 The contracting officer shall consider the following factors in determining whether to terminate a contract for default:

(a) The terms of the contract and applicable laws and regulations;

(b) The specific failure of the contractor and the excuses for the failure, if any;

(d) The urgency of the need for the goods or services and the period of time required to obtain them from other sources, as compared with the time for delivery that could be obtained from the delinquent contractor;

(e) The degree to which the contractor is essential to the District procurement program and the effect of a termination for default upon the contractor's capability as a supplier under other contracts;

(f) The effect of a termination for default on the ability of the contractor to liquidate guaranteed loans, progress payments, or advance payments; and

(g) Any other pertinent facts and circumstances.

3711.7 In addition to the requirements set forth in §3711.6, in the case of a construction contract, promptly after issuance of the termination notice, the contracting officer shall determine the manner in which the work is to be completed and whether the materials, appliances, and plant that are on the site will be needed.

3711.8 When a contract is terminated for default, or an alternative procedure is authorized instead of default under §3714, the contracting officer shall prepare a memorandum for the contract file explaining the reasons for the action taken.

History

SOURCE: Final Rulemaking publishing at 35 DCR 1699 (February 26, 1988).

27 DCMR § 3712 NOTICE TO SHOW CAUSE

3712.1 When termination for default appears appropriate, the contracting officer may, if it is in the best interests of the District, notify the contractor in writing of the possibility of the termination. The show cause notice shall call the contractor's attention to the contractual liabilities if the contract is terminated for default, and request the contractor to show cause why the contract should not be terminated for default.

3712.2 The show cause notice shall give the contractor ten (10) days after receipt of the notice to present in writing any facts bearing on the case. The notice shall be hand delivered or sent by certified mail, return receipt requested.

3712.3 The notice may further state that failure of the contractor to present an explanation may be taken as an admission that no valid explanation exists. When appropriate, the notice may invite the contractor to discuss the matter at a conference.

3712.4 A notice to show cause may be combined with a notice to cure issued under §3711.3.

History

SOURCE: Final Rulemaking publishing at 35 DCR 1701 (February 26, 1988).

27 DCMR § 3713 NOTICE OF TERMINATION FOR DEFAULT

3713.1 If, after consideration of all facts and circumstances, and after compliance with the provisions of this chapter, the contracting officer determines that a termination for default is proper, the contracting officer shall issue a notice of termination.

3713.2 In addition to the requirements of §3701, a notice of termination for default shall include the following:

(a) The acts or omissions constituting the default;

(b) A statement that the contractor's right to proceed further under the contract, or a specified portion of the contract, is terminated;

(c) A statement that the goods or services terminated may be purchased against the contractor's account, and that the contractor will be held liable for any excess costs;

(d) If the contracting officer has determined that the failure to perform is not excusable, a statement that the notice of termination constitutes a decision to that effect, and that the contractor has the right to appeal the decision under the disputes clause in the contract;

(e) That the District reserves all rights and remedies provided by law or under the contract, in addition to charging excess costs; and

(f) That the notice constitutes a decision that the contractor is in default as specified, and that the contractor has the right to appeal the termination under the disputes clause in the contract.

3713.3 The contracting officer shall make the same distribution of the termination notice as was made of the contract.

3713.4 The contracting officer shall furnish a copy to the contractor's surety, if any, when the notice is furnished to the contractor. The contracting officer shall request the surety to advise the contracting officer if it desires to arrange for completion of the work.

3713.5 The contracting officer shall immediately notify the payment office to withhold further payments under the terminated contract pending further notice.

History

SOURCE: Final Rulemaking publishing at 35 DCR 1702 (February 26, 1988).

27 DCMR § 3714 EXCUSABLE FAILURE TO PERFORM AND OTHER NON-TERMINATION ACTIONS

3714.1 If the contracting officer determines before issuing the termination notice that the failure to perform is excusable in accordance with the contract clause required under §3700.8, the contract shall not be terminated for default. If termination is in the best interests of the District, the contracting officer may terminate the contract for the convenience of the District.

3714.2 If the contracting officer has not been able to determine before issuance of the notice of termination whether the contactor's failure to perform is excusable, the contracting officer shall make a written decision on that point as soon as practicable after issuance of the notice of termination.

3714.3 When the contracting officer determines that some action other than a termination for default is in the best interests of the District, the contracting officer may take any one of the following actions:

(a) The contracting officer may permit the contractor, the surety, or the guarantor, to continue performance of the contract under a revised delivery schedule;

(b) The contracting officer may permit the contractor to continue performance of the contract by means of a subcontract or other business arrangement with an acceptable third party, provided that the rights of the District shall be adequately preserved; or

(c) If the requirement for the goods and services in the contract no longer exists, and the contractor is not liable to the District for damages, the contracting officer may execute a no-cost settlement.

3714.4 The contracting officer may, with the written consent of the contractor, reinstate the terminated contract by amending the notice of termination, after the contracting officer makes a written determination that the goods or services are still required and reinstatement is in the best interests of the District.

History

SOURCE: Final Rulemaking publishing at 35 DCR 1703 (February 26, 1988).

27 DCMR § 3715 TERMINATION OF COST-REIMBURSEMENT CONTRACTS FOR DEFAULT

3715.1 The termination clause of a cost-reimbursement type contract shall require the contracting officer to provide the contractor with at least ten (10) days notice before issuance of a notice of termination for default.

3715.2 Settlement of a cost-reimbursement contract terminated for default shall be in accordance with the provisions of §3703, except as follows:

(a) The costs of preparing the contractor's settlement proposal shall not be allowable; and

(b) The contractor shall be reimbursed for all allowable costs and an appropriate reduction shall be made in the total fee, if any.

History

SOURCE: Final Rulemaking publishing at 35 DCR 1703 (February 26, 1988).

27 DCMR § 3716 REPURCHASE AGAINST CONTRACTOR'S ACCOUNT

3716.1 When the goods or services under a terminated contract are still required after termination for default, the contracting officer shall repurchase the same or similar goods or services against the contractor's account as soon as practicable.

3716.2 The contracting officer shall repurchase similar goods and services at as reasonable a price as practicable, considering the quality and delivery requirements.

3716.3 The contracting officer may repurchase a quantity in excess of the quantity terminated for default when the excess quantity is needed. However, the costs of any items in excess of the undelivered quantity terminated for default shall not be charged against the defaulting contractor.

3716.4 Except as provided in §§3716.5 and 3717, the contracting officer shall use the procedures set forth in chapter 15 or chapter 16 of this title, whichever is applicable, to repurchase the terminated goods or services, or any additional requirements needed.

3716.5 Except as provided in §3717, if the goods or services are required immediately, the contracting officer may reprocure the required goods or the services on an emergency basis in accordance with the provisions of chapter 17 of this title. The period of performance for any services reprocured shall not exceed the limits specified in chapter 17 of this title.

3716.6 If repurchase is made at a price greater than the price of the goods or services terminated, the contracting officer shall, after completion and final payment of the repurchase contract, make a written demand on the contractor for the total amount of the excess, giving consideration to any increases or decreases in other costs, such as transportation or discounts.

History

SOURCE: Final Rulemaking publishing at 35 DCR 1704 (February 26, 1988).

27 DCMR § 3717 SURETY TAKEOVER AGREEMENTS

3717.1 The contracting officer shall carefully consider proposals by the surety concerning completion of the work. The contracting officer shall take action on the basis of the District's interests, including the possible effect of the action upon the District's rights against the surety.

3717.2 If the surety offers to complete the contract work, the contracting officer shall accept the offer unless the contracting officer has reason to believe that the persons or firms proposed by the surety to complete the work are not competent or qualified and the interests of the District would be substantially prejudiced.

3717.3 If the surety conditions its offer of completion upon the execution by the District of a "takeover" agreement fixing the surety's rights to payment from unpaid prior earnings (retained percentage and unpaid progress estimates), the contracting officer may, at any time after the effective date of the termination, enter into a written agreement with the surety.

3717.4 The takeover agreement shall provide for the surety to complete the work according to all the terms and conditions of the contract and for the District to pay the surety the balance of the contract price, less any setoffs or assessed damages, but not in excess of the surety's costs and expenses, in the manner provided by the contract subject to the following conditions set forth in §§3717.5 through 3717.8.

3717.5 Under a takeover agreement, any unpaid earnings of the defaulting contractor, including retained percentages and progress estimates for work accomplished before termination, shall be subject to debts and assessed damages due the District by the contractor.

3717.6 The takeover agreement shall not waive or release the District's right to liquidated damages for delays in completion of the work, except to the extent that they are excusable under the contract.

3717.7 If the contract proceeds have been assigned to a financing institution, the surety may not be paid from unpaid earnings under a takeover agreement, unless the assignee consents to the payment in writing.

3717.8 Under a takeover agreement, the surety shall not be paid any amount in excess of its total expenditures necessarily made in completing the work and discharging its liabilities under the payment bond of the defaulting contractor.

3717.9 The contracting officer shall make payments to the surety to reimburse it for discharging its liabilities under the payment bond of the defaulting contractor only on the basis of one (1) of the following:

(a) Mutual agreement between the District, the defaulting contractor, and the surety; or

(b) Order of a court of competent jurisdiction.

History

SOURCE: Final Rulemaking publishing at 35 DCR 1705 (February 26, 1988).

27 DCMR § 3799 DEFINITIONS

3799.1 When used in this chapter, the following terms and phrases shall have the meanings ascribed:

Completed goods - goods that are completely manufactured and ready for delivery.

Cure notice - a notice in writing in which the contracting officer specifies a contractor's failure to perform some provision of the contract or failure to make sufficient progress on contract performance so as to endanger performance of the contract. The notice includes a period of time in which the contractor will be allowed to cure the failure.

Director - the Director of the Office of Contracting and Procurement or the District of Columbia Chief Procurement Officer.

District property account - an accounting of property owned by the District.

Effective date of termination - the date on which the notice of termination requires the contractor to stop performance under the contract. If the termination notice is received by the contractor subsequent to the date fixed for termination, then the effective date of termination is the date the notice is received by the contractor.

Other work - any current or scheduled work of the contractor, whether governmental or commercial, other than work related to the terminated contract.

Partial termination - the termination of a part, but not all, of the work that has not been completed and accepted under a contract.

Settlement agreement - a written agreement in the form of a modification to a contract settling all or a severable portion of a settlement proposal.

Settlement proposal - a proposal for effecting settlement of a contract terminated, in whole or in part, submitted by a contractor or subcontractor.

Show cause notice - a notice in which the contracting officer notifies the contractor in writing of the possibility of a termination for default. The notice calls the contractor's attention to the contractual liabilities if the contract is terminated for default, and requests the contractor to show cause why the contract should not be terminated for default.

Terminated portion of the contract - the portion of a terminated contract that relates to work or end items not completed and accepted before the effective date of termination, and is the portion of the contract which the contractor is not to continue to perform. For construction contracts that have been completely terminated for convenience, it means the entire contract, notwithstanding the completion of or payment for individual items of work before termination.

Termination for default - the exercise of the District's contractual right to terminate, completely or partially, a contract because of the contractor's actual or anticipated failure to perform its contractual obligations.

History

SOURCE: Final Rulemaking publishing at 35 DCR 1706 (February 26, 1988).

27-38 PROTESTS, CLAIMS, AND DISPUTES

27 DCMR § 3800 PROTESTS

3800.1 In accordance with the provisions of § 1003 of the Procurement Practices Reform Act of 2010, effective April 8, 2011 (D.C. Law 18-371; D.C. Official Code § 2-360.03 (2011 Repl.)) (Act), all protests shall be filed with the District of Columbia Contract Appeals Board (CAB) in accordance with the CAB’s rules. The CAB has original jurisdiction to decide all protests of solicitations or awards.

3800.2 Each solicitation issued by the District shall inform prospective bidders or offerors that protests must be filed in accordance with the provisions of § 1008 of the Act and the CAB’s rules.

History

SOURCE: Final Rulemaking published at 35 DCR 1708 (February 26, 1988); as amended by Emergency and Proposed Rulemaking published at 49 DCR 9348 (October 11, 2002)[EXPIRED]; as amended by Emergency Rulemaking published at 50 DCR 1050 (January 31, 2003)[EXPIRED]; as amended by Emergency Rulemaking published at 50 DCR 3205 (April 25, 2003)[EXPIRED]; as amended by Emergency Rulemaking published at 50 DCR 9271 (October 31, 2003)[EXPIRED]; as amended by Final Rulemaking published at 51 DCR 1432 (February 6, 2004); as amended by a Notice of Emergency and Proposed Rulemaking published at 59 DCR 1786 (March 2, 2012)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 2911 (April 13, 2012).

27 DCMR § 3801 CONTRACT DISPUTES

3801.1 Each District contract shall contain a disputes clause, approved by the Director, providing for resolution of disputes in accordance with the provisions of this chapter.

3801.2 Any dispute arising under or relating to a contract which is not resolved by informal discussions between the contracting officer and the contractor may be treated as a claim and pursued under the appropriate provisions of the Act and this chapter.

3801.3 Claims by the District against a contractor shall be decided by the contracting officer in accordance with § 906 of the Act (D.C. Official Code § 2-359.06 (2011 Repl.)) and § 3802 of this chapter.

3801.4 Claims by a contractor against the District government shall be filed with and decided by the contracting officer in accordance with § 908 of the Act (D.C. Official Code § 2-359.08 (2011Repl.)) and § 3803 of this chapter.

History

SOURCE: Final Rulemaking published at 35 DCR 1708 (February 26, 1988); as amended by Emergency and Proposed Rulemaking published at 49 DCR 9348 (October 11, 2002) [EXPIRED]; as amended by Emergency Rulemaking published at 50 DCR 1050 (January 31, 2003) [EXPIRED]; as amended by Emergency Rulemaking published at 50 DCR 3205 (April 25, 2003) [EXPIRED]; as amended by Emergency Rulemaking published at 50 DCR 9271 (October 31, 2003) [EXPIRED]; as amended by Final Rulemaking published at 51 DCR 1432 (February 6, 2004); as amended by Notice of Emergency and Proposed Rulemaking published at 59 DCR 1786 (March 2, 2012)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 2911 (April 13, 2012).

27 DCMR § 3802 CLAIMS BY THE DISTRICT AGAINST CONTRACTORS

3802.1 All claims by the District against a contractor arising under or relating to a contract shall be decided by the contracting officer. The contracting officer shall send the written decision regarding the claim to the contractor.

3802.2 The contracting officer's written decision shall do the following:

(a) Provide a description of the claim or dispute;

(b) Refer to the pertinent contract terms;

(d) State the reasons for the decision, including any specific findings of fact, although specific findings of fact are not required and, if made, shall not be binding in any subsequent proceeding;

(e) Indicate that the written document is the contracting officer's final decision; and

(f) Inform the contractor of the right to seek further redress by appealing the contracting officer’s decision to the CAB.

3802.3 The decision of the contracting officer shall be final and not subject to review unless an administrative appeal or action for judicial review is timely commenced as authorized by §§ 1004(a) and 1005 of the Act (D.C. Official Code §§ 2-360.04(a) and 2-360.05 (2011 Repl.)).

3802.4 The authority contained in this section shall not apply to a claim or dispute for penalties or forfeitures prescribed by statute or regulation which another District agency is specifically authorized to administer, settle, or determine.

3802.5 This section shall not authorize the contracting officer to settle, compromise, pay, or otherwise adjust any claim involving fraud.

3802.6 Pending final decision of an appeal, action, or final settlement, the contractor shall proceed diligently with performance of the contract in accordance with the decision of the contracting officer.

History

SOURCE: Final Rulemaking published at 35 DCR 1708 (February 26, 1988); as amended by Emergency and Proposed Rulemaking published at 49 DCR 9348 (October 11, 2002) [EXPIRED]; as amended by Emergency Rulemaking published at 50 DCR 1050 (January 31, 2003) [EXPIRED]; as amended by Emergency Rulemaking published at 50 DCR 3205 (April 25, 2003) [EXPIRED]; as amended by Emergency Rulemaking published at 50 DCR 9271 (October 31, 2003) [EXPIRED]; as amended by Final Rulemaking published at 51 DCR 1432 (February 6, 2004); as amended by Notice of Emergency and Proposed Rulemaking published at 59 DCR 1786 (March 2, 2012)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 2911, 2912 (April 13, 2012).

27 DCMR § 3803 CLAIMS BY CONTRACTORS AGAINST THE DISTRICT

3803.1 If a contractor is unable to resolve a dispute arising under or relating to a contract through informal discussions, the contractor may file a written claim with the contracting officer in accordance with this section.

3803.2 The contractor's claim shall be in writing, shall be delivered in person or mailed by certified mail, return receipt requested, to the contracting officer, and shall contain at least the following:

(a) A description of the claim and the amount in dispute;

(b) Any data or other information in support of the claim;

(d) The contractor's request for relief or other action by the contracting officer.

3803.3 The contracting officer may meet with the contractor in a further attempt to resolve the claim by agreement.

3803.4 The contracting officer shall issue a written decision on any claim within one-hundred twenty (120) days of receipt of such a claim, whenever possible taking into account factors such as the size and complexity of the claim and the adequacy of the information in support of the claim that the contractor provides.

3803.5 The contracting officer's written decision shall do the following:

(a) Provide a description of the claim or dispute;

(b) Refer to the pertinent contract terms;

(d) State the reasons for the decision, including any specific findings of fact, although specific findings of fact are not required and, if made, shall not be binding in any subsequent proceeding;

(e) If all or any part of the claim is determined to be valid, determine the amount of monetary settlement, the contract adjustment to be made, or other relief to be granted;

(f) Indicate that the written document is the contracting officer's final decision; and

(g) Inform the contractor of its right to seek further redress by appealing the decision to the CAB.

3803.6 The contracting officer's decision shall be delivered in person or mailed by certified mail, return receipt requested, to the contractor.

3803.7 Any failure by the contracting officer to issue a decision on a claim within the required time period will be deemed to be a denial of the claim, and will authorize the commencement of an appeal to the CAB.

3803.8 If a contractor is unable to support any part of its claim and the contracting officer determines that the inability is attributable to a material misrepresentation of fact or fraud on the part of the contractor, the contractor shall be liable to the District for an amount equal to the unsupported part of the claim in addition to all costs to the District attributable to the cost of reviewing that part of the contractor's claim.

3803.9 Liability under § 3803.8 shall be determined within six (6) years of the commission of the misrepresentation of fact or fraud.

3803.10 The contracting officer’s decision shall be final and not subject to review unless the contractor timely commences an administrative appeal or action for judicial review as authorized by §§ 1004(a) and 1005(a) of the Act (D.C. Official Code §§ 2-360.04(a) and 2-360.05(a) (2011 Repl.).

3803.11 Pending final decision of an appeal, action or final settlement, a contractor shall proceed diligently with performance of the contract in accordance with the decision of the contracting officer.

History

SOURCE: Final Rulemaking published at 35 DCR 1708 (February 26, 1988); as amended by Emergency and Proposed Rulemaking published at 49 DCR 9348 (October 11, 2002) [EXPIRED]; as amended by Emergency Rulemaking published at 50 DCR 1050 (January 31, 2003) [EXPIRED]; as amended by Emergency Rulemaking published at 50 DCR 3205 (April 25, 2003) [EXPIRED]; as amended by Emergency Rulemaking published at 50 DCR 9271 (October 31, 2003) [EXPIRED]; as amended by Final Rulemaking published at 51 DCR 1432 (February 6, 2004); as amended by Notice of Emergency and Proposed Rulemaking published at 59 DCR 1786 (March 2, 2012)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 2911, 2913 (April 13, 2012).

27 DCMR § 3899 DEFINITIONS

3899.1 When used in this chapter, the following terms and phrases shall have the meanings ascribed:

Claim - a written demand or written assertion by the District or a contractor seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to the contract.

Person - any business entity, individual, union, committee, club, or other organization or group of individuals.

History

SOURCE: Final Rulemaking published at 35 DCR 1708 (February 26, 1988); as amended by Emergency and Proposed Rulemaking published at 49 DCR 9348 (October 11, 2002) [EXPIRED]; as amended by Emergency Rulemaking published at 50 DCR 1050 (January 31, 2003) [EXPIRED]; as amended by Emergency Rulemaking published at 50 DCR 3205 (April 25, 2003) [EXPIRED]; as amended by Emergency Rulemaking published at 50 DCR 9271 (October 31, 2003) [EXPIRED]; as amended by Final Rulemaking published at 51 DCR 1432 (February 6, 2004); as amended by Notice of Emergency and Proposed Rulemaking published at 59 DCR 1786 (March 2, 2012)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 2911, 2914 (April 13, 2012).

27-39 RESTRICTIONS ON POLITICAL CONTRIBUTIONS BY CONTRACTORS AND PROSPECTIVE CONTRACTORS

27 DCMR § 3900 GENERAL PROVISIONS

3900.1 All business entities seeking or having a contract for goods or services, the acquisition or sale of any District-owned land or building, lease agreement, licensing arrangement, covered loan, covered loan guarantee, tax abatement or exemption, or surplus and disposition of any land or building by a contracting authority and its principals shall comply with Section 334a of the Campaign Finance Act of 2011 (D.C. Official Code § 1-1163.34a) and the provisions of this chapter.

3900.2 This chapter shall apply to new contracts, option periods, or contract extension executed after November 9, 2022, except where otherwise stated.

History

SOURCE: Final Rulemaking published at 71 DCR 010181 (August 9, 2024). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 3900

27 DCMR § 3901 PROHIBITED CONTRIBUTIONS: CONTRACTING AGENCY SUBJECT TO THE AUTHORITY OF THE MAYOR

3901.1 Subsections 3901.2 through 3901.10 apply to vendors having or seeking procurements valued at $250,000 or more in the aggregate that are either conducted or overseen by a contracting authority that is subordinate to the Mayor.

3901.2 With respect to contracts for goods or services that do not require approval by the Council:

(1) The date of contract award;

(2) The date the solicitation is cancelled;

(3) The termination of negotiations with the business entity; or

(4) Notification to the business entity that its response to the solicitation was unsuccessful; and

3901.3 With respect to contracts for goods or services that require approval by the Council:

(a) Neither a business entity participating in a solicitation nor any of its principals may make any contribution to the Mayor, any candidate for Mayor, any political committee affiliated with the Mayor or a candidate for Mayor, any constituent-service program affiliated with the Mayor, any Councilmember, any candidate for Councilmember, any political committee affiliated with a Councilmember or a candidate for Councilmember, or any constituent-service program affiliated with a Councilmember for the period from the date the solicitation was issued through the earliest to occur of:

(1) The date of contract award;

(2) The date the solicitation is cancelled;

(3) The termination of negotiations with the business entity; or

(4) Notification to the business entity that its response to the solicitation was unsuccessful; and

(b) If the business entity’s response to the solicitation is successful, neither the business entity nor any of its principals may make any contribution to the Mayor, any candidate for Mayor, any political committee affiliated with the Mayor or a candidate for Mayor, any constituent-service program affiliated with the Mayor, any Councilmember, any candidate for Councilmember, any political committee affiliated with a Councilmember or a candidate for Councilmember, or any constituent-service program affiliated with a Councilmember for the period from the date the solicitation was issued through one (1) year after the contract ends or is terminated.

3901.4 With respect to the acquisition or sale of any District-owned land or building that does not require approval by the Council:

(1) The date of contract award;

(2) The date the solicitation is cancelled;

(3) The termination of negotiations with the business entity; or

(4) Notification to the business entity that its response to the solicitation was unsuccessful; and

3901.5 With respect to the acquisition or sale of any District-owned land or building that requires approval by the Council:

(1) The date of contract award;

(2) The date the solicitation is cancelled;

(3) The termination of negotiations with the business entity; or

(4) Notification to the business entity that its response to the solicitation was unsuccessful; and

3901.6 With respect to lease agreements, licensing arrangements, covered loans, and covered loan guarantees that do not require approval by the Council:

(1) The date of the award of the lease agreement, license arrangement, covered loan, or covered loan guarantee;

(2) The date the solicitation is cancelled;

(3) The termination of negotiations with the business entity; or

(4) Notification to the business entity that its response to the solicitation was unsuccessful; and

(b) Neither the business entity that was awarded the lease agreement, licensing arrangement, covered loan, or covered loan guarantee nor any of its principals may make any contribution to the Mayor, any candidate for Mayor, any political committee affiliated with the Mayor or a candidate for Mayor, or any constituent-service program affiliated with the Mayor for the period from the date the solicitation was issued through the earliest to occur of:

(1) One (1) year after the District and the business entity enter into the lease agreement, license arrangement, covered loan, or covered loan guarantee; or

(2) Termination of the lease agreement, license arrangement, covered loan, or covered loan guarantee.

3901.7 With respect to lease agreements, licensing arrangements, covered loans, and covered loan guarantees that require approval by the Council:

(a) Neither a business entity participating in a solicitation for the lease agreement, license arrangement, covered loan, or covered loan guarantee nor any of its principals may make any contribution to the Mayor, any candidate for Mayor, any political committee affiliated with the Mayor or a candidate for Mayor, any constituent-service program affiliated with the Mayor any Councilmember, any candidate for Councilmember, any political committee affiliated with a Councilmember or a candidate for Councilmember, or any constituent-service program affiliated with a Councilmember for the period from the date the solicitation was issued through the earliest to occur of:

(1) The date of the award of the lease agreement, license arrangement, covered loan, or covered loan guarantee;

(2) The date the solicitation is cancelled;

(3) The termination of negotiations with the business entity; or

(4) Notification to the business entity that its response to the solicitation was unsuccessful; and

(b) Neither the business entity that was awarded the lease agreement, licensing arrangement, covered loan, or covered loan guarantee nor any of its principals may make any contribution to the Mayor, any candidate for Mayor, any political committee affiliated with the Mayor or a candidate for Mayor, any constituent-service program affiliated with the Mayor, any Councilmember, any candidate for Councilmember, any political committee affiliated with a Councilmember or a candidate for Councilmember, or any constituent-service program affiliated with a Councilmember for the period from the date the solicitation was issued through the earlier to occur of:

(1) One (1) year after the District and the business entity enter into the lease agreement, license arrangement, covered loan, or covered loan guarantee; or

(2) Termination of the lease agreement, license arrangement, covered loan, or covered loan guarantee.

3901.8 With respect to the surplus or disposition of District-owned land or building where such surplus or disposition is not subject to Council approval:

(a) Neither a business entity participating in a solicitation for the surplus or disposition of any District owned land or building nor any of its principals may make any contribution to the Mayor, any candidate for Mayor, any political committee affiliated with the Mayor or a candidate for Mayor, or any constituent-service program affiliated with the Mayor for the period from the date the solicitation was issued until:

(1) The date the business entity is notified that the business entity’s response was not successful; or

(2) The date of termination of negotiations with the business entity; and

(b) Neither the business entity awarded a surplus or disposition to any District-owned land or building nor any of its principals may make any contribution to the Mayor, any candidate for Mayor, any political committee affiliated with the Mayor or a candidate for Mayor, or any constituent-service program affiliated with the Mayor for the period from the date the solicitation was issued through one (1) year after the surplus or disposition is executed by the business entity and the District.

3901.9 With respect to the surplus or disposition of District-owned land or building where such surplus or disposition is subject to Council approval:

Neither a business entity participating in a solicitation for the surplus or disposition of any District owned land or building by surplus or disposition nor any of its principals may make any contribution to the Mayor, any candidate for Mayor, any political committee affiliated with the Mayor or a candidate for Mayor, or any constituent-service program affiliated with the Mayor, any Councilmember, any candidate for Councilmember, any political committee affiliated with a Councilmember or a candidate for Councilmember, or any constituent-service program affiliated with a Councilmember for the period from the date the solicitation was issued until:

The date the business entity is notified that the business entity’s response to the solicitation was not successful; or

The date of termination of negotiations with the business entity; and

(b) If legislation is introduced before the Council to approve the surplus or disposition of District-owned land or building to a business entity, neither the business entity nor any of its principals may make any contribution to the Mayor, any candidate for Mayor, any political committee affiliated with the Mayor or a candidate for Mayor, any constituent-service program affiliated with the Mayor, any Councilmember, any candidate for Councilmember, any political committee affiliated with a Councilmember or a candidate for Councilmember, or any constituent-service program affiliated with a Councilmember for the period from the date the solicitation was issued until:

(1) If the legislation is not passed before the end of that Council period or is disapproved, the end of that Council period; or

(2) If the legislation passes, one (1) year after the effective date of the legislation.

3901.10 With respect to a tax exemption or tax abatement, if legislation to grant a tax exemption or tax abatement to a business entity is introduced before the Council, or the grant of a tax exemption or tax abatement to a business entity is included in legislation pending before the Council, neither the business entity nor any of its principals may make any contribution to the Mayor, any candidate for Mayor, any political committee affiliated with the Mayor or a candidate for Mayor, any constituent-service program affiliated with the Mayor, any Councilmember, any candidate for Councilmember, any political committee affiliated with a Councilmember or a candidate for Councilmember, or any constituent-service program affiliated with a Councilmember for the period from the date of the introduction of legislation or the inclusion of the tax exemption or tax abatement in pending legislation until:

(a) If the legislation is not passed, before the end of that Council period or is disapproved, the end of that Council period; or

(b) If the legislation passes, one (1) year after the effective date of the legislation.

History

SOURCE: Final Rulemaking published at 71 DCR 010181 (August 9, 2024). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 3901

27 DCMR § 3902 PROHIBITED CONTRIBUTIONS: CONTRACTING AGENCY SUBJECT TO THE AUTHORITY OF THE ATTORNEY GENERAL

3902.1 Subsections 3902.2 through 3902.10 apply to vendors having or seeking procurements valued at $250,000 or more in the aggregate that are either conducted or overseen by a contracting authority that is subordinate to the Attorney General.

3902.2 With respect to contracts for goods or services that do not require approval by the Council:

(1) The date of contract award;

(2) The date the solicitation is cancelled;

(3) The termination of negotiations with the business entity; or

(4) Notification to the business entity that its response to the solicitation was unsuccessful; and

(b) If the business entity’s response to the solicitation is successful, neither the business entity nor any of its principals may make any contribution to the Attorney General, any candidate for Attorney General, any political committee affiliated with the Attorney General or a candidate for Attorney General, or any constituent-service program affiliated with the Attorney General for the period from the date the solicitation was issued through one (1) year after the contract ends or is terminated.

3902.3 With respect to contracts for goods or services that require approval by the Council:

(a) Neither a business entity participating in a solicitation nor any of its principals may make any contribution to the Attorney General, any candidate for Attorney General, any political committee affiliated with the Attorney General or a candidate for Attorney General, any constituent-service program affiliated with the Attorney General, any Councilmember, any candidate for Councilmember, any political committee affiliated with a Councilmember or a candidate for Councilmember, or any constituent-service program affiliated with a Councilmember for the period from the date the solicitation was issued through the earliest to occur of:

(1) The date of contract award;

(2) The date the solicitation is cancelled;

(3) The termination of negotiations with the business entity; or

(4) Notification to the business entity that its response to the solicitation was unsuccessful; and

(b) If the business entity’s response to the solicitation is successful, neither the business entity nor any of its principals may make any contribution to the Attorney General, any candidate for Attorney General, any political committee affiliated with the Attorney General or a candidate for Attorney General, any constituent-service program affiliated with the Attorney General, any Councilmember, any candidate for Councilmember, any political committee affiliated with a Councilmember or a candidate for Councilmember, or any constituent-service program affiliated with a Councilmember for the period from the date the solicitation was issued through one (1) year after the contract ends or is terminated.

3902.4 With respect to the acquisition or sale of any District-owned land or building that does not require approval by the Council:

(1) The date of contract award;

(2) The date the solicitation is cancelled;

(3) The termination of negotiations with the business entity; or

(4) Notification to the business entity that its response to the solicitation was unsuccessful; and

3902.5 With respect to the acquisition or sale of any District-owned land or building that requires approval by the Council:

(1) The date of contract award;

(2) The date the solicitation is cancelled;

(3) The termination of negotiations with the business entity; or

(4) Notification to the business entity that its response to the solicitation was unsuccessful; and

(b) If the business entity’s response to the solicitation is successful, neither the business entity nor any of its principals may make any contribution to the Attorney General, any candidate for Attorney General, any political committee affiliated with the Attorney General or a candidate for Attorney General, any constituent-service program affiliated with the Attorney General, any Councilmember, any candidate for Councilmember, any political committee affiliated with a Councilmember or a candidate for Councilmember, or any constituent-service program affiliated with a Councilmember for the period from the date the solicitation was issued through one (1) year after the contract ends or is terminated.

3902.6 With respect to lease agreements, licensing arrangements, covered loans, and covered loan guarantees that do not require approval by the Council:

(a) Neither a business entity participating in a solicitation for the lease agreement, license arrangement, covered loan, or covered loan guarantee nor any of its principals may make any contribution to the Attorney General, any candidate for Attorney General, any political committee affiliated with the Attorney General or a candidate for Attorney General, or any constituent-service program affiliated with the Attorney General for the period from the date the solicitation was issued through the earliest to occur of:

(1) The date of the award of the lease agreement, license arrangement, covered loan, or covered loan guarantee;

(2) The date the solicitation is cancelled;

(3) The termination of negotiations with the business entity; or

(4) Notification to the business entity that its response to the solicitation was unsuccessful; and

(b) Neither the business entity that was awarded the lease agreement, licensing arrangement, covered loan, or covered loan guarantee nor any of its principals may make any contribution to the Attorney General, any candidate for Attorney General, any political committee affiliated with the Attorney General or a candidate for Attorney General, or any constituent-service program affiliated with the Attorney General for the period from the date the solicitation was issued through the earlier to occur of:

(1) One (1) year after the District and the business entity enter into the lease agreement, license arrangement, covered loan, or covered loan guarantee; or

(2) Termination of the lease agreement, license arrangement, covered loan, or covered loan guarantee.

3902.7 With respect to lease agreements, licensing arrangements, covered loans, and covered loan guarantees that require approval by the Council:

(a) Neither a business entity participating in a solicitation for the lease agreement, license arrangement, covered loan, or covered loan guarantee nor any of its principals may make any contribution to the Attorney General, any candidate for Attorney General, any political committee affiliated with the Attorney General or a candidate for Attorney General, any constituent-service program affiliated with the Attorney General, any Councilmember, any candidate for Councilmember, any political committee affiliated with a Councilmember or a candidate for Councilmember, or any constituent-service program affiliated with a Councilmember for the period from the date the solicitation was issued through the earliest to occur of:

(1) The date of the award of the lease agreement, license arrangement, covered loan, or covered loan guarantee;

(2) The date the solicitation is cancelled;

(3) The termination of negotiations with the business entity; or

(4) Notification to the business entity that its response to the solicitation was unsuccessful; and

(b) Neither the business entity that was awarded the lease agreement, licensing arrangement, covered loan, or covered loan guarantee nor any of its principals may make any contribution to the Attorney General, any candidate for Attorney General, any political committee affiliated with the Attorney General or a candidate for Attorney General, any constituent-service program affiliated with the Attorney General, any Councilmember, any candidate for Councilmember, any political committee affiliated with a Councilmember or a candidate for Councilmember, or any constituent-service program affiliated with a Councilmember for the period from the date the solicitation was issued through the earlier to occur of:

(1) One (1) year after the District and the business entity enter into the lease agreement, license arrangement, covered loan, or covered loan guarantee; or

(2) Termination of the lease agreement, license arrangement, covered loan, or covered loan guarantee.

3902.8 With respect to the surplus or disposition of District-owned land or building where such surplus or disposition is not subject to Council approval:

(a) Neither a business entity participating in a solicitation for the surplus or disposition of any District owned land or building nor any of its principals may make any contribution to the Attorney General, any candidate for Attorney General, any political committee affiliated with the Attorney General or a candidate for Attorney General, or any constituent-service program affiliated with the Attorney General for the period from the date the solicitation was issued until:

(1) The date the business entity is notified that the business entity’s response was not successful; or

(2) The date of termination of negotiations with the business entity; and

(b) Neither the business entity awarded a surplus or disposition to any District-owned land or building nor any of its principals may make any contribution to the Attorney General, any candidate for Attorney General, any political committee affiliated with the Attorney General or a candidate for Attorney General, or any constituent-service program affiliated with the Attorney General for the period from the date the solicitation was issued through one (1) year after the surplus or disposition is executed by the business entity and the District.

3902.9 With respect to the surplus or disposition of District-owned land or building where such surplus or disposition is subject to Council approval:

(a) Neither a business entity participating in a solicitation or otherwise seeking to obtain District-owned land or building by surplus or disposition nor any of its principals may make any contribution to the Attorney General, any candidate for Attorney General, any political committee affiliated with the Attorney General or a candidate for Attorney General, or any constituent-service program affiliated with the Attorney General, any Councilmember, any candidate for Councilmember, any political committee affiliated with a Councilmember or a candidate for Councilmember, or any constituent-service program affiliated with a Councilmember for the period from the date the solicitation was issued until:

(1) The date the business entity is notified that the business entity’s response to the solicitation was not successful; or

(2) The date of termination of negotiations with the business entity; and

(b) If legislation is introduced before the Council to approve the surplus or disposition of District-owned land or building to a business entity, neither the business entity nor any of its principals may make any contribution to the Attorney General, any candidate for Attorney General, any political committee affiliated with the Attorney General or a candidate for Attorney General, any constituent-service program affiliated with the Mayor, any Councilmember, any candidate for Councilmember, any political committee affiliated with a Councilmember or a candidate for Councilmember, or any constituent-service program affiliated with a Councilmember for the period from the date the solicitation was issued until:

(1) If the legislation is not passed before the end of that Council period or is disapproved, the end of that Council period; or

(2) If the legislation passes, one (1) year after the effective date of the legislation.

3902.10 With respect to a tax exemption or tax abatement, if legislation to grant a tax exemption or tax abatement to a business entity is introduced before the Council, or the grant of a tax exemption or tax abatement to a business entity is included in legislation pending before the Council, neither the business entity nor any of its principals may make any contribution to the Attorney General, any candidate for Attorney General, any political committee affiliated with the Attorney General or a candidate for Attorney General, any constituent-service program affiliated with the Attorney General, any Councilmember, any candidate for Councilmember, any political committee affiliated with a Councilmember or a candidate for Councilmember, or any constituent-service program affiliated with a Councilmember for the period from the date of the introduction of legislation or the inclusion of the tax exemption or tax abatement in pending legislation until:

(a) If the legislation is not passed before the end of that Council period or is disapproved, the end of that Council period; or

(b) If the legislation passes, one (1) year after the effective date of the legislation.

History

SOURCE: Final Rulemaking published at 71 DCR 010181 (August 9, 2024). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 3902

27 DCMR § 3903 PROHIBITED CONTRIBUTIONS: CONTRACTING AGENCY SUBJECT TO THE AUTHORITY OF THE COUNCIL

3903.1 This section applies to:

(a) Vendors having or seeking procurements valued at $250,000 or more in the aggregate that are either conducted or overseen by a contracting authority that is subordinate to the Council;

(b) Vendors having or seeking procurements valued at $250,000 or more in the aggregate that are either conducted or overseen by a contracting authority other than the Council that are subject to the legislative approval of the Council, other than contracts covered by §§ 3901 and 3902 of this chapter.

3903.2 With respect to contracts for goods or services:

(a) Neither a business entity participating in a solicitation nor any of its principals may make any contribution to any Councilmember, any candidate for Councilmember, any political committee affiliated with a Councilmember or a candidate for Councilmember, or any constituent-service program affiliated with a Councilmember for the period from the date the solicitation was issued through the earliest to occur of:

(1) The date of contract award;

(2) The date the solicitation is cancelled;

(3) The termination of negotiations with the business entity; or

(4) Notification to the business entity that its response to the solicitation was unsuccessful; and

(b) If the business entity’s response to the solicitation is successful, neither the business entity nor any of its principals may make any contribution to any Councilmember, any candidate for Councilmember, any political committee affiliated with a Councilmember or a candidate for Councilmember, or any constituent-service program affiliated with a Councilmember for the period from the date the solicitation was issued through one (1) year after the contract ends or is terminated.

3903.3 With respect to the acquisition or sale of any District-owned land or building:

(1) The date of contract award;

(2) The date the solicitation is cancelled;

(3) The termination of negotiations with the business entity; or

(4) Notification to the business entity that its response to the solicitation was unsuccessful; and

3903.4 With respect to lease agreements, licensing arrangements, covered loans, and covered loan guarantees:

(1) The date of the award of the lease agreement, license arrangement, covered loan, or covered loan guarantee;

(2) The date the solicitation is cancelled;

(3) The termination of negotiations with the business entity; or

(4) Notification to the business entity that its response to the solicitation was unsuccessful; and

(1) One (1) year after the District and the business entity enter into the lease agreement, license arrangement, covered loan, or covered loan guarantee; or

(2) Termination of the lease agreement, license arrangement, covered loan, or covered loan guarantee.

3903.5 With respect to the surplus or disposition of District-owned land or building:

(1) The date the business entity is notified that the business entity’s response to the solicitation was not successful; or

(2) The date of termination of negotiations with the business entity; and

(b) If legislation is introduced before the Council to approve the surplus or disposition of District-owned land or building to a business entity, neither the business entity nor any of its principals may make any contribution to any Councilmember, any candidate for Councilmember, any political committee affiliated with a Councilmember or a candidate for Councilmember, or any constituent-service program affiliated with a Councilmember for the period from the date the solicitation was issued until:

(1) If the legislation is not passed before the end of that Council period or is disapproved, the end of that Council period; or

(2) If the legislation passes, one (1) year after the effective date of the legislation.

3903.6 With respect to a tax exemption or tax abatement, if legislation to grant a tax exemption or tax abatement to a business entity is introduced before the Council, or the grant of a tax exemption or tax abatement to a business entity is included in legislation pending before the Council, neither the business entity nor any of its principals may make any contribution to any Councilmember, any candidate for Councilmember, any political committee affiliated with a Councilmember or a candidate for Councilmember, or any constituent-service program affiliated with a Councilmember for the period from the date of the introduction of legislation or the inclusion of the tax exemption or tax abatement in pending legislation until:

(a) If the legislation is not passed before the end of that Council period or is disapproved, the end of that Council period; or

(b) If the legislation passes, one (1) year after the effective date of the legislation.

History

SOURCE: Final Rulemaking published at 71 DCR 010181 (August 9, 2024). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 3903

27 DCMR § 3904 DETERMINATION OF CONTRACT VALUE

3904.1 For purposes of this chapter, the value of a contract is the combined sum of the contract value (not-to-exceed amount, or the total rent or purchase price for contracts for land or buildings, including the base period and any subsequent option periods or extensions).

3904.2 For purposes of this chapter, the value of a term contract (including requirements contracts, indefinite delivery/indefinite quantity, and D.C. Supply Schedules) is the combined sum of the contract ceiling, including the base period and any subsequent option periods or extensions.

3904.3 The value of contracts held with overlapping contract periods shall be aggregated for the purpose of determining the aggregate value of multiple contracts in accordance with §§ 3904.1 and 3904.2 of this chapter.

History

SOURCE: Final Rulemaking published at 71 DCR 010181 (August 9, 2024). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 3904

27 DCMR § 3905 CERTIFICATION BY BUSINESS ENTITIES

3905.1 Every business entity participating in a solicitation seeking a contract with a value of $250,000 or more, or multiple solicitations with a value of $250,000 or more in the aggregate, shall, in accordance with instructions by the relevant contracting authority, certify whether it and its principals are in compliance with the provisions of this chapter and Section 334a of the Campaign Finance Act of 2011 (D.C. Official Code § 1-1163.34a).

3905.2 Every business entity that has a District contract with a value of $250,000 or more, or multiple contracts with a value of $250,000 or more in the aggregate, shall, in accordance with instructions by the relevant contracting authority, re-certify whether it and its principals are in compliance with Section 334a of the Campaign Finance Act of 2011 (D.C. Official Code § 1-1163.34a), prior to the exercise of an option period of that contract.

History

SOURCE: Final Rulemaking published at 71 DCR 010181 (August 9, 2024). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 3905

27 DCMR § 3906 MANDATORY DISCLOSURES BY BUSINESS ENTITIES

3906.1 Each business entity that has or is seeking a District contract with a value of $250,000 or more or multiple District contracts with a value of $250,000 or more in the aggregate shall include with its bid or proposal the names, official title, and home addresses, of its principals as of the date of the solicitation in accordance with the instructions contained in the solicitation.

3906.2 Each business entity that has made a disclosure pursuant to § 3906.1 of this chapter shall provide updates as to its principals that occur while the solicitation is pending. Successful awardees shall advise the District as to any change to its principals during the pendency of the contract’s period of performance.

3906.3 Each business entity that has or is seeking a District contract with a value of $250,000 or more or multiple District contracts with a value of $250,000 or more in the aggregate shall include with its bid or proposal a list of any other contract or contracts it currently holds, or is seeking to obtain, from any District agency or instrumentality that contains the following information:

(a) The procuring agency;

(b) The program agency;

(d) The date the contract was awarded or is expected to be awarded.

History

SOURCE: Final Rulemaking published at 71 DCR 010181 (August 9, 2024). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 3906

27 DCMR § 3907 REQUIRED ACTIONS BY CONTRACTING AUTHORITIES

3907.1 The Chief Procurement Officer shall maintain a publicly available list on the website of the Office of Contracting and Procurement of all covered contractors, including their principals, for contracts under the authority of the Chief Procurement Officer. The Chief Procurement Officer shall also include any lists provided to him or her pursuant to § 3907.2(c) of this chapter.

3907.2 Each contracting authority, other than the Chief Procurement Officer, shall:

(a) Maintain a publicly available list on its website of all covered contractors, including their principals, for the contracts of that contracting authority;

(b) Provide to the Chief Procurement Officer, in an electronic format designated by the Chief Procurement Officer, a list of all covered contractors, including their principals, for the contracts of that contracting authority; and

(c) Notify the Office of Contracting and Procurement of any enforcement action taken by the contracting authority pursuant to this chapter or Section 334a of the Campaign Finance Act of 2011 (D.C. Official Code § 1-1163.34a).

3907.3 Each contracting authority shall notify business entities, in the solicitation or similar invitation or opportunity to contract, of:

(a) For covered contractors, the prohibited recipients or, if the value of the contract is estimated, the likely prohibited recipients for the contract based on its estimated value; and

(b) Any other relevant provisions of this chapter or Section 334a of the Campaign Finance Act of 2011 (D.C. Official Code § 1-1163.34a).

History

SOURCE: Final Rulemaking published at 71 DCR 010181 (August 9, 2024). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 3907

27 DCMR § 3908 PENALTIES

3908.1 (a) A business entity shall not be eligible for award, extension, or renewal of a contract, lease tax abatement or exemption, or surplus and disposition of any land or building by a contracting authority if the business entity or any of its principals contributed to a candidate for political office in violation of Section 334a of the Campaign Finance Act of 2011 (D.C. Official Code § 1-1163.34a) or a provision of this chapter.

(b) Notwithstanding paragraph (a) of this subsection, nothing in this chapter shall be construed to prohibit:

(1) A candidate for public office from self-financing his or her own campaign; or

(2) A donation to an inaugural or transition committee organized in 2022.

3908.2 A violation of this chapter during the solicitation phase of a procurement by a business entity or any of its principals shall render the business entity ineligible for award. A contract awarded to an ineligible business entity may, at the discretion of the contracting authority, be terminated for default in accordance with Chapter 37 of Title 27, District of Columbia Municipal Regulations. The relevant contracting authority shall refer the matter to the Chief Procurement Officer for consideration of suspension and debarment in accordance with Section 907 of the Procurement Practices Reform Act of 2010, effective April 8, 2011 (D.C. Law 18-371; D.C. Official Code § 2-359.07).

3908.3 A violation of this chapter during the performance phase of a procurement by a business entity or any of its principals shall be cause for termination of the contract for default. The relevant contracting authority shall refer the matter to the Chief Procurement Officer for consideration of suspension and debarment in accordance with Section 907 of the Procurement Practices Reform Act of 2010, effective April 8, 2011 (D.C. Law 18-371; D.C. Official Code § 2-359.07).

History

SOURCE: Final Rulemaking published at 71 DCR 010181 (August 9, 2024). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 3908

27 DCMR § 3999 DEFINITIONS

3999.1 When used in this chapter, the following terms and phrases shall have the meanings ascribed:

“Business entity” – any corporation, partnership, sole proprietorship, firm, nonprofit corporation, enterprise, franchise, association, organization, self-employed individual, holding company, joint stock, trust, and any legal entity through which business is conducted, whether for profit or not.

“Campaign Finance Act of 2011” – Title III of the Board of Ethics and Government Accountability Establishment and Comprehensive Ethics Reform Amendment Act of 2011, effective April 27, 2012 (D.C. Law 19-124; D.C. Official Code § 1-1163.01 et seq.).

“Candidate” – an individual who seeks election to public office, whether or not the individual is nominated or elected. An individual shall be deemed to seek nomination for election or election, if the individual:

(a) Obtained or authorized any other person to obtain nominating petitions to qualify the individual for election to public office;

(b) Received contributions or made expenditures, or has given consent to any other person to receive contributions or make expenditures, with a view to bringing about the individual’s election to public office; or

(c) Knows, or has reason to know, that any other person has received contributions or made expenditures for that purpose, and has not notified that person in writing to cease receiving contributions or making expenditures for that purpose; provided, that an individual shall not be deemed to be a candidate if the individual notifies each person who has received contributions or made expenditures that the individual is only testing the waters, has not yet made any decision whether to seek election to public office.

“Contract for goods or services” – any agreement for: the rendition of services; the furnishing of any goods, materials, supplies, or equipment; or the construction, alteration, or repair of any District government-owned or District government-leased property.

“Contracting authority” –

(a) The Chief Procurement Officer, as defined in Section 104(11) of the Procurement Practices Reform Act of 2010, effective April 8, 2011 (D.C. Law 18-371; D.C. Official Code § 2-351.04(11));

(b) An agency listed in Section 201(b) of the Procurement Practices Reform Act of 2010, effective April 8, 2011 (D.C. Law 18-371; D.C. Official Code § 2-352.01(b));

(c) An agency listed in Section 105(c) of the Procurement Practices Reform Act of 2010, effective April 8, 2011 (D.C. Law 18-371; D.C. Official Code § 2-351.05(c) that transmits contracts to the Council for approval; and

(d) The Council of the District of Columbia.

“Contribution” –

(1) A gift, subscription (including any assessment, fee, or membership dues), loan (except a loan made in the regular course of business by a business engaged in the business of making loans), advance, or deposit of money or anything of value (including contributions in cash or in kind), made for the purpose of financing, directly or indirectly:

(A) The election of a candidate;

(B) Any operations of a political committee, political action committee, or independent expenditure committee; or

(C) The campaign to obtain signatures on any initiative, referendum, or recall measure, or to bring about the ratification or defeat of any initiative, referendum, or recall measure;

(2) A transfer of funds between:

(A) Political committees;

(B) Political action committees;

(D) A political committee and a political action committee; or

(3) The payment, by any person other than a candidate, a political committee, political action committee, or independent expenditure committee of compensation for the personal services of another person that are rendered to such candidate or committee without charge or for less than reasonable value, or the furnishing of goods, advertising, or services to a candidate’s campaign without charge or at a rate which is less than the rate normally charged for such services; and

(4) An expenditure that is coordinated with a public official, a political committee affiliated with a public official, or an agent of any person described in this definition.

(b) Notwithstanding subparagraph (a) of this definition, the term “contribution” does not include:

(1) Personal or other services provided without compensation by a person (including an accountant or an attorney) volunteering a portion or all of the person’s time to or on behalf of a candidate, political committee, political action committee, or independent expenditure committee;

(2) Communications by an organization other than a political party solely to its members and their families on any subject;

(3) Communications (including advertisements) to any person on any subject by any organization that is organized solely as an issue-oriented organization, which communications neither support nor oppose any candidate for office;

(4) Normal billing credit for a period not exceeding 30 days;

(5) Services of an informational or polling nature, designed to seek the opinion of voters concerning the possible candidacy of a qualified elector for public office, before such qualified elector becomes a candidate;

(6) The use of real or personal property, and the costs of invitations, food, and beverages voluntarily provided by a person to a candidate in rendering voluntary personal services on the person’s residential premises for related activities; provided, that expenses do not exceed $500 with respect to the candidate’s election; and

(7) The sale of any food or beverage by a vendor for use in a candidate’s campaign at a charge less than the normal comparable charge, if the charge for use in a candidate’s campaign is at least equal to the cost of such food or beverage to the vendor; provided, that expenses do not exceed $500 with respect to the candidate’s election.

“Covered contractor” – any business entity, or a principal of a business entity, seeking or holding a District contract with a value of $250,000 or more or multiple District contracts with a value of $250,000 or more in the aggregate, including the value of any option period or similar contract extension or modification.

“Covered loan” – a loan by the District government to a private entity for commercial purposes. The term “covered loan” excludes loans for non-commercial purposes, such as educational loans or residential mortgage loans.

“Covered loan guarantee” – a guarantee by the District to assume a private entity’s debt obligation, with or without conditions (including conditions precedent), where the debt obligation is for a commercial purpose.

“Licensing arrangement” – A legally-binding agreement whereby the owner of protected material, including, but not limited to, a patent, copyright, or trademark, grants another party the right to sell, produce, use, or display the protected material in return for a fee or other consideration.

“Principal” – any senior officer of a business entity, including an owner or co-owner, president, chief executive officer, chief operating officer, chief financial officer, treasurer, member, partner, or similar position which either sets or is authorized to set or otherwise influences the overall strategy of the business entity. A dean of an educational institution is not a “principal” within the meaning of this definition. A person whose only position at the business entity is as a board member is not a “principal” within the meaning of this definition.

“Seeking” – Submitting a bid, proposal, or response to any contracting authority of the District of Columbia, or submitting an application to participate in a DC Supply Schedule

“Solicitation” – includes requests for qualifications, requests for proposals, invitations for bids, and similar invitations and opportunities to contract and, with respect to dispositions of real property, requests for expressions of interest and unsolicited proposals.

“Tax abatement” – the reduction of a property owner’s obligation to pay real property tax otherwise applicable to a property.

“Tax exemption” – the elimination of a property owner’s obligation to pay real property tax otherwise applicable to a property.

History

SOURCE: Final Rulemaking published at 71 DCR 010181 (August 9, 2024). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 3999

27-40 QUALITY ASSURANCE

27 DCMR § 4000 CONTRACTING OFFICER RESPONSIBILITIES

4000.1 The contracting officer shall ensure that the goods, services, or construction procured under each District contract conform to the quality and quantity requirements of the contract, including inspection, acceptance, warranty, and any other measures associated with quality assurance.

4000.2 The contracting officer shall be responsible for the following;

(a) Ensuring that each contract includes inspection and other quality requirements, including warranty clauses when appropriate, which are necessary to protect the District's interest;

(b) Ensuring that contract quality assurance is conducted by the District before acceptance, except as otherwise provided in this chapter, by or under the direction of District personnel;

(d) Ensuring that nonconforming goods, services, or construction are rejected, except as otherwise provided in this chapter;

(e) Ensuring that the quality assurance and acceptance services of the using agency are used when this will be effective, economical, or otherwise in the best interests of the District;

(f) Obtaining any specifications for inspection, testing, and other contract quality requirements essential to ensure the integrity of the goods, services, or construction from the agency responsible for the technical requirements; and

(g) Including in solicitations and contracts the necessary requirements for the contractor's control of quality for the goods, services, or construction to be procured.

History

AUTHORITY: Unless otherwise noted, the authority of this chapter is the District of Columbia Procurement Practices Act of 1985, D.C. Law 6.85, as amended, D.C. Code §1-1181.1 et seq. (1981).
SOURCE: Final Rulemaking published at 35 DCR 1714 (February 26, 1988).

27 DCMR § 4001 CONTRACT ADMINISTRATOR RESPONSIBILITIES

4001.1 The using agency, or the individual(s) responsible for contract administration in the case of a term contract, shall do the following:

(a) Develop and apply efficient procedures for performing District contract quality assurance actions under the contract in accordance with the written directions of the contracting officer;

(b) Perform all actions necessary to verify whether the goods, services, or construction conform to contract quality requirements;

(d) Report to the contracting officer any defects observed in design or technical requirements, including contract quality requirements; and

(e) Recommend any changes necessary to the contract, specifications, instructions, or other requirements that will provide more effective operations or eliminate unnecessary costs.

4001.2 The using agency shall maintain, as part of the performance records of the contract, suitable records reflecting the following:

(a) Contract quality assurance actions, including, when appropriate, the number of observations made and the number and type of defects; and

(b) Decisions regarding the acceptability of the products as well as actions to correct defects.

History

SOURCE: Final Rulemaking published at 35 DCR 1715 (February 26, 1988).

27 DCMR § 4002 CONTRACTOR RESPONSIBILITIES

4002.1 The contractor shall be responsible for carrying out its obligations under the contract by doing the following:

(a) Controlling the quality of goods, services, or construction;

(b) Ensuring that vendors or suppliers of raw materials, parts, components, and subassemblies have an acceptance quality control system;

(c) Tendering to the District for acceptance only those goods, services, or construction that conform to contract requirements; and

(d) Maintaining substantiating evidence, when required by the contract, that the goods, services, or construction conform to contract quality requirements, and furnishing that information to the District, upon request.

4002.2 The contracting officer may require the contractor to provide and maintain an inspection system or program for the control of quality that is acceptable to the District.

4002.3 The control of quality by the contractor may relate to, but is not limited to, the following:

(a) Manufacturing processes, to ensure that the product produced to and meets the contract's technical requirements;

(b) Drawings, specifications, and engineering changes, to ensure that manufacturing methods and operations meet the contract's technical requirements;

(c) Testing and examination, to ensure that practices and equipment provide the means for optimum evaluation of the characteristics subject to inspection;

(d) Reliability and maintainability assessment, including life, endurance, and continued readiness;

(e) Fabrication and delivery of products, to ensure that only conforming products are tendered to the District;

(f) Technical documentation, including drawings, specifications, handbooks, manuals, and other technical publications;

(g) Preservation, packaging, packing, and marking; and

(h) Procedures and processes for services and construction to ensure that services and construction meet contract performance requirements.

4002.4 The contractor shall be responsible for performing all inspections and tests required by the contract except those specifically reserved for performance by the District.

History

SOURCE: Final Rulemaking published at 35 DCR 1715 (February 26, 1988).

27 DCMR § 4003 [RESERVED]

27 DCMR § 4004 CONTRACT QUALITY REQUIREMENTS

4004.1 The type and extent of contract quality requirements needed in each solicitation or contract under §4000.2(a) shall depend on the particular procurement and may range from inspection at time of acceptance to a requirement for the contractor's implementation of a comprehensive program for controlling quality.

4004.2 A solicitation or contract may provide for alternative, but substantially equivalent, inspection methods to obtain broader competition and reduce costs.

4004.3 The contracting officer may authorize alternative quality control or inspection methods recommended by the contractor when in the best interests of the District and approved by the agency responsible for the technical requirements.

4004.4 Except as otherwise specified by the contract, required contractor testing may be performed in the contractor's, or a subcontractor's, testing facility or in any other testing facility acceptable to the contracting officer.

4004.5 Except as provided in §4004.6, when goods, services, or construction are procured by small purchase procedures pursuant to chapter 18 of this title, the District shall rely on the contractor to accomplish all inspection and testing needed to ensure compliance with contract quality requirements before the goods, services, or construction are tendered to the District.

4004.6 The District shall not rely on inspection by the contractor if the contracting officer determines that the District has a need to test the goods, services, or construction in advance of their tender for acceptance, or determines that there is a need to review the adequacy of the contractor's internal work processes. In making the determination, the contracting officer shall consider the following:

(a) The nature of the goods, services, or construction being procured and their intended use;

(b) The potential losses in the event of defects;

(d) The cost of a detailed inspection by the District.

4004.7 With respect to goods, services or construction other than small purchase procurements, the contracting officer shall include in each solicitation and contract a standard clause, approved by the Director, setting forth inspection guidelines requiring the contractor to do the following:

(a) Provide and maintain an inspection system that is acceptable to the District;

(b) Give the District the right to make inspections and tests while work is in progress; and

4004.8 The contracting officer shall determine the extent of contract quality requirements, including contractor inspection, required under each contract.

History

SOURCE: Final Rulemaking published at 35 DCR 1717 (February 26, 1988).

27 DCMR § 4005 [RESERVED]

27 DCMR § 4006 DISTRICT CONTRACT QUALITY ASSURANCE

4006.1 District contract quality assurance shall be performed at times and at places necessary to determine that the goods, services, or construction conform to contract requirements.

4006.2 Each contract shall designate the place or places where the District reserves the right to perform quality assurance.

4006.3 If the contract provides for performance of District quality assurance at the source, the place or places of performance shall not be changed without the authorization of the contracting officer.

4006.4 If a contract provides for delivery and acceptance at destination, and the District inspects the goods at a place other than the destination, the goods shall not be reinspected at the destination but shall be examined for quantity, damage in transit, and possible substitution or fraud.

4006.5 District inspection shall be performed by or under the direction or supervision of District government personnel.

4006.6 The individual responsible for the District inspection shall document the inspection on an inspection or receiving report form, approved by the Director, or on a commercial shipping document or packing list.

History

SOURCE: Final Rulemaking published at 35 DCR 1718 (February 26, 1988).

27 DCMR § 4007 CONTRACT QUALITY ASSURANCE AT SOURCE

4007.1 The District shall perform contract quality assurance, including inspection, at the source in the following circumstances:

(a) Performance at any other place would require uneconomical disassembly or destructive testing;

(b) Considerable loss would result from the manufacture and shipment of unacceptable goods, or from the delay in making necessary corrections;

(d) Performance at any other place would destroy or require the replacement of costly special packing and packaging;

(e) District inspection during contract performance is essential; or

(f) The contracting officer determines that source inspection is in the best interests of the District.

History

SOURCE: Final Rulemaking published at 35 DCR 1719 (February 26, 1988).

27 DCMR § 4008 CONTRACT QUALITY ASSURANCE AT DESTINATION

4008.1 District contract quality assurance that can be performed at destination shall be limited to inspection of the goods or services.

4008.2 Inspection shall be performed at destination under the following circumstances:

(a) Goods are purchased off-the-shelf and require no technical inspection;

(b) Necessary testing equipment is located only at destination;

(d) The contract is for services performed at the destination; or

(e) The contracting officer determines that inspection at destination is in the best interests of the District.

History

SOURCE: Final Rulemaking published at 35 DCR 1719 (February 26, 1988).

27 DCMR § 4009 CONTRACT QUALITY ASSURANCE FOR SMALL PURCHASES

4009.1 In determining the type and extent of District contract quality assurance to be required for small purchases, the contracting officer shall consider the criticality of application of the goods or services, the amount of possible losses, and the likelihood of uncontested replacement of defective work.

4009.2 Except as provided in §4009.5, when the circumstances set forth in §4004.6 exist, the District shall inspect shall purchases at destination only for type and kind, quantity, damage, operability, and may inspect for preservation, packaging, packing, and marking, if applicable.

4009.3 Except as provided in §4004.6, detailed District inspection may be limited to those characteristics that are special or likely to cause harm to personnel or property.

4009.4 Except as provided in §4004.6, when repetitive purchases of the same item are made from the same manufacturer with a history of defect-free work, District inspection may be reduced to a periodic check of purchases.

4009.5 In special situations such as those specified in §4007, the contracting officer may require more detailed quality assurance.

History

SOURCE: Final Rulemaking published at 35 DCR 1720 (February 26, 1988).

27 DCMR § 4010 CONTRACT QUALITY ASSURANCE OF SUBCONTRACTS

4010.1 District contract quality assurance on subcontracted goods, services, or construction shall be performed only when required in the best interests of the District.

4010.2 District contract quality assurance on subcontracted goods, services, or construction shall not relieve the prime contractor of any responsibilities under the contract.

4010.3 The contracting officer shall perform quality assurance at the subcontract level in the following circumstances:

(a) The item is to be shipped from the subcontractor's plant directly to the District, and inspection at source is required;

(b) The conditions for quality assurance at the source under §4007 are applicable;

(c) The contract specifies that certain quality assurance functions, which can be performed only at the subcontractor's plant, are to be performed by the District; or

(d) It is otherwise required by the contract or determined by the contracting officer to be in the best interests of the District.

4010.4 All written statements and contract terms and conditions relating to District quality assurance actions at the subcontract level shall be worded so as not to do any of the following:

(a) Affect the contractual relationship between the prime contractor and the District, or between the prime contractor and the subcontractor;

(b) Establish a contractual relationship between the District and the subcontractor; or

History

SOURCE: Final Rulemaking published at 35 DCR 1720 (February 26, 1988).

27 DCMR § 4011 [RESERVED]

27 DCMR § 4012 [RESERVED]

27 DCMR § 4013 NONCONFORMING GOODS, SERVICES, OR CONSTRUCTION

4013.1 Except as provided in §§4013.5 and 4013.6, the contracting officer shall reject goods, services, or construction which do not conform in all respects to contract requirements.

4013.2 The contractor shall be given an opportunity to correct or replace nonconforming goods, services, or construction when the correction or replacement can be accomplished within the required delivery or performance schedule.

4013.3 Unless the contract specifies otherwise, correction or replacement shall be done without additional cost to the District.

4013.4 In situations not covered by §4013.2, the contracting officer shall reject the goods, services, or construction when the nonconformance adversely affects safety, health, reliability, durability, performance, or any other basic objective of the specification.

4013.5 In situations not covered by §4013.2, nonconforming goods, services, or construction may be accepted by the contracting officer if the contracting officer determines that acceptance is in the best interests of the District.

4013.6 In situations not covered by §4013.2, the contracting officer shall consider the following when making a determination whether nonconforming items will be accepted:

(a) Advice of the using agency technical personnel that the material is safe to use and will perform its intended purpose;

(b) Information regarding the nature and extent of the nonconformance;

(d) A recommendation by the contract administrator for acceptance or rejection, with supporting rationale; and

(e) The contract adjustment considered appropriate, including any adjustment offered by the contractor.

4013.7 The contract administrator shall furnish the data required in §4013.6 to the contracting officer in writing. When it is in the best interests of the District, the data may be furnished verbally and later confirmed in writing.

4013.8 Before making a decision to accept nonconforming items, the contracting officer shall obtain the written concurrence of the head of the using agency, or the agency head's designee.

4013.9 The contracting officer shall discourage the repeated tender of nonconforming items by appropriate action, including rejection of nonconforming items, when appropriate, and documentation of the contractor's performance record.

4013.10 Except when the nonconformity is minor, each contract under which nonconforming items are accepted shall be modified by the contracting officer to provide for an equitable price reduction or other consideration.

4013.11 When the contracting officer rejects nonconforming goods, services, or construction, the contracting officer shall issue a notice of rejection in writing and include the reasons for rejection. The notice of rejection shall be issued to the contractor within five (5) working days of the rejection.

History

SOURCE: Final Rulemaking published at 35 DCR 1721 (February 26, 1988).

27 DCMR § 4014 [RESERVED]

27 DCMR § 4015 [RESERVED]

27 DCMR § 4016 [RESERVED]

27 DCMR § 4017 [RESERVED]

27 DCMR § 4018 ACCEPTANCE

4018.1 Acceptance shall constitute acknowledgement that the goods, services, or construction conform to the applicable contract quality and quantity requirements, except as provided in this section and subject to other terms and conditions of the contract.

4018.2 Acceptance may take place before delivery, at the time of delivery, or after delivery, depending on the terms and conditions of the contract.

4018.3 Goods, services, or construction shall not be accepted before completion of District contract quality assurance actions.

4018.4 Acceptance shall be evidenced by execution of an acceptance certificate on an inspection or receiving report form or on a commercial shipping document or packing list.

History

SOURCE: Final Rulemaking published at 35 DCR 1723 (February 26, 1988).

27 DCMR § 4019 RESPONSIBILITY FOR ACCEPTANCE

4019.1 Acceptance of goods, services, or construction shall be the responsibility of the contracting officer.

4019.2 When the contracting officer assigns the responsibility for acceptance to another District employee, acceptance by that employee shall be binding on the District.

History

SOURCE: Final Rulemaking published at 35 DCR 1723 (February 26, 1988).

27 DCMR § 4020 PLACE OF ACCEPTANCE

4020.1 Each contract shall specify the place of acceptance.

4020.2 Contracts that provide for District contract quality assurance at the source shall provide for acceptance at the source.

4020.3 Contracts that provide for District contract quality assurance at destination shall provide for acceptance at destination.

4020.4 Goods accepted at a place other than destination shall not be reinspected at destination for acceptance purposes, but shall be examined at destination for quantity, damage in transit, and possible substitution or fraud.

History

SOURCE: Final Rulemaking published at 35 DCR 1723 (February 26, 1988).

27 DCMR § 4021 CERTIFICATE OF CONFORMANCE

4021.1 A certificate of conformance may be used instead of source inspection, whether the contract calls for acceptance at the source or at destination, at the discretion of the contracting officer, if the following conditions apply:

(a) Acceptance on the basis of a contractor's certificate of conformance is in the best interests of the District; and

(b) Either small losses would be incurred in the event of a defect; or, based on the contractor's reputation or past performance, it is likely that the goods or services furnished will be acceptable and any defective work would be replaced, corrected, or repaid without contest.

4021.2 Even if a certificate of conformance is used pursuant to §4021.1, the District's right to inspect goods, services, and construction under the inspection provisions of the contract shall not be prejudiced.

History

SOURCE: Final Rulemaking published at 35 DCR 1724 (February 26, 1988).

27 DCMR § 4022 TRANSFER OF TITLE AND RISK OF LOSS

4022.1 Title to goods and construction shall pass to the District upon formal acceptance, regardless of when or where the District takes physical possession, unless the contract specifically provides for earlier passage of title.

4022.2 Unless the contract specifically provides otherwise, risk of loss of or damage to goods shall remain with the contractor until, and shall pass to the District upon either of the following:

(a) Delivery of the goods to a carrier if transportation is f.o.b. origin; or

(b) Acceptance by the District or delivery of the goods to the District at the destination specified in the contract, whichever is later, if transportation is f.o.b. destination.

4022.3 The provisions of §4022.2 shall not apply to goods that so fail to conform to contract requirements as to give the District a right of rejection.

4022.4 The risk of loss of or damage to nonconforming goods shall remain with the contractor until cure or acceptance. After cure or acceptance, the provisions of §4022.2 shall apply.

4022.5 The contractor shall not be liable for loss of or damage to goods caused by the negligence of officers, agents, or employees of the District acting within the scope of their employment.

4022.6 The risk of loss or damage to construction shall remain with the contractor until formal acceptance of the construction by the District.

4022.7 If any of a construction project is excepted from normal acceptance by the District due to defects or failure to conform to the requirements and specifications of the contract, or is subject to contingent acceptance pending cure of defects, the risk of loss or damage to the construction shall remain with the contractor until the defects are cured and the contingency is removed or the construction is formally accepted by the District.

History

SOURCE: Final Rulemaking published at 35 DCR 1724 (February 26, 1988).

27 DCMR § 4023 [RESERVED]

27 DCMR § 4024 [RESERVED]

27 DCMR § 4025 [RESERVED]

27 DCMR § 4026 WARRANTIES

4026.1 The contracting officer shall ensure that each warranty in a District contract clearly delineates the rights and obligations of the contractor and the District for defective items and services and fosters quality performance.

4026.2 A warranty shall provide the following:

(a) A contractual right for the correction of defects, notwithstanding any other requirement of the contract pertaining to acceptance of the goods or service by the District; and

(b) A stated period of time or use, or the occurrence of a specified event, after acceptance by the District within which the District may assert a contractual right for the correction of defects.

4026.3 The contracting officer shall ensure that the benefits to be derived from a warranty are commensurate with the cost of the warranty to the District.

History

SOURCE: Final Rulemaking published at 35 DCR 1725 (February 26, 1988).

27 DCMR § 4027 CRITERIA FOR USE OF WARRANTIES

4027.1 The contracting officer shall determine whether a warranty is appropriate for each specific procurement. If a warranty is appropriate, the contracting officer shall use a warranty clause, approved by the Director, consistent with the contractor's performance obligations under the contract.

4027.2 In determining whether a warranty is appropriate for a specific procurement, the contracting officer shall consider the following factors:

(a) The nature and use of the goods, services, or construction such as complexity and function, degree of development, state of the art, end use, difficulty in detecting defects before acceptance, and potential harm to the District if the item is defective;

(b) Costs arising from the contractor's charge for accepting the deferred liability created by the warranty and the District's administration and enforcement of the warranty;

(c) The District's ability to enforce the warranty, and the assurance that an adequate administrative system for reporting defects exists or will be established;

(d) Whether there is the practice in the trade of customarily warranting the supply, service, or construction, and whether the cost of the supply, service, or construction will therefore be the same whether a warranty is included;

(e) The possible reduction of the District's quality assurance requirements where the warranty provides adequate assurance of a satisfactory product; and

(f) Any other factors that the contracting officer deems appropriate for the specific procurement.

History

SOURCE: Final Rulemaking published at 35 DCR 1726 (February 26, 1988).

27 DCMR § 4028 USE OF WARRANTIES

4028.1 The contracting officer shall not include a warranty in a cost-reimbursement contract unless approved by the head of the contracting agency.

4028.2 A warranty clause shall not limit the District's rights under an inspection clause in relation to latent defects, fraud, or gross mistakes that amount to fraud.

4028.3 A warranty clause shall provide that the warranty applies notwithstanding inspection and acceptance, or other clauses or terms of the contract.

4028.4 The Director shall prescribe procedures for the use of warranties in contracts.

History

SOURCE: Final Rulemaking published at 35 DCR 1726 (February 26, 1988).

27 DCMR § 4029 WARRANTY TERMS AND CONDITIONS

4029.1 To facilitate the pricing and enforcement of warranties, the contracting officer shall ensure that each warranty clearly states the following:

(a) The exact nature of the item and its components and the characteristics that the contractor warrants;

(b) The extent of the contractor's warranty, including all of the contractor's obligations to the District for breach of warranty;

(d) The scope and duration of the warranty.

4029.2 The contractor's obligations under a warranty shall extend to all defects discovered during the warranty period, but shall not include any damage caused solely by the District.

4029.3 When the contracting officer determines that a warranty for the entire item is not in the best interests of the District, the contracting officer may require a warranty for a particular aspect of the item that may require special protection, such as installation, components, accessories, subassemblies, preservation, packaging, or packing.

4029.4 At a minimum, a warranty shall provide that the District may obtain an equitable adjustment of the contract or direct the contractor to repair or replace the defective item at the contractor's expense.

4029.5 If it is not practical to require the contractor to make a repair or provide a replacement, or, because of the nature of the item, the repair or replacement does not afford an appropriate remedy to the District, the warranty may provide an alternative, such as allowing the District to do either of the following:

(a) Retain the defective item and reduce the contract price by an amount equitable under the circumstances; or

(b) Arrange for the repair or replacement of the defective item by the District, or by another source, at the contractor's expense.

4029.6 The contracting officer shall clearly specify the duration of the warranty after consideration of the following factors:

(a) The estimated useful life of the item;

(b) The nature of the item including storage or shelf-like; and

4029.7 The duration of the warranty shall not extend the contractor's liability for patent defects beyond a reasonable time after acceptance by the District.

4029.8 If the District specifies the design of the end item and its measurements, tolerances, materials, tests, or inspection requirements, the contractor's obligations for correction of defects shall be limited to defects in material and workmanship or failure to conform to specifications. If the District does not specify the design, the warranty shall extend to the usefulness of the design.

4029.9 Each warranty shall specify a reasonable time for furnishing notice to the contractor regarding the discovery of defects. The contracting officer shall consider the following factors when establishing the notice period:

(a) The time necessary for the District to discover the defects;

(b) The time reasonably required for the District to take necessary administrative steps and make a timely report of discovery of the defects to the contractor; and

4029.10 The packaging and preservation requirements of a contract shall require the contractor to stamp or mark the goods delivered or otherwise furnish notice with the goods of the existence of the warranty.

History

SOURCE: Final Rulemaking published at 35 DCR 1727 (February 26, 1988).

27 DCMR § 4030 FIXED-PRICE INCENTIVE CONTRACT WARRANTIES

4030.1 If a fixed-price incentive contract contains a warranty, the contracting officer shall consider the estimated cost of the warranty to the contractor in establishing the incentive target price and the ceiling price of the contract.

4030.2 The contracting officer shall consider all costs incurred, or estimated to be incurred, by the contractor in complying with the warranty when establishing the total final price.

4030.3 Contractor compliance with the warranty after the establishment of the total final price shall be at no additional cost to the District.

History

SOURCE: Final Rulemaking published at 35 DCR 1729 (February 26, 1988).

27 DCMR § 4031 [RESERVED]

27 DCMR § 4032 [RESERVED]

27 DCMR § 4033 CONTRACTOR LIABILITY FOR LOSS OF OR DAMAGE TO DISTRICT PROPERTY

4033.1 The provisions of this section shall apply to contractor liability for loss of or damage to District property that occurs after acceptance as a result of defects or deficiencies in the goods delivered or services performed.

4033.2 Except as provided in §§4033.4 and 4033.5, the District shall act as a self-insurer by relieving contractors, as specified in this section, of liability for loss of or damage to property of the District that occurs after acceptance of goods delivered or services performed under a contract as a result of defects or deficiencies in the goods or services. However, the District shall not relieve the contractor of liability for loss of or damage to the contract end item itself, except for high-value items.

4033.3 Except as provided in §§4033.4 and 4033.5, in contracts requiring delivery of high- value items, the District shall relieve contractors of contractual liability for loss of or damage to those items. However, the relief shall not limit the District's rights arising under the contract to do the following:

(a) Have any defective item or its components corrected, repaired, or replaced when the defect or deficiency is discovered before the loss of or damage to high-value items occurs; or

(b) Obtain equitable relief when the defect or deficiency is discovered after such loss or damage occurs.

4033.4 The District shall not provide the contractual relief specified in §§4033.2 and 4033.3 when contractor liability can be preserved without increasing the contract price.

4033.5 Subject to the specific terms of the limitation of liability clause included in the contract, the relief provided under §§4033.2 and 4033.3 shall not apply, as follows:

(a) To the extent that contractor liability is expressly provided for under a contract clause approved by the Director;

(b) When a defect or deficiency in, or the District's acceptance of, the goods, services, or construction results from willful misconduct or lack of good faith on the part of the contractor or its agent; or

(c) To the extent that any contractor insurance, or self-insurance reserve, covers liability for loss or damage suffered by the District through purchase or use of the goods delivered or services performed under the contract.

4033.6 For items being priced at or based on catalog or market prices, the contracting officer shall not provide relief to contractors unless they can obtain a reduction from the catalog or market price which reflects the reduced contractor liability. The contracting officer shall include a clause, approved by the Director, to inform bidders and offerors of the provisions of this subsection.

History

SOURCE: Final Rulemaking published at 35 DCR 1729 (February 26, 1988).

27 DCMR § 4099 DEFINITIONS

4099.1 When used in this chapter, the following terms and phrases shall have the meanings ascribed;

Acceptance - the act of an authorized representative of the District by which the District, for itself or as agent of another, assumes ownership of existing identified goods tendered or approves specific services rendered or construction completed as partial or complete performance of the contract.

Certificate of conformance - a document used by a contractor to certify that goods conform to the specifications of the contract. The certificate may be used instead of source inspection.

Contract administrator - an individual authorized by the contracting officer to perform all actions necessary to verify whether goods, services, or construction conform to contract quality requirements.

Contract quality requirements - the technical requirements in the contract relating to the quality of the product or service and those contract clauses prescribing inspection, and other quality controls incumbent on the contractor, to assure that the supply, service, or construction conforms to the contractual requirements.

Complex items - includes those items having quality characteristics, not wholly visible in the end item, for which contractual performance must be established progressively through precise measurements, tests, and controls applied during purchasing, manufacturing, performance, assembly, and functional operation either as an individual item or in conjunction with other items.

Correction - the elimination of a defect.

Criticality - a critical application of an item is one in which the failure of the item could injure persons or jeopardize a vital agency mission.

Destination - the point designated in the contract at which the end product is received.

Director - the Director of the Office of Contracting and Procurement or the District of Columbia Chief Procurement Officer.

District quality assurance - the various functions, including inspection, performed by the District to determine whether a contractor has fulfilled the contract obligations pertaining to quality and quantity.

F.O.B. - freight on board.

High-value item - a contract end item that has a high unit cost, exceeding one hundred thousand dollars ($100,000) per unit, such as a communications system or computer system that is designated by the contracting officer as a high-value item.

Inspection - examining and testing goods, services, or construction to determine whether they conform to contract requirements. This includes, when appropriate, examination and testing of raw materials, components, and intermediate assemblies.

Off-the-shelf item - an item produced and placed in stock by a contractor, or stocked by a distributor, before receiving orders or contracts for its sale.

Source - the point designated in the contract from which the end product is shipped.

Subcontractor - any supplier, distributor, vendor, or firm who furnishes goods, services, or construction to or for a prime contractor or another subcontractor.

Term contract - a requirements contract or an indefinite quantity contract.

Testing - the element of inspection that determines the properties or elements, including functional operation of goods or their components, by the application of established scientific principles and procedures.

Warranty - a promise or affirmation given by a contractor to the District regarding the nature, usefulness, or condition of the goods, services, or construction furnished under a contract.

History

SOURCE: Final Rulemaking published at 35 DCR 1730 (February 26, 1988).

27-41 USE OF DISTRICT PROPERTY AND SOURCES BY CONTRACTORS

27 DCMR § 4100 CONTRACTOR USE OF DISTRICT SUPPLY SOURCES

4100.1 When it is in the best interest of the District, and if goods or services required in the performance of a District contract are available from District supply sources, the contracting officer may authorize contractors to use these sources in performing the following types of contracts:

(a) Cost-reimbursement; or

(b) Other types of contracts when the contracting officer determines that a substantial dollar portion of the contract is of a cost-reimbursement nature, or that the contract cost can be reduced by authorizing the use of District supply sources by the contractor.

4100.2 The authorization to the contractor to use District supply sources shall include, but not be limited to, consideration of the following factors:

(a) The administrative cost of placing orders with District supply sources and the program impact of delay factors, if any;

(b) The lower cost of items available through District supply sources;

(d) Delivery factors, such as cost and time; and

(e) The recommendations of the contractor.

4100.3 The contracting officer shall issue authorizations to subcontractors to use District supply sources through, and with the approval of, the contractor.

4100.4 The contracting officer may include in the authorization to use District supply sources any limitations or conditions deemed necessary, such as the following:

(a) A limitation on the authority to purchase from District supply sources to any overhead supplies, but not production supplies;

(b) A limitation on the authority for use of District sources to a specific dollar amount;

(d) A specific provision setting forth whether vesting of title will differ from other property acquired or otherwise furnished by the contractor for use under the contract.

4100.5 When ordering from District supply sources, contractors shall follow all applicable rules, regulations, procedures, and contract terms.

4100.6 When ordering from District supply sources, contractors shall comply with the requirements of the contracting officer’s authorization and order only those items required for performance of the contract.

4100.7 Title to property acquired by the contractor under the contracting officer’s authorization may vest in either the District or the contractor, as provided in the contract. If the contract is silent on the vesting of title, title shall vest in the District.

4100.8 Supplies or services provided to a contractor from District supply sources do not contain any representation or warranty as to quality or suitability unless otherwise provided in a contract.

History

SOURCE: Final Rulemaking published at 35 DCR 1733 (February 26, 1988); as amended by Final Rulemaking published at 63 DCR 10016 (July 29, 2016). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 4100

27 DCMR § 4101 CONTRACTOR USE OF DISTRICT VEHICLES AND RELATED SERVICES

4101.1 When it is in the best interest of the District, the contracting officer may authorize contractors in writing to use District-owned or leased vehicles and related services (including fuel and lubricants, vehicle inspection, maintenance, repair, and vehicle storage), in accordance with the provisions of this section.

4101.2 The contracting officer may authorize a contractor to use District-owned or leased vehicles and related services only if:

(a) The number of vehicles and related services required for use by the contractor is predictable and expected to remain fairly constant;

(b) The proposed contract or contracts will bear the entire cost of the vehicle program;

(c) The vehicles will not be used for any purpose other than carrying out the contract for which the vehicles were provided;

(d) The contractor does not have and would not be expected to have an existing and continuing capability for providing the vehicles from its own resources; and

(e) Substantial savings are expected.

4101.3 District-owned or leased vehicles and related services used by the contractor under this section shall be used only in connection with the performance of one (1) or more specific District contracts for which use of the vehicles and related services was authorized.

4101.4 Before authorizing a contractor to use District-owned or leased vehicles and related services, the contracting officer shall do the following:

(a) Determine whether the authorization will accomplish the District’s contractual objectives and reduce costs;

(b) Obtain evidence that the contractor has in effect insurance in accordance with the provisions of the contract;

(c) Arrange for periodic checks to ensure that contractors are using the District-owned or leased vehicles and related services in accordance with the terms of the authorization;

(d) Ensure that the contractor establishes and enforces penalties for employees who use or authorize the use of District-owned or leased vehicles or related services for purposes other than the performance of District contracts for which use of the vehicles and related services was authorized; and

(e) Obtain a written statement from the contractor that the contractor will assume, without the right of reimbursement from the District, the cost or expense and liability of any use of the District-owned or leased vehicles and related services not related to the performance of the contract.

History

SOURCE: Final Rulemaking published at 35 DCR 1733 (February 26, 1988); as amended by Final Rulemaking published at 63 DCR 10016 (July 29, 2016). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 4101

27 DCMR § 4102 USE OF DISTRICT PROPERTY AND FACILITIES

4102.1 Except as provided otherwise in this chapter or the contract, each contractor and subcontractor shall furnish all property and facilities necessary to perform District contracts.

History

SOURCE: Final Rulemaking published at 35 DCR 1733 (February 26, 1988); as amended by Final Rulemaking published at 63 DCR 10016 (July 29, 2016). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 4102

27 DCMR § 4103 [RESERVED]

History

SOURCE: Final Rulemaking published at 35 DCR 1733 (February 26, 1988); as amended by Final Rulemaking published at 63 DCR 10016 (July 29, 2016). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 4103

27 DCMR § 4104 PROVISION OF MATERIAL FOR PERFORMING CONTRACTS

4104.1 Except as provided otherwise in this section, each contractor and subcontractor shall furnish all material for performing District contracts.

4104.2 The contracting officer may provide material to the contractor or subcontractor when necessary to achieve significant economy, standardization, expedited production, or when it is otherwise determined to be in the best interest of the District.

4104.3 The solicitation shall specify material that the District will furnish in sufficient detail to enable offerors to accurately evaluate and respond to the solicitation.

History

SOURCE: Final Rulemaking published at 35 DCR 1733 (February 26, 1988); as amended by Final Rulemaking published at 63 DCR 10016 (July 29, 2016). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 4104

27 DCMR § 4105 [RESERVED]

27 DCMR § 4106 CONTRACTOR RESPONSIBILITY FOR DISTRICT PROPERTY

4106.1 Except as provided in the contract, the contractor shall be directly responsible and accountable for all District property, including all District property in the possession or control of a subcontractor.

4106.2 The contractor shall maintain and make available all property control records required under this chapter and account for all District property until relieved of the responsibility by the contracting officer under the terms of the contract or this section.

4106.3 The contractor shall assume responsibility for the control of District property upon:

(a) Delivery of District furnished property into the contractor’s custody or control; or

(b) Delivery to the contractor, when property is purchased by the contractor and the contract calls for reimbursement by the District. This requirement shall not alter or modify contractual requirements relating to passage of title.

4106.4 Property to which the District has acquired a lien or title solely as a result of advance, progress, or partial payments shall not be subject to the requirements of §§ 4106 and 4107 of this chapter.

4106.5 The contractor shall require subcontractors provided with District property under the prime contract to comply with the requirements of §§ 4106 and 4107 of this chapter. Procedures for ensuring subcontractor compliance shall be included in the contractor’s property control system.

4106.6 Unless the contract or contracting officer provides otherwise, the contractor shall be relieved of property control responsibility for District property by the occurrence of any of the following:

(a) Reasonable and proper consumption of property in the performance of the contract as determined by the contracting officer;

(b) Retention by the contractor, with the approval of the contracting officer, of property for which the District has received adequate consideration;

(d) Shipment from the contractor’s plant, under District instructions, except when shipment is to a subcontractor or other location of the contractor; or

(e) A written determination by the contracting officer of the contractor’s liability for any property that is lost, damaged, destroyed, or consumed in excess of that normally anticipated in a manufacturing or processing operation, which is followed by reimbursement of the District of any amount required in the determination. If the property is rendered unserviceable by damage, the property shall be properly disposed of, and the determination shall refer to the documents evidencing disposal.

History

SOURCE: Final Rulemaking published at 35 DCR 1733 (February 26, 1988); as amended by Final Rulemaking published at 63 DCR 10016 (July 29, 2016). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 4106

27 DCMR § 4107 PROPERTY CONTROL SYSTEMS

4107.1 The contractor shall establish and maintain a system to record, control, protect, preserve, and maintain all District property. The system shall be reviewed and approved by the contracting officer before District property is provided or made available to the contractor. If the contracting officer finds any portion of the contractor’s property control system to be inadequate, the contractor shall be required to take any necessary corrective action before the system can be approved.

4107.2 The property control system, and implementation of the property control system, may be reviewed at any time during the period of the contract by the contracting officer.

4107.3 If the contracting officer finds any portion of the contractor’s property control system, or implementation of its property control system, to be inadequate, the contractor shall be required to take any necessary corrective action ordered by the contracting officer and the contracting officer may suspend the contractor’s authority to use District property until the corrective action is taken.

4107.4 If District property is found to be in the possession or control of the contractor, although not provided under any contract, the contractor shall promptly record the property and furnish to the contracting officer all known circumstances and data pertaining to its receipt and a statement about whether it is needed for the performance of the contract.

4107.5 If unrecorded District property is found in the possession or control of the contractor, both the cause of the discrepancy and actions taken or needed to prevent recurrence shall be determined and reported to the contracting officer.

4107.6 The contractor shall promptly report to the contracting officer all District property it receives in excess of the amounts needed to complete full performance under the contracts providing it or authorizing its use.

4107.7 The contractor shall furnish written receipts for all or specified classes of District property only when the contracting officer deems it essential for maintaining acceptable property controls.

4107.8 If overages, shortages, or damages are discovered upon receipt of District property, the contractor shall provide a statement of the condition and apparent causes to the contracting officer. Only the quantity of property actually received shall be recorded on the official records.

History

SOURCE: Final Rulemaking published at 35 DCR 1733 (February 26, 1988); as amended by Final Rulemaking published at 63 DCR 10016 (July 29, 2016). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 4107

27 DCMR § 4108 [RESERVED]

27 DCMR § 4109 CONTRACTOR LIABILITY FOR DISTRICT PROPERTY

4109.1 Contractors shall be responsible and liable for District property in their possession, unless otherwise specified in the contract.

4109.2 When the District provides District property directly to a subcontractor, the provisions of this section shall apply to the subcontractor.

4109.3 Subcontractors shall be liable for loss of or damage to District property furnished through the prime contractor.

4109.4 A prime contractor that provides District property to a subcontractor shall not be relieved of any responsibility to the District that the prime contractor may have under the terms of the prime contract.

4109.5 Subject to the terms of the contract and the circumstances surrounding the particular case, the contractor shall be liable for shortages, loss, damages, or destruction of District property. The contractor shall also be liable when the use or consumption of District property unreasonably exceeds the allowances provided for by the contract.

4109.6 The contractor shall investigate and report to the contracting officer all cases of loss, damage, or destruction of District property in its possession or control as soon as the facts become known, or when requested by the contracting officer. A report shall also be furnished when completed and accepted products or end items are lost, damaged, or destroyed while in the contractor’s possession or control.

4109.7 The contractor shall require any of its subcontractors possessing or controlling District property accountable under the contract to investigate and report to the contractor all instances of loss, damage, or destruction of District property.

History

SOURCE: Final Rulemaking published at 35 DCR 1733 (February 26, 1988); as amended by Final Rulemaking published at 63 DCR 10016 (July 29, 2016). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 4109

27 DCMR § 4110 DISTRICT RECORDS: GENERAL PROVISIONS

4110.1 The contractor’s property control records shall constitute the District’s official property records unless an exception has been authorized by the contracting officer.

4110.2 The contractor shall establish and maintain adequate control records for all District property, including property provided to, and in the possession or control of, a subcontractor.

4110.3 The property control records specified in §§ 4110 and 4111 of this chapter shall be the minimum required by the District. The contracting officer may impose additional requirements as appropriate.

4110.4 Unless the contracting officer directs otherwise, if a subcontractor has an approved property control system for District property provided under its own prime contracts, the contractor shall use the records created and maintained under that system as the property control records for District property controlled by the subcontractor.

4110.5 The contractor’s property control system shall provide financial accounts for District property in the contractor’s possession or control.

4110.6 The property control system shall be subject to internal control standards and shall be supported by property records for all property.

4110.7 The records shall be safeguarded from tampering or destruction.

4110.8 The contractor shall make the property control records available to the contracting officer and to other authorized District personnel promptly after a request from the contracting officer or other authorized District personnel.

4110.9 The contractor shall maintain separate property records for each contract. However, the contractor may maintain a consolidated property record if it provides the required information and is specifically authorized by the contracting officer.

4110.10 The contractor’s property control system shall contain a system or technique to locate any item of District property within a reasonable period of time.

History

SOURCE: Final Rulemaking published at 35 DCR 1733 (February 26, 1988); as amended by Final Rulemaking published at 63 DCR 10016 (July 29, 2016). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 4110

27 DCMR § 4111 CONTENTS OF PROPERTY CONTROL RECORDS

4111.1 Official District property records shall identify all District property and provide a complete, current, auditable record of all transactions.

4111.2 The contractor’s property control records shall provide the following basic information for every item of District property in the contractor’s possession regardless of value:

(a) The name, description, and commodity code;

(b) Quantity received, issued, and on hand;

(d) Contract number;

(e) Location;

(f) Disposition; and

(g) Posting reference and date of transaction.

History

SOURCE: Final Rulemaking published at 35 DCR 1733 (February 26, 1988); as amended by Final Rulemaking published at 63 DCR 10016 (July 29, 2016). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 4111

27 DCMR § 4112 INVENTORIES

4112.1 Immediately upon termination or completion of a contract providing for use of District property by the contractor shall perform, and cause each subcontractor to perform, a physical inventory that is adequate for disposal purposes of all District property applicable to the contract.

4112.2 The requirement for physical inventory at the completion of a contract may be waived by the contracting officer when the property is authorized for use under a follow-on contract and the following factors apply:

(a) Experience has established the adequacy of property controls and an acceptable degree of inventory discrepancies;

(b) The contractor provides a written statement indicating that record balances have been transferred instead of preparing a formal inventory list; and

(c) The contractor provides a written statement accepting responsibility and accountability for any balances under the terms of the follow-on contract.

4112.3 The contractor shall, as a minimum, submit the following to the contracting officer promptly after completing the physical inventory:

(a) A listing that identifies all discrepancies disclosed by a physical inventory; and

(b) A signed statement that physical inventory of all or certain classes of District property was completed on a given date, and that the official property records were found to be in agreement except for the discrepancies reported.

4112.4 When requested by the contracting officer, the contractor's reports of the results of physical inventory shall be prepared on a quantitative and monetary basis and segregated by categories of property.

History

SOURCE: Final Rulemaking published at 35 DCR 1733 (February 26, 1988). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 4112

27 DCMR § 4113 CARE, MAINTENANCE, AND USE OF DISTRICT PROPERTY

4113.1 The contractor shall be responsible for the proper care, maintenance, and use of District property in its possession or control from the time of receipt until properly relieved of responsibility, in accordance with sound industrial practice and the terms of the contract and this chapter.

4113.2 The removal of District property to storage, or its contemplated transfer, shall not relieve the contractor of the responsibilities set forth in this chapter.

4113.3 The contractor shall be responsible for a preventive maintenance program which includes the following:

(a) Inspection of buildings at periodic intervals to ensure detection of deterioration and the need for repairs;

(b) Inspection of equipment at periodic intervals to ensure detection of maladjustment, wear, or impending breakdown;

(d) Adjustments for wear, repair, or replacement of worn or damaged parts and the elimination of causes of deterioration;

(e) Removal of sludge, chips, and cutting oils from equipment that will not be used for a period of time; and

(f) Taking necessary precautions to prevent deterioration caused by contamination, corrosion, and other substances.

4113.4 The contractor’s maintenance program shall provide for disclosing and reporting to the contracting officer the need for major repair, replacement, and other capital rehabilitation work for District property in its possession or control.

4113.5 The contractor shall keep records of maintenance actions performed and any deficiencies in District property discovered as a result of inspections.

History

SOURCE: Final Rulemaking published at 35 DCR 1733 (February 26, 1988); as amended by Final Rulemaking published at 63 DCR 10016 (July 29, 2016). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 4113

27 DCMR § 4114 PROPERTY USE PROCEDURES

4114.1 The contractor shall establish written procedures to ensure that District property will be used only for those purposes authorized in the contract and that required approvals are obtained. The contractor’s written procedures shall include;

(a) Establishment of a minimum level of use below which an analysis of need shall be made and retention justified;

(b) Provision for recording authorized and actual use consistent with the established use levels;

(d) Provision for prompt reporting to the contracting officer of all property for which retention is not justified.

4114.2 The contractor’s property control records shall provide a basis for determining and allocating rental charges.

4114.3 The contractor’s or subcontractor’s authority to purchase, retain, or dispose of contractor inventory of District property shall be subject to the contract provisions and to any District restrictions on the disposition of property that is hazardous to public health, safety, or welfare.

History

SOURCE: Final Rulemaking published at 35 DCR 1733 (February 26, 1988); as amended by Final Rulemaking published at 63 DCR 10016 (July 29, 2016). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 4114

27 DCMR § 4199 DEFINITIONS

4199.1 When used in this chapter, the following terms and phrases shall have the meanings ascribed:

District property - all property owned by or leased to the District or acquired by the District under the terms of the contract, including property in the possession of or directly acquired by the District and subsequently made available to the contractor.

District supply sources - sources available to the District from which the contractor or subcontractor may obtain supplies for use in certain contracts.

Facilities - property used for production, maintenance, research, development, or testing. The term “facilities” includes personal property of a capital nature (including equipment, machine tools, test equipment, furniture, vehicles, and accessory and auxiliary items) for use in manufacturing goods, in performing services, or for any administrative or general plant purpose, and real property (land and rights in land, ground improvements, utility distribution systems, and buildings and other structures), but does not include material.

Material - property that may be incorporated into or attached to a deliverable end item or that may be consumed or expended in performing a contract. The term includes assemblies, components, parts, raw and processed materials, and small tools and goods that may be consumed in normal use in performing a contract.

Preventive maintenance - maintenance performed on a regularly scheduled basis to prevent the occurrence of defects and to detect and correct minor defects before they result in serious consequences.

Property - all property, both real and personal, including facilities and material.

History

SOURCE: Final Rulemaking published at 35 DCR 1733 (February 26, 1988); as amended by Final Rulemaking published at 63 DCR 10016 (July 29, 2016). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 4199

27-42 FREEDOM OF INFORMATION AND PRIVACY

27 DCMR § 4200 REQUESTS FOR RECORDS

4200.1 A request for a record of the Office of Contracting and Procurement (OCP) shall be made to OCP’s designated Freedom of Information Officer.

4200.2 OCP’s response to a request for a record shall be made in accordance with the provisions of the D.C. Freedom of Information Act (title II of the District of Columbia Administrative Procedure Act, effective March 29, 1977 (D.C. Law 1-96; D.C. Official Code §§ 2-531 et seq. (2012 Repl.)) (“FOIA Act”), and Title I, Chapter 4 of the D.C. Municipal Regulations.

History

SOURCE: Final Rulemaking published at 35 DCR 1748 (February 26, 1988); as amended by Final Rulemaking published at 62 DCR 8057 (June 5, 2015). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 4200

27 DCMR § 4201 [RESERVED]

History

SOURCE: Final Rulemaking published at 35 DCR 1748 (February 26, 1988); as amended by Final Rulemaking published at 62 DCR 8057 (June 5, 2015). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 4201

27 DCMR § 4202 PRIVACY AND DISCLOSURE

4202.1 If a contractor collects, retains, or has in its possession any document, record, or other information obtained in the performance of a District contract which document, record, or information may be exempt from disclosure under the FOIA Act, the contractor shall not disclose the document, record, or other information to any person other than an authorized District employee or agent.

4202.2 If a contractor collects, retains, or has in its possession any document, record, or other information obtained in the performance of a District contract the disclosure of which is prohibited by any District or federal law or regulation, the contractor shall not disclose the document, record, or other information to any person other than an authorized District employee or agent.

4202.3 If a contractor is not sure whether a document, record, or other information may be disclosed, the contractor shall refer the matter to the contracting officer.

History

SOURCE: Final Rulemaking published at 35 DCR 1748 (February 26, 1988); as amended by Final Rulemaking published at 62 DCR 8057 (June 5, 2015). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 4202

27 DCMR § 4299 [REPEALED]

History

SOURCE: Final Rulemaking published at 35 DCR 1748 (February 26, 1988); as amended by Final Rulemaking published at 62 DCR 8057 (June 5, 2015). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 4299

27-45 PROCUREMENT TRAINING

27 DCMR § 4500 GENERAL PROVISIONS

4500.1 The Director shall establish and conduct classes, courses, seminars, workshops, and other educational programs on District procurement law, rules, and procedures (collectively referred to in this section as “procurement educational programs” or “programs”) in accordance with Section 206 of the Procurement Practices Reform Act of 2010, effective April 8, 2011 (D.C. Law 18-371; D.C. Official Code § 2-352.06).

4500.2 The Director may designate the size and enrollment of procurement educational programs and may target specific programs to particular groups of District employees or non-employees.

4500.3 The Director may establish a tuition or program fee for non-employee participants in programs open to the public. Any fee shall be based on the costs of developing and providing materials and instruction.

4500.4 The Director shall provide notice of all programs by publication of a notice of program offerings on the Office of Contracting and Procurement’s website, and in any other manner the Director may deem appropriate.

4500.5 Procurement educational programs and requirements shall be designed to ensure that persons who have authority to contractually bind the District have the necessary experience, learning and development, and technical knowledge to make sound decisions.

History

SOURCE: Final Rulemaking published at 35 DCR 1750 (February 26, 1988); as amended by Final Rulemaking published at 62 DCR 14067 (October 30, 2015). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 4500

27 DCMR § 4501 [RESERVED]

History

SOURCE: Final Rulemaking published at 35 DCR 1750 (February 26, 1988); as amended by Final Rulemaking published at 62 DCR 14067 (October 30, 2015). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 4501

27 DCMR § 4502 [RESERVED]

History

SOURCE: Final Rulemaking published at 35 DCR 1750 (February 26, 1988); as amended by Final Rulemaking published at 62 DCR 14067 (October 30, 2015). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 4502

27 DCMR § 4599 DEFINITIONS

4599.1 When used in this chapter, the following terms and phrases shall have the meanings ascribed;

Director - the Director of the Office of Contracting and Procurement or the District of Columbia Chief Procurement Officer.

History

SOURCE: Final Rulemaking published at 35 DCR 1750 (February 26, 1988). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 4599

27-46 NOT-FOR-PROFIT HOSPITAL CORPORATION PROCUREMENT RULES

27 DCMR § 4600 GENERAL

4600.1 This chapter sets forth the procurement rules of the Not-for-Profit Hospital Corporation (Hospital), pursuant to authority granted by sections 105(a), 106(6), and 111 of the Not-for-Profit Hospital Corporation Establishment Emergency Amendment Act of 2010, effective July 7, 2010 (Act)(D.C. Act 18-476; 57 DCR 6937 (August 6, 2010), and any subsequent substantially identical emergency, temporary, or permanent legislation. The Hospital is an instrumentality of the District of Columbia government. Its general mission is to provide community-centered health care east of the Anacostia River. In accordance with the Act, the Hospital is exempt from the requirements of the District of Columbia Procurement Practices Act of 1985, effective February 21, 1986 (D.C. Law 6-85; D.C. Official Code §§ 2-301.01, et seq.(2006 Repl.; Supp. 2008), except for provisions regarding review and approval by the Council of multiyear contracts and review and approval by the Council of contracts in excess of one million dollars ($1 million) during a twelve (12)-month period pursuant to District of Columbia Home Rule Act, approved December 24, 1973, 87 Stat. 790, Pub. L. 93-198, D. C. Official Code § 1-204.51(2006 Repl.) and pursuant to section 105a of the District of Columbia Procurement Practices Act of 1985, effective March 8, 1991, (D.C. Law 8-257; D.C. Official Code § 2-301.05a(2006 Repl.; Supp. 2008) and the Hospital has the authority to issue and implement its own procurement rules.

4600.2 The Board of Directors (Board), as the governing body of the Hospital, is authorized to enter into contracts to assist the Hospital in carrying out its mission acting by and through the Board. The Board may delegate that authority in accordance with the Act and these rules.

4600.3 These procurement rules are for the benefit of the Hospital, and are not intended to confer any rights or benefits on third parties. The principal purposes of these rules are to ensure that the Hospital’s procurement activities:

(a) Are carried out in a fair, efficient and objective manner that promotes confidence in the Hospital’s integrity; and

(b) Produce reasonable value and results for the Hospital.

4600.4 These rules are intended to encourage participation by Certified Business Enterprises (CBEs), in accordance with the Small, Local, and Disadvantaged Business Enterprise Development and Assistance Act of 2005, effective October 20, 2005 (D.C. Law 16-133; D.C. Official Code § 2-218.01(2006 Repl.). The Hospital’s goals include expanding the use of CBEs.

4600.5 The Board may waive the applicability of any provisions in these rules that are not specifically required by statute if the Board finds in writing that:

(a) Such waiver is in the best interest of the Hospital;

(b) Such waiver is not inconsistent with fair, competitive, and transparent procurement practices; and

History

Source: Notice of Emergency and Proposed Rulemaking published at 57 DCR 8507 (October 8, 2010)[EXPIRED]; as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 3086 (April 18, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 4565, 4566 (May 27, 2011).

27 DCMR § 4601 APPLICABILITY

4601.1 These rules apply to the procurement of goods or services, including construction services, by and for the Hospital:

(a) Whether through purchase or lease; and

(b) Whether the goods or services are already in existence or must be developed.

4601.2 This chapter does not apply to any goods or services that the Hospital may acquire as a gift, or on a pro bono basis.

4601.3 These rules shall not apply to:

(a) The purchase or lease of real property by the Hospital;

(b) The disposition of real or personal property by the Hospital; and

History

Source: Notice of Emergency and Proposed Rulemaking published at 57 DCR 8507 (October 8, 2010)[EXPIRED]; as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 3086 (April 18, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 4565, 4567 (May 27, 2011).

27 DCMR § 4602 CHIEF CONTRACTING OFFICER

4602.1 The Chief Executive Officer shall serve as the Hospital’s Chief Contracting Officer (CCO). The CCO shall have plenary contracting authority and have responsibility for supervising the Hospital’s procurement activities. The CCO shall prescribe the standard contract format and standard contract provisions to be included in the contracts, consistent with this chapter.

4602.2 If the CCO determines that it is in the best interest of the Hospital to do so, including in an emergency situation, it is in the CCO’s discretion to:

(a) issue emergency rules that shall remain in effect for one hundred twenty (120) day periods;

(b) waive contract provisions; and

History

Source: Notice of Emergency and Proposed Rulemaking published at 57 DCR 8507 (October 8, 2010)[EXPIRED]; as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 3086 (April 18, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 4565, 4568 (May 27, 2011).

27 DCMR § 4603 DELEGATION OF AUTHORITY TO CONTRACTING OFFICERS

4603.1 The CCO may delegate contracting authority to employees of the Hospital, or employees of the District of Columbia government acting on behalf of the Hospital, who shall be designated as Contracting Officers. Any such delegation shall be in writing and shall specify any limits on a Contracting Officer’s delegated authority (for example, limits on the dollar value of contracts the individual is authorized to award).

4603.2 In delegating contracting authority, the CCO shall ensure that each delegated Contracting Officer has the experience, knowledge, and judgment necessary to fulfill the duties of a Contracting Officer, including a solid understanding of the Hospital’s procurement rules. Subject to compliance with these rules, Contracting Officers shall have wide latitude to exercise business judgment in conducting procurements. Consequently, the ability to exercise that discretion wisely and responsibly is an important job qualification. In addition, the CCO shall ensure that Contracting Officers periodically receive training to strengthen and update their skills and knowledge concerning procurement matters.

History

Source: Notice of Emergency and Proposed Rulemaking published at 57 DCR 8507 (October 8, 2010)[EXPIRED]; as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 3086 (April 18, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 4565, 4568 (May 27, 2011).

27 DCMR § 4604 AUTHORITY AND DUTIES OF CONTRACTING OFFICERS

4604.1 Only the CCO or a Contracting Officer shall have the authority to award, modify, or terminate contracts; provided, however, that prior to terminating any contract, the Contracting Officer shall first obtain the approval of the CCO. As necessary or appropriate in exercising his or her authority, a Contracting Officer shall request and consider the advice of specialists in auditing, law, technical disciplines, and other relevant fields.

4604.2 A Contracting Officer shall be responsible for:

(a) Making any determination and findings that may be required in connection with that procurement;

(b) Ensuring that all statutory and regulatory requirements that apply to the procurement have been identified and observed;

(d) Maintaining the contract file, which serves as the repository for all required documentation concerning the procurement and any resulting contracts; and

(e) Ensuring that all prospective contractors participating in the procurement receive fair and impartial treatment.

History

Source: Notice of Emergency and Proposed Rulemaking published at 57 DCR 8507 (October 8, 2010)[EXPIRED]; as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 3086 (April 18, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 4565, 4568 (May 27, 2011).

27 DCMR § 4605 CONTRACTOR QUALIFICATION REQUIREMENTS

4605.1 A prospective contractor must:

(a) Be responsible; and

(b) Not be disqualified on the basis of conflicts of interest (either personal or organizational) or related ethical concerns.

4605.2 The issues of responsibility and conflicts of interests/disqualification are addressed in sections 4606 and 4607, respectively.

History

Source: Notice of Emergency and Proposed Rulemaking published at 57 DCR 8507 (October 8, 2010)[EXPIRED]; as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 3086 (April 18, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 4565, 4569 (May 27, 2011).

27 DCMR § 4606 RESPONSIBILITY

4606.1 To receive a contract from the Hospital, a contractor must be responsible. To be considered responsible, a contractor must:

(a) Have or provide evidence that it can obtain the financial, technical, and organizational skills and resources, and the facilities and equipment, necessary to perform the contract in accordance with its terms;

(b) Have a satisfactory performance record;

(d) Not be suspended, debarred, or otherwise ineligible to receive contracts from the District Government or the Federal Government;

(e) Meet any other qualification criteria that may be imposed by applicable laws or regulations; and

(f) Provide adequate evidence that it has paid all applicable District of Columbia and Federal taxes and filed District and Federal tax returns.

4606.2 The Contracting Officer shall make a written determination if the contractor is found to be non-responsible. Depending on the level of formality of the contract and at the Contracting Officer’s discretion, the Contracting Officer may make a written determination if the contractor is found to be responsible. Award of a contract shall be considered the Contracting Officer’s determination that the contractor is responsible.

4606.3 In evaluating a prospective contractor’s responsibility, a Contracting Officer may request information from the contractor and may also consider information available from other sources. Where necessary, the Contracting Officer may also perform a pre-award survey involving interviews with contractor personnel or visits to the contractor’s facilities. Information on the capabilities and suitability of proposed subcontractors also may be considered in evaluating responsibility.

History

Source: Notice of Emergency and Proposed Rulemaking published at 57 DCR 8507 (October 8, 2010)[EXPIRED]; as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 3086 (April 18, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 4565, 4569 (May 27, 2011).

27 DCMR § 4607 ORGANIZATIONAL CONFLICTS OF INTEREST; DISQUALIFICATION

4607.1 The Hospital intends to avoid even the appearance of conflict of interest or impropriety in connection with its procurement activities. Thus, even if a prospective contractor is determined to be responsible, the CCO has the discretion to disqualify the contractor (or to take other appropriate measures) based on a conflict of interest, the appearance thereof, or other ethical considerations as further described in subsections 4607.4 – 4607.7.

4607.2 If the Contracting Officer determines that there is a conflict of interest, the appearance of a conflict of interest, or another ethical consideration, the Contracting Officer may:

(a) Disqualify a contractor at any point during procurement;

(b) Rescind or terminate a contract subsequent to contract award; or

(c) Take other appropriate corrective measures, such as canceling a pending solicitation and initiating a new procurement; provided, however, that prior to taking any such action, the Contracting Officer shall first obtain the approval of the CCO.

4607.3 A determination by the Contracting Officer and the CCO to take a corrective measure described in subsection 4607.2 shall be made in writing and included in the contract file.

4607.4 The ethical consideration(s) that may authorize disqualification or another corrective measure go beyond a violation of the ethics and conflict of interest rules of the Hospital and the prospective contractor, if any. The CCO may properly take corrective measures whenever necessary or prudent to avoid the appearance of impropriety or otherwise eliminate doubts about the integrity and fairness of procurement. For example, situations in which corrective measures might be warranted include (but are not limited to):

Cases where a member of the Board of the Hospital or the CCO have any interest, direct or indirect, as principal, surety, or otherwise in a contract, where the expense or consideration of the contract is payable from Hospital funds.

Cases where a director or employee of the Hospital involved in a procurement had an affiliation with a contractor that raised questions about the procurement’s integrity;

Cases where a prospective contractor received preferential treatment in relation to its competitors;

Cases where a prospective contractor hired a former employee of the Hospital who was privy to non-public information about the procurement, and involved that individual in its proposal preparation efforts; or

Cases where there is clear evidence suggesting collusive bidding or similar anti-competitive practices by prospective contractors.

4607.5 Organizational conflicts of interest also may warrant disqualification or other corrective measures. Organizational conflict of interest means a situation in which a contractor:

(a) May be unable to render impartial and objective assistance or advice to the Hospital; or

(b) May have an unfair advantage over potential competitors.

4607.6 Organizational conflicts of interests can arise in a variety of circumstances. For example, a contractor that develops the technical specifications for an item that will be the subject of a future procurement may have an incentive to develop specifications favoring its own products unless it is barred from participating in the future procurement. Another example is a case where a contractor performs services for the Hospital that require access to non-public information (for example, proprietary data of other companies) and could therefore gain an unfair advantage over competitors in future procurements.

4607.7 A number of measures may be appropriate for eliminating or mitigating organizational conflicts of interest, and the Contracting Officer has broad discretion to select the approach that is most suitable in any particular case. For example, a contract to assist the Hospital in developing requirements for a future procurement ordinarily should include a clause prohibiting the contractor from participating in the future procurement. A contract in which the contractor gains access to proprietary information of other companies (or non-public information on the Hospital’s procurement plans) should include an appropriate clause that prevents the contractor from using such information in any manner that might give it an unfair advantage and prohibits the contractor from disclosing this proprietary information.

4607.8 In each case, the mechanism adopted to address an organizational conflict of interest should be designed to prevent:

(a) The existence of conflicting roles that might bias a contractor’s judgment; and

(b) An unfair competitive advantage.

History

Source: Notice of Emergency and Proposed Rulemaking published at 57 DCR 8507 (October 8, 2010)[EXPIRED]; as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 3086 (April 18, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 4565, 4570 (May 27, 2011).

27 DCMR § 4608 MARKET RESEARCH

4608.1 Before issuing a solicitation, making a purchase, or awarding a contract, the Hospital may:

(a) Estimate the likely cost of the proposed procurement and assure that adequate funds are available; and

(b) Conduct appropriate market research and establish minimum needs.

4608.2 Market research is designed primarily to familiarize the Hospital with the market for the goods or services it seeks to acquire in order to develop an appropriate strategy for conducting a prompt and efficient procurement that promotes reasonable competition between qualified firms. The extent of market research will vary depending on factors such as urgency, the size and complexity of the proposed procurement, and the Hospital’s existing knowledge of the market based on its (or its key personnel’s) past experience in procuring similar goods or services. If the Hospital has such existing knowledge, market research is not required.

4608.3 Market research, to the extent it is relevant to the particular procurement and not already known to the Hospital, generally should focus on obtaining information such as the following:

(a) Customary practices in the relevant market;

(b) The prospective sources that may be able to supply the goods or services;

(d) The benchmarks available to evaluate the likely cost of the procurement and the reasonableness of prices or costs proposed by prospective contractors; and

(e) The requirements of any laws or regulations unique to the procurement.

4608.4 In conducting market research, the Hospital may solicit information from prospective sources on matters such as their interest in the potential procurement, the characteristics and costs of their products or services, their customary practices, and their knowledge of the industry generally. Such information may be solicited by requesting interested parties to submit written information (for example, by posting a notice on the Internet seeking information pertinent to the proposed procurement), through meetings or telephone contacts, by distributing and seeking comments on a draft solicitation, or through other prudent means.

4608.5 In addition to soliciting information from prospective contractors, the Hospital may also obtain information from other sources. For example, price information that can assist in estimating the likely cost of the procurement and in evaluating price reasonableness is frequently available from sources such as catalogs, Internet sites, or records of past procurements.

History

Source: Notice of Emergency and Proposed Rulemaking published at 57 DCR 8507 (October 8, 2010)[EXPIRED]; as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 3086 (April 18, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 4565, 4572 (May 27, 2011).

27 DCMR § 4609 PREPARING SOLICITATIONS

4609.1 After conducting market research, when required, the Contracting Officer shall make a determination as to which procurement method identified in section 4614 of these regulations is most beneficial to the Hospital. The Contracting Officer will ordinarily prepare a solicitation requesting responses; however, the Contracting Officer may determine to purchase the required goods or services through its small purchase procedures or from a federal or District supply schedule contract, or any other method set forth in this chapter.

4609.2 When the Contracting Officer issues a solicitation, its length and contents will depend on factors such as the size of the procurement, the nature and complexity of the goods or services, the contracting procedure to be used, and the contract type. In general, however, a solicitation should clearly describe the Hospital’s needs (for example, by providing a statement of work outlining the type of services required or information specifying product characteristics or capabilities) and method of award.

4609.3 In preparing a solicitation, the Contracting Officer should seek to enhance competition by carefully scrutinizing and eliminating, to the extent possible, any unnecessary requirements that may restrict the number of prospective sources or the range of goods or services they can offer. Such provisions may include, for example, technical specifications that unnecessarily limit the competitive field, unnecessarily aggressive delivery schedules, or burdensome terms and conditions that might deter smaller companies from competing.

4609.4 The Contracting Officer may issue solicitations in paper form or electronically. The Contracting Officer may also use oral solicitations where efficient and practical (for example, where the procurement does not involve extensive specifications, detailed evaluation criteria, or numerous line items). Oral solicitations shall not be used for contracts that have an estimated value in excess of twenty-five thousand dollars ($25,000).

4609.5 The Contracting Officer with the approval of the CCO may cancel a solicitation or reject all bids or proposals received at any time before the contract award when the Contracting Officer determines in writing that the cancellation is in the Hospital’s best interests.

History

Source: Notice of Emergency and Proposed Rulemaking published at 57 DCR 8507 (October 8, 2010)[EXPIRED]; as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 3086 (April 18, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 4565, 4573 (May 27, 2011).

27 DCMR § 4610 PUBLICIZING PROCUREMENT OPPORTUNITIES

4610.1 The Contracting Officer may use a variety of methods to publicize procurement. The specific method or methods used should be tailored to the particular procurement, taking into account factors such as the size of the procurement, the type of goods or services sought, the urgency associated with the requirement, and the most efficient means of disseminating information in the relevant market. The methods available to publicize procurement opportunities may include print advertising, Internet notices, developing source lists of qualified firms known to supply particular categories of goods or services, soliciting specific sources through written notices or telephone contacts, and holding pre-bid or pre-proposal conferences.

4610.2 The Contracting Officer shall use best efforts to provide (either electronically or in paper format) a copy of all solicitations (other than solicitations issued through its small purchase procedures) to CBE firms listed on the Department of Small and Local Business Development’s website that may be capable of providing some or all of the services or goods required by a solicitation. The Contracting Officer shall also conduct outreach and provide information to CBEs on at least an annual basis.

4610.3 In addition to publication or other method of publicizing the procurement opportunity described in subsection 4610.1, unless otherwise specified in this chapter, the Contracting Officer shall also compile a list of at least three (3) vendors that the Contracting Officer reasonably believes are qualified to provide the services or goods specified in a solicitation and shall provide those vendors with a copy of the solicitation. If the Contracting Officer is unable to locate at least three (3) potential vendors, the Contracting Officer shall provide the solicitation to as many vendors as the Contracting Officer can reasonably identify.

History

Source: Notice of Emergency and Proposed Rulemaking published at 57 DCR 8507 (October 8, 2010)[EXPIRED]; as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 3086 (April 18, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 4565, 4574 (May 27, 2011).

27 DCMR § 4611 CONTRACT TYPES

4611.1 The type of contract awarded by the Contracting Officer will generally depend on factors such as the particular goods or services to be acquired, whether the costs of the goods or services can be estimated in advance with reasonable accuracy, and the degree to which the precise nature and extent of the contract work is known at the time of award.

4611.2 The Contracting Officer may use a variety of contract types, including:

(a) Fixed price contracts (fixed price contracts will generally be used in connection with the purchases of discrete and identifiable goods or assets, and for other appropriate purchases);

(b) Cost reimbursement contracts;

(d) Time-and-materials or labor-hours contracts;

(e) Indefinite Delivery, Indefinite Quantity contracts; and

(f) Purchase Orders.

4611.3 The Contracting Officer may also award any alternative type of contract that will produce reasonable value in the context of a particular procurement.

4611.4 The Contracting Officer may, when in the best interest of the Hospital, use cost-plus-percentage-of-cost contracts.

History

Source: Notice of Emergency and Proposed Rulemaking published at 57 DCR 8507 (October 8, 2010)[EXPIRED]; as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 3086 (April 18, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 4565, 4575 (May 27, 2011).

27 DCMR § 4612 FIXED-PRICE CONTRACTS

4612.1 Fixed price contracts include several variants:

(a) Firm, fixed price contracts;

(b) Fixed price contracts with economic price adjustment; and

4612.2 Unlike cost reimbursement contracts, any type of fixed price contract obligates the contractor to complete the contractually-specified work for a fixed price.

4612.3 A firm fixed price contract provides for a price that is not subject to adjustment, except in the event of a change to the scope of work.

4612.4 A fixed price contract with economic price adjustment provides for an upward or downward adjustment in the stated contract price based on changes in certain benchmarks specifically identified in the contract (for example, catalog prices or the producer price index for a particular commodity), subject to a ceiling on upward adjustments.

4612.5 A fixed price incentive contract generally provides for establishing a final price by applying a formula based on the relationship between the total cost actually incurred by the contractor and a total target cost. A fixed price incentive contract results in the parties sharing in the cost savings or increases associated with differences between the actual and target cost. These contracts also can include incentive formulas based on the contractor’s schedule or technical performance.

History

Source: Notice of Emergency and Proposed Rulemaking published at 57 DCR 8507 (October 8, 2010)[EXPIRED]; as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 3086 (April 18, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 4565, 4576 (May 27, 2011).

27 DCMR § 4613 COST REIMBURSEMENT CONTRACTS

4613.1 Cost reimbursement contracts provide for the contractor to recover the reimbursable costs it incurs in contract performance, plus a fee (that is, a profit).

4613.2 A reimbursable cost must be:

(a) Reasonable in nature and amount;

(b) Properly allocable to the contract;

(d) Not identified as nonreimbursable under the terms of the particular contract.

4613.3 To ensure that the Hospital’s payment obligations are not open-ended, a cost reimbursement contract must specify an estimated total cost that the contractor cannot exceed (the “not-to-exceed limit”), except at its own risk, without the Contracting Officer’s written approval. Because the contractor can cease performance once it reaches the estimated total cost (unless the Contracting Officer approves an increase), it is not obligated to complete the contract work unless it can do so within the not-to-exceed limit.

4613.4 Cost reimbursement contracts can take three (3) forms:

(a) Cost-plus-fixed-fee;

(b) Cost-plus-incentive-fee; and

4613.5 The differences between the types of cost reimbursement contracts listed in subsection 4613.4 relate to the manner in which the contractor’s fee is determined.

4613.6 A cost-plus-fixed-fee contract provides for a fee that is fixed at the contract’s inception and is not subject to adjustment unless the contract is modified to change the contract work.

4613.7 A cost-plus-incentive-fee contract provides for a fee that generally is determined by applying a formula based on the relationship between the contractor’s total reimbursable cost and a total target cost, subject to a specified minimum and maximum. These contracts also can include incentive formulas based on the contractor’s schedule or technical performance.

4613.8 A cost-plus-award-fee contract provides for:

(a) A base fee fixed at the contract’s inception; and

(b) An award fee that the contractor may earn (in whole or in part) during performance, which is designed to motivate superior performance.

4613.9 The award fee in a cost-plus-award-fee contract is determined unilaterally by the Contracting Officer, based on the Contracting Officer’s judgment and evaluation of how well the contractor has performed in relation to the award fee criteria identified in the contract. In no event shall the total award fee available to the contractor exceed ten percent (10%).

4613.10 In appropriate circumstances, the Contracting Officer may include a guaranteed maximum price (GMP) in a cost reimbursement contract. A GMP differs from a not-to-exceed amount in that a contractor is required to complete performance of the base scope of work required under the contract for an amount that does not exceed the GMP. Under such an approach, if the total cost exceeds the GMP, the contractor shall be required to complete performance of the base scope of work at its own cost and expense.

History

Source: Notice of Emergency and Proposed Rulemaking published at 57 DCR 8507 (October 8, 2010)[EXPIRED]; as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 3086 (April 18, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 4565, 4576 (May 27, 2011).

27 DCMR § 4614 SPECIAL METHODS OF CONTRACTING

SPECIAL METHODS OF CONTRACTING

4614.1 Notwithstanding any other provision of this chapter, a Contracting Officer may award contracts with other organizations, public or private, for goods and services that are in the Hospital’s best interest. As part of the procurement planning process, the Contracting Officer will determine the most appropriate method of contracting based on, among other considerations, the scope of work, delivery schedules, existing market conditions, and other relevant considerations. The selection of any Special Method of Contracting shall be considered a competitive procurement for the purposes of this chapter.

Cooperative Purchasing Agreements. The Hospital shall be authorized and encouraged to participate in, sponsor, conduct, or administer Cooperative Purchasing Agreements and contracts with any other organization, public or private, including group purchasing organizations, hospitals and hospital consortiums, state, county, or municipal jurisdictions, for the purpose of procuring supplies and services, which shall include construction services or architectural and engineering services related to construction repairs, upgrades, restoration, alteration, and reconstruction of existing buildings and facilities.

Cooperative Purchasing Agreements entered into by the Hospital shall be in accordance with, to the extent practicable, all laws, statutes, and regulations applicable to the Hospital with respect to contracting, and shall not be inconsistent with laws, statutes, and regulations of the United States government that apply specifically to the District.

Human Care Agreements –

(1) The Contracting Officer may award a human care agreement if:

(A) The procurement is for education or special education, health, human care, or social services to be provided directly to persons with disabilities, the disadvantaged, displaced, elderly, indigent, mentally ill, physically ill, unemployed, or minors in the custody of the Hospital;

(B) The services being procured are negotiated on a fee for service or unit-rate basis using benchmarks and quantifiable measurements that shall be uniformly applied to providers of the same service, or purchased at rates adopted by regulation; and

(C) The procurement is for one or more services that the Hospital typically purchases as needs arise, but for which the quantity, rate of utilization, delivery areas, or specific beneficiaries of the services cannot be accurately estimated at the outset of the procurement process.

(2) The Contracting Officer shall publish, when a human care agreement is to be awarded, and at least annually after the initial awarding of the agreement, a request for qualifications that:

(A) States the general requirements for the human care or

service; and

(B) Requests interested service providers to respond in writing

with a statement of their qualifications to perform the

required services on a form prescribed by the CCO.

(3) The Contracting Officer shall retain statements of qualifications submitted by providers for a period of three (3) years.

(4) The Contracting Officer may conduct negotiations with any responsible service provider who has submitted a statement of qualifications, without any additional public notice or solicitation required, to satisfy all or part of the District's anticipated requirements for a particular human care service.

(5) The Contracting Officer shall make a written determination that the service provider is a responsible provider, based on the criteria set forth in section 4606, prior to conducting negotiations with a service provider for a human care agreement.

(6) The Contracting Officer may award a human care agreement if he or she finds that the agreement is in the best interest of the District, based on an analysis of the District's statement of requirements, the service provider's qualifications, and a judgment that the fee or unit-cost for services is reasonable.

(7) The Contracting Officer may authorize the use of vouchers to authorize the delivery of service provided by providers who enter into human care agreements.

(8) The Contracting Officer shall provide public notice of the award of a human care agreement pursuant to this section on the Internet site maintained by the Hospital.

(9) The human care agreement shall identify the services to be rendered during the term of the agreement and shall set forth the terms and conditions of any purchases issued pursuant to the agreement. The Contracting Officer shall include in each human care agreement the following information:

(A) A statement that the human care agreement is not a commitment to purchase any quantity of a particular good or service covered under the agreement; and

(B) A statement that the District is obligated only to the extent that authorized purchases are made pursuant to the human care agreement.

Contracts with Federal Agencies - The CCO or designee, may authorize Contracting Officers to place orders, if the CCO determines it to be in the best interest of the Hospital, with any federal department, establishment, bureau, or office for materials, supplies, equipment, work, or services of any kind that such federal agency may be in a position to supply or be equipped to render, by contract, supply schedule, or otherwise, and shall pay promptly by check to such federal agency, upon its written request, either in advance or upon furnishing or performance thereof, all or part of the estimated or actual costs thereof as determined by such department, establishment, bureau, or office as may be requisitioned; but proper adjustments on the basis of the actual costs of the materials, supplies or equipment furnished or work or services performed, paid for in advance, shall be made as may be agreed upon by the departments, establishments, bureaus, or offices concerned. Orders placed as provided in this subsection shall be considered as obligations upon appropriations in the same manner as orders or contracts placed with private contractors.

Contracts with District Agencies - The CCO or designee may authorize Contracting Officers to place orders with any department, office, or agency of the District for materials, supplies, equipment, work, or services of any kind that the requisitioned department, office, or agency may be in a position to supply or equipped to render. The Hospital placing any such orders shall either advance, subject to proper adjustment on the basis of actual cost, or reimburse, such department, office or agency the actual cost of materials, supplies, or equipment furnished or work or services performed as determined by such department, office, or agency as may be requisitioned. Orders placed as provided in this subsection shall be considered as obligations upon appropriations in the same manner as orders or contracts placed with private contractors.

Letter Contracts - A letter contract may be used only after the Contracting Officer determines, in writing, that no other type of contract is suitable. A letter contract shall not commit the Hospital to a definitive contract in excess of the funds available at the time the letter contract is executed. The Contracting Officer may use a letter contract when the Hospital’s interests demand that the contractor be given a binding commitment so that work can start immediately and executing a definitive contract is not possible in sufficient time to meet the requirement. Each letter contract shall be as complete and definite as possible under the circumstances and shall include clauses approved and required by the CCO. When a letter contract is executed, the Contracting Officer shall include a price ceiling for the anticipated definitive contract. The price ceiling shall not be exceeded. Each letter contract shall also include a clause indicating the maximum liability of the Hospital under the letter contract. The maximum liability to the Hospital shall be the estimated amount necessary to cover the contractor's requirement for funds before execution of the definitive contract. The Contracting Officer may execute a definitive contract after the date of execution of the letter contract. Prior to execution of a letter contract, the Contracting Officer shall ensure that funds are encumbered for obligation in the amount of the maximum Hospital liability for the term of the letter contract. For purposes of review and approval of letter contracts, and for purposes of contracting authority, the Contracting Officer shall use the estimated cost of the definitive contract for determining the type and level of review and approval required.

History

Source: Notice of Emergency and Proposed Rulemaking published at 57 DCR 8507 (October 8, 2010)[EXPIRED]; as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 3086 (April 18, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 4565, 4578 (May 27, 2011).

27 DCMR § 4615 BASIC ORDERING AGREEMENTS

4615.1 Under basic ordering agreements (also known as task order contracts or term contracts), the contractor’s performance obligations are triggered when the Contracting Officer subsequently issues task orders pursuant to the contract.

4615.2 Basic ordering agreements include:

(a) Requirements contracts; and

(b) Indefinite quantities contracts.

4615.3 A requirements contract provides the mechanism for the Contracting Officer to order from the contractor all of its requirements for designated supplies or services during a specified period (subject to any maximum ordering limitation in the contract). This type of contract should only be used when the Contracting Officer determines that a requirements contract will provide superior economic benefits to an indefinite quantity contract as it locks the Contracting Officer into one (1) source of supply for the goods or services required under the basic ordering agreement. A requirements contract must be approved by the CCO in addition to the Contracting Officer.

4615.4 An indefinite quantity contract provides for an indefinite quantity, within specified limits, of supplies or services to be furnished during a fixed period.

4615.5 An indefinite quantity contract:

(a) Requires the Hospital to order and the contractor to deliver at least the stated minimum quantity of supplies or services; and

(b) Requires the contractor to deliver any additional quantities the Hospital may order during the contract period (subject to any maximum quantity limitations in the contract).

4615.6 The Contracting Officer may award a single indefinite quantity contract for particular goods or services, or may award multiple contracts and choose between the selected contractors in awarding subsequent delivery orders.

4615.7 If an indefinite quantity contract is used, the Contracting Officer shall establish, at the time the basic ordering agreements are awarded, a procedure by which work will be awarded under the basic ordering agreements (“award procedure”).

4615.8 Generally, one (1) of the following two (2) award procedures shall be used:

(a) The rotating award procedure, where work is assigned on a rotation basis (that is, the first task order is given to Contractor A, the second task order to Contractor B, etc.); or

(b) The competitive award procedure, where the Contracting Officer requests task order proposals from two (2) or more contractors holding an indefinite delivery contract.

4615.9 The competitive award procedure is preferred.

4615.10 If the competitive award procedure is used, each task order request shall specify:

(a) The specific goods or services required;

(b) A delivery date; and

History

Source: Notice of Emergency and Proposed Rulemaking published at 57 DCR 8507 (October 8, 2010)[EXPIRED]; as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 3086 (April 18, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 4565, 4582 (May 27, 2011).

27 DCMR § 4616 TIME AND MATERIALS CONTRACTS AND LABOR HOURS CONTRACTS

4616.1 Time-and-materials contracts provide for acquiring supplies or services on the basis of:

(a) Direct labor hours charged at fixed hourly rates that include overhead and profit; and

(b) Materials (which may be charged either at their actual cost or at fixed unit prices).

A labor hours contract is a time-and-materials contract that does not involve materials.

Both time-and-materials contracts and labor hours contracts should specify a ceiling price.

History

Source: Notice of Emergency and Proposed Rulemaking published at 57 DCR 8507 (October 8, 2010)[EXPIRED]; as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 3086 (April 18, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 4565, 4583 (May 27, 2011).

27 DCMR § 4617 CONTRACTING PROCEDURES GENERALLY

CONTRACTING PROCEDURES GENERALLY

4617.1 Unless otherwise specified, every procurement by the Hospital should be conducted in accordance with competitive contracting procedures, suitable to the specific procurement, that produce reasonable value and reasonable results.

4617.2 The Contracting Officer may include the procedures described in sections 4618 through 4622. In any procurement including change orders or supplemental agreements, the Contracting Officer may require the bidder, offeror or contractor to submit to the Hospital factual information reasonably available to the bidder, offeror or contractor, in order to substantiate that the price or cost offered, or some portion of it, is reasonable.

History

Source: Notice of Emergency and Proposed Rulemaking published at 57 DCR 8507 (October 8, 2010)[EXPIRED]; as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 3086 (April 18, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 4565, 4583 (May 27, 2011).

27 DCMR § 4618 SOLE SOURCE CONTRACTS

4618.1 Procurement contracts may be awarded through noncompetitive negotiations when the CCO or the CCO designee determines in writing that one (1) of the following conditions exists:

(a) There is only one (1) source for the required commodity, service, or construction item;

(b) The scope of work is necessary to meet an essential requirement of the Hospital and the vendor is the only source that is readily available to perform in the time necessary to meet the essential requirement of the Hospital;

(c) The contract is with a vendor who maintains a price agreement or schedule with any federal agency, so long as no contract executed under this provision authorizes a price higher than is contained in the contract between the federal agency and the vendor;

(d) The contract is with a vendor who agrees to adopt the same pricing schedule for the same services or goods as that of a vendor who maintains a price agreement or schedule with any federal agency, if no contract executed under this paragraph authorizes a price higher than is contained in the contract between the federal agency and the vendor; or

(e) When an emergency has been declared by the Board.

4618.2 If the Contracting Officer makes a determination pursuant to subsection 4618.1 that a sole source procurement is necessary to meet an essential requirement of the Hospital, the Contracting Officer shall document such determination in writing and may procure goods, services, or construction without regard to the procedures set forth elsewhere in this chapter.

4618.3 A written determination by the Contracting Officer supporting a single available source procurement pursuant to subsection 4618.1(a) shall include:

(a) A description of the nature of the goods or services; and

(b) An explanation of why the goods or services are only available from a single source.

4618.4 A written determination by the Contracting Officer supporting an emergency procurement pursuant to subsection 4618.1(e) shall include:

(a) A finding that circumstances which were not reasonably foreseeable by the Hospital have created a need for goods, services, or construction which, if not immediately filled, will endanger the continuation of an essential function of the Hospital;

(b) A description of steps taken, if any, to solicit bids or proposals under the emergency condition; and

4618.5 The Contracting Officer shall not make a procurement under this section to meet a continuing need of the Hospital beyond what is necessary to meet the emergency condition.

History

Source: Notice of Emergency and Proposed Rulemaking published at 57 DCR 8507 (October 8, 2010)[EXPIRED]; as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 3086 (April 18, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 4565, 4584 (May 27, 2011).

27 DCMR § 4619 SEALED BIDDING

4619.1 The solicitation used to initiate a procurement conducted by sealed bidding is known as an Invitation for Bids (IFB).

4619.2 If the Contracting Officer issues an IFB, the Contracting Officer shall allow prospective bidders a reasonable time to prepare and submit bids. Except in the event of an emergency, this time period shall be no less than ten (10) business days.

4619.3 The evaluation factors used in sealed bid procurements are limited to price and price-related factors (including price evaluation preferences for CBEs).

4619.4 The IFB shall specify:

(a) Any information necessary to explain how the Contracting Officer will evaluate price (for example, whether option prices will be evaluated);

(b) Any price-related factors that will be evaluated and their relative importance in the overall evaluation scheme;

(d) The contract delivery schedule;

(e) A description of any special qualification requirements the contractor must satisfy;

(f) Instructions for submitting bids (including the deadline for bid submission, the method(s) for submitting bids, any representations or certifications bidders must submit, and any requirements for the submission of items such as bid samples, subcontracting plans, or payment or performance bonds);

(g) The period during which bids must remain open for acceptance; and

(h) The contract’s terms and conditions.

4619.5 Any changes in the information set forth in an IFB must be made by an amendment to the IFB.

4619.6 Bids shall be submitted by a method specifically permitted by the IFB (for example, hand delivery, mailing, electronic transmission, or fax).

4619.7 A bid may be withdrawn or modified at any time before bid opening by any of the methods permitted for submitting bids.

4619.8 A late bid (or late modification or withdrawal) shall not be considered, unless such delay is caused by the Hospital.

4619.9 The Contracting Officer shall prepare and maintain in the contract file an abstract listing the bid prices.

4619.10 The contract shall be awarded to the qualified bidder whose bid is responsive to the IFB and is most advantageous to the Hospital considering only price and the price-related evaluation factors identified in the IFB.

4619.11 To be considered responsive, a bid must comply in all material respects with the IFB. Responsiveness involves matters that relate to the bid itself as opposed to the responsibility or other qualifications of the bidder. In determining whether a bid is responsive, the Contracting Officer has the discretion to permit correction of minor informalities or irregularities.

4619.12 The Contracting Officer shall endeavor to include with every IFB solicitation the form of the contract that the contractor will be required to enter into. To the greatest extent possible, the Contracting Officer should endeavor to provide clear and concise contract documents. Contracts which consist of the solicitation, the proposal, and other documents attached together but not integrated into a single contract document are discouraged.

History

Source: Notice of Emergency and Proposed Rulemaking published at 57 DCR 8507 (October 8, 2010)[EXPIRED]; as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 3086 (April 18, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 4565, 4585 (May 27, 2011).

27 DCMR § 4620 COMPETITIVE NEGOTIATION

4620.1 The solicitation used to initiate a procurement conducted by competitive negotiation is known as a Request for Proposals (RFP).

4620.2 If the Contracting Officer issues an RFP, the Contracting Officer shall establish a reasonable deadline for offerors’ submission of initial proposals.

4620.3 The evaluation criteria used in procurements conducted by competitive negotiation include price or cost (including, but not limited to, hourly rates for services and fixed fees for cost reimbursement contracts) along with any other factors appropriate to the particular procurement (for example, the offeror’s technical approach, past performance, or status as a CBE or plans for subcontracting with CBEs).

4620.4 The RFP may, if the Contracting Officer deems it advisable, contain either an estimate that generally describes the price range contemplated by the Contracting Officer or a funding limitation for the procurement.

4620.5 The RFP shall specify all evaluation factors and their relative importance. The RFP should also include:

(a) A description of the goods, services, or scope of construction work sought (including quantity or estimated quantity);

(b) The contract delivery schedule (including any permitted variations in the delivery schedule);

(d) Instructions for submitting proposals including: the deadline for proposal submission, the method(s) for submitting proposals, the information to be provided in the proposal (including any requirements for past performance information or for subcontracting plans), and any representations or certifications the offeror must submit;

(e) The period during which proposals must remain open for acceptance; and

(f) The anticipated contract terms and conditions and the extent to which they are negotiable.

4620.6 Any changes in the information set forth in an RFP must be made by an amendment to the RFP. Amendments shall be made no less than three (3) business days before the proposal submission date specified by the RFP.

4620.7 Proposals shall be submitted by a method specifically permitted by the RFP.

4620.8 The Contracting Officer shall evaluate proposals based solely on the evaluation criteria specified in the RFP. Where past performance is an evaluation factor, the Contracting Officer is not limited to considering only the information from references listed by the offeror.

4620.9 After initial proposals have been evaluated, the Contracting Officer may:

(a) Make an award based on initial proposals; or

(b) Establish a competitive range consisting of those proposals that remain under consideration, which shall include all proposals that, in the Contracting Officer’s judgment (erring on the side of the offeror), could be awarded the procurement.

4620.10 The Contracting Officer may begin discussions with only the top three ranked offerors in the competitive range. Discussions with the offerors may be written (including electronic) or oral. The primary objective of discussions is to maximize the Hospital’s ability to obtain the best value based on the evaluation factors set forth in the RFP. The scope and extent of discussions are a matter of Contracting Officer judgment.

4620.11 At the conclusion of discussions, the Contracting Officer shall request that the offerors submit best and final offers by a common cut-off date. If the Contracting Officer is unable to award a contract after best and final offers have been evaluated and negotiated, the Contracting Officer may proceed to negotiate with the next three highest ranked offerors. The Contracting Officer may proceed to select a contractor by the method set forth in this subchapter until a contract is awarded or the solicitation cancelled.

4620.12 The contract shall be awarded to the qualified offeror whose offer is most advantageous to the Hospital under the RFP’s evaluation criteria and this chapter.

4620.13 The Contracting Officer shall prepare documentation explaining the basis for the contract award decision which shall be maintained in the contract file.

4620.14 The Contracting Officer shall endeavor to include with every RFP solicitation the form of the contract that the contractor will be required to enter into. To the greatest extent possible, the Contracting Officer should endeavor to provide clear, concise contract documents. Contracts which consist of the solicitation, the proposal, and other documents attached together but not integrated into a single contract document are discouraged.

History

Source: Notice of Emergency and Proposed Rulemaking published at 57 DCR 8507 (October 8, 2010)[EXPIRED]; as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 3086 (April 18, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 4565, 4587 (May 27, 2011).

27 DCMR § 4621 SIMPLIFIED CONTRACTING PROCEDURES

4621.1 The basic purposes of simplified contracting procedures are to:

(a) Promote economy, efficiency, and innovation in contracting;

(b) Reduce administrative costs to the Hospital; and

(c) Avoid unnecessary burdens or complexities that could reduce competition, such as by deterring smaller contractors from participating in a procurement.

4621.2 Simplified contracting procedures may be used only with contracts, as listed in subsection 4611.2, that have an estimated value equal to or less than seven hundred fifty thousand dollars ($750,000).

4621.3 The Contracting Officer shall conduct simplified procurements in the manner that is most suitable, efficient, and economical based on the circumstances of each acquisition. As appropriate, the Contracting Officer may elect to use or adapt procedures that are part of the sealed bidding or competitive negotiation process.

4621.4 On a simplified procurement, the Contracting Officer shall:

(a) Promote competition to the extent practicable and efficient;

(b) Establish reasonable deadlines for the submission of responses to solicitations; and

4621.5 If a contract that has an estimated value of more the twenty-five thousand dollars ($25,000) is procured through the simplified contracting procedures, the Contracting Officer may obtain written quotes from potential suppliers.

4621.6 The Contracting Officer may solicit quotations orally in appropriate cases when doing so is practical and economical. When soliciting quotations orally, the Contracting Officer shall instruct suppliers to respond in writing.

4621.7 An oral solicitation shall provide a clear description of the Hospital’s requirements (for example the type of goods or services sought, quantities, and schedule) and the basis on which the award will be made.

4621.8 Written solicitations shall provide a complete statement of relevant information without being unnecessarily lengthy. A written solicitation should include the same information required in an oral solicitation, plus the following:

(a) Anticipated contract terms and conditions (and the extent to which they are negotiable);

(b) Applicable certifications or representations; and

4621.9 The basis for award may be price or cost alone or price/cost and other factors. Solicitations are not required to state the relative importance assigned to each evaluation factor.

4621.10 The price/cost and other terms of the award shall be set forth in a written contract or purchase order. The Contracting Officer shall include a statement in the contract file briefly explaining the basis for the award decision.

History

Source: Notice of Emergency and Proposed Rulemaking published at 57 DCR 8507 (October 8, 2010)[EXPIRED]; as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 3086 (April 18, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 4565, 4589 (May 27, 2011).

27 DCMR § 4622 D.C. SUPPLY SCHEDULE; GSA SCHEDULES

4622.1 The Contracting Officer may purchase goods and services directly from the D.C. Supply Schedule or the U.S. General Service Administration (GSA) Schedule.

History

Source: Notice of Emergency and Proposed Rulemaking published at 57 DCR 8507 (October 8, 2010)[EXPIRED]; as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 3086 (April 18, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 4565, 4590 (May 27, 2011).

27 DCMR § 4623 THE CONTRACTING OFFICER’S RESPONSIBILITY FOR CONTRACT ADMINISTRATION

4623.1 The Contracting Officer has overall responsibility for the contract’s administration. Among other things, this requires the Contracting Officer:

(a) To monitor whether goods or services are delivered or completed on schedule and conform to contract requirements;

(b) To ensure that any contractually required inspection or acceptance procedures are followed;

(d) To identify and attempt to resolve issues or problems that arise during contract performance.

4623.2 The Contracting Officer has the authority to take the following actions:

(a) Authorize contract payments;

(b) Exercise contract options;

(d) Modify the contract.

4623.3 Prior to terminating a contract, the Contracting Officer shall first obtain the approval of the CCO.

4623.4 No representative of the Hospital, including a Contracting Officer, shall:

(a) Act in a manner that misleads a contractor regarding the limits of his or her authority; or

(b) Direct or encourage a contractor to perform work that has not been properly authorized.

History

Source: Notice of Emergency and Proposed Rulemaking published at 57 DCR 8507 (October 8, 2010)[EXPIRED]; as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 3086 (April 18, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 4565, 4590 (May 27, 2011).

27 DCMR § 4624 PAYMENT REQUESTS

4624.1 Except as provided by Subsection 4624.8, requests for payment must be submitted in writing by the contractor together with a valid written contract.

4624.2 Contractor payment requests shall:

(a) Certify that the contractor is entitled to payment in the requested amount; and

(b) Include or attach any information necessary to demonstrate entitlement to the requested payment under the contract’s terms.

4624.3 Depending on the contract payment provisions, a payment request may consist of, for example, a statement that specified work has been completed in a satisfactory manner, documentation showing that contract deliverables have been accepted by the Hospital, or information detailing the reimbursable costs incurred by the contractor.

4624.4 Payment shall not be made unless authorized by the Contracting Officer. A Contracting Officer’s payment authorization shall not preclude the Hospital from seeking repayment (or pursuing other remedies) if it subsequently concludes that the contractor was overpaid or otherwise misled the Hospital.

4624.5 In addition to the Contracting Officer’s payment authorization, all payment requests, except those utilizing simplified contracting procedures under section 4621, must be certified and approved by the Hospital’s Chief Financial Officer (or his or her designee) prior to making any payment.

4624.6 No Hospital employee shall authorize payment for the value of supplies and services received without a valid written contract. Any vendor who enters into an oral agreement with a Hospital employee to provide supplies or services to the Hospital without a valid written contract shall not be paid. This subsection shall not apply to a payment required by court order, a final decision of an authorized forum, or an approval by the CCO in accordance with Subsection 4624.8 of this section.

4624.7 The CCO or designee shall review and verify requests submitted by a Contracting Officer for authorization for payment for supplies or services received without a valid written contract, and shall either approve or disapprove requests for authorization for payment.

4624.8 The CCO or designee may authorize payments for supplies or services received without a valid written contract if:

(a) supplies or services have been provided to and accepted by the Hospital, or the Hospital otherwise has obtained or will obtain a benefit resulting from provision of supplies or services without a valid written contract;

(b) the Contracting Officer determines that the price for the supplies or services provided without a valid written contract is fair and reasonable;

(d) the Chief Financial Officer, or a designee, certifies that appropriated funds are available; and

(e) the request for authorization for payment for supplies or services received without a valid written contract is in accordance with any other procedures or limitations prescribed by the CCO.

4624.9 No authorization for payment for supplies and services received without a valid written contract shall occur more than one (1) time with the same vendor.

4624.10 An authorization for payment for supplies and services received without a valid written contract may be used for obligations incurred after August 31, 2012, only if, in addition to the requirements of Subsection 4624.8 of this section, the contracting officer certifies in writing that:

All payments requested are critical and necessary for the ongoing provision of medical care to patients; and

Under his or her good faith assessment, the Hospital must make the requested payment to continue operating the Hospital without interruption of critical and necessary patient care services.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 57 DCR 8507 (October 8, 2010)[EXPIRED]; as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 3086 (April 18, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 4565, 4591 (May 27, 2011); as amended by Final Rulemaking published at 59 DCR 14820 (December 14, 2012).

27 DCMR § 4625 EXERCISING CONTRACT OPTIONS

4625.1 The Contracting Officer may exercise a contract option upon determining that:

(a) Funds are available and authorized for this purpose;

(b) The goods or services covered by the option fulfill an existing need; and

(b) Exercising the option is the most advantageous method of fulfilling the Hospital’s need.

4625.2 The determination to exercise a contract option shall be in writing and shall be included in the contract file.

4625.3 To exercise an option over one hundred thousand dollars ($100,000) the Contracting Officer must first obtain the approval of the CCO.

4625.4 In addition to the approval of the CCO (if applicable), prior to exercising any option, certification of the Hospital’s Chief Financial Officer shall be obtained as to whether funds are available for the exercise of the option.

History

Source: Notice of Emergency and Proposed Rulemaking published at 57 DCR 8507 (October 8, 2010)[EXPIRED]; as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 3086 (April 18, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 4565, 4592 (May 27, 2011).

27 DCMR § 4626 CONTRACT MODIFICATIONS

4626.1 The Contracting Officer may modify a contract subject to the provisions of this section.

4626.2 A modification must be within the general scope of the original contract. Any requirement for extra work that goes beyond the contract’s general scope shall be the subject of a new procurement.

4626.3 A contract modification in excess of one hundred thousand dollars ($100,000) shall be approved by the CCO.

4626.4 A contract modification may be effected:

(a) By a bilateral agreement executed by the Contracting Officer and an authorized representative of the contractor; or

(b) By the Contracting Officer’s issuance of a written change order, when the contract includes a changes clause permitting the Contracting Officer to make unilateral changes in the contract work. Under such a clause, the contractor is obligated to perform in accordance with a change order issued by the Contracting Officer, and the contract price is adjusted to reflect the increase or decease in costs caused by the change.

History

Source: Notice of Emergency and Proposed Rulemaking published at 57 DCR 8507 (October 8, 2010)[EXPIRED]; as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 3086 (April 18, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 4565, 4593 (May 27, 2011).

27 DCMR § 4627 CONTRACT TERMINATION

4627.1 All contracts awarded by the Contracting Officer shall include “Termination for Default” and “Termination for Convenience” clauses specifically defining the Hospital’s termination rights.

4627.2 When exercising the Hospital’s rights under a termination clause in the contract, the Contracting Officer shall provide the contractor with a written notice specifying:

(a) Whether the termination is for default or for convenience;

(b) The effective date of the termination;

(d) Any special instructions that apply to the termination (for example, instructions concerning the disposition of contract inventory).

4627.3 After terminating a contract for convenience, the Contracting Officer shall request a settlement proposal from the contractor and shall attempt to negotiate a settlement that resolves all of the parties’ rights and liabilities (except those arising from any portion of the contract still in effect). If the parties negotiate a settlement, the Contracting Officer shall prepare a memorandum describing the principal elements of the settlement and shall include the memorandum in the contract file.

History

Source: Notice of Emergency and Proposed Rulemaking published at 57 DCR 8507 (October 8, 2010)[EXPIRED]; as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 3086 (April 18, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 4565, 4593 (May 27, 2011).

27 DCMR § 4628 CONTRACT DOCUMENTATION

4628.1 The Contracting Officer is responsible for maintaining documentation regarding the contract and the procurement.

4628.2 The contract file shall include:

(a) The solicitation and any amendments;

(b) The contract and any modifications;

(c) Any type of documentation that is specifically required to be maintained in the contract file by other sections of this chapter; and

(d) Any other documentation that may be necessary to memorialize important decisions or events relating to the procurement or the contract.

History

Source: Notice of Emergency and Proposed Rulemaking published at 57 DCR 8507 (October 8, 2010)[EXPIRED]; as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 3086 (April 18, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 4565, 4594 (May 27, 2011).

27 DCMR § 4629 TRANSFER OF CONTRACTS

4629.1 Contracts or pending procurements related to the Hospital may be transferred by the Hospital to any agency or instrumentality of the District in accordance with the provisions of this section.

4629.2 The CCO shall review the proposed procurement or contract and determine whether it is in the best interest of the Hospital to transfer the procurement or contract.

4629.3 If the CCO determines it is in the Hospital’s best interest to transfer a contract or procurement, the Contracting Officer shall have the authority to transfer the contract.

4629.4 Transfer of a contract or procurement shall not operate to transfer funds to support the assigned contract or procurement. Funds shall be transferred pursuant to an intra-District memorandum of understanding, reprogramming, or other appropriate process.

History

Source: Notice of Emergency and Proposed Rulemaking published at 57 DCR 8507 (October 8, 2010)[EXPIRED]; as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 3086 (April 18, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 4565, 4595 (May 27, 2011).

27 DCMR § 4630 DISPUTES

4630.1 Each contract entered into by the Contracting Officer shall include a disputes clause that sets forth the procedures by which disputes shall be resolved.

4630.2 The disputes clause may, if the Contracting Officer determines it to be in the best interest of the Hospital, provide for the resolution of disputes through binding arbitration within the District of Columbia.

History

Source: Notice of Emergency and Proposed Rulemaking published at 57 DCR 8507 (October 8, 2010)[EXPIRED]; as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 3086 (April 18, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 4565, 4595 (May 27, 2011).

27 DCMR § 4631 PROTESTS

4631.1 All protests to the award of a contract by the Contracting Officer shall be resolved in accordance with this section.

4631.2 A protest shall be submitted to the Contracting Officer in writing.

4631.3 A protest shall include:

(a) The name of the protestor;

(b) The name of the protestor’s counsel or other representative;

(d) A description of the relief requested.

4631.4 The Contracting Officer shall promptly issue a decision with regard to a protest.

4631.5 If the Contracting Officer is someone other than the CCO, the protestor may appeal the Contracting Officer’s decision to the CCO.

4631.6 An appeal of the Contracting Officer’s decision shall be submitted to the CCO within three (3) business days after the protestor receives the Contracting Officer’s decision.

4631.7 The decision of the CCO shall be the Hospital’s final decision with regard to the protest.

4631.8 A protest must be filed within the timeframes established in this subsection to be considered by the Hospital.

4631.9 A protest that is not filed within these timelines will not be considered by the Hospital, and the protestor shall be deemed to have waived the right to protest.

4631.10 A protest that is based on the language or requirements of a solicitation or is otherwise based on facts which are apparent on the face of the solicitation shall be filed with the Contracting Officer no later than five (5) business days before the date responses to the solicitation are due.

4631.11 A protest that is not based on the language or requirements of a solicitation or otherwise based on facts which are apparent on the face of a solicitation must be submitted within five (5) business days after the protestor knows or should have known of the facts that serve as the basis for the protest.

History

Source: Notice of Emergency and Proposed Rulemaking published at 57 DCR 8507 (October 8, 2010)[EXPIRED]; as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 3086 (April 18, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 4565, 4595 (May 27, 2011).

27 DCMR § 4632 APPLICABLE LAWS

4632.1 The Hospital’s procurement rules shall comply with the requirements related to:

(a) Council review of multiyear contracts and contracts in excess of one million dollars ($1,000,000) - as set forth in section 451 of the District of Columbia Home Rule Act, approved December 24, 1973 (87 Stat. 788; D.C. Official Code § 1-204.51 (2006 Repl.); and Council review of multiyear contracts and contracts in excess of one million dollars ($1,000,000) as set forth in section 105a of the District of Columbia Procurement Practice Act of 1985, effective March 8, 1991 (D.C. Law 8-257; D.C. Official Code § 2-301.05a(2006 Repl.; Supp. 2008);

(b) Anti-Deficiency Act - The Hospital’s obligations and responsibilities under the terms of the Contract and the Contract Documents are and shall remain subject to the provisions of (i) the federal Anti-Deficiency Act, 31 U.S.C. §§1341, 1342, 1349, 1350, 1351(2006; (ii) D.C. Official Code 47-105 (2001) (iii) the District Anti-Deficiency Act of 2002(D.C. Official Code §§ 47-355.01 – 47-355.08(2005 Repl.; Supp. 2008), as the foregoing statutes may be amended from time to time, and (iv) Section 446 of the District of Columbia Home Rule Act (D.C. Official Code § 1-204.46(2006 Repl.);

(c) Other Contracting Laws Applicable to the Hospital – District of Columbia Quick Payment Act of 1984, as amended, D.C. Official Code §2-221.01(2001 Repl.); Living Wage Act of 2006, as amended, D.C. Official Code §. 2-220.01(2006 Repl.); Small, Local, and Disadvantaged Business Enterprise Development and Assistance Act of 2005, as amended, D.C. Official Code § 2-218.01 and 2-218.50(2006 Repl.; Supp. 2008); First Source Employment Agreement Act of 1984, as amended, D.C. Official Code § 2-219.01(2006 Repl.); Service Contract Act, 41 USC 351(a) (2006); Health Insurance Portability and Accountability Act of 1996, P.L. 104-191; the Privacy and Security Rules codified at 45 C.F.R. Parts 160 and 164 (2009); and

(d) The Not-for-Profit Hospital Corporation Personnel Administration Emergency Amendment Act of 2010, effective December 28, 2010 (D.C. Act 18-669; 58 DCR 118 (January 7, 2011)).

History

Source: Notice of Emergency and Proposed Rulemaking published at 57 DCR 8507 (October 8, 2010)[EXPIRED]; as amended by Notice of Emergency and Proposed Rulemaking published at 58 DCR 3086 (April 18, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 58 DCR 4565, 4596 (May 27, 2011).

27 DCMR § 4700 GENERAL

4700.1 This chapter sets forth the rules of the Department of General Services (Department) for the procurement of construction and construction-related services as authorized by section 1106(a)(2) of the Procurement Practices Reform Act of 2010 (PPRA), effective April 8, 2011(D.C. Law 18-371; D.C. Official Code § 2-361.06(a)(2))(2011 Repl.) and sections 1025(a) and 1029 of the Department of General Services Establishment Act of 2011, effective September 14, 2011 (D.C. Law 19-21; 58 DCR 6226 (July 29, 2011)). The Department is an agency within the executive branch of the District of Columbia government. Its general mission is to serve a broad range of real estate management functions, including managing the capital improvement and construction program for District government facilities and providing building services for facilities owned and operated by the District government.

4700.2 These procurement rules are for the benefit of the Department, and are not intended to confer any rights or benefits on third parties. The principal purposes of these rules are to ensure that the Department’s procurement activities:

(a) Are carried out in a fair and objective manner that promotes confidence in the Department’s integrity; and

(b) Produce reasonable value and reasonable results for the Department, as determined by the Director of Department of General Services, or his or her designee (hereinafter Director).

4700.3 These rules are intended to encourage participation by Certified Business Enterprises (CBEs), in accordance with the Small, Local, and Disadvantaged Business Enterprise Development and Assistance Act of 2005, effective October 20, 2005 (D.C. Law 16-33; D.C. Official Code §§ 2-218.01, et seq. (2011 Repl.)). The Department’s goals include expanding and retaining disadvantaged businesses located within the District.

4700.4 The Director may waive the applicability of any provisions in these rules that are not specifically required by statute if the Director finds, in writing, that:

(a) Such waiver is in the best interest of the Department;

(b) Such waiver is not inconsistent with fair, competitive, and transparent procurement practices; and

(c) Such waiver is technical in nature and would not alter the substantive business terms of a procurement after proposals are received.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 58 DCR 8805 (October 14, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 985, 986 (February 10, 2012).

27 DCMR § 4701 APPLICABILITY

4701.1 These rules apply to the procurement by the Department of goods or services, whether through purchase or lease and whether the goods or services are already in existence or must be developed, including construction and related services which may include but are not limited to:

Architectural and engineering services;

Construction management;

Construction management at risk;

Design-bid-build;

Design-build;

Design-build-finance-operate-maintain;

Design-build-operate-maintain; and

Operations and maintenance.

4701.2 A procurement of goods or services does not include any goods or services that the Department may acquire as a gift or from a grant, on a pro bono basis, or pursuant to agreements with any agency of the District or federal governments.

4701.3 These rules do not apply to:

(a) The purchase or lease of real property by the Department; or

(b) The disposition of real or personal property by the Department.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 58 DCR 8805 (October 14, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 985, 987 (February 10, 2012).

27 DCMR § 4702 CHIEF CONTRACTING OFFICER

4702.1 The Director shall serve as the Department’s Chief Contracting Officer (CCO).

4702.2 The CCO shall have overall responsibility for supervising the Department’s procurement activities and to award any contracts pursuant to this chapter.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 58 DCR 8805 (October 14, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 985, 988 (February 10, 2012).

27 DCMR § 4703 DELEGATION OF AUTHORITY TO CONTRACTING OFFICERS

4703.1 The CCO may delegate his or her contracting authority to employees of the Department, or employees of the District of Columbia government acting on behalf of the Department, who shall be designated as “Contracting Officers.” Any such delegation shall be in writing and shall specify any limits on a Contracting Officer’s delegated authority (for example, limits on the dollar value of contracts the individual is authorized to award). In no case shall a Contracting Officer’s authority exceed the CCO’s authority. All such delegations shall be made publicly available on the Department’s website.

4703.2 In delegating his or her contracting authority, the CCO shall ensure that each delegated Contracting Officer has the experience, knowledge, and judgment necessary to fulfill the duties of a Contracting Officer, including a solid understanding of the Department’s procurement rules.

4703.3 Subject to compliance with these rules, Contracting Officers have wide latitude to exercise business judgment in conducting procurements. Consequently, the ability to exercise that discretion wisely and responsibly is an important job qualification.

4703.4 The CCO shall ensure that Contracting Officers and other contracting personnel periodically receive training to strengthen and update their skills and knowledge concerning contracting and procurement matters.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 58 DCR 8805 (October 14, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 985, 988 (February 10, 2012).

27 DCMR § 4704 AUTHORITY AND DUTIES OF CONTRACTING OFFICER

4704.1 Only the CCO or a Contracting Officer shall have the authority to award, modify, or terminate contracts; provided, however, that prior to terminating any contract in excess of two hundred fifty thousand dollars ($250,000), the Contracting Officer shall first obtain the approval of the CCO. As necessary or appropriate in exercising his or her authority, a Contracting Officer shall request and consider the advice of specialists in auditing, law, technical disciplines, and other relevant fields.

4704.2 A Contracting Officer for a particular procurement shall be responsible for:

(a) Making any determination or findings that may be required in connection with that procurement;

(b) Ensuring that all statutory and regulatory requirements that apply to the procurement have been identified and observed;

(d) Maintaining the contract file, which serves as the repository for all required documentation concerning the procurement and any resulting contracts; and

(e) Ensuring that all offerors participating in a procurement receive fair and impartial treatment.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 58 DCR 8805 (October 14, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 985, 988 (February 10, 2012).

27 DCMR § 4705 CONTRACTOR QUALIFICATION REQUIREMENTS

4705.1 To be eligible to receive a contract from the Department, a prospective contractor must satisfy two (2) basic qualification requirements. Specifically, the prospective contractor must:

(a) Be responsible; and

(b) Not be disqualified on the basis of conflicts of interest either personal or organizational, or related ethical concerns.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 58 DCR 8805 (October 14, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 985, 989 (February 10, 2012).

27 DCMR § 4706 RESPONSIBILITY

4706.1 To receive a contract from the Department, a contractor must be responsible. To be considered responsible, a contractor must:

(a) Have or can obtain the necessary financial, technical, organizational, experience, accounting, operational control skills, resources, and the facilities and equipment necessary to perform the contract in accordance with its terms;

(b) Be able to comply with the proposed delivery or performance schedule;

(d) Have a satisfactory record of integrity and business ethics;

(e) Have not exhibited a pattern of overcharging the District;

(f) Have a satisfactory record of compliance with the law;

(g) Have not been suspended, debarred, or otherwise ineligible to receive contracts from the District Government or the federal Government;

(h) Meet any other qualification criteria that may be imposed by applicable laws or regulations; and

(i) Provide adequate evidence that he or she has paid and filed all applicable District of Columbia and federal taxes and tax returns.

4706.2 Prior to awarding a contract in excess of one hundred thousand dollars ($100,000), the Contracting Officer shall determine whether the contractor is responsible. The Contracting Officer shall require prospective contractors to provide information regarding their responsibility to the Department and to certify the accuracy of such information.

4706.3 The responsibility of prospective contractors shall be determined on a solicitation-by-solicitation basis.

4706.4 The Contracting Officer shall make a written determination if the contractor is found to be non-responsible. Depending on the level of formality of the contract and at the Contracting Officer’s discretion, the Contracting Officer may make a written determination if the contractor is found to be responsible.

4706.5 In evaluating a prospective contractor’s responsibility, a Contracting Officer may request information from the contractor and may also consider information available from other sources, including the general public. Where necessary, the Contracting Officer may also perform a pre-award survey involving interviews with contractor personnel or visits to the contractor’s facilities. Information on the capabilities and suitability of proposed subcontractors also may be considered in evaluating responsibility.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 58 DCR 8805 (October 14, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 985, 989 (February 10, 2012).

27 DCMR § 4707 ORGANIZATIONAL CONFLICTS OF INTEREST; DISQUALIFICATION

4707.1 The Department intends to avoid even the appearance of conflict of interest or impropriety in connection with its procurement activities. Thus, even if a prospective contractor is determined to be responsible, the CCO has the discretion to disqualify the contractor or to take other appropriate measures based on a conflict of interest or another ethical consideration.

4707.2 If the CCO determines that there is a conflict of interest, the appearance of a conflict of interest, or another ethical consideration, the CCO may:

(a) Disqualify a contractor at any point during a procurement;

(b) Rescind or terminate a contract subsequent to contract award; or

4707.3 A determination by the CCO to take a corrective measure described in

subsection 4707.2 shall be made in writing and included in the contract file.

4707.4 The ethical considerations that may authorize disqualification or another corrective measure are not limited to the ethics and conflict of interest rules of the Department or the prospective contractor, if any. The CCO may properly take corrective measures whenever necessary or prudent to avoid the appearance of impropriety or otherwise eliminate doubts about the integrity and fairness of a procurement. For example, situations in which corrective measures might be warranted include, but are not limited to:

(a) Cases where a director or employee of the Department involved in a procurement had a relationship with a contractor that fell outside the Department or the District’s recusal rules, but nonetheless raised questions about the procurement’s integrity;

(b) Cases where a prospective contractor received preferential treatment in relation to its competitors;

(c) Cases where a prospective contractor hired a former employee of the District who was privy to non-public information about the procurement, and involved that individual in its proposal preparation efforts; or

(d) Cases where there is clear evidence suggesting collusive bidding or similar anti-competitive practices by prospective contractors.

4707.5 “Organizational conflicts of interest” also may warrant disqualification or other corrective measures. Organizational conflict of interest means a situation in which a contractor:

(a) May be unable to render impartial and objective assistance or advice to the Department; or

(b) May have an unfair advantage over potential competitors.

4707.6 Organizational conflicts of interests can arise in a variety of circumstances. For example, a contractor that develops the technical specifications for an item that will be the subject of a future procurement may have an incentive to develop specifications favoring its own products unless it is barred from participating in the future procurement. Another example is a case where a contractor performs services for the Department that require access to non-public information (for example, proprietary data of other companies) and could therefore gain an unfair advantage over competitors in future procurements.

4707.7 A number of measures may be appropriate for eliminating or mitigating organizational conflicts of interest, and the CCO has broad discretion to select the approach that is most suitable in any particular case. For example, a contract to assist the Department in developing requirements for a future procurement ordinarily should include a clause prohibiting the contractor from participating in the future procurement. A contract in which the contractor gains access to proprietary information of other companies (or non-public information on the Department’s procurement plans) should include an appropriate clause that prevents the contractor from using such information in any manner that might give it an unfair advantage.

4707.8 In each case, the mechanism adopted to address an organizational conflict of interest should be designed to prevent:

(a) The existence of conflicting roles that might bias a contractor’s judgment; and

(b) An unfair competitive advantage.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 58 DCR 8805 (October 14, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 985, 990 (February 10, 2012).

27 DCMR § 4708 MARKET RESEARCH

4708.1 Before issuing a solicitation or making a purchase, the Department shall:

(a) Estimate the likely cost of the proposed procurement; and

(b) Conduct appropriate market research.

4708.2 Market research is designed primarily to familiarize the Department with the market for the goods or services it seeks to acquire in order to develop an appropriate strategy for conducting a prompt and efficient procurement that promotes reasonable competition between qualified firms. The extent of market research will vary depending on factors such as urgency, the size and complexity of the proposed procurement, and the Department’s existing knowledge of the market based on its or its key personnel’s past experience in procuring similar goods or services.

4708.3 Market research, to the extent it is relevant to the particular procurement and not already known to the Department, generally should focus on obtaining information such as the following:

(a) Customary practices in the relevant market;

(b) The prospective sources that may be able to supply the goods or services;

(d) The benchmarks available to evaluate the likely cost of the procurement and the reasonableness of prices or costs proposed by prospective contractors; and

(e) The requirements of any laws or regulations unique to the procurement.

4708.4 In conducting market research, the Department may solicit information from prospective sources on matters such as their interest in the potential procurement, the characteristics and costs of their products or services, their customary practices, and their knowledge of the industry generally. Such information may be solicited by requesting interested parties to submit written information (for example, by posting a notice on the Department’s website seeking information pertinent to the proposed procurement), through meetings or telephone contacts, by distributing and seeking comments on a draft solicitation, or through other prudent means.

4708.5 In addition to soliciting information from prospective contractors, the Department may also obtain information from other sources. For example, price information that can assist in estimating the likely cost of a procurement and in evaluating price reasonableness is frequently available from sources such as catalogs, Internet sites, or records of past procurements, and the Department may obtain information from these sources.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 58 DCR 8805 (October 14, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 985, 992 (February 10, 2012).

27 DCMR § 4709 PREPARING SOLICITATIONS

4709.1 After conducting market research, the Contracting Officer shall make a determination as to which procurement method identified in these regulations is most beneficial to the Department. The Department will ordinarily prepare a solicitation requesting responses; however, the Department may determine to purchase the required goods or services through its small purchase procedures or from a federal or District supply schedule contract.

4709.2 When the Department issues a solicitation, its length and contents will depend on factors such as the size of the procurement, the nature and complexity of the goods or services, the contracting procedure to be used, and the contract type. In general, however, a solicitation should clearly describe the Department’s needs (for example, by providing a statement of work outlining the type of services required or information specifying product characteristics or capabilities) and its evaluation criteria.

4709.3 In preparing a solicitation, the Department should seek to enhance competition by carefully scrutinizing and eliminating, to the extent possible, any unnecessary requirements that may restrict the number of prospective sources or the range of goods or services they can offer. Such provisions may include, for example, technical specifications that unnecessarily limit the competitive field, unnecessarily aggressive delivery schedules, or burdensome terms and conditions that might deter smaller companies from competing.

4709.4 The Department may issue solicitations in paper form or electronically. The Department may also use oral solicitations where efficient and practical (for example, where the procurement does not involve extensive specifications, detailed evaluation criteria, or numerous line items), and those oral solicitations shall direct that proposals be submitted in writing. Oral solicitations shall not be used for contracts that have an estimated value in excess of twenty-five thousand dollars ($25,000).

4709.5 The Department may cancel a solicitation or reject all bids or proposals received at any time before the contract award when cancellation is in the Department’s best interests.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 58 DCR 8805 (October 14, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 985, 993 (February 10, 2012).

27 DCMR § 4710 PUBLICIZING PROCUREMENT OPPORTUNITIES

4710.1 The Department may use a variety of methods to publicize a procurement. The specific method or methods used should be tailored to the particular procurement, taking into account factors such as the size of the procurement, the type of goods or services sought, the urgency associated with the requirement, and the most efficient means of disseminating information in the relevant market. The methods available to publicize procurement opportunities offered by the Department include:

(a) Print advertising;

(b) Internet notices;

(d) Soliciting specific sources through written notices or telephone contacts; and

(e) Holding pre-bid or pre-proposal conferences.

4710.2 The Department shall use its best efforts to provide, either electronically or in a paper format, a copy of solicitations to CBEs which the Department is aware may be capable of providing some or all of the services or goods required by a solicitation.

4710.3 The Department shall use its best efforts to provide a copy of all solicitations, other than solicitations issued through its small purchase procedures, to the Department of Small and Local Business Development for distribution to CBE firms listed on the Department of Small and Local Business Development’s website that may be capable of providing some or all of the services or goods required by a solicitation.

4710.4 The Department shall conduct outreach and provide information to CBEs on at least an annual basis.

4710.5 In addition to publication or other method of publicizing the procurement opportunity described in subsection 4710.1, unless otherwise specified in this chapter, including as provided in subsection 4722.5, the Department shall also compile a list of at least three (3) vendors that the Department reasonably believes are qualified to provide the services or goods specified in a solicitation and shall provide those vendors with a copy of the solicitation. If the Department is unable to locate at least three (3) potential vendors, the Department shall provide the solicitation to as many vendors as it can reasonably identify.

4710.6 The Department shall provide public notice of an Invitation for Bid (IFB) for fourteen (14) days unless the contracting officer issues a determination and findings that it is appropriate to shorten the notice period. In no event shall the public notice period for an IFB be less than three (3) days.

4710.7 The Department shall provide public notice of a Request for Proposals (RFB) for twenty one (21) days unless the contracting officer issues a determination and findings that it is appropriate to shorten the notice period. In no event shall the public notice period for an RFB be less than fourteen (14) days.

4710.8 The Department shall not be required to provide public notice of solicitations issued through the procedures set forth in section 4722.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 58 DCR 8805 (October 14, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 985, 994 (February 10, 2012).

27 DCMR § 4711 CONTRACT TYPES

4711.1 The type of contract the Department awards will generally depend on factors such as the particular goods or services to be acquired, whether the costs of the goods or services can be estimated in advance with reasonable accuracy, and the degree to which the precise nature and extent of the contract work is known at the time of award.

4711.2 The Department may use a variety of contract types, including:

(a) Fixed price contracts;

(b) Cost reimbursement contracts;

(d) Time-and-materials or labor hours contracts; and

(e) Letter contracts.

4711.3 The Department may also award any alternative type of contract that will produce reasonable value in the context of a particular procurement. However, the Department shall not award cost-plus-percentage-of-cost contracts or oral contracts.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 58 DCR 8805 (October 14, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 985, 995 (February 10, 2012).

27 DCMR § 4712 FIXED-PRICE CONTRACTS

4712.1 Fixed-price contracts include several variants:

(a) Firm, fixed-price contracts;

(b) Fixed-price contracts with economic price adjustment; and

4712.2 Unlike cost reimbursement contracts, any type of fixed-price contract obligates the contractor to complete the contractually-specified work for a fixed price.

4712.3 A firm fixed-price contract provides for a price that is not subject to adjustment, except in the event of a change to the contract work.

4712.4 A fixed-price contract with economic price adjustment provides for an upward or downward adjustment in the stated contract price based on changes in certain benchmarks specifically identified in the contract (for example, catalog prices or the producer price index for a particular commodity), subject to a ceiling on upward adjustments.

4712.5 A fixed-price incentive contract generally provides for establishing a final price by applying a formula based on the relationship between the total cost actually incurred by the contractor and a total target cost. A fixed price incentive contract results in the parties sharing in the cost savings or increases associated with differences between the actual and target cost. These contracts also can include incentive formulas based on the contractor’s schedule or technical performance.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 58 DCR 8805 (October 14, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 985, 996 (February 10, 2012).

27 DCMR § 4713 COST REIMBURSEMENT CONTRACTS

4713.1 Cost reimbursement contracts provide for the contractor to recover the reimbursable costs it incurs in contract performance, plus a fee (that is, a profit).

4713.2 A reimbursable cost shall be:

(a) Reasonable in nature and amount;

(b) Properly allocable to the contract;

(d) Identified as reimbursable under the terms of the particular contract.

4713.3 To ensure that the Department’s payment obligations are not open-ended, a cost reimbursement contract must specify an estimated total cost that the contractor cannot exceed (the not-to-exceed limit), except at its own risk, without the Contracting Officer’s written approval. Because the contractor can cease performance once it reaches the estimated total cost, unless the Contracting Officer approves an increase, it is not obligated to complete the contract work unless it can do so within the not-to-exceed limit.

4713.4 Cost reimbursement contracts can take three (3) forms:

(a) Cost-plus-fixed-fee;

(b) Cost-plus-incentive-fee; and

4713.5 The differences between the types of cost reimbursement contracts listed in subsection 4713.4 relate to the manner in which the contractor’s fee is determined.

4713.6 A cost-plus-fixed-fee contract provides for a fee that is fixed at the contract’s inception and is not subject to adjustment unless the contract is modified to change the contract work.

4713.7 A cost-plus-incentive-fee contract provides for a fee that generally is determined by applying a formula based on the relationship between the contractor’s total reimbursable cost and a total target cost, subject to a specified minimum and maximum. These contracts can also include incentive formulas based on the contractor’s schedule or technical performance.

4713.8 A cost-plus-award-fee contract provides for:

(a) A base fee fixed at the contract’s inception; and

(b) An award fee that the contractor may earn in whole or in part during performance, which is designed to motivate superior performance.

4713.9 The award fee in a cost-plus-award-fee contract is determined unilaterally by the Department, based on its judgment and evaluation of how well the contractor has performed in relation to the award fee criteria identified in the contract. In no event shall the total award fee available to the contractor exceed ten percent (10%).

4713.10 In appropriate circumstances, the Department may include a guaranteed maximum price (GMP) in a cost reimbursement contract. A GMP differs from a not-to-exceed amount in that a contractor is required to complete performance of the base scope of work required under the contract for an amount that does not exceed the GMP. Under such an approach, if the total cost exceeds the GMP, the contractor shall be required to complete performance of the base scope of work at its own cost and expense.

4713.11 The Department shall only award a cost-reimbursement type contract pursuant to an IFB, RFP, or a sole source procurement after making a determination and findings that that a cost-reimbursement type contract is likely to cost less than any other type of contract and that it is impractical to obtain the goods or services of the kind or quality required except under a cost-reimbursement type contract.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 58 DCR 8805 (October 14, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 985, 997 (February 10, 2012).

27 DCMR § 4714 PROJECT DELIVERY METHODS

4714.1 Within the contract types described in sections 4711 through 4713, the Department may adopt a number of project delivery methods, including those set forth in subsection 4701.1 as may be in District’s best interest.

4714.2 As part of the procurement planning process, the Director or Deputy Director, pursuant to a delegation from the Director to make such determinations, will determine the most appropriate delivery method for the project based on, among other considerations:

(a) The scope of work;

(b) The complexity of design required;

(d) Project delivery schedule;

(e) Project budget;

(f) Existing market conditions; and

(g) Other relevant considerations.

4714.3 The general types of delivery methods include:

(a) Design-Bid-Build: Under this delivery method, the Department retains an architect to design the project. Once the design is complete, the drawings are put out to bid. This delivery method results in a fixed-price or lump sum type contract;

(b) Construction Manager at Risk: Under this delivery method, the Department will retain an architect to design the project. However, shortly after the design begins, the Department will engage a contractor to act as a construction manager. Typically, the contractor’s work is divided into two (2) phases. During the first, or preconstruction, phase, the builder will work with the architect to ensure that the design is constructible, properly coordinated, and affordable. During the second, or construction, phase, the contractor is required to construct the project. At this point, the contractor may be required to provide the Department with a guaranteed maximum price. In order to ensure that costs are properly controlled, the Department requires that the contractor bid its fee upfront and that all of the major trade packages be competitively bid by the contractor;

(c) Construction Manager with Design Assist: Under this delivery method, the Department conducts the project in a manner similar to the Construction Manager at Risk approach. However, in the Construction Manager with Design Assist approach, a portion of the design work — typically the mechanical, electrical, and plumbing systems — is managed by the contractor;

(d) Design-Build: Under this approach, the Department retains a single entity to be responsible for the design and construction activities. Work under the Design-Build approach is typically divided into two (2) phases: preconstruction and construction. The contractor is required to bid its fees upfront and all of the major trade packages must be competitively bid as well;

(e) Modified Design-Build: Under this approach, the Department uses a bridging methodology where it will engage an architect during the early stages of the project (referred to as design development) and then assign the architect’s contract to the contractor at the appropriate stage of the project. The remainder of the project then proceeds under the Design-Build approach;

(f) Design-Build-Finance-Operate-Maintain: Under this approach, the Department retains a single entity to be responsible for the design and construction activities. Work under the Design-Build approach is typically divided into two (2) phases: preconstruction and construction. The contractor is required to bid its fees upfront and all of the major trade packages must be competitively bid as well. In addition, the contractor would be responsible for operating and maintaining the facility. Payment for design and construction services would be paid out over a negotiated term; and

(g) Design-Build-Operate-Maintain: Under this approach, the Department retains a single entity to be responsible for the design and construction activities. Work under the Design-Build approach is typically divided into two (2) phases: preconstruction and construction. The contractor is required to bid its fees upfront and all of the major trade packages must be competitively bid as well. In addition, the contractor would be responsible for operating and maintaining the facility.

4714.4 The Department may combine aspects of the methods listed in subsection 4714.3 or alter aspects of these methods if doing so is in the best interest of the District.

4714.5 Contractors, including architects, construction managers, and design builders, required to facilitate these delivery methods shall be selected in accordance with the contracting procedures in sections 4717 through 4722.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 58 DCR 8805 (October 14, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 985, 998 (February 10, 2012).

27 DCMR § 4715 BASIC ORDERING AGREEMENTS

4715.1 Under basic ordering agreements (also known as task order contracts or term contracts), the contractor’s performance obligations are triggered when the Department subsequently issues task orders pursuant to the contract.

4715.2 Basic ordering agreements include:

(a) Requirements contracts; and

(b) Indefinite quantities contracts.

4715.3 A requirement contract provides the mechanism for the Department to order from the contractor all of its requirements for designated supplies or services during a specified period subject to any maximum ordering limitation in the contract. This type of contract should only be used when the Department determines that a requirement contract will provide superior economic benefits to an indefinite quantity contract as it locks the Department into one (1) source of supply for the goods or services required under the basic ordering agreement. The CCO and the Contracting Officer must approve requirement contracts.

4715.4 An indefinite quantity contract provides for an indefinite quantity, within specified limits, of supplies or services to be furnished during a fixed period.

4715.5 An indefinite quantity contract:

(a) Requires the Department to order and the contractor to deliver at least the stated minimum quantity of supplies or services; and

(b) Requires the contractor to deliver any additional quantities the Department may order during the contract period subject to any maximum quantity limitations in the contract.

4715.6 The Department may award a single indefinite quantity contract for particular goods or services, or may award multiple contracts and choose between the selected contractors in awarding subsequent delivery orders.

4715.7 If an indefinite quantity contract is used, the Department shall establish, at the time the basic ordering agreements are awarded, a procedure by which work will be awarded under the basic ordering agreements (award procedure).

4715.8 Generally, one (1) of the following three (3) award procedures shall be used for indefinite quantity contracts:

(a) The rotating award procedure, where work is assigned on a rotation basis (that is, the first task order is given to Contractor A, the second task order to Contractor B, and so on);

(b) The competitive award procedure, where the Department requests task order proposals from two (2) or more contractors holding an indefinite delivery contract; or

4715.9 The competitive award procedure is preferred.

4715.10 If the competitive award procedure is used, each task order request shall specify:

(a) The specific goods or services required;

(b) A delivery date; and

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 58 DCR 8805 (October 14, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 985, 1000 (February 10, 2012).

27 DCMR § 4716 TIME-AND-MATERIALS CONTRACTS AND LABOR HOURS CONTRACTS

4716.1 Time-and-materials contracts provide for acquiring supplies or services on the basis of:

(a) Direct labor hours charged at fixed hourly rates that include overhead and profit; and

(b) Materials which may be charged either at their actual cost or at fixed unit prices.

4716.2 A labor hours contract is a time-and-materials contract that does not involve materials.

4716.3 Time-and-materials contracts and labor hours contracts shall specify a ceiling price.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 58 DCR 8805 (October 14, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 985, 1002 (February 10, 2012).

27 DCMR § 4717 CONTRACTING PROCEDURES GENERALLY

4717.1 Every procurement by the Department shall be conducted in accordance with competitive contracting procedures, suitable to the specific procurement, that produce reasonable value and reasonable results. The following procurement methods shall be utilized for the delivery methods indicated, except as provided in sections 4718 and 4719, and sections 4722 through 4724.

4717.2 Generally, the Department shall utilize competitive sealed bidding for design-bid-build procurements, unless use of competitive sealed bidding would not be practicable or would not be advantageous to the District. In such a case, competitive sealed proposals shall be utilized to procure construction management at-risk services.

4717.3 In general, when drawings are not fully completed and coordinated, use of competitive sealed bidding shall not be advantageous to the District. In such cases, competitive sealed proposals shall be used to procure construction management services unless another delivery method is more appropriate.

4717.4 Generally, competitive sealed proposals shall be used for design-build, design-build-operate-maintain, and design-build-finance-operate-maintain.

4717.5 Architect and Engineering services, unless procured pursuant to section 4722 of this chapter shall be procured in accordance with section 604 of the PPRA.

4717.6 For all other contracts exceeding one hundred thousand dollars ($100,000), the preferred procurement procedure shall be competitive sealed bidding unless competitive sealed bidding is not practicable or in the best interests of the District. If competitive sealed bidding is not practicable or advantageous to the District, competitive sealed proposals may be used.

4717.7 The contracting procedures the Department may utilize includes, but is not limited to, the procedures described in sections 4718 through 4724.

4717.8 The Contracting Officer may cancel a solicitation if it is determined in writing that such action is in the best interest of the District.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 58 DCR 8805 (October 14, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 985, 1002 (February 10, 2012).

27 DCMR § 4718 SOLE SOURCE PROCUREMENTS

4718.1 The Contracting Officer may award contracts on a sole-source basis only if the goods or services sought by the Department are available from only one (1) source.

4718.2 Prior to entering into a sole-source contract, the Contracting Officer shall first make a determination and finding justifying the sole source procurement; provided, however, that if the sole-source contract will be in an amount over two hundred fifty thousand dollars ($250,000), the CCO’s approval shall also be required. If the Contracting Officer makes a determination pursuant to subsection 4718.1 that a sole source procurement is necessary to meet an essential requirement of the Office, the Contracting Officer shall document such determination in writing and may procure goods, services, or construction without regard to the procedures set forth in sections 4719 through 4724. In all other cases, the Contracting Officer shall use the procedures specified in sections 4719 through 4724.

4718.3 A written determination by the Contracting Officer supporting a single available source procurement pursuant to subsection 4718.1 shall include:

(a) A description of the nature of the goods or services;

(b) An explanation of why the goods or services are available from a single source; and

4718.4 Notice of the Department’s intent to enter into a sole source contract shall be posted on the Department’s website at least ten (10) days prior to the award of such contract and shall include the information set forth in subsection 4718.3.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 58 DC 8805 (October 14, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 985, 1003 (February 10, 2012).

27 DCMR § 4719 EMERGENCY PROCUREMENTS

4719.1 The Contracting Officer may award contracts through an emergency procurement:

(a) When there is an imminent threat to the public, health, welfare, property or safety; or

(b) To prevent or minimize serious disruption in agency operations.

4719.2 Emergency procurements shall be made with as much competition as practicable under the circumstances, based on the judgment and determination of the Contracting Officer

4719.3 A written determination by the Contracting Officer supporting an emergency procurement shall include the following findings:

(a) The circumstances giving rise to the emergency procurement presenting an imminent threat to the public, health, welfare, property, or safety; or

(b) The circumstances that created a need for goods, services, or construction, which if not immediately filled, will endanger the continuation of an essential function of the Department.

4719.4 The Contracting Officer shall not make a procurement under this section to meet a continuing need of the Department beyond what is necessary to meet the emergency condition. Contracts awarded using emergency procurement procedures shall not exceed ninety (90) days.

4719.5 Notice of all emergency procurements shall be posted on the Department’s website no more than seven (7) days after the contract is awarded and shall contain:

(a) A finding that circumstances giving rise to the emergency procurement present an imminent threat to the public, health, welfare, property, or safety, and have created a need for goods, services, or construction which, if not immediately filled, will endanger the continuation of an essential function of the Department;

(b) A description of the items procured;

(d) A copy of the contract.

4719.6 The Contracting Officer may issue oral orders or notices to proceed to contractors to provide services or goods to the District; provided, that the directive shall be reduced to writing within three (3) business days after issuance and funding for the services or goods provided shall be certified by the appropriate fiscal official.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 58 DC 8805 (October 14, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 985, 1004 (February 10, 2012).

27 DCMR § 4720 SEALED BIDDING

4720.1 The solicitation used to initiate a procurement conducted by competitive sealed bidding is known as an Invitation for Bids (IFB).

4720.2 If the Department issues an IFB, the Department shall allow prospective bidders a reasonable time to prepare and submit bids. Except in the event of an emergency, this time period shall be no less than ten (10) business days.

4720.3 The evaluation factors used in sealed bid procurements are limited to price and price-related factors, including price evaluation preferences for CBEs.

4720.4 The IFB shall specify:

(a) Any information necessary to explain how the Department will evaluate price (for example, whether option prices will be evaluated);

(b) Any price-related factors that will be evaluated and their relative importance in the overall evaluation scheme (for example, escalators);

(d) The contract delivery schedule;

(e) A description of any special qualification requirements the contractor must satisfy;

(f) Instructions for submitting bids, including:

(1) The deadline for bid submission;

(2) The method(s) for submitting bids;

(3) Any representations or certifications bidders must submit; and

(4) any requirements for the submission of items such as bid samples, subcontracting plans, or payment or performance bond;

(g) The period during which bids must remain open for acceptance; and

(h) The contract’s terms and conditions.

4720.5 Any changes in the information set forth in an IFB must be made by an amendment to the IFB.

4720.6 Bids shall be submitted by a method specifically permitted by the IFB (for example, hand delivery, mailing, electronic transmission, or fax).

4720.7 A bid may be withdrawn or modified at any time before bid opening by any of the methods permitted for submitting bids.

4720.8 A late bid, late modification, or withdrawal shall not be considered, except that the Department may accept a late modification to an otherwise successful bid that makes the bid more favorable to the Department. A late bid is any bid received after the bid date, unless such delay is caused by the Department.

4720.9 The Contracting Officer shall prepare and maintain in the contract file an abstract listing the bid prices.

4720.10 The contract shall be awarded to the qualified bidder whose bid is responsible and responsive to the IFB and is most advantageous to the Department considering only price and the price-related evaluation factors identified in the IFB.

4720.11 To be considered responsive, a bid must comply in all material respects with the IFB. Responsiveness involves matters that relate to the bid itself as opposed to the responsibility or other qualifications of the bidder. In determining whether a bid is responsive, the Contracting Officer has the discretion to permit correction of minor informalities or irregularities.

4720.12 The Contracting Officer shall endeavor to include with every IFB solicitation the form of the contract that the contractor will be required to enter into. To the greatest extent possible, the Department should endeavor to provide clear, concise contract documents. Contracts which consist of the solicitation, the proposal, and other documents attached together but not integrated into a single contract document are discouraged.

4720.13 Bids shall be opened publicly at a time and place provided for in the IFB and shall be open for public inspection.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 58 DC 8805 (October 14, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 985, 1005 (February 10, 2012).

27 DCMR § 4721 COMPETITIVE NEGOTIATION

4721.1 The solicitation used to initiate a procurement conducted by competitive negotiation or competitive sealed proposals is known as a Request for Proposals (RFP).

4721.2 If the Department issues an RFP, the Department shall establish a reasonable deadline for offerors’ submission of initial proposals. Proposals shall be solicited from the maximum number of qualified sources consistent with the nature of goods and services which are the subject of the procurement.

4721.3 The evaluation criteria used in procurements conducted by competitive negotiation or competitive sealed proposals include price or cost (including, but not limited to, hourly rates for services and fixed fees for cost reimbursement contracts) along with any other factors appropriate to the particular procurement (for example, the offeror’s technical approach, past performance, or status as a CBE or plans for subcontracting with such enterprises).

4721.4 If the Department deems it advisable, the RFP may contain either an estimate that generally describes the price range contemplated by the Department or a funding limitation for the procurement.

4721.5 The RFP shall specify all evaluation factors and their relative importance. The RFP should also include:

(a) A description of the goods, services, or scope of construction work sought, including quantity or estimated quantity;

(b) The contract delivery schedule, including any permitted variations in the delivery schedule;

(d) Instructions for submitting proposals including:

(1) The deadline for proposal submission;

(2) The method(s) for submitting proposals;

(3) The information to be provided in the proposal, including any requirements for past performance information or for subcontracting plans; and

(4) Any representations or certifications the offeror must submit;

(e) The period during which proposals must remain open for acceptance; and

(f) The anticipated contract terms and conditions and the extent to which they are negotiable.

4721.6 Any changes in the information set forth in an RFP must be made by an amendment to the RFP. Amendments shall be made no less than three (3) business days before the proposal submission date specified by the RFP.

4721.7 Proposals shall be submitted by a method specifically permitted by the RFP.

4721.8 The Department shall evaluate proposals based solely on the evaluation criteria specified in the RFP. Where past performance is an evaluation factor, the Department is not limited to considering only the information from references listed by the offeror.

4721.9 After initial proposals are evaluated, the Contracting Officer may:

(a) Make an award based on initial proposals; or

(b) Establish a competitive range consisting of those proposals that remain under consideration, or a single proposal that remains under consideration, and initiate discussions with competitive range offerors. A competitive range shall include all proposals that, in the Contracting Officer’s judgment, erring on the side of the offeror, could be awarded the procurement.

4721.10 If the Contracting Officer elects to enter into discussions, such discussions shall be undertaken with offerors in the order of ranking of the prospective offerors based on the criteria for evaluation set forth in the RFP. Discussions with offerors may be written, including electronic or oral. The primary objective of discussions is to maximize the Department’s ability to obtain the best value based on the evaluation factors set forth in the RFP. The scope and extent of discussions are a matter of Contracting Officer’s judgment. The Contracting Officer may re-open negotiations with any prospective contractor with which it has terminated discussions.

4721.11 After the proposals are submitted, the Contracting Officer may make changes to the general scope of the RFP and shall request that all offerors submit best and final offers by a common cut-off date.

4721.12 The contract shall be awarded to the qualified offeror whose offer is most advantageous to the Department under the RFP’s evaluation criteria.

4721.13 The Contracting Officer shall prepare documentation explaining the basis for the contract award decision which shall be maintained in the contract file. The contract shall be awarded by written notice to the responsive and responsible bidder whose proposal is most advantageous to the District.

4721.14 The Contracting Officer shall endeavor to include with every RFP solicitation the form of the contract that the contractor will be required to enter into. To the greatest extent possible, the Department should endeavor to provide clear and concise contract documents. Contracts which consist of the solicitation, the proposal, and other documents attached together but not integrated into a single contract document are discouraged.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 58 DC 8805 (October 14, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 985, 1006 (February 10, 2012).

27 DCMR § 4722 SIMPLIFIED CONTRACTING PROCEDURES

4722.1 The basic purposes of simplified contracting procedures are to:

(a) Promote economy, efficiency, and innovation in contracting;

(b) Reduce administrative costs to the Department; and

(c) Avoid unnecessary burdens or complexities that could reduce competition, such as by deterring smaller contractors from participating in a procurement.

4722.2 Simplified contracting procedures may be used only with contacts that have an estimated value equal to or less than one hundred thousand dollars ($100,000).

4722.3 The Contracting Officer shall conduct simplified procurements in the manner that is most suitable, efficient, and economical based on the circumstances of each acquisition. As appropriate, the Contracting Officer may elect to use or adapt procedures that are part of the sealed bidding or competitive negotiation process.

4722.4 On a simplified procurement, the Contracting Officer shall:

(a) Promote competition to the extent practicable and efficient;

(b) Establish reasonable deadlines for the submission of responses to solicitations; and

4722.5 If a contract that has an estimated value of more the ten thousand dollars ($10,000) is procured through the simplified contracting procedures, the Department shall obtain written quotes from at least two (2) potential contractors.

4722.6 If a contract that has an estimated value of less than ten thousand dollars ($10,000) is procured through the simplified contracting procedures, the Department need only obtain a written quote from a single potential contractor.

4722.7 The Contracting Officer may solicit quotations orally in appropriate cases when doing so is practical and economical. When soliciting quotations orally, the Contracting Officer shall require contractors to respond in writing.

4722.8 An oral solicitation shall provide a clear description of the Department’s requirements (for example the type of goods or services sought, quantities, and schedule) and the basis on which the award will be made.

4722.9 Written solicitations shall provide a complete statement of relevant information without being unnecessarily lengthy. A written solicitation should include the same information required in an oral solicitation plus the following:

(a) Anticipated contract terms and conditions, including the extent to which they are negotiable;

(b) Applicable certifications or representations; and

4722.9 The basis for an award may be price or cost alone or price and cost combined with other factors. Solicitations are not required to state the relative importance assigned to each evaluation factor.

4722.10 The price and cost combined with other terms of the award shall be set forth in a written contract or purchase order. The Contracting Officer shall include a statement in the contract file briefly explaining the basis for the award decision.

4722.11 No later than ten (10) days after award of any contract pursuant to the procedures outlined in this section 4722, the Department shall post on the Department’s website the name of the contractor to whom the contract was awarded, a description of the services or goods procured and the value of the contract.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 58 DC 8805 (October 14, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 985, 1009 (February 10, 2012).

27 DCMR § 4723 SPECIAL PILOT PROCUREMENTS

4723.1 The Department may engage in special pilot procurements in accordance with Section 408 of the PPRA and this chapter.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 58 DC 8805 (October 14, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 985, 1010 (February 10, 2012).

27 DCMR § 4724 D.C. SUPPLY SCHEDULE; GENERAL SERVICES ADMINISTRATION SCHEDULE

4724.1 The Department may purchase goods and services but not construction or any other type of contract awarded on a cost reimbursement basis from the D.C. Supply Schedules or the General Services Administration (GSA) Schedule.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 58 DC 8805 (October 14, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 985, 1010 (February 10, 2012).

27 DCMR § 4725 THE CONTRACTING OFFICER’S RESPONSIBILITY FOR CONTRACT ADMINISTRATION

4725.1 The Contracting Officer for a particular contract has overall responsibility for the contract’s administration. Among other things, this requires the Contracting Officer to:

(a) Monitor whether goods or services are delivered or completed on schedule and conform to contract requirements;

(b) Ensure that any contractually required inspection or acceptance procedures are followed;

(d) Identify and attempt to resolve issues or problems that arise during contract performance; and

(e) Monitor whether the contractor is complying with First Source hiring requirements, CBE Utilization requirements and other similar economic inclusion requirements in the contract.

4725.2 The Contracting Officer is the only representative of the Department with the authority to take the following actions:

(a) Authorize contract payments;

(b) Exercise contract options;

(d) Modify the contract.

4725.3 Prior to terminating a contract, the Contracting Officer shall first obtain the approval of the CCO.

4725.4 No representative of the Department, including a Contracting Officer, shall:

(a) Act in a manner that misleads a contractor regarding the limits of his or her authority; or

(b) Direct or encourage a contractor to perform work that has not been properly authorized.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 58 DC 8805 (October 14, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 985, 1010 (February 10, 2012).

27 DCMR § 4726 PAYMENT REQUESTS

4726.1 Requests for payment must be submitted in writing by the contractor. Payment shall not be authorized without a valid written contract.

4726.2 Contractor payment requests shall:

(a) Certify that the contractor is entitled to payment in the requested amount; and

(b) Include or attach any information necessary to demonstrate entitlement to the requested payment under the contract’s terms.

4726.3 Depending on the contract’s payment provisions, a payment request may consist of, for example, a statement that specified work has been completed in a satisfactory manner, documentation showing that contract deliverables have been accepted by the Office, or information detailing the reimbursable costs incurred by the contractor.

4726.4 Unless the Contracting Officer authorizes the payments, they shall not be made. A Contracting Officer’s payment authorization shall not preclude the Department from seeking repayment or pursuing other remedies if it subsequently concludes that the contractor was overpaid or otherwise mispaid.

4726.5 In addition to the Contracting Officer’s payment authorization, the Department’s CFO or his or her designee shall certify and approve all payment requests prior to making any payment.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 58 DC 8805 (October 14, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 985, 1011 (February 10, 2012).

27 DCMR § 4727 EXERCISING CONTRACT OPTIONS

4727.1 The Contracting Officer may exercise a contract option upon determining that:

(a) Funds are available and authorized for this purpose;

(b) The goods or services covered by the option fulfill an existing need; and

4727.2 The determination to exercise a contract option shall be in writing and shall be included in the contract file.

4727.3 To exercise an option over two hundred fifty thousand dollars ($250,000) the Contracting Officer must first obtain the approval of the CCO.

4727.4 In addition to the approval of the CCO, if applicable, prior to exercising any option, the approval of the Department’s Chief Financial Officer shall be obtained as to whether funds are available for the exercise of the option. Approval of the Council shall also be obtained as required.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 58 DC 8805 (October 14, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 985, 1012 (February 10, 2012).

27 DCMR § 4728 CONTRACT MODIFICATIONS

4728.1 The Contracting Officer may modify a contract subject to the provisions of this section.

4728.2 A modification must be within the general scope of the original contract. Any requirement for extra work that goes beyond the contract’s general scope shall be the subject of a new procurement.

4728.3 The CCO shall approve a contract modification in excess of one hundred thousand dollars ($100,000).

4728.4 A contract modification may be effected:

(a) By a bilateral agreement executed by the Contracting Officer and an authorized representative of the contractor; or

(b) By the Contracting Officer’s issuance of a unilateral written change, when the contract includes a changes clause permitting the Department to make unilateral changes in the contract work. Under such a clause, the contractor is obligated to perform in accordance with a change order issued by the Contracting Officer, and the contract price is adjusted to reflect the increase or decrease in costs caused by the change.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 58 DC 8805 (October 14, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 985, 1012 (February 10, 2012).

27 DCMR § 4729 CONTRACT TERMINATION

4729.1 All contracts awarded by the Department shall include “Termination for Default” and “Termination for Convenience” clauses specifically defining the Department’s termination rights.

4729.2 When exercising the Department’s rights under a termination clause in the contract, the Contracting Officer shall provide the contractor with a written notice specifying:

(a) Whether the termination is for default or for convenience;

(b) The effective date of the termination;

(d) Any special instructions that apply to the termination (for example, instructions concerning the disposition of contract inventory).

4729.3 After terminating a contract for convenience, the Contracting Officer shall request a settlement proposal from the contractor and shall attempt to negotiate a settlement that resolves all of the parties’ rights and liabilities except those arising from any portion of the contract still in effect. If the parties negotiate a settlement, the Contracting Officer shall prepare a memorandum describing the principal elements of the settlement and shall include the memorandum in the contract file.

4729.4 The Department may terminate, without liability, any contract if the contractor has been convicted of a crime arising out of or in connection with the procurement of any work to be done or any payment to be made under the contract, or there has been a violation of the PPRA. The Director shall be entitled to recover from the contractor those sums outlined in section 903 of the PPRA in addition to any other rights or remedies provided by law.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 58 DC 8805 (October 14, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 985, 1013 (February 10, 2012).

27 DCMR § 4730 CONTRACT DOCUMENTATION

4730.1 The Contracting Officer is responsible for maintaining documentation regarding the contract and the procurement.

4730.2 The contract file shall include:

(a) The solicitation and any amendments;

(b) The contract and any modifications;

(c) Any type of documentation that is specifically required to be maintained in the contract file by other sections of this chapter; and

(d) Any other documentation that may be necessary to memorialize important decisions or events relating to the procurement or the contract.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 58 DC 8805 (October 14, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 985, 1014 (February 10, 2012).

27 DCMR § 4731 TRANSFER OF CONTRACTS

4731.1 Procurements pending on October 1, 2011, and transferred to the Department on that date shall be completed, including the award of contracts pursuant thereto, in accordance with the procurement rules and regulations pursuant to which those procurements were commenced.

4731.2 Following the transfer of duties, responsibilities, contracts and procurements to the Department upon its creation, contracts or pending procurements related to facilities maintenance and/or capital projects held by other District agencies may be assigned to the Department in accordance with the provisions of this section.

4731.3 The CCO shall review the proposed procurement or contract and determine whether it is in the best interest of the Department to accept the assignment of the procurement or contract or to terminate the procurement or contract.

4731.4 If the Department determines it is in its best interest to accept the assignment of a contract or procurement, the Department shall have the authority to modify the contract or procurement so as to conform with the best practices and procedures employed by the Department on its own procurements.

4731.5 Assignment of contracts or procurements to the Department shall not confer on the Department any authority not otherwise granted to it by law or regulation. Acceptance of an assignment by the Department shall be predicated on the Department’s statutory authority to conduct the work contemplated by the assigned contract or procurement.

4731.6 Assignment of a contract or procurement shall not operate to transfer funds to support the assigned contract or procurement. Funds shall be transferred pursuant to an intra-District memorandum of understanding, reprogramming, or other appropriate process.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 58 DC 8805 (October 14, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 985, 1014 (February 10, 2012).

27 DCMR § 4732 CLAIMS BY THE DISTRICT AGAINST CONTRACTORS

4732.1 All claims by the District government against a contractor arising under or relating to a contract shall be decided by the contracting officer. The contracting officer shall issue a written decision and furnish a copy of the decision to the contractor.

4732.2 The Contracting Officer’s decision shall be supported by reasons and shall inform the contractor of his or her rights as provided in title IX of the PPRA. Specific findings of fact shall not be required, but, if made, shall not be binding in any subsequent proceeding.

4732.3 The decision of the Contracting Officer shall be final and not subject to review unless an administrative appeal or action for judicial review is timely commenced as authorized by section 1004 of the PPRA.

4732.4 Appeals of decisions by the contracting officer shall be made to the District of Columbia Contract Appeals Board in accordance with title X of the PPRA.

4732.5 Interest on amounts found due to the District from a contractor on claims shall be payable at the rate set in D.C. Official Code § 28-3302(b) (2011 Repl.)) applicable to judgments against the District government from the date the contractor receives a contracting officer's written decision asserting the claim on behalf of the District until payment of the claim.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 58 DC 8805 (October 14, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 985, 1015 (February 10, 2012).

27 DCMR § 4733 CLAIMS BY THE CONTRACTOR AGAINST THE DISTRICT

4733.1 All claims by a contractor against the District government arising under or relating to a contract shall be in writing and shall be submitted to the Contracting Officer for a decision.

4733.2 Within one hundred twenty (120) days after receipt of a claim, the Contracting Officer shall issue a decision, whenever possible taking into account factors such as the size and complexity of the claim and the adequacy of the information the contractor provides to support his or her claim. Failure of the Contracting Officer to issue a decision on a contract claim within the required time period shall be deemed to be a denial of the claim and shall authorize the commencement of an appeal on the claim.

4733.3 If a contractor is unable to support any part of his or her claim and it is determined that the inability is attributable to a material misrepresentation of fact or fraud on the part of the contractor, the contractor shall be liable to the District government for an amount equal to the unsupported part of the claim in addition to all costs to the District government attributable to the cost of reviewing that part of the contractor's claim. Liability under this section shall be determined within six (6) years of the commission of the misrepresentation of fact or fraud.

4733.4 Appeals of decisions by the Contracting Officer shall be made to the District of Columbia Contract Appeals Board in accordance with title X of the PPRA.

4733.5 Interest on amounts found due to a contractor on claims shall be payable at a rate set in D.C. Official Code § 28-3302(b) (2011 Repl.) applicable to judgments against the District government from the date the contracting officer receives the claim until payment of the claim.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 58 DC 8805 (October 14, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 985, 1015 (February 10, 2012).

27 DCMR § 4734 DISPUTES AND PROTESTS

4734.1 The District of Columbia Contract Appeals Board shall be the exclusive hearing tribunal for bid protests and disputes in connection with decisions by the contracting officer under sections 4732 and 4733. Claims shall be made in accordance with title X of the PPRA.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 58 DC 8805 (October 14, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 985, 1016 (February 10, 2012).

27 DCMR § 4735 TRANSPARENCY

4735.1 Within one (1) business day of issuance, the Contracting Officer shall transmit to the Chief Procurement Officer for posting on the Department’s website all solicitations and amendments or addenda thereto for contracts in excess of one hundred thousand dollars ($100,000).

4735.2 Within five (5) business days of the effective date thereof, the Contracting Officer shall transmit to the Chief Procurement Officer any contract in excess of one hundred thousand dollars ($100,000) and any change orders or contract modifications thereto or any written findings or determinations related thereto.

4735.3 Within five (5) business days of the effective date thereof, the Director shall transmit to the Chief Procurement Officer the names of personnel with delegated contracting authority.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 58 DC 8805 (October 14, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 985, 1016 (February 10, 2012).

27 DCMR § 4736 BONDS AND OTHER FORMS OF SECURITY

4736.1 For all construction contracts estimated to exceed one hundred thousand dollars ($100,000), the CCO shall require bid security in the form of a bond, cash or other acceptable form of bid security outlined in the solicitation document. All bonding companies must be licensed to conduct business in the District of Columbia and must be included on the Department of Treasury’s Listing of Approved Sureties.

4736.2 If a bidder that has furnished bid security in a form other than a bond is awarded a contract and fails to post a payment and performance bond for the full value of the contract, the bidder shall forfeit the full amount of the bid security provided.

4736.3 Bid security shall be in amount equal to not less than five percent (5%) of the estimated cost of the contract to be awarded pursuant to the procurement.

4736.4 For all construction contracts awarded in excess of one hundred thousand dollars ($100,000), the CCO shall require that the contractor provide both a payment bond and a performance bond each in an amount equal to one hundred percent (100%) of the contract price. All such bonds shall be issued by bonding companies licensed to conduct business in the District of Columbia and included on the Department of Treasury’s Listing of Approved Sureties. The CCO, in its reasonable discretion, may reduce the value of the payment bond and performance bond required, however, the value of each may not be reduced to less than fifty percent (50%) of the contract price.

4736.5 The Contracting Officer may, in his or her reasonable discretion, require additional forms of security as set forth in section 704 of the PPRA.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 58 DC 8805 (October 14, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 985, 1017 (February 10, 2012).

27 DCMR § 4737 COLLUSION

4737.1 A person who enters into a contract with the District after engaging in collusion with another person for the purpose of defrauding the District shall be liable for damages equal to three (3) times the value of the loss to the District attributable to the collusion.

4737.2 If there is a reasonable basis for believing that collusion has occurred among any individuals or entities for the purpose of defrauding the District, the CPO shall send a written notice of this belief to the Attorney General and the Mayor.

4737.3 All documents involved in any procurement in which collusion is suspected shall be retained until the Attorney General gives notice that they may be destroyed. All documents shall be made available to the Attorney General.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 58 DC 8805 (October 14, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 985, 1017 (February 10, 2012).

27 DCMR § 4738 CONTINGENT FEES

4738.1 A contractor shall not offer to pay any fee or other consideration that is contingent on the making of a contract.

4738.2 Every contract shall contain the following prohibition against contingent fees:

The contractor warrants that no person or selling agency has been employed or retained to solicit or secure the contract upon an agreement or understanding for a commission, percentage, brokerage fee, or contingent fee, except bona fide employees or bona fide established commercial or selling agencies maintained by the contractor for the purpose of securing business. For a breach or violation of this warranty, the District shall have the right to terminate the contract without liability or in its discretion to deduct from the contract price or consideration, or otherwise recover, the full amount of the commission, percentage, brokerage, or contingent fee.

4738.3 A District employee shall not solicit or secure, or offer to solicit or secure, a contract for which the employee is paid or is to be paid any fee or other consideration contingent on the making of the contract between the employee and any other person.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 58 DC 8805 (October 14, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 985, 1017 (February 10, 2012).

27 DCMR § 4739 CONFIDENTIALITY

4739.1 The Contracting Officer shall review information which a person designates as confidential or proprietary and which is submitted in response to an IFB or RFB.

4739.2 If the Contracting Officer determines that the designation is proper, the information shall be treated by the contracting officer, and any other District employee, in a confidential manner, shall be disclosed only to District employees for use in the procurement process, and shall not be disclosed to other persons or parties without the prior written consent of the person, except as provided by the Freedom of Information Act of 1976, effective March 25, 1977 (D.C. Law 1-96; D.C. Official Code §§ 2-531, et seq.) (2011 Repl.)).

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 58 DC 8805 (October 14, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 985, 1018 (February 10, 2012).

27 DCMR § 4740 RIGHT TO AUDIT RECORDS; RIGHT TO INSPECT

4740.1 The Director may, at reasonable times and places, audit the books and records of any person who has submitted data to substantiate offered prices pursuant to section 4741 of these rules to the extent that the books and records relate to that data. A person who receives a contract, change order, or contract modification for which the data is required, shall maintain books and records that relate to the cost or pricing data for three (3) years from the date of final payment under the contract, unless a shorter period is otherwise authorized in writing.

4740.2 The Inspector General, District of Columbia Auditor, or Director shall be entitled to audit the books and records of a contractor or any subcontractor under any negotiated contract or subcontract, other than a firm fixed-price contract, to the extent that the books and records relate to the performance of the contract or subcontract. Books and records shall be maintained by the contractor for a period of three (3) years from the date of final payment under the prime contract and by the subcontractor for a period of three (3) years from the date of final payment under the subcontract, unless a shorter period is otherwise authorized in writing.

4740.3 The Inspector General, District of Columbia Auditor, or Director may, at reasonable times, inspect the part of the place of business of a contractor or any subcontractor which is related to the performance of any contract awarded or to be awarded by the District.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 58 DC 8805 (October 14, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 985, 1018 (February 10, 2012).

27 DCMR § 4741 REASONABLE PRICES

4741.1 A contracting officer may request factual information reasonably available to the contractor or prospective contractor to substantiate that the price or cost offered, or some portion of it, is reasonable.

4741.2 In determining the reasonableness of prices, the Contracting Officer shall utilize the process developed by the Chief Procurement Officer of the District.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 58 DC 8805 (October 14, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 985, 1019 (February 10, 2012).

27 DCMR § 4742 SOVEREIGN IMMUNITY; PUNITIVE DAMAGES; INTEREST

4742.1 Unless otherwise specifically provided by law of the District, the District government and every officer, department, agency, or other unit of the District government shall not raise the defense of sovereign immunity in the courts of the District in an action based upon a written procurement contract executed on behalf of the District government.

4742.2 In an action in contract based upon a written contract executed on behalf of the District government, or by an official or employee acting within the scope of the official's or the employee's authority, the District government, and its officers, departments, agencies, or other units of government, shall not be liable for punitive damages.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 58 DC 8805 (October 14, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 985, 1019 (February 10, 2012).

27 DCMR § 4743 GREEN PROCUREMENT

4743.1 Except for contracts entered into pursuant to sections 4719 and 4722, the Department shall incorporate green procurement practices.

4743.2 Except as set forth in Subsection 4743.3, in solicitations and contracts for design services, the Department shall solicit contractors to design to LEED Silver standards as established by the United States Green Building Council (USGBC). Solicitations for design-build services shall also include this requirement.

4743.3 When projects undertaken by the Department are of a size and nature not amenable to certification under the USGBC’s LEED certification system, the solicitation and contract shall require the contractor to incorporate into the project sustainable design and construction techniques that would be utilized in the pursuit of LEED certification.

4743.4 In all other cases, the solicitation and contract shall require that the contractor comply with the Default Environmental Preference Standard, as defined in the PPRA, or provide an environmental certification as required by section 1101 of the PPRA.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 58 DC 8805 (October 14, 2011)[EXPIRED]; as amended by Notice of Final Rulemaking published at 59 DCR 985, 1019 (February 10, 2012).

27-48 PUBLIC-PRIVATE PARTNERSHIPS

27 DCMR § 4800 GENERAL PROVISIONS

4800.1 This chapter implements the provisions of the Public-Private Partnerships Act of 2014, effective March 11, 2015 (D.C. Law 20-228; D.C. Official Code §§ 2-271.01 et seq.) (P3 Act).

4800.2 This chapter outlines the process for the development, solicitation, evaluation, award, delivery, and oversight of solicited and unsolicited public-private partnership (P3) projects. Additional requirements will be outlined in the procurement documents for each project, further, non-binding guidance is provided in the Guidelines, and Procedures published on the website of the District of Columbia Office of Public-Private Partnerships (DC OP3) at http://op3.dc.gov.

4800.3 All public and private entities involved in a P3 project shall be subject to all applicable District and federal laws unless otherwise stated in the P3 Act or this chapter.

History

SOURCE: Final Rulemaking published at 63 DCR 13119 (October 21, 2016). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 4800

27 DCMR § 4801 SOLICITED PROCUREMENTS: REQUESTS FOR INFORMATION

4801.1 Generally: The DC OP3 may issue a Request for Information (RFI) at the beginning of the P3 procurement process to obtain information and insight from the private sector regarding a potential P3 project.

4801.2 Publication: The DC OP3 will publish notice of each RFI in the District of Columbia Register, the DC OP3 website, and any other publications deemed appropriate by the DC OP3.

4801.3 Schedule: Responses to an RFI will be accepted for a period of time to be determined by the DC OP3, and the deadline for responses will be included in the RFI. This schedule may include a pre-response public meeting to allow interested parties to meet with the DC OP3 and Owner Agencies to ask questions and obtain additional information regarding the proposed project and the requirements of the RFI.

4801.4 Use of Responses to Request for Information: Each response to an RFI shall become the property of the District, and the District may use any information or concepts within the response for whatever purpose it deems appropriate.

4801.5 Proposer Presentations: The DC OP3 and Owner Agencies may communicate with an entity that provides a response to an RFI or request the entity to give one (1) or more oral presentations to clarify its response and answer questions that will aid in the understanding of the response.

History

SOURCE: Final Rulemaking published at 63 DCR 13119 (October 21, 2016). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 4801

27 DCMR § 4802 SOLICITED PROCUREMENTS: REQUESTS FOR QUALIFICATION

4802.1 Generally: The DC OP3 may issue a request for qualifications (RFQ). The RFQ provides for a process of qualification for private sector proposers to submit qualifications for a solicited project. The RFQ, if issued, will be issued after the completion of the RFI process, if an RFI was issued.

4802.2 Public Notice: A notice of an RFQ for a P3 project will be published in the District of Columbia Register, posted on the DC OP3 website, and mailed to each affected Advisory Neighborhood Commission. In addition, the notice of an RFQ may be published in any publication deemed appropriate by the DC OP3 to achieve the optimal level of private sector response and public awareness.

4802.3 Schedule: The DC OP3 will determine the time limit for submittal of qualifications based on the complexity and specialization of the project. The deadline for responses will be included in the RFQ.

4802.4 Minimum Required for Qualification: The DC OP3 will determine requirements for the qualification of a private entity. At a minimum, in order to be qualified to submit a bid under a request for proposals, a private entity shall demonstrate:

The availability of sufficient sources of funding, capital, securities, or other financial resources necessary to carry out the P3 project if selected;

The availability and identification of key personnel, either through its staff, subcontractors, a consortium or joint venture agreement, that possess the managerial, organizational, technical capacity and experience working on projects of similar scope, scale and complexity as the type of project for which the proposer would be submitting a bid;

It will be qualified to lawfully conduct business in the District at the time of entering into a P3 agreement with the District; and

No director, officer, partner, owner, or other individual with direct and significant control over the policy or finances of the private entity has been convicted of corruption or fraud in any jurisdiction of the United States.

4802.5 Other Requirements and Criteria for Qualification: The RFQ shall set forth any other requirements for qualification and the criteria that the DC OP3 will use to determine which private entities qualify.

4802.6 Certification of Qualification: For each private entity that responds to the RFQ, the DC OP3 will determine if the entity possesses the qualifications appropriate for the P3 project, according to evaluation criteria established in the RFQ under Subsections 4082.4 and 4082.5. The DC OP3 reserves the right to issue an RFP to a short list of the private entities that were deemed to possess the qualification appropriate for the P3 project, rather than issuing the RFP to all private entities that were deemed to possess the qualifications appropriate for the P3 project.

4802.7 Application Fee: The DC OP3 may, if deemed appropriate, impose an application fee for prequalification not to exceed the actual direct cost of evaluation. The specific amount of the fee will be stated in the RFQ. This fee, if collected, shall be deposited in the Public-Private Partnerships Administration Fund (the Fund) for the use by the DC OP3 for costs associated with the review of responses to RFQs.

4802.8 Modification and Cancellation of Request for Qualification: The DC OP3 retains the right to modify or cancel the RFQ process at any time for any reason.

4802.9 Use of Responses to Request for Qualification: Each response to an RFQ shall become the property of the District, and the District may use any information or concepts within the response for whatever purpose it deems appropriate.

4802.10 Proposer Presentations: The DC OP3 and Owner Agencies may communicate with those entities that provide responses to an RFQ or require them to give one or more oral presentations to clarify their responses and answer questions that will aid in the understanding and evaluation of the responses.

History

SOURCE: Final Rulemaking published at 63 DCR 13119 (October 21, 2016). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 4802

27 DCMR § 4803 SOLICITED PROCUREMENTS: REVIEW OF DRAFT REQUEST FOR PROPOSALS

4803.1 Generally: The final step in the solicitation phase is the issuance of a Request for Proposals (RFP). Before issuing an RFP, the DC OP3 will develop a draft RFP for public comment. In addition, by law the draft RFP must be approved by the Council of the District of Columbia (Council) before it is formally issued.

4803.2 Public Review of Draft Request for Proposals: The first step in the RFP process is the development of a draft RFP by the DC OP3 for public comment. DC OP3 will publish the draft RFP on its website for public comment and will hold at least one (1) public hearing on the proposed RFP. The hearing will be subject to the Open Meetings Act (D.C. Law 18-350; D.C. Official Code §§ 2-571 et seq.) and will be held at an accessible evening or weekend time and in an accessible location near the proposed P3 project. The DC OP3 will provide at least thirty (30) days’ notice of the public hearing to each affected ANC and will publicize the hearing by placing a notice in the District of Columbia Register at least fifteen (15) days before the hearing.

4803.3 Approval of Proposed Request for Proposals by the Council: By law, each RFP must be approved by the Council before the RFP is issued by the DC OP3. The Council approval process will follow one (1) of two (2) review tracks depending on the value and duration of the project. Each approval process starts with the Mayor submitting a resolution to the Council to approve the RFP. The two (2) review tracks are outlined below.

(a) Proposals for Projects over fifty million dollars ($50,000,000) or ten (10) years: Proposals for possible P3 projects that the DC OP3 estimates will cost fifty million dollars ($50,000,000) or more (full life cycle cost) or extend for a contract term of ten (10) years or more will be deemed approved by the Council forty-five (45) calendar days after the Mayor submits the approval resolution to the Council, unless the Council votes to disapprove the resolution during that time period. The Council may also actively vote to approve the resolution at any time during the forty-five (45) day period. The forty-five (45) calendar day review period begins on the first day (excluding Saturdays, Sundays and holidays) following the receipt by the Office of the Secretary of the Council of the proposed resolution.

(b) Proposals for Projects less than fifty million dollars ($50,000,000) or ten (10) years: Proposals for possible P3 projects that are anticipated by the DC OP3 to cost less than fifty million dollars ($50,000,000) (full life cycle cost) or extend for a contract term less than ten (10) years will be deemed approved by the Council ten (10) calendar days after the Mayor submits the approval resolution, unless during that ten (10) day period a Councilmember introduces a resolution to approve or disapprove the proposed RFP. If a Councilmember introduces such a resolution the ten (10) day Council review period is extended to forty-five (45) calendar days and the RFP will be deemed approved by the Council at the end forty-five (45) calendar day period, unless the Council votes to disapprove the resolution during that time period. The Council may also actively vote to approve the resolution at any time during the forty-five (45) day period. The ten (10) day and forty-five (45) day time periods begin on the first day (excluding Saturdays, Sundays and holidays) following the receipt by the Office of the Secretary of the Council of the proposed resolution.

(c) Expiration of Approval: The Council’s approval of an RFP expires two years after the date of approval. If the DC OP3 determines that a P3 agreement cannot be entered into within the two (2) year period, the Mayor may submit to the Council a resolution requesting an extension of the time period. The resolution must be submitted at least sixty (60) days before the end of the two (2) year period. If the Council does not approve or disapprove the proposed extension resolution within thirty (30) days (excluding Saturdays, Sundays, legal holidays and days of Council recess) after receipt, the proposed resolution is deemed disapproved.

(d) Substantive Changes Requiring Approval; Notice of Changes: If a substantive change is made to a previously approved RFP, the revised RFP must be resubmitted to the Council for re-approval. Notice of each change that is made to an RFP will be published in the District of Columbia Register and/or delivered to qualified bidders if the RFQ process is utilized under § 4802.

History

SOURCE: Final Rulemaking published at 63 DCR 13119 (October 21, 2016). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 4803

27 DCMR § 4804 SOLICITED PROCUREMENTS: SOLICITATION THROUGH REQUEST FOR PROPOSALS

4804.1 Generally: After the RFP has been approved by the Council, the DC OP3 will formally issue the RFP to solicit proposals from the qualified bidders.

4804.2 Public Notice: Each RFP will be posted on the DC OP3 website. A notice of the issuance of the RFP will also be published in the District of Columbia Register and mailed to each affected ANC. Notice of the issuance may also be published on websites or in printed publications deemed appropriate by the DC OP3.

4804.3 Schedule: The deadline to respond with a proposal will be stated in the RFP. Potential proposers will be given at least 30 days to respond, unless the DC OP3 determines that a shorter response period is appropriate. If the DC OP3 establishes a shorter response period, it shall describe the reason for the shorter response period in the RFP.

4804.4 Requests for Proposals Requirements: Each RFP will contain, at a minimum, the following information regarding the proposed P3 project:

A detailed description of the scope of the proposed P3 project;

The technical requirements and material terms and conditions applicable to the procurement and any resulting contract; and

The criteria for evaluation and selection of a proposal, which shall indicate the relative weight given to each criterion.

The DC OP3, working with the Owner Agency, may include more specific response requirements to address the unique aspects of the project.

4804.5 Evaluation and Selection Criteria Requirements: Each RFP issued by the DC OP3 will include a set of evaluation criteria by which proposals submitted by the private sector will be scored. A relative scoring weight will be assigned in the RFP to each criterion.

At a minimum, the following evaluation criteria will be included in each RFP:

Cost;

Delivery time;

Financial commitment required of public entities;

Capabilities, related experience, facilities, or techniques of the proposer or unique combinations of these qualities that are integral factors for achieving the proposal objectives;

Value-for-money and public sector comparator analysis of the proposal;

Innovative methods, approaches, or concepts demonstrated by the proposal;

Scientific, technical, or socioeconomic merits of the proposal;

Potential contribution of the proposal to the mission of the District;

How the proposal benefits the public; and

Other factors as the DC OP3 deems appropriate to obtain the best value for the District.

The DC OP3, working with the Owner Agency, may include more specific evaluation criteria to address the unique aspects of the project in question.

4804.6 Format for Responses and Executive Summaries: Each response to an RFP must follow the guidance and format outlined in the RFP, including that the proposal has an executive summary and identifies those aspects of the proposal that are confidential or proprietary according to § 4804.12.

4804.7 Proposer Presentations: The DC OP3 and Owner Agencies may communicate with an entity that provides a response to an RFP or require them to give one (1) or more oral presentations to clarify its response and answer questions that will aid in the understanding and evaluation of the response.

4804.8 Evaluation of Responses to Request for Proposals: The DC OP3 will evaluate all responses to an RFP that are deemed to be responsive and meet the minimum requirements of the RFP. The evaluation of proposals will be based on the criteria stated in the RFP.

For most RFPs, the evaluation of responses to an RFP will be divided between two (2) committees matching the two (2) required packets outlined in the Guidelines. The two (2) review committees will consist of:

Technical Review Committee: The technical review committee will review all technical aspects of the proposal, including proposed project scope, innovative use of technology, engineering and design, and operation and maintenance of the project. Members of this committee will in most cases include technical staff from the Owner Agency and technical staff from associated District agencies.

Financial Review Committee: The financial review committee will review all financial aspects of each proposal including financing to be provided by the private partner, federal sources, and external sources and any fiscal obligations of the District to the project as proposed. Members of this committee will in most cases include financial staff from the Owner Agency, financial staff from associated District agencies, a representative from the Office of the Chief Financial Officer, and a representative from the Mayor’s Office of Budget and Finance.

In some instances where the DC OP3 deems it appropriate, a single committee will review both technical and financial aspects of each proposal. This will be stated in the RFP and separate packets for technical and financial aspects of proposals will not be required.

The Director and Deputy Director of the DC OP3, as well as the Director (or his or her designee) of the Owner Agency may serve on both committees.

4804.9 Selection of Preferred Bidder: Based on the results of the evaluation committees, the DC OP3 will declare the proposer with the highest overall score the Preferred Bidder. The point of contact provided on the proposal of the Preferred Bidder will be notified by the DC OP3. The DC OP3 may also select a secondary bidder to be engaged in the event that an agreement is not reached between the District government and the Preferred Bidder. If it has been determined that a secondary bidder will also be selected, that secondary bidder will also be notified.

4804.10 Publication of Responsive Executive Summaries: Upon the selection of the preferred bidder, the DC OP3 will publish executive summaries of all responsive proposals on the DC OP3 website. The executive summary of each proposal will include the information outlined in the Guidelines and the following information:

The scoring for each proposal; and

The identity of the proposer including all listed members of the proposal team.

4804.11 Payment of Stipends: The DC OP3 may pay a stipend to an unsuccessful proposer in the following situations:

The DC OP3 cancels the procurement process fewer than 30 days before the date the bid or proposal is due; or

An unsuccessful proposer submits a proposal that is responsive and meets all requirements established by the DC OP3 for the P3 project.

Each RFP will state whether the DC OP3 is offering a stipend as part of the procurement process. If a stipend is being offered, the RFP will also state the amount of the stipend and the specific terms and conditions under which the stipend will be paid.

Stipends will generally be used to generate meaningful competition and to compensate bidders for novel concepts or information that is utilized in a P3 agreement.

4804.12 Use of Responses to Request for Proposals: Each response to an RFP shall become the property of the District, and the District may use any information or concepts within the response for whatever purpose it deems appropriate.

4804.13 Confidential Information Included as Part of a Solicited Proposal: The DC OP3 and Owner Agency understand the need for some information provided by private entities to remain confidential. In order to protect confidential or proprietary information, the proposer must identify those portions of its proposal, or other submitted materials, that it considers to be confidential or proprietary. For the confidential or proprietary information of a proposer to be exempt from public disclosure, the proposer must do all of the following when the proposal is submitted to the DC OP3:

Invoke exclusion on submission of the information or other materials for which protection is sought as part of the cover letter or executive summary of the proposal;

Identify, with conspicuous labeling, the data or other materials for which protection is sought;

State the reasons why protection is necessary; and

Fully comply with any applicable District law with respect to information that the proposer contends should be exempt from disclosure.

The DC OP3 will review information that a proposer designates as confidential or proprietary to determine if that designation is proper under applicable law. Where the proposer cannot justify the protection of information, DC OP3 may ask the proposer to revise its proposal accordingly. If an agreement cannot be reached between the proposer and the DC OP3 regarding the designation of information as confidential or proprietary, the proposer may withdraw its proposal from the procurement and all unused fees paid by the proposer will be returned to the proposer.

The DC OP3 and Owner Agency will not release or disclose any part of the proposal other than the executive summary and information required to be disclosed under §§ 108(f) and 114(a) of the P3 Act (D.C. Official Code §§ 2-273.03(f) and 2-273.09(a)) before the award of the P3 agreement and at the conclusion of any protest, appeal or other challenge to the award, absent an administrative or judicial order requiring such a disclosure. After the final award of the P3 agreement, the Freedom of Information Act shall apply to the proposal.

History

SOURCE: Final Rulemaking published at 63 DCR 13119 (October 21, 2016). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 4804

27 DCMR § 4805 UNSOLICITED PROCUREMENTS: SUBMISSION REQUIREMENTS

4805.1 The DC OP3 may accept unsolicited proposals for P3s.

4805.2 Time Periods for Acceptance of Unsolicited Proposals: The DC OP3 will accept unsolicited proposals during limited time periods to ensure that the proposals can be fully reviewed within the time limits stated in the P3 Act. The time periods during which the DC OP3 will accept unsolicited proposals will be published in the Guidelines and in the DC Register, on the DC OP3 website and any other publications deemed appropriate.

4805.3 Discussions with DC OP3 before Submission of Unsolicited Proposal: Private entities are encouraged to contact the DC OP3 to arrange a meeting to discuss their ideas and concepts for unsolicited proposals before developing or submitting an unsolicited proposal. These meetings, which may include the relevant Owner Agencies, will be useful for all parties to determine the viability and desirability of a P3 project before a proposal is written. This informal discussion process will aid the DC OP3 and private entities to maintain an environment of open communication needed to achieve the goals of the District P3 program. No proposals or project information will be accepted by the DC OP3, Owner Agencies or any other representative of the District government during these meetings. Such meetings will be confidential to the extent allowed by the Freedom of Information Act, including statutory exclusions that protect proprietary information among other things.

4805.4 Structure and Format of Unsolicited Proposals: An unsolicited proposal must follow the format outlined in the Guidelines and must include a signature of the authorized corporate officer of the proposer.

History

SOURCE: Final Rulemaking published at 63 DCR 13119 (October 21, 2016). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 4805

27 DCMR § 4806 UNSOLICITED PROPOSALS: PRELIMINARY EVALUATION

4806.1 Preliminary Evaluation of Unsolicited Proposals: An unsolicited proposal will be screened in a three-step process that includes a review to confirm that baseline requirements are met, a preliminary evaluation, and a comprehensive evaluation.

4806.2 Baseline Requirements: The DC OP3 will only accept an unsolicited proposal and undertake a preliminary evaluation of that unsolicited proposal if the proposal:

Is independently developed and drafted by the proposer without District supervision;

Includes sufficient detail and information for the DC OP3 to evaluate the proposal in an objective and timely manner under the comprehensive evaluation process outlined in § 4807; and

Adheres to the format outlined in the Guidelines, including that the proposal has an executive summary and identifies those aspects of the proposal that are confidential or proprietary according to § 4807.20.

4806.3 Preliminary Evaluation Fee: Private entities interested in submitting an unsolicited proposal are required to pay a non-negotiable Preliminary Evaluation Review Fee in an amount provided in the Guidelines at the time of submitting the proposal to the DC OP3 for review. This review fee will be deposited into the Fund to cover the costs of the preliminary evaluation only. Payment should be made by check or money order made out to the account listed in the Guidelines. If the fees paid to the DC OP3 exceed the DC OP3’s total cost for the preliminary review, the DC OP3 will reimburse the remaining funds to the private entity at the end of the review process.

4806.4 Preliminary Evaluation Results: Within ninety (90) days after receiving an unsolicited proposal, the DC OP3 will complete its preliminary evaluation and report the result to the proposer. The result will be either “favorable” or “unfavorable” based on whether the proposal:

Addresses a need identified in a District or regional planning document, including the DC OP3 Project Pipeline;

Shows that the proposed project could benefit the District;

Includes a financing plan to allow the project to move forward pursuant to all applicable District budget and finance requirements, including the District’s debt cap;

Provides a plan for the operation and maintenance of the proposed facility or facilities for the full life-cycle of the project; and,

Is consistent with priorities and agency performance goals of the Owner Agency or Agencies tasked with delivering infrastructure projects similar to the project proposed.

If the result is unfavorable, the DC OP3 will return the unsolicited proposal to the proposer with a letter explaining the reason for the determination. The proposer cannot appeal a preliminary evaluation resulting in an unfavorable determination and no further action on the proposal will be taken by the DC OP3 after such a determination. If the result of the preliminary evaluation is favorable, the unsolicited proposal will proceed to the comprehensive evaluation stage.

History

SOURCE: Final Rulemaking published at 63 DCR 13119 (October 21, 2016). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 4806

27 DCMR § 4807 UNSOLICITED PROPOSALS: REQUEST FOR ALTERNATIVE PROPOSALS AND COMPREHENSIVE EVALUATION

4807.1 Comprehensive Evaluation of Unsolicited Proposal: If the result of the preliminary evaluation is favorable, the unsolicited proposal will enter the comprehensive evaluation phase.

4807.2 Unsolicited Proposal Clarification: During the comprehensive evaluation phase the D.C. OP3 may communicate with the proposer (hereinafter referred to as the “Original Unsolicited Proposer”) for clarification of the proposal. This process will not be an opportunity for changes to be made to the unsolicited proposal; only for clarification of proposal aspects to allow an evaluation by the D.C. OP3.

4807.3 Notification of the Unsolicited Proposer: The D.C. OP3 will notify the Original Unsolicited Proposer that the unsolicited proposal has been deemed favorable. The D.C. OP3 will also notify the proposer of the alternative proposals process outlined in § 4807.4 and of the proposer’s ability to submit a modified proposal as part of the process outlined in § 4807.7.

4807.4 Public Notice and Alternative Proposal Process:

(a) The D.C. OP3 will publish the executive summary of the Original Unsolicited Proposer’s proposal and any non-proprietary aspects of the unsolicited proposal on the D.C. OP3 website. The D.C. OP3 will also publish notice in the D.C. Register and in any other publication or on any website that the D.C. OP3 deems appropriate.

(b) As part of its publication of the unsolicited proposal, the D.C. OP3 will also publish a request for alternative proposals (“RFAP”) soliciting other private parties to submit alternative proposals. The timeline of the RFAP process, the requirements that alternative proposals must satisfy the criteria by which proposals will be evaluated, and other relevant guidance for proposers, will be included in the RFAP.

(c) An RFAP may include a qualification phase through the issuance of an RFAP-Q when the D.C. OP3, in consultation with the Owner Agency(ies), determines that a qualification phase is in the best interests of the District. The qualification phase will determine which prospective alternative proposers will be authorized to submit responses to the RFAP, based on the prospective alternative proposers’ qualifications to complete the project contemplated by the RFAP-Q.

(d) If a qualification phase is utilized:

(1) The D.C. OP3 will invite prospective alternative proposers to respond in writing with a Statement of Qualifications (“SOQ”) to complete the project. As part of the RFAP-Q, the D.C. OP3 will provide, at a minimum: a description of the proposed project; a description of the information and documents that must be included as part of an SOQ; the criteria to be used to evaluate each prospective alternative proposer; and a high-level description of the procurement process, including an indicative schedule.

(2) The D.C. OP3 and the Owner Agency(ies) may communicate with those prospective alternative proposers that submit an SOQ or require them to give one or more oral presentations to clarify their responses and answer questions that will aid in the understanding and evaluation of the responses.

(3) The D.C. OP3 may establish an evaluation committee to conduct the evaluation, or assist D.C. OP3 in its evaluation, of the responses to the RFAP-Q. The evaluation committee may establish subcommittees, which may include members who are not members of the committee, and engage advisors to provide advisory input in the evaluation process as the evaluation committee deems appropriate.

(4) For each prospective alternative proposer that submits an SOQ, the D.C. OP3 will determine if the prospective alternative proposer possesses qualifications appropriate for the P3 project, according to evaluation criteria established under Subsection 4807.4(d)(1). The D.C. OP3 reserves the right to issue an RFAP to a short list of the prospective alternative proposers that were deemed to possess the qualifications appropriate for the P3 project, rather than issuing the RFAP to all prospective alternative proposers that were deemed to possess the qualifications appropriate for the P3 project.

(5) Each prospective alternative proposer that submits an SOQ will be required to pay the preliminary evaluation fee described in § 4806.3.

(6) The Original Unsolicited Proposer must provide a response to the RFAP-Q in order for its unsolicited proposal (or an amended proposal authorized by § 4807.7) to be considered as part of the RFAP process. Regardless of the other evaluation criteria set forth in the RFAP-Q, the Original Unsolicited Proposer shall be deemed qualified if it meets the minimum requirements criteria set forth in the RFAP-Q, and there are no materially adverse changes to the key personnel, team members, financial condition, or other qualifications elements of its unsolicited proposal. If any qualifications elements of the Original Unsolicited Proposal change prior to the issuance of the RFAP-Q, the Original Unsolicited Proposer must provide notice of such change(s) in writing to D.C. OP3 according to the procedures described in the RFAP-Q. The D.C. OP3 shall determine whether (a) the change(s) to the Original Unsolicited Proposer’s qualifications are material and (b) the proposed change(s) results in qualifications that are equal to or better than the qualifications of the Original Unsolicited Proposal. If the D.C. OP3 determines that the change(s) is materially adverse, the Original Unsolicited Proposer must submit an SOQ, which shall be evaluated according to the criteria of the RFAP-Q. The Original Unsolicited Proposer will not be required to pay an additional preliminary evaluation fee with its response to the RFAP-Q, even if it makes a material change to a qualification element of its unsolicited proposal.

4807.5 Schedule: The D.C. OP3 will allow alternative proposals to be submitted in response to the RFAP for at least thirty (30) days after the notice is published in the D.C. Register. In most cases, the response period will be longer than thirty (30) days in order to increase the competitive environment for the project. The response period will be expressly stated in the RFAP.

4807.6 Requirements of Alternative Proposals: All responses to the RFAP must meet all the requirements of an original unsolicited proposal as stated in § 4806. The requirements include the completion of the unsolicited proposal form and any other requirements included in the public notice and RFAP issued under § 4807.4.

Each alternative proposer will be required to pay the comprehensive evaluation fee described in § 4807.13.

4807.7 Amended Submittals by the Original Unsolicited Proposer: The Original Unsolicited Proposer must submit a response to the RFAP in order for its proposal to be considered as part of the RFAP process. The Original Unsolicited Proposer may submit its unsolicited proposal or an amended proposal based upon the RFAP. The amended proposal may only update the original proposal to the extent necessary to be responsive to additional or modified requirements or clarifications about the project that D.C. OP3 has requested in the RFAP or to respond to project-specific scoring criteria; the amended proposal may not constitute a completely new proposal.

4807.8 Comprehensive Evaluation: After the end of the RFAP response period, the D.C. OP3 will evaluate the original unsolicited proposal, or amended original unsolicited proposal if one is submitted, and any alternative proposals.

4807.9 Comprehensive Evaluation Criteria: The D.C. OP3 will evaluate the original unsolicited proposal, or amended original unsolicited proposal if one is submitted, and any alternative proposals under the same criteria outlined in the RFAP, including the general criteria stated in § 4807.15.

4807.10 Comprehensive Evaluation Period: The D.C. OP3 will establish a time period for the comprehensive evaluation of the original unsolicited proposal, or amended original unsolicited proposal if one is submitted, and any alternative proposals. The time period will be shared with all proposers no more than ten (10) business days after the end of the RFAP response period. The D.C. OP3 may, at any time, revise the time period for review, as needed.

4807.11 Proposer Presentations: The D.C. OP3 and Owner Agency(ies) may communicate with proposers or require them to give one or more oral presentations to clarify their proposal and answer questions that will aid in the understanding and evaluation of the proposal.

4807.12 Evaluation Committees: The D.C. OP3 will evaluate all responses to an RFAP that are deemed to be responsive, meet the minimum requirements of the RFAP, and that are pre-qualified under § 4807.4, if applicable. The evaluation of proposals will be based on the criteria stated in the RFAP, including the general criteria stated in § 4807.15.

For most RFAPs, the evaluation of responses to an RFAP will be divided between two committees matching the two required packets outlined in the Guidelines. The two review committees will consist of:

Technical Review Committee: The technical review committee will review all technical aspects of the proposal, including proposed project scope, innovative use of technology, engineering and design, and operation and maintenance of the project. Members of this committee will, in most cases, include technical staff from the Owner Agency and technical staff from associated District agencies.

Financial Review Committee: The financial review committee will review all financial aspects of each proposal including financing to be provided by the private partner, federal sources, and external sources and any fiscal obligations of the District to the project as proposed. Members of this committee will, in most cases, include financial staff from the Owner Agency, financial staff from associated District agencies, a representative from the Office of the Chief Financial Officer, and a representative from the Mayor’s Office of Budget and Finance.

In some instances where the D.C. OP3 deems it appropriate, a single committee will review both technical and financial aspects of each proposal. This will be stated in the RFAP and separate packets for technical and financial aspects of proposals will not be required.

Employees of the D.C. OP3 and the Owner Agency(ies) may serve on both committees. The evaluation committee may establish subcommittees with members who are not members of the committee and engage advisors to provide input in the evaluation process as they deem appropriate.

4807.13 Comprehensive Evaluation Review Costs: The Original Unsolicited Proposer and any alternative proposers will be required to pay a comprehensive evaluation fee with their response to an RFAP. The fee will be set by the D.C. OP3 based on all direct costs reasonably anticipated by the D.C. OP3 for the comprehensive evaluation. The amount of the fee will be set forth in the RFAP. The Original Unsolicited Proposer must submit the fee to the D.C. OP3 by the end of the RFAP period (or with the submission of its amended proposal, if it submits an amended proposal). No unsolicited proposal or alternative proposal will be reviewed without payment of the Comprehensive Evaluation Review fee.

The comprehensive evaluation fees will be used to cover the costs of the comprehensive evaluation. If the fees paid to the D.C. OP3 exceed the D.C. OP3’s total cost for the unsolicited review process, the D.C. OP3 will reimburse the remaining funds equally to all proposers at the end of the review period.

If an unsolicited proposer or alternative proposer does not wish to pay the comprehensive evaluation fee, it may withdraw its proposal without penalty.

4807.14 Use of Unsolicited and Alternative Proposals: Each unsolicited proposal and alternative proposal shall become the property of the District, and the D.C. OP3 and the District may use any information or concepts within such proposals for whatever purpose it deems appropriate.

4807.15 Selection of a Preferred Bidder: Based on the results of the evaluation committees, the D.C. OP3 will declare the proposer with the highest overall score the Preferred Bidder. The D.C. OP3 may also select a secondary bidder to be engaged in the event that an agreement is not reached between the District government and the Preferred Bidder. Unsolicited and alternative proposals will be reviewed under the criteria as stated in the RFAP, which may include:

Cost;

Delivery time;

Financial commitment required of public entities;

Capabilities, related experience, facilities, or techniques of the proposer or unique combinations of these qualities that are integral factors for achieving the proposal objectives;

Value-for-money and public sector comparator analysis of the proposal;

Innovative methods, approaches, or concepts demonstrated by the proposal;

Scientific, technical or socioeconomic merits of the proposal;

Potential contribution of the proposal to the mission of the District, including how the proposal benefits the public;

The proposal must not duplicate an existing infrastructure project or services in a competitive way nor closely resemble a pending competitive proposal for a P3 or other procurement; and

Other factors as the D.C. OP3 deems appropriate to obtain the best value for the District.

4807.16 OCFO Certification: Prior to commencement of negotiations with the Preferred Bidder, the Chief Financial Officer of the District of Columbia must also certify:

The availability of any funds, debts, or assets that the District will contribute to the project;

That no provision of the proposal would violate the District Anti-Deficiency Act of 2002; and

That the project is not likely to have a significant adverse impact on the District’s bond ratings.

4807.17 OAG Certification: Prior to commencement of negotiations with the Preferred Bidder, the Attorney General of the District of Columbia must certify that:

Proper indemnifications, including project insurance and bonding are included in the proposal; and

There are no interstate compact issues if the project involves multiple jurisdictions.

4807.18 Notice of Selection of Preferred and Secondary Bidders: When a Preferred Bidder has been selected, the point of contact provided on the proposal will be notified by the D.C. OP3. If it has been determined that a secondary bidder will also be selected, that secondary bidder will also be notified. The D.C. OP3 will provide public notice of this selection and its intent to commence negotiations. Negotiations will only begin with the secondary bidder if negotiations have been terminated with the Preferred Bidder.

4807.19 Communication during the Procurement Process: While the D.C. OP3 encourages communication during the procurement process, the point of contact listed in the procurement documents will serve as the sole official coordinator of communication with the party making the inquiry. All official communication must be written. Communication during the procurement process that violates the communication policies set out in the procurement documents may result in penalties, including disqualification of a proposer.

4807.20 Confidential Information Included as Part of an Unsolicited or Alternative Proposal: The D.C. OP3 and Owner Agency understand the need for some information provided by private entities to remain confidential. In order to protect confidential or proprietary information, the proposer must identify those portions of its proposal, or other submitted materials, that it considers to be confidential or proprietary. For the confidential or proprietary information of a proposer to be exempt from public disclosure, the proposer must do all of the following when the proposal is submitted to the D.C. OP3:

Invoke exclusion on submission of the information or other materials for which protection is sought;

Identify, with conspicuous labeling, the data or other materials for which protection is sought;

State the reasons why protection is necessary; and

Fully comply with any applicable District law with respect to information that the proposer contends should be exempt from disclosure.

The D.C. OP3 will review information that a proposer designates as confidential or proprietary to determine if that designation is proper. Where the proposer cannot justify the protection of information, D.C. OP3 may ask the proposer to revise its proposal accordingly. If an agreement cannot be reached between the proposer and the D.C. OP3 regarding the designation of information as confidential or proprietary, the proposer may withdraw its proposal from the procurement and all unused fees paid by the proposer will be returned to the proposer. If an unsolicited proposal is rejected under Subsections 4806.2 and 4806.4 or is withdrawn by the proposer prior to the comprehensive evaluation period, the D.C. OP3 will return all copies of the unsolicited proposal to the proposer, and such proposals shall be confidential to the extent allowed by the Freedom of Information Act, including statutory exclusions that protect proprietary information, among other things.

The D.C. OP3 and Owner Agency will not release or disclose any part of the proposal other than the executive summary and information required to be disclosed under §§ 109(b) and 114(a) of the P3 Act (D.C. Official Code §§ 2-273.04(b) and 2-273.09(a)) before the award of the P3 agreement, and at the conclusion of any protest, appeal, or other challenge to the award, absent an administrative or judicial order requiring such a disclosure. After the final award of the P3 agreement, the Freedom of Information Act shall apply to the proposal except for statutory exclusions such as proprietary information.

4807.21 Termination of the Process: The D.C. OP3 may terminate the unsolicited proposal procurement process at any time. In the event of such a termination, the D.C. OP3 will return the unused funds paid by unsolicited or alternative proposers for the comprehensive evaluation process equally to all proposers.

History

SOURCE: Final Rulemaking published at 63 DCR 13119 (October 21, 2016); as amended by Final Rulemaking published at 65 DCR 6037 (June 1, 2018). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 4807

27 DCMR § 4808 PUBLIC-PRIVATE PARTNERSHIP AGREEMENTS

4808.1 Generally: If the DC OP3 selects a Preferred Bidder through either a solicited or unsolicited procurement process, the Owner Agency will negotiate with the preferred proposer to enter into a P3 agreement as the Owner Agency will be the designated public entity for all agreements.

4808.2 Requirements for the Public-Private Partnership Agreement: Each P3 agreement must include the following elements:

An agreement term length clearly defined to include the estimated construction and operational period, as needed, not to exceed 99 years from the date of full execution of the agreement;

A complete description of the P3 facility to be developed and the functions and responsibilities to be performed by the District and the private entity;

Risk mitigation plans and responsibilities for facility operations and maintenance for both the private entity and the Owner Agency;

Type of property interest, if any, that the private entity will have in the project facility during both the construction and operations phases;

Terms regarding the planning, acquisition, financing, development, design, construction, reconstruction, rehabilitation, replacement, improvement, maintenance, management, operation, repair, leasing, and ownership of the P3 facility;

The rights that the District and the private entity have, if any, in revenue generated as a result of the agreement;

The minimum quality standards, technical requirements, and key performance indicators applicable to the P3 project, including performance criteria, reporting requirements, incentives, cure periods, performance points systems, monitoring rights of the Owner Agency and the DC OP3, and penalties for failure to achieve these standards;

A maintenance plan for the full life cycle of the P3 project;

A hand-back plan that includes requirements regarding state of good repair of the facility;

Any compensation and/or revenue structure of the private entity, including the extent to which, and terms upon which, the private entity may charge fees to individuals and entities for the use of the P3 facility. Under the P3 Act, no new fees may be imposed nor may existing fees be amended unless authorized by a subsequent act of the Council;

A schedule for an annual independent audit report to be furnished by the private entity to the DC OP3 and Owner Agency covering all aspects of the agreement and the financial condition of the private party;

A requirement that the private entity maintain or cause to be maintained performance and payment bonds, letters of credit, or other acceptable forms of security in compliance with title VII of the Procurement Practices Reform Act of 2010, effective April 8, 2011 (D.C. Law 18-371; D.C. Official Code §§ 2-351.01 et seq.);

Insurance requirements for any facility to be operated by the private entity. The insurance must be in an amount that ensures coverage of tort liability for the District and the private entity, and its employees;

Grounds for termination of the P3 agreement by the Owner Agency or the District government in general and the financial impact of that termination;

Grounds for termination of the P3 agreement by the private entity and the financial impact of that termination;

Procedures for amending the P3 agreement;

Provisions for the termination of the P3 agreement and the disposition of the P3 facility upon termination;

All rights and remedies available to the District government for material breach of the agreement by the private entity, up to and including material default;

Identification of funding sources to be used to fully fund the capital, operation, maintenance, and other expenses under the P3 agreement;

Certification of compliance with applicable District and federal laws;

A plan for the sharing of refinancing gains between the private entity and the District in the event that the private partner generates a large financial benefit from the refinancing or restructuring of the P3 project; and,

Any additional provisions determined to be appropriate by the DC OP3 and Owner Agency.

4808.3 Negotiation: After the issuance of a notification that a preferred bidder and a secondary bidder have been selected as described in §§ 4804.8 or 4807.15, the DC OP3 and Owner Agency will commence negotiations with the preferred proposer.

4808.4 Engagement of Secondary Bidder: If negotiations with the preferred bidder fail to result in a P3 agreement after a reasonable period of time and good faith efforts by all parties as determined by the DC OP3 and Owner Agency, the DC OP3 and Owner Agency, in joint agreement, may terminate the negotiation with the Preferred Bidder and choose to begin negotiations with the secondary bidder or to terminate the solicitation.

4808.5 Facilities Plan Approval: The DC OP3 and the Owner Agency have the right to review and approve the private partner’s plans for the development, operation, maintenance, and financing of the P3 project facility before entering into a P3 agreement. Those plans, once approved, will become part of the P3 agreement. A material change in any of these aspects of the facility during the term of the agreement will require approval by the DC OP3 and the Owner Agency.

4808.6 Prohibition Regarding Non-Compete Provisions: The P3 agreement may not contain a non-compete provision that would prevent or inhibit any public entity from performing its government function.

4808.7 Access and Right to Inspect: During the term of the P3 agreement, the DC OP3 and Owner Agency shall have the right to access and inspect the P3 project facility at any time upon reasonable notice.

4808.8 External Funding: The DC OP3, with the Owner Agency, may apply for and accept funds from the District or federal government, as well as other sources of financial support to fund P3 projects or otherwise advance the cause of innovative project delivery in the District.

4808.9 Projects of Regional Scope: The DC OP3 and the Owner Agency may enter into P3 agreements with other local and state government agencies that are regional in scope as long as that regional aspect of the project is expressed in the request for proposal submitted to the Council pursuant to § 4803.3.

4808.10 Sovereign Immunity: In no way shall a P3 agreement or any element of a P3 agreement be construed as a waiver of the sovereign immunity of the District government, nor will a P3 agreement be viewed as a grant of sovereign immunity to any private entity.

4808.11 Remedies: A provision may be included in a P3 agreement providing that, in addition to any remedy available to the District, and any cure provisions within the agreement, in the event of a material default by the private partners, the District may elect to assume the responsibility and duties of the operator in the P3 project in partial or full capacity, and, in such instance, the District or a designated public entity shall succeed to all of the rights, titles, and interests in the P3 project.

The District Government may terminate, with cause, the P3 agreement and exercise any other rights and remedies that may be available to it under the law or in equity. If the District or a designated public entity elects to assume the responsibility and duties of a P3 project pursuant to this section, the District may develop or operate the P3 project, impose previously approved user fees, impose and collect lease payments and comply with any service contracts as if it were the operator.

The assumption of the operation of the P3 project shall not obligate the DC OP3 or the District government to pay any obligation of the operator from sources other than revenue from the project.

4808.12 Compliance with Federal and District Laws: Under a P3 agreement, the private sector partner will be required to comply with all applicable federal and District laws governing infrastructure projects. Some of these applicable laws include, but are not limited to, the following:

§§ 202 (Council contract review), 415 (anti-collusion), title VII (bonding) and title X (appeals) of the Procurement Practices Reform Act of 2010, effective April 8, 2011, (D.C. Law 18-371; D.C. Official Code §§ 2-351.01 et seq.);

The First Source Employment Agreement Act of 1984, effective June 29, 1984 (D.C. Law 5-93; D.C. Official Code §§ 2-219.01 et seq.);

The Living Wage Act of 2006, effective June 8, 2006 (D.C. Law 16-118; D.C. Official Code §§ 2-220.01 et seq.), or the rate established by the use of a project labor agreement, notice of which must be provided by the DC OP3 and Owner Agency before soliciting bids or proposals for a P3;

The Small, Local, and Disadvantaged Business Enterprise Development and Assistance Act of 2005, effective October 20, 2005 (D.C. Law 16-33; D.C. Official Code §§ 2-218.01 et seq.);

Subchapter II of Chapter 28 of Title 47 of the D.C. Official Code (Clean Hands Before Receiving a License or Permit);

The Green Building Act of 2006, effective March 8, 2007 (D.C. Law 16-234; D.C. Official Code §§ 6-1451.01 et seq.);

The Anacostia Waterfront Environmental Standards Act of 2008, effective March 26, 2008 (D.C. Law 17-138; D.C. Official Code §§ 2-1226.31 et seq.);

The Davis-Bacon Act of 1931, approved March 3, 1931 (46 Stat. 494; 40 U.S.C. §§ 3141 et seq.);

The Hotel Development Projects Labor Peace Agreement Act of 2002, effective April 2, 2003 (D.C. Law 14-266; D.C. Official Code § 32-851); and

The District Anti-Deficiency Act of 2002, effective April 4, 2003 (D.C. Law 14-285; D.C. Official Code §§ 47-355.01 et seq.).

4808.13 Repayment of Fees Paid by the Original Unsolicited Proposer: If a P3 agreement is entered into with a proposer who is not the original unsolicited proposer, the DC OP3 may require, as a condition of entering into the P3 agreement, that the “winning” proposer repay the preliminary evaluation and comprehensive evaluation fees as well as any stipend authorized under § 4804.11 to the original unsolicited proposer. The District will not pay, or provide for the payment of, any additional proposal costs of the original unsolicited bidder.

4808.14 Monitoring of P3 Agreement Performance: The DC OP3 and Owner Agency will provide a performance monitoring plan for the agreement. The performance monitoring plan will provide detail on how the Owner Agency, with assistance from the DC OP3 as needed, will monitor the performance of the private entity for the full term of the agreement. This plan will include required skills and resources for monitoring, monitoring schedules, and performance schedules with possible performance-points systems.

History

SOURCE: Final Rulemaking published at 63 DCR 13119 (October 21, 2016); as amended by Final Rulemaking published at 65 DCR 6037 (June 1, 2018). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 4808

27 DCMR § 4809 FINAL APPROVAL OF THE PUBLIC-PRIVATE PARTNERSHIP AGREEMENT

4809.1 Generally: Before executing a P3 agreement, the DC OP3 must submit a report to the Council and provide public notice of the report. In addition, the agreement itself must be submitted to the Council for its review and approval.

4809.2 Council Report Requirements: The P3 Act requires that, before entering into a P3 agreement, the DC OP3 and Owner Agency must submit to the Council a report containing details of the planned P3. The report will include the following information:

The name of the private partner and the names of all members of the private partner;

Significant terms of the P3 agreement;

Overall project cost;

Total estimated cost to the District for the full life cycle of the project;

Results of the value-for-money analysis and public sector comparator;

Estimated time for project construction;

Method to be used to deliver the project;

A list of the District agencies participating in the project;

A list of the private entities that responded to the RFP or RFAP;

A description of how the proposals were scored during the evaluation process; and

A description of how the private entity was selected according to the criteria and methodology for evaluation of responses to the RFP or RFAP.

The DC OP3 will also post the report on its website.

4809.3 Council Approval of the Public-Private Partnership Agreement: The P3 agreement also must be approved by the Council pursuant to § 451 of the District’s Home Rule Act, approved December 24, 1973 (87 Stat. 803; D.C. Official Code § 2-104.51). The P3 Agreement will be submitted to the Council for such approval with the project report.

History

SOURCE: Final Rulemaking published at 63 DCR 13119 (October 21, 2016). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 4809

27 DCMR § 4810 RESERVED RIGHTS

4810.1 The DC OP3 reserves the following rights as allowed by law:

To reject any and all proposals, at any stage of the procurement process and under either the solicited or unsolicited procurement processes for any reason at any time;

To terminate the review of any and all proposals, at any stage of the procurement process and under either the solicited or unsolicited procurement processes for any reason at any time;

To negotiate with a proposer, either solicited or unsolicited, at any time during the procurement process, without being bound to any provision in the proposal;

To request additional information or clarification regarding any proposal at any time;

To waive minor errors, omissions, or irregularities in a response to any requests and the right to determine if such occurrence is minor in nature;

To issue addenda to and/or cancel any procurement;

To revise, supplement, or withdraw all or any part of these rules and the Guidelines as needed; and

To modify the process and submission requirements for reviewing any proposal in connection with a re-lease, re-tendering, transfer or other disposition of a project pursuant to the provisions of an existing P3 agreement.

History

SOURCE: Final Rulemaking published at 63 DCR 13119 (October 21, 2016); as amended by Final Rulemaking published at 65 DCR 6037 (June 1, 2018). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 4810

27 DCMR § 4811 DISCLAIMERS

4811.1 Neither the District of Columbia government, nor any agency, officer, employee, or agent of the District of Columbia government, shall be liable for, or reimburse, the costs that may be incurred by solicited, unsolicited or alternative proposers, whether selected or not as the private sector partner or for negotiations, in developing and submitting proposals or in negotiating the P3 agreement.

4811.2 Any and all information made available to proposers is made for convenience purposes only and is without representation or warranty of any kind.

4811.3 Neither the District of Columbia government, nor any agency, officer, employee, or agent of the District of Columbia government, shall be liable to any private entity or proposer for the disclosure of all or a portion of a response to a request for information, a response to a request for qualifications, a response to a request for proposals, a response to a request for alternative proposals, an unsolicited proposal, or any other information provided to the District government.

History

SOURCE: Final Rulemaking published at 63 DCR 13119 (October 21, 2016). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 4811

27 DCMR § 4812 RULES TO ENSURE ETHICAL CONDUCT

4812.1 Generally: The DC OP3 is committed to ensuring that all procurements for P3 projects are conducted in a fair, competitive, and ethical manner without actual or apparent conflicts of interest.

4812.2 Ethical Duty: All parties responsible for the proper administration of the P3 procurement process on behalf of the District, both public and private, shall maintain a position of strict impartiality and refrain from any activity that would imply support of or opposition to a particular private entity, proposer, or operator of a P3 agreement. This requirement extends to all consultants and contractors engaged by the District.

4812.3 Ethical Obligations under the Comprehensive Code of Conduct: The DC OP3 will comply with and enforce through appropriate administrative, personnel, or contractual procedures all provisions of the District government’s Code of Conduct, as defined in § 101 of the Board of Ethics and Government Accountability Establishment and Comprehensive Ethics Reform Amendment Act of 2011, effective April 27, 2012 (D.C. Law 19-124; D.C. Official Code § 1-1161.01), and Chapter 18 of the District Personnel Manual (6-B DCMR, Chapter 18) where applicable, including the following provisions:

Duty of Loyalty: District employees associated with any P3 procurement shall place loyalty to the law and ethical principles above any potential private gain.

Financial Conflicts: No District employee associated with any P3 procurement shall hold a financial interest that conflicts with the conscientious performance of the employee’s duty.

Private Gain: No District employee associated with any P3 procurement shall use the employee’s public office or position for private gain, whether for the employee’s own personal gain, the gain of a family member or friend, or the gain of a private entity.

Nonpublic Information: No District employee associated with any P3 procurement shall engage in a financial transaction using nonpublic information acquired or allow the improper use of such information to further any private interest.

Outside Employment: No District employee associated with any P3 procurement shall engage in any outside employment or other activity, including seeking or negotiating for employment, incompatible with the responsibilities assigned to them under the P3 Act or that would capitalize on the employee’s title or position.

Gifts from Outside Sources: No District employee associated with any P3 procurement shall solicit or accept any gift from a prohibited source or given because of the employee’s official position unless the item is excluded from the definition of a gift or falls within one of the exceptions set forth in 6-B DCMR § 1803.

Post-Employment Conflicts of Interest: A former District employee associated with any P3 procurement shall not act on a particular matter that would create a conflict of interest if the employee participated personally and substantially in that matter as a government employee.

Government Property: No District employee associated with any P3 procurement shall use government property, or allow its use, for other than authorized purposes.

Disclosure of Prior Employment: As a means to evaluate real or potential conflicts of interest, each employee associated with any P3 procurement shall be required to disclose to the employee’s employing agency upon appointment, such previous employment relationships, including full disclosure of any ongoing economic benefits to the employee from previous employment relationships.

4812.4 Additional Obligations: The provisions in this section highlight several of the relevant obligations in the Comprehensive Code of Conduct. Reference to these particular obligations in no way limits the applicability of other District government ethics regulations, nor implies in any way that such other regulations will not be strictly enforced by the DC OP3.

4812.5 Reporting Conflicts and Violations: The DC OP3 requires District government employees and the employees of private entities associated with any P3 procurement to report actual or apparent conflicts of interest and credible violations of the District Code of Conduct to the appropriate authorities.

District Employees: District employees associated with any P3 procurement shall report actual or apparent conflicts of interest and credible violations of the District Code of Conduct and these rules immediately upon discovery to the employee’s supervisor, the Board of Ethics and Government Accountability, or the appropriate authorities.

Private Entity Employees: Employees of private entities associated with any District P3 procurement shall report actual or apparent conflicts of interest and credible violations of the District Code of Conduct and these rules immediately upon discovery to the DC OP3, the Board of Ethics and Government Accountability, or the appropriate authorities.

Mitigating Conflicts and Violations: Upon receiving the report of an actual or apparent conflict of interest or credible violation of the District Code of Conduct or these rules, the DC OP3 shall take steps to avoid, mitigate or correct the issue, including having the affected employee recuse himself or herself or resign; disqualifying a contractor at any point during a procurement; rescinding or terminating a contract subsequent to contract award; or cancelling a pending solicitation and initiating a new procurement. The analysis of these issues and recommendations on steps taken to mitigate or correct an issue shall be in writing.

History

SOURCE: Final Rulemaking published at 63 DCR 13119 (October 21, 2016); as amended by Final Rulemaking published at 65 DCR 6037 (June 1, 2018). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 4812

27 DCMR § 4813 Alternative Technical Concepts

4813.1 The District in its sole discretion may allow proposers to propose one or more alternative technical concepts in response to an RFP or RFAP.

4813.2 The allowance of alternative technical concepts and the full details of the content, submission, evaluation criteria, review process, and approval of alternative technical concepts, procedures for confidential meetings and communications (if used), methods for evaluating alternative technical concepts, and any other requirements and procedures of the alternative technical concept process will be stated in an RFP or RFAP.

4813.3 In general, approval of an alternative technical concept will only be granted if the District finds that the alternative technical concept will result in performance, safety, durability, quality, and utility of the end product that is equal to or better than the performance, safety, durability, quality, and utility of the end product that would result from full compliance with the requirements of the RFP or RFAP without causing any substantial delay to the schedule of, substantial additional cost to, or substantial reduction to the scope of the project or addition of a separate project.

4813.4 A proposer’s financial proposal shall reflect any approved alternative technical concepts that are included in the proposer’s technical proposal.

4813.5 Approval of an alternative technical concept does not imply that a proposal with an approved alternative technical concept will receive a favorable review. All proposals submitted in response to the RFP or RFAP shall be evaluated against the same evaluation factors, regardless of whether or not an approved alternative technical concept is included.

4813.6 A proposer may incorporate one or more approved alternative technical concepts into its technical and financial proposal.

4813.7 An approved alternative technical concept that is incorporated into a proposer’s proposal will become part of the contract upon award of the contract unless the parties agree otherwise.

4813.8 To the extent authorized by law, and except as provided in this subsection, an alternative technical concept properly submitted by a proposer and all subsequent communications regarding the proposer’s alternative technical concept will be considered confidential prior to the award of the contract. Exceptions to the confidentiality protection may be set forth in the RFP or RFAP.

History

SOURCE: Final Rulemaking published at 65 DCR 6037 (June 1, 2018). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 4813

27 DCMR § 4899 DEFINITIONS

4899.1 For the purposes of these rules, the term:

“Alternative proposer” means a proposer responding to the request for alternative proposals under the unsolicited proposal procurement method.

(a-1) “Alternative technical concept” means a proposed technical, financial, or other change or variance from a requirement contained in an RFP or RFAP that a proposer proposes to the District pursuant to § 4813.

“ANC” means Advisory Neighborhood Commission.

“DC OP3” means the Office of Public-Private Partnerships established by § 102 of the P3 Act (D.C. Official Code § 2-272.01).

“Office” means the DC OP3.

“Original Unsolicited Proposer” means the proposer who is the first to submit an unsolicited proposal to the DC OP3 regarding a particular P3 project.

“Owner Agency” means the agency within the District government that will be the qualified public entity of the P3 agreement and project.

“P3 Act” means the Public-Private Partnerships Act of 2014, effective March 11, 2015 (D.C. Law 20-228; D.C. Official Code §§ 2-271.01 et seq.)

“Private Entity” means a natural person, corporation, limited liability company, partnership, joint venture, or other private business entity.

“Proposer” means a private entity submitting a proposal in response to a request for proposals or request for alternative proposals issued by the Office or an unsolicited proposal for a P3.

“Public Entity” means a District government agency, department, board, commission, or instrumentality; or a similar governmental organization of a different government jurisdiction.

“Public Sector Comparator” means a risk-adjusted estimate of the total cost for the lifetime of a project, including all capital, operating, financing, and ancillary costs, if a P3 project were to be financed, built, and operated through a traditional government procurement method.

“Public-Private Partnership” means the method in the District for delivering a qualified project using a long-term, performance-based contractual agreement between a public entity and a private entity or entities where appropriate risks and benefits can be allocated in a cost-effective manner between the public and private entities in which:

A private entity performs functions normally undertaken by the government, but the public entity remains ultimately accountable for the qualified project and its public function; and

The District may retain ownership or control in the project asset and the private entity may be given additional decision-making rights in determining how the asset is financed, developed, constructed, operated, and maintained over its life cycle.

“Qualified Project” means the planning, acquisition, financing, development, design, construction, reconstruction, rehabilitation, replacement, improvement, maintenance, management, operation, repair, leasing, or ownership of:

Education facilities;

Transportation facilities, including streets, roads, highways, bridges, tunnels, parking lots or garages, public transit systems, and airports;

Cultural or recreational facilities, including parks, libraries, theaters, museums, convention centers, community centers, stadia, athletic facilities, golf courses, or similar facilities;

A building or other facility that is beneficial to the public interest and is developed or operated by or for a public entity;

Utility facilities, including sewer, water treatment, storm water management, energy producing or transmission, telecommunications, information technology, recycling, and solid waste management facilities;

Improvements necessary or desirable to any District-owned real estate;

Any other facility, the construction of which shall be beneficial to the public interest as determined by the Office.

History

SOURCE: Final Rulemaking published at 63 DCR 13119 (October 21, 2016); as amended by Final Rulemaking published at 65 DCR 6037 (June 1, 2018). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 4899

27-50 OFFICE OF THE ATTORNEY GENERAL PROCUREMENT RULES

27 DCMR § 5001 GENERAL

5001.1 This chapter sets forth the procurement rules of the Office of the Attorney General (OAG), pursuant to authority granted by Section 108b of the Attorney General for the District of Columbia Clarification and Elected Term Amendment Act of 2010, effective October 15, 2015 (D.C. Law 21-36; D.C. Code § 1-301.88b) (2016 Repl. & 2017 Supp.) (“Act”). The following principles and procedures apply:

(a) OAG is an independent agency of the District of Columbia government. Its general mission is to enforce the laws of the District in a manner that is in the public’s interest, to provide the District government with the highest level of legal advice and service, and to defend and protect the District’s interests in court.

(b) OAG is subject to the requirements of the District of Columbia Procurement Practices Reform Act of 2010 effective April 8, 2011, (“PPRA”) (D.C. Law 18- 371; D.C. Code §§2-351.01, et seq.) (2016 Repl.), as amended, and, as an independent agency, has the authority to issue and implement its own procurement rules.

(c) These regulations (also referred to as “rules”) supersede and replace any existing procurement regulations unless expressly referenced or incorporated in these rules. Where a procurement practice is not specifically addressed in this chapter, the CCO or CCO Delegate may, at his or her discretion, refer to other chapters of 27 DCMR for guidance. The CCO or CCO Delegate may adopt a provision from the other chapters of 27 DCMR for a particular procurement; provided that the provision is specifically referenced in the applicable procurement documentation.

(d) The Attorney General has broad discretion to develop and use any procurement practice so long as it is consistent with the PPRA and is not specifically prohibited by any statute or this chapter; provided that the CCO or CCO Delegate shall issue a determination in writing that such practice is in the best interest of OAG.

5001.2 Where any statute or regulation is referred to in this chapter, the reference shall be to the most recent version, and any amendments or revisions to the statute or regulation.

5001.3 The Attorney General is authorized to enter into contracts to assist OAG to carry out its mission, and the Attorney General may delegate that authority in accordance with the Act and these rules.

5001.4 These procurement rules are for the benefit of OAG and are not intended to confer any rights or benefits on third parties. The principal purposes of these rules are to ensure that OAG’s procurement activities:

(a) Are carried out in a fair, efficient and objective manner that promotes public confidence in OAG’s integrity; and

(b) Produce reasonable value and results for OAG.

5001.5 These rules are intended to encourage participation by Certified Business Enterprises (CBEs), in accordance with the Small and Certified Business Enterprise Development and Assistance Act of 2005, (“SCBEDA Act”) effective October 20, 2005 (D.C. Law 16-133; D.C. Code § 2-218), as applicable. OAG’s goals include expanding the use of CBEs.

5001.6 The Attorney General may waive the applicability of any provisions in these rules that are not specifically required by statute if the Attorney General finds in writing that:

(a) Such waiver is in the best interest of OAG;

(b) Such waiver is not inconsistent with fair, competitive, and transparent procurement practices; and

5001.7 Pursuant to the authority described in section 2 of the Fiscal Year 2021 Local Budget Act of 2020, effective October 20, 2020 (67 DCR 10629) and incorporated in the District of Columbia Appropriations Act, 2021, approved December 22, 2020 (Pub. L. 116-260), and any substantially similar temporary or permanent authority, the Attorney General may enter into Contingency Fee Contracts, as defined in Section 5099.

History

SOURCE: Final Rulemaking published at 65 DCR 4406 (April 20, 2018); as amended by Final Rulemaking published at 68 DCR 011740 (November 5, 2021). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 5001

27 DCMR § 5002 COMPLIANCE WITH PROCUREMENT ACT AND REGULATIONS

5002.1 Except as otherwise provided in the PPRA, the Act, or this chapter, a contract which is entered into in violation of the PPRA, the Act, or this chapter is void.

5002.2 Notwithstanding the provisions of §5002.1, a contract shall not be void if a determination is made that good faith has been shown by all parties and the violation of the provisions of the PPRA, the Act or this chapter are de minimis. The determination of good faith may be made by any of the following:

(a) The Attorney General;

(b) The Contract Appeals Board; or

5002.3 The Attorney General’s determination made pursuant to§5002.2 shall be in writing based upon a written request for review by the contractor or Contracting Officer. The request shall fully describe the contract, the status of performance, the reason why the contract is valid, and the grounds for the determination.

History

SOURCE: Final Rulemaking published at 65 DCR 4406 (April 20, 2018); as amended by Final Rulemaking published at 68 DCR 011740 (November 5, 2021). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 5002

27 DCMR § 5003 PROHIBITED CONTINGENT FEES

5003.1 The Contracting Officer shall ensure that each solicitation, other than those for small purchases, contains language approved by the Attorney General giving notice to prospective contractors of the prohibition against contingent fee arrangements set forth in §416 of the PPRA.

5003.2 The Contracting Officer shall ensure that the language required by §416(b) of the PPRA is inserted into each contract.

5003.3 Except as permitted in §416(b) of the PPRA, the Contracting Officer shall not award any contract to a contractor that has made arrangements to pay a contingent fee or other consideration for soliciting or obtaining the contract.

5003.4 If the Contracting Officer has reason to believe that a prospective contractor or contractor is or has been involved in a contingent fee arrangement prohibited under §416 of the PPRA, and not otherwise permitted by law, the Contracting Officer shall notify the Attorney General in writing, which notification shall include any evidence or documentation of the alleged prohibited arrangement.

5003.5 If the Attorney General determines that a prohibited contingent fee has been paid or that a contractor has entered into an arrangement to pay a prohibited contingent fee under an existing contract, the Attorney General shall have the right to terminate an existing contract or take any other remedial action authorized under §416(b) of the PPRA.

5003.6 If the Attorney General determines that a prospective contractor has entered into an arrangement to pay a prohibited contingent fee, he or she shall direct the Contracting Officer to notify the prospective contractor that it is no longer eligible for contract award.

History

SOURCE: Final Rulemaking published at 65 DCR 4406 (April 20, 2018); as amended by Final Rulemaking published at 68 DCR 011740 (November 5, 2021). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 5003

27 DCMR § 5004 MULTIYEAR CONTRACTS

5004.1 Unless prohibited by an appropriations act, a Contracting Officer may enter into a multiyear contract to obtain goods and services for any period of time deemed to be in the best interest of the District; provided that the term of the contract and conditions of renewal or extension, if any, are included in the solicitation, funds are available for the first fiscal period at the time of contracting, and the contract is consistent with the requirement of §5004.2 of this chapter. Payment and performance obligations for succeeding fiscal periods shall be subject to availability and appropriations of funds.

5004.2 Except for contracts awarded pursuant to §5001.7, a multiyear contract is only authorized where the Contracting Officer determines in writing that:

(a) Estimated requirements cover the entire period of the contract and are reasonably firm and continuing; and

(b) The multiyear term would encourage effective competition, promote economies in District procurement, or otherwise be in the best interest of the District.

5004.3 Multiyear contracting may be used in procurements by competitive sealed bids or competitive sealed proposals, sole source procurements, and in competition exempt procurements.

5004.4 Except for contracts awarded pursuant to §5001.7, budget authority to fund a multiyear contract shall be obligated on an annual basis. The initial obligation of funds shall be for the period between the dates of contract award through the end of the fiscal year in which the contract award occurs. Thereafter, each subsequent obligation of funds shall be made one (1) fiscal year at a time and must cover the contract amount that will be incurred in the fiscal year in which the contract work will be performed. First fiscal year requirements of the contract, and funds for requirements in each subsequent contract term, shall be obligated one (1) fiscal year at a time.

History

SOURCE: Final Rulemaking published at 65 DCR 4406 (April 20, 2018); as amended by Final Rulemaking published at 68 DCR 011740 (November 5, 2021). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 5004

27 DCMR § 5005 CANCELLATION OF MULTIYEAR CONTRACTS

5005.1 Except for contracts awarded pursuant to §5001.7, at the end of each fiscal year a multiyear contract shall be canceled if sufficient budget authority is not available to fund the contract during a subsequent fiscal year.

5005.2 Except for contracts awarded pursuant to §5001.7, if a multiyear contract is canceled due to unavailability of funds, the contractor shall be reimbursed for the reasonable value of any nonrecurring costs incurred but not amortized in the price of the goods delivered and accepted or services delivered and accepted under the contract.

5005.3 Except for contracts awarded pursuant to §5001.7, if a multiyear contract is terminated for the convenience of the District, including items subject to cancellation, the District’s obligation shall not exceed the amount specified for contract performance plus the reasonable value of any nonrecurring costs incurred but not amortized in the price of the goods delivered or services performed under the contract.

5005.4 The costs of cancellation under §5005.2 or termination under §5005.3 may be paid from appropriations available for such purposes.

5005.5 For contracts awarded pursuant to §5001.7, the terms of the contract shall govern cancellation and payments, if any.

History

SOURCE: Final Rulemaking published at 65 DCR 4406 (April 20, 2018); as amended by Final Rulemaking published at 68 DCR 011740 (November 5, 2021). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 5005

27 DCMR § 5006 MULTIYEAR CONTRACT SOLICITATIONS

5006.1 A solicitation for a multiyear contract shall include:

(a) The amount of supplies or services required or the proposed contract period;

(b) A unit price for each supply or service, which unit prices shall be the same throughout the contract (except to the extent price adjustments may be provided in the solicitation or resulting contract).

(c) A clause stating that the multiyear contract will be cancelled if funds are not appropriated or otherwise made available to support the continuation of performance in any fiscal period succeeding the first and a statement that this clause does not affect either the District’s rights or the contractor’s rights under any termination clause in the contract; and

(d) Whether bidders or offerors may submit prices for:

(1) The first fiscal period only;

(2) The entire time of performance only; or

(3) Both the first fiscal period and the entire time of performance.

5006.2 The requirements at § 5006.1 do not apply to competition exempt procurements.

History

SOURCE: Final Rulemaking published at 65 DCR 4406 (April 20, 2018); as amended by Final Rulemaking published at 68 DCR 011740 (November 5, 2021). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 5006

27 DCMR § 5007 APPLICABILITY

5007.1 These rules apply to the procurement of goods or services, including construction services, by and for OAG:

(a) Whether through purchase or lease; and

(b) Whether the goods or services are already in existence or must be developed.

5007.2 This chapter does not apply to any goods or services that OAG may acquire as a gift or on a pro bono basis.

5007.3 These rules shall not apply to:

(a) The purchase or lease of real property by OAG; or

(b) The disposition of real or personal property by OAG.

History

SOURCE: Final Rulemaking published at 65 DCR 4406 (April 20, 2018); as amended by Final Rulemaking published at 68 DCR 011740 (November 5, 2021). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 5007

27 DCMR § 5008 CHIEF CONTRACTING OFFICER

5008.1 The Attorney General shall serve as OAG’s Chief Contracting Officer (CCO). The CCO shall have plenary contracting authority and have responsibility for supervising OAG’s procurement activities. The CCO shall prescribe the standard contract format and standard contract provisions to be included in the contracts, consistent with this chapter. The CCO may waive standard contract provisions and substitute contract provisions if the CCO determines in writing that it is in the best interest of OAG to do so.

History

SOURCE: Final Rulemaking published at 65 DCR 4406 (April 20, 2018); as amended by Final Rulemaking published at 68 DCR 011740 (November 5, 2021). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 5008

27 DCMR § 5009 DELEGATION OF AUTHORITY TO CONTRACTING OFFICERS

5009.1 The Attorney General may delegate contracting authority to any qualified OAG employee (CCO Delegate or Contracting Officer).

5009.2 Each delegation of contracting authority under the Act shall be in writing and shall include clear instructions on the limitations of the contracting authority being delegated.

5009.3 The Attorney General shall use a form approved for each written delegation or

modification of contracting authority. The executed form shall include the following:

(a) The limitations on the scope of delegated authority to be exercised;

(b) The limitations on the authority set forth in applicable laws and regulations; and

5009.4 In no instance shall the CCO Delegate presume any greater contracting authority than has been given. A CCO Delegate shall not re-delegate his or her authority without approval of the Attorney General.

5009.5 Termination of a delegation of contracting shall be in writing unless the written delegation or modification of authority contains a provision for automatic termination or expiration. No termination shall operate retroactively.

5009.6 Subject to compliance with these rules, Contracting Officers shall have wide latitude to exercise business judgment in conducting procurements. Consequently, the ability to exercise that discretion wisely and responsibly is an important job qualification.

5009.7 The Attorney General shall ensure that Contracting Officers periodically receive training to strengthen and update their skills and knowledge concerning procurement matters.

5009.8 The Attorney General shall publish and regularly update on the OAG website an updated list of authorized Contracting Officers and their authority limits.

History

SOURCE: Final Rulemaking published at 65 DCR 4406 (April 20, 2018); as amended by Final Rulemaking published at 68 DCR 011740 (November 5, 2021). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 5009

27 DCMR § 5010 AUTHORITY AND DUTIES OF CONTRACTING OFFICERS

5010.1 The Contracting Officer shall be authorized to enter into, administer, and terminate contracts. However, the Contracting Officer may bind the District only to the extent of the contracting authority set forth in his or her delegation.

5010.2 The Contracting Officer shall:

(a) Make all determinations and findings required by the Act, the PPRA, or this chapter for each solicitation or contract for which he or she is responsible;

(b) Not enter into a contract unless he or she has ensured that all requirements of law, rules, and all other applicable procedures (including approvals) have been met;

(d) Ensure that contractors receive impartial, fair, and equitable treatment in accordance with the PPRA, the Act and this chapter;

(e) Request and consider the advice of specialists in auditing, law, engineering, transportation, and other fields when necessary or appropriate to the exercise of the contracting officer's authority;

(f) Ensure that sufficient unencumbered budget authority is available for obligation for each contract, as applicable;

(g) Not make any purchase or enter into any contract for an amount in excess of his or her specifically delegated contracting authority; and

(h) Maintain an electronic contract file for each procurement action, which serves as the repository for all required documentation concerning the procurement and any resulting contracts.

5010.3 Only the Contracting Officer has the authority to take the following actions:

(a) Enter into contracts;

(b) Exercise contract options;

(d) Modify contracts.

5010.4 Prior to terminating a contract over $100,000, the Contracting Officer shall first obtain the approval of the CCO.

5010.5 No representative of OAG, including a Contracting Officer, shall:

(a) Act in a manner that misleads a contractor regarding the limits of his or her authority; or

(b) Direct or encourage a contractor to perform work that has not been properly authorized.

History

SOURCE: Final Rulemaking published at 65 DCR 4406 (April 20, 2018); as amended by Final Rulemaking published at 68 DCR 011740 (November 5, 2021). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 5010

27 DCMR § 5011 CONDUCT OF CONTRACTING OFFICERS

5011.1 The procurement business of OAG shall be conducted in a manner above reproach and, except as authorized by law, with complete impartiality and with preferential treatment for none.

5011.2 The Attorney General shall ensure that each Contracting Officer is thoroughly familiar with the conflict of interest and other employee conduct provisions of Chapter 18 (Employee Conduct) of Subtitle B (Government Personnel) of Title 6 (Personnel) of the District of Columbia Municipal Regulations, and the applicability of those regulations to Contracting Officers and the procurement process.

History

SOURCE: Final Rulemaking published at 65 DCR 4406 (April 20, 2018); as amended by Final Rulemaking published at 68 DCR 011740 (November 5, 2021). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 5011

27 DCMR § 5012 CONTRACTOR QUALIFICATION REQUIREMENTS

5012.1 A prospective contractor must:

(a) Be responsible; and

(b) Not be disqualified on the basis of conflicts of interest (either personal or organizational) or related ethical concerns.

5012.2 The issues of responsibility and conflicts of interests/disqualification are

addressed in §§ 5013 and 5015 respectively.

History

SOURCE: Final Rulemaking published at 65 DCR 4406 (April 20, 2018); as amended by Final Rulemaking published at 68 DCR 011740 (November 5, 2021). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 5012

27 DCMR § 5013 CONTRACTOR RESPONSIBILITY

5013.1 To receive a contract from OAG, a contractor must be responsible. To be considered responsible, a prospective contractor must meet standards set forth in D.C. Code §2–353.01.

5013.2 For all contracts that exceed one hundred thousand dollars ($100,000), the contracting officer shall not make a purchase or an award unless the contracting officer has determined in writing that the prospective contractor is responsible. For contracts under $100,000, award of the contract shall be deemed the Contracting Officer’s determination that the contractor is responsible.

5013.3 In the absence of information clearly indicating that a prospective contractor is responsible, the prospective contractor shall be deemed non-responsive, and the Contracting Officer shall make a written determination of non-responsibility. The Contracting Officer shall provide a copy of the determination of non-responsibility to the prospective contractor. The Director of DSLBD shall also be notified of a potential non-responsibility determination involving a certified small business concern that is otherwise eligible for an award. The CO shall consider any information provided by DSLBD before making a determination of non-responsibility.

5013.4 In evaluating a prospective contractor’s responsibility, a Contracting Officer may request information from the contractor and may also consider information available from other sources. Where necessary, the Contracting Officer may also perform a pre-award survey involving interviews with contractor personnel or visits to the contractor’s facilities. Information on the capabilities and suitability of proposed subcontractors also may be considered in evaluating responsibility.

5013.5 For all contracts that exceed $100,000, a potential contractor shall complete and submit with its bid or offer a certification that includes information needed to determine if a prospective contractor is responsible. The certification shall be signed under the penalty of perjury. The contractor shall update the certification prior to the exercise of an option year contract and, during the contract term, within 60 days of any material change in circumstances that affect its responses.

History

SOURCE: Final Rulemaking published at 65 DCR 4406 (April 20, 2018); as amended by Final Rulemaking published at 68 DCR 011740 (November 5, 2021). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 5013

27 DCMR § 5014 PRICE REASONABLENESS

5014.1 The contracting officer shall determine whether a price is fair and reasonable for each contract.

History

SOURCE: Final Rulemaking published at 65 DCR 4406 (April 20, 2018); as amended by Final Rulemaking published at 68 DCR 011740 (November 5, 2021). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 5014

27 DCMR § 5015 ORGANIZATIONAL CONFLICTS OF INTEREST; DISQUALIFICATION OF A CONTRACTOR

5015.1 OAG intends to avoid even the appearance of conflict of interest or impropriety in connection with its procurement activities. Thus, even if a prospective contractor is determined to be responsible, the CCO has the discretion to disqualify the contractor (or to take other appropriate measures) based on a conflict of interest, the appearance thereof, or other ethical considerations as further described in this section.

5015.2 If the Contracting Officer determines that there is a conflict of interest or the appearance of a conflict of interest that cannot be mitigated, or another ethical consideration, the Contracting Officer may:

(a) Determine the contractor to be non-responsible; provided that the Contracting Officer notify the contractor of the conflict of interest and provide the contractor the opportunity to respond.

(b) Rescind (void) or terminate a contract subsequent to contract award; or

(c) Pursuant to §5015.4, take other appropriate corrective measures, such as canceling a pending solicitation and initiating a new procurement; provided, however, that prior to taking any such action, the Contracting Officer shall first obtain the approval of the CCO.

(d) If the Contracting Officer determines that it is in the best interest of the District to award the contract notwithstanding a potential conflict of interest, the Contracting Officer shall submit a request for waiver to the CCO. The waiver request and decision shall be included in the contract file.

5015.3 A determination by the Contracting Officer, approved by the CCO, to take a corrective measure described in §5015.4 below shall be made in writing and included in the contract file.

5015.4 The Contracting Officer or CCO may properly take corrective measures whenever necessary or prudent to avoid the appearance of impropriety or otherwise eliminate doubts about the integrity and fairness of procurement. For example, situations in which corrective measures might be warranted include (but are not limited to):

(a) Cases where an employee of OAG or the CCO have any interest, direct or indirect, as principal, surety, or otherwise in a contract, where the expense or consideration of the contract is payable from OAG funds.

(b) Cases where the Attorney General or an employee of OAG involved in a procurement had a relationship with a contractor that fell outside the District of Columbia government ethics rules, but nonetheless raised questions about the procurement’s integrity;

(d) Cases where a prospective contractor hired a former employee of OAG who was privy to non-public information about the procurement, and involved that individual in its proposal preparation efforts; or

(e) Cases where there is clear evidence suggesting collusive bidding or similar anti-competitive practices by prospective contractors.

5015.5 Organizational conflicts of interest also may warrant disqualification or other corrective measures. Organizational conflict of interest means a situation in which a contractor:

(a) May be unable to render impartial and objective assistance or advice to OAG; or

(b) May have an unfair advantage over potential competitors.

5015.6 Organizational conflicts of interests can arise in a variety of circumstances. For example, a contractor that develops the technical specifications for an item that will be the subject of a future procurement may have an incentive to develop specifications favoring its own products unless it is barred from participating in the future procurement. Another example is a case where a contractor performs services for OAG that require access to non-public information (for example, proprietary data of other companies) and could therefore gain an unfair advantage over competitors in future procurements.

5015.7 A number of measures may be appropriate for eliminating or mitigating organizational conflicts of interest, and the Contracting Officer has broad discretion to select the approach that is most suitable in any particular case. For example, a contract to assist OAG in developing requirements for a future procurement ordinarily should include a clause prohibiting the contractor from participating in the future procurement. A contract in which the contractor gains access to proprietary information of other companies (or non-public information on OAG’s procurement plans) should include an appropriate clause that prevents the contractor from using such information in any manner that might give it an unfair advantage and prohibits the contractor from disclosing this proprietary information.

5015.8 In each case, the mechanism adopted to address an organizational conflict of interest should be designed to prevent:

(a) The existence of conflicting roles that might bias a contractor’s judgment; and

(b) An unfair competitive advantage.

History

SOURCE: Final Rulemaking published at 65 DCR 4406 (April 20, 2018); as amended by Final Rulemaking published at 68 DCR 011740 (November 5, 2021). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 5015

27 DCMR § 5016 PROCUREMENT PLANNING

5016.1 OAG shall perform procurement planning and conduct market research to promote and provide for full and open competition with due regard to the nature of the goods and services to be acquired.

5016.2 When full and open competition is not required by law, the Contracting Officer may perform procurement planning and conduct market research, as appropriate.

5016.3 Procurement planning shall begin as soon as an agency need is identified and preferably well in advance of the fiscal year in which the contract award is necessary. In developing the plan, the planner may form a team consisting of all those who will be responsible for significant aspects of the procurement, such as contracting, fiscal, legal, and technical personnel and, when applicable, the Department of Small and Local Business Development.

History

SOURCE: Final Rulemaking published at 65 DCR 4406 (April 20, 2018); as amended by Final Rulemaking published at 68 DCR 011740 (November 5, 2021). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 5016

27 DCMR § 5017 MARKET RESEARCH

5017.1 Before issuing a solicitation or making a purchase, OAG shall:

(a) Estimate the likely cost of the proposed procurement and assure that adequate funds are available; and

(b) Conduct appropriate market research and establish minimum needs.

5017.2 Market research is designed primarily to familiarize OAG with the market for the goods or services it seeks to acquire and to assist OAG in the development of an appropriate strategy for conducting a prompt and efficient procurement in accordance with these rules. The extent of market research may vary depending on the urgency, size and complexity of the proposed procurement, and on OAG’s existing knowledge of the market based on its past experience in procuring similar goods or services.

5017.3 Market research, to the extent it is relevant to the particular procurement and not already known to OAG, generally should focus on obtaining information such as the following:

(a) Customary practices in the relevant market;

(b) The prospective sources that may be able to supply the goods or services;

(d) The benchmarks available to evaluate the likely cost of the procurement and the reasonableness of prices or costs proposed by prospective contractors.

5017.4 In conducting market research, OAG may solicit information from prospective sources on matters such as their interest in the potential procurement, the characteristics and costs of their products or services, their customary practices, and their knowledge of the industry generally. Such information may be solicited by requesting interested parties to submit written information (for example, by posting a notice on the Internet seeking information pertinent to the proposed procurement), through meetings or telephone contacts, by distributing and seeking comments on a draft solicitation, or through other prudent means.

5017.5 In addition to soliciting information from prospective contractors, OAG may also obtain information from other sources. For example, price information, which can assist in estimating the likely cost of the procurement and evaluating price reasonableness, is frequently available from sources such as catalogs, Internet sites, or records of past procurements.

5017.6 OAG may conduct market research for sole source, competition exempt, and other non-open source procurements by issuance of a market survey. Responses to such market surveys may be used only for informational purposes.

History

SOURCE: Final Rulemaking published at 65 DCR 4406 (April 20, 2018); as amended by Final Rulemaking published at 68 DCR 011740 (November 5, 2021). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 5017

27 DCMR § 5018 PREPARING SOLICITATIONS

5018.1 Based on information obtained through market research, the Contracting Officer shall make a determination as to which procurement method identified in these regulations is most beneficial to OAG. The Contracting Officer will ordinarily prepare a solicitation requesting responses; however, the Contracting Officer may determine to purchase the required goods or services through its small purchase procedures or from a federal or District supply schedule contract, or any other method set forth in the PPRA or this chapter.

5018.2 When the Contracting Officer issues a solicitation, its length and contents will depend on factors such as the size of the procurement, the nature and complexity of the goods or services, the procurement method to be used, and the contract type. In general, however, a solicitation should clearly describe OAG’s needs (for example, by providing a statement of work outlining the type of services required or information specifying product characteristics or capabilities) and method of award.

5018.3 In preparing a solicitation, the Contracting Officer should seek to enhance competition by carefully scrutinizing and eliminating, to the extent possible, any unnecessary requirements that may restrict the number of prospective sources or the range of goods or services they can offer. Such provisions may include, for example, technical specifications that unnecessarily limit the competitive field, unnecessarily aggressive delivery schedules, or burdensome terms and conditions that might deter smaller companies from competing.

5018.4 The Contracting Officer may issue solicitations in paper form or electronically.

5018.5 The Contracting Officer, with the approval of the CCO, may cancel a solicitation or reject all bids or proposals received at any time before the contract award when the Contracting Officer determines in writing that the cancellation is in OAG’s best interests.

History

SOURCE: Final Rulemaking published at 65 DCR 4406 (April 20, 2018); as amended by Final Rulemaking published at 68 DCR 011740 (November 5, 2021). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 5018

27 DCMR § 5019 PUBLICIZING PROCUREMENT OPPORTUNITIES

5019.1 The Attorney General shall maintain an OAG website that provides the public with notice of opportunities to participate in OAG’s procurement process, and other relevant information about OAG procurements.

5019.2 The Contracting Officer may also use other methods to publicize procurements. The specific method or methods used should be tailored to the particular procurement, taking into account factors such as the size of the procurement, the type of goods or services sought, the urgency associated with the requirement, and the most efficient means of disseminating information in the relevant market. The methods available to publicize procurement opportunities may include print advertising Internet notices, targeted outreach to lists of qualified sources known to supply particular categories of goods or services, and holding pre-bid or pre-proposal conferences.

History

SOURCE: Final Rulemaking published at 65 DCR 4406 (April 20, 2018); as amended by Final Rulemaking published at 68 DCR 011740 (November 5, 2021). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 5019

27 DCMR § 5020 INVITATION FOR BIDS

5020.1 An Invitation for Bids (IFB) shall be advertised for at least fourteen (14) days before the date set for the receipt of bids, unless the Attorney General determines in writing that it is appropriate to shorten the notice period to not less than three (3) days. The Attorney General shall consider the following factors in determining whether it is appropriate to shorten a notice period:

(a) The complexity of the procurement;

(b) Subcontracting requirements;

(d) The impact of a shortened notice period on competition; and

(e) Any other relevant factors.

History

SOURCE: Final Rulemaking published at 65 DCR 4406 (April 20, 2018); as amended by Final Rulemaking published at 68 DCR 011740 (November 5, 2021). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 5020

27 DCMR § 5021 REQUESTS FOR PROPOSALS

5021.1 A Request for Proposals (RFP) shall be advertised for at least twenty-one (21) days before the date set for the receipt of proposals, unless the Attorney General determines in writing that it is appropriate to shorten the notice period to not less than fourteen (14) days. The Attorney General shall consider the following factors in determining whether it is appropriate to shorten the notice period:

(a) The complexity of the procurement;

(b) Subcontracting requirements;

(d) The impact of a shortened notice period on competition; and

(e) Any other relevant factors.

History

SOURCE: Final Rulemaking published at 65 DCR 4406 (April 20, 2018); as amended by Final Rulemaking published at 68 DCR 011740 (November 5, 2021). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 5021

27 DCMR § 5022 NOTICE OF INTENT TO AWARD A SOLE SOURCE CONTRACT

5022.1 Regardless of dollar value, and unless the sole source contract is an emergency procurement, a notice of intent to award a sole source contract pursuant to § 5032 shall be published on the OAG website for at least ten (10) days prior to contract award.

5022.2 A notice of intent to award a sole source contract shall include:

(a) A copy of the proposed determination and findings (D&F) required under §404(b) of the PPRA;

(b) A clear description of the item to be procured; and

5022.3 Sole source contracts, regardless of dollar value, shall be published on the OAG website within seven days of award.

History

SOURCE: Final Rulemaking published at 65 DCR 4406 (April 20, 2018); as amended by Final Rulemaking published at 68 DCR 011740 (November 5, 2021). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 5022

27 DCMR § 5023 NOTICE OF CONTRACT AWARDS AND CONTRACT MODIFICATIONS OVER ONE HUNDRED THOUSAND DOLLARS ($100,000)

5023.1 Contract awards or contract modifications in an actual or estimated amount over one hundred thousand dollars ($100,000) shall be published on the OAG website within seven (7) days of execution.

5023.2 All information published under this section shall be removed from the OAG website upon the expiration or termination of the contract, or after five (5) years of award, whichever is longer.

History

SOURCE: Final Rulemaking published at 65 DCR 4406 (April 20, 2018); as amended by Final Rulemaking published at 68 DCR 011740 (November 5, 2021). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 5023

27 DCMR § 5024 NOTICE OF EMERGENCY PROCUREMENTS

5024.1 Notice of emergency procurement awards, regardless of dollar amount, shall be published on the OAG website within seven (7) days of award. The notice shall include:

(a) The determination and findings justifying the emergency procurement;

(b) A description of the goods and services procured;

(d) A copy of the contract.

History

SOURCE: Final Rulemaking published at 65 DCR 4406 (April 20, 2018); as amended by Final Rulemaking published at 68 DCR 011740 (November 5, 2021). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 5024

27 DCMR § 5025 CONTRACT TYPES

5025.1 The type of contract awarded by the Contracting Officer will generally depend on factors such as the particular goods or services to be acquired, whether the costs of the goods or services can be estimated in advance with reasonable accuracy, and the degree to which the precise nature and extent of the contract work is known at the time of award.

5025.2 The Contracting Officer may use a variety of contract types, including but not limited to:

(a) Fixed price contracts (fixed price contracts will generally be used in connection with the purchases of discrete and identifiable goods or assets, and for other appropriate purchases);

(b) Cost reimbursement contracts;

(d) Time-and-materials or labor-hours contracts; and

(e) Indefinite Delivery, Indefinite Quantity contracts.

5025.3 The Contracting Officer may also award any alternative type of contract, including Contingency Fee Contracts, that will produce reasonable value in the context of a particular procurement. However, the Contracting Officer may not award cost-plus-percentage-of-cost contracts.

History

SOURCE: Final Rulemaking published at 65 DCR 4406 (April 20, 2018); as amended by Final Rulemaking published at 68 DCR 011740 (November 5, 2021). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 5025

27 DCMR § 5026 FIXED-PRICE CONTRACTS

5026.1 Fixed price contracts include several variants:

(a) Firm fixed price;

(b) Fixed price with economic price adjustment;

(d) Fixed unit price; and

(e) Fixed price plus award fee.

5026.2 Unlike cost reimbursement contracts, any type of fixed price contract obligates the contractor to complete the contractually-specified work for a fixed price.

5026.3 A firm fixed price contract provides for a price that is not subject to adjustment, except in the event of a change to the scope of work.

5026.4 A fixed price contract with economic price adjustment provides for an upward or downward adjustment in the stated contract price based on changes in certain benchmarks specifically identified in the contract (for example, catalog prices, the producer price index for a particular commodity, or a recognized index for the price of legal services), subject to a ceiling on upward adjustments.

5026.5 A fixed price incentive contract generally provides for establishing a final price by applying a formula based on the relationship between the total cost actually incurred by the contractor and a total target cost. A fixed price incentive contract results in the parties sharing in the cost savings or increases associated with differences between the actual and target cost. These contracts also can include incentive formulas based on the contractor’s schedule or technical performance.

5026.6 A fixed unit price contract establishes fixed prices for a unit of services, materials or a combination of both. The units are known and definable but the actual quantity to complete the requirement cannot be determined in advance with certainty. The contract may contain an estimated quantity but must include a ceiling amount. Unlike a requirements contract, multiple fixed unit price contracts for the same work can be awarded.

5026.7 A fixed price plus award fee contract establishes a firm fixed price for services and provides an additional profit or fee amount that may be awarded, in whole or in part, based upon periodic evaluations of ongoing contractor performance. The award fee determination is subjective, made unilaterally by the Contracting Officer, and is not subject to the Disputes clause procedures.

History

SOURCE: Final Rulemaking published at 65 DCR 4406 (April 20, 2018); as amended by Final Rulemaking published at 68 DCR 011740 (November 5, 2021). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 5026

27 DCMR § 5027 COST REIMBURSEMENT CONTRACTS

5027.1 Cost-reimbursement contracts provide for payment of incurred costs to the extent prescribed in the contract. A cost-reimbursement contracts must include a total cost ceiling (not-to-exceed amount), which the contractor may not exceed except at its own risk. Cost-reimbursement contracts are appropriate when costs of performance cannot be estimated with sufficient accuracy to establish a fixed price.

5027.2 Other contract types may include cost-reimbursement components, which must be clearly identified in the price schedule and include a cost ceiling. Cost-reimbursement components are reimbursed at cost, unless additional limitations are prescribed by the contract, and may not include a fee.

5027.3 In accordance with 27 DCMR Chapter 33, to be reimbursable, a cost must be:

(a) Allowable, as prescribed by the contract;

(b) Properly allocable to the contract;

(d) Determined in accordance with generally accepted accounting principles.;

5027.4 The contractor must notify the Contracting Officer when it believes it will reach the total cost ceiling prior to the completion of all required contract work. The Contracting Officer may approve an increase to the ceiling if warranted, so long as sufficient funds have been certified for the increase, or may instruct the contractor to cease performance.

5027.5 Cost reimbursement contracts may include:

(a) Cost-plus-fixed-fee;

(b) Cost-plus-incentive-fee;

(d) Contracts with a guaranteed maximum price;

(e) Cost-sharing; and

(f) Cost-no-fee.

5027.6 A cost-plus-fixed-fee contract provides for a negotiated fee that is fixed at the contract’s inception. The fee is only subject to adjustment as a result of changes the work to be performed under the contract that change the contractor’s level of effort required to perform the work.

5027.7 A cost-plus-incentive-fee contract provides for a fee that is either based on the relationship between the contractor’s total reimbursable cost and a total target cost, subject to a specified minimum and maximum, or on the contractor’s schedule for completion or objective technical performance. These contracts must include a formula for calculating the incentive fee.

5027.8 A cost-plus-award-fee contract provides for:

(a) A base fee fixed at the contract’s inception; and

(b) An award fee that the contractor may earn (in whole or in part) during performance, which is designed to motivate superior performance.

5027.9 The award fee in a cost-plus-award-fee contract is determined unilaterally by the Contracting Officer, based on the Contracting Officer’s judgment and evaluation of how well the contractor has performed in relation to the award fee criteria identified in the contract. In no event shall the total award fee available to the contractor exceed ten percent (10%).

5027.10 In appropriate circumstances The Contracting Officer may include a guaranteed maximum price (GMP) in a cost reimbursement contract. A GMP differs from a not-to-exceed amount in that a contractor is required to complete performance of the base scope of work required under the contract for an amount that does not exceed the GMP. Under such an approach, if the total cost exceeds the GMP, the contractor shall be required to complete performance of the base scope of work at its own cost and expense.

5027.11 A cost-sharing contract is a cost-reimbursement contract in which the contractor receives no fee and is reimbursed only for an agreed-upon portion of its allowable costs. A cost-sharing contract may be used when the contractor agrees to absorb a portion of the costs, in the expectation of substantial compensating benefits.

5027.12 A cost-no-fee contract reimburses allowable costs up to a specified not to exceed total awarded amount of the contract. The contractor receives no fee or profit.

History

SOURCE: Final Rulemaking published at 65 DCR 4406 (April 20, 2018); as amended by Final Rulemaking published at 68 DCR 011740 (November 5, 2021). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 5027

27 DCMR § 5028 SPECIAL METHODS OF CONTRACTING

5028.1 Notwithstanding any other provision of this chapter, a Contracting Officer may procure goods and services using special methods of procurement, if the Contracting Officer determines that it is in OAG’s best interest. As part of the procurement planning process, the Contracting Officer will determine the most appropriate method of contracting based on, among other considerations, the scope of work, delivery schedules, existing market conditions, and other relevant considerations. Some examples of special methods of procurement are:

(a) Cooperative Purchasing Agreements

i. OAG may participate in Cooperative Purchasing Agreements. Procurements through Cooperative Purchase Agreements shall be considered competitive for the purposes of this chapter.

ii. OAG may sponsor, conduct, or administer Cooperative Purchasing Agreements with any other organization, public or private, including state, county, or municipal jurisdictions, for the purpose of procuring supplies and services, which shall include construction services or architectural and engineering services related to construction repairs, upgrades, restoration, alteration, and reconstruction of existing buildings and facilities.

iii. Cooperative Purchasing Agreements entered into by OAG shall be in accordance with, to the extent practicable, all laws, statutes, and regulations applicable to OAG with respect to contracting, and shall not be inconsistent with laws, statutes, and regulations of the United States government that apply specifically to the District.

(b) Agreements with Federal Agencies

i. OAG may enter into a Memorandum of Understanding (MOU) or a Memorandum of Agreement (MOA) with any federal department, establishment, bureau, or office for materials, supplies, equipment, work, or services of any kind that such federal agency may be in a position to supply or be equipped to render, by contract, or otherwise. The acquisition of goods or services directly from a federal agency are exempt from competition.

ii. OAG shall pay the federal agency, upon its written request, in accordance with the terms of the agreement.

iii. Orders placed as provided in this subsection shall be considered as obligations upon appropriations in the same manner as orders or contracts placed with private contractors.

i. OAG may enter into a Memorandum of Understanding or a Memorandum of Agreement with any department, office, or agency of the District for materials, supplies, equipment, work, or services of any kind that the requisitioned department, office, or agency may be in a position to supply or equipped to render.

ii. To the extent that OAG places any such order, it shall either advance or reimburse such District department, office, or agency in accordance with the terms of the agreement.

iii. Orders placed as provided in this subsection shall be considered as obligations upon appropriations in the same manner as orders or contracts placed with private contractors.

(d) Letter Contracts

i. The Contracting Officer may use a letter contract when 1) OAG’s interests demand that the contractor be given a binding commitment so that work can start immediately; and 2) executing a definitive contract is not possible in sufficient time to meet the requirement. A letter contract shall not commit OAG to a definitive contract in excess of the funds available at the time the letter contract is executed.

ii. Each letter contract shall be as complete and definite as possible under the circumstances and shall include clauses approved and required by the CCO.

iii. When a letter contract is executed, the Contracting Officer shall include a price ceiling for the anticipated definitive contract. The price ceiling of the executed definitized contract shall not exceed the price ceiling for the anticipated definitive contract included in the letter contract.

iv. Each letter contract shall also include a clause indicating the maximum liability of OAG under the letter contract. The maximum liability to OAG shall be the estimated amount necessary to cover the contractor's requirement for funds before execution of the definitive contract. However, OAG’s maximum liability shall not exceed fifty percent (50%) of the overall price ceiling for the term of the definitive contract.

v. The Contracting Officer shall execute a definitive contract within one hundred and eighty (180) days after the date of execution of the letter contract unless the, the Contracting Officer determines that it is necessary to extend the letter contract for an additional period.

vi. Prior to execution of a letter contract, the Contracting Officer shall ensure that funds are encumbered for obligation in the amount of the maximum OAG liability under the letter contract.

vii. The Contracting Officer shall use the estimated amount of the definitive contract for determining the type and level of review and approval required as well as the contracting authority necessary.

History

SOURCE: Final Rulemaking published at 65 DCR 4406 (April 20, 2018); as amended by Final Rulemaking published at 68 DCR 011740 (November 5, 2021). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 5028

27 DCMR § 5029 TERM CONTRACTS

5029.1 Under term contracts, the contractor’s delivery and performance obligations are triggered when the Contracting Officer subsequently issues orders pursuant to the contract.

5029.2 Term Contracts include:

(a) Requirements contracts; and

(b) Indefinite quantities contracts.

5029.3 A requirements contract provides the mechanism for OAG to order from a single contractor all of its requirements for designated supplies or services during a specified period. The Contracting Officer shall state a realistic estimated total quantity to be purchased in the solicitation and resulting contract. This estimate is not a representation to an offeror or contractor that the estimated quantity will be required or ordered, or that conditions affecting requirements will be stable. A solicitation for a requirements contract must be approved by the CCO in addition to the Contracting Officer.

5029.4 An indefinite quantity contract provides for an indefinite quantity, within specified limits, of supplies or services to be furnished during a fixed period.

5029.5 An indefinite quantity contract:

(a) Requires OAG to order, and the contractor to deliver, at least the stated minimum quantity of supplies or services; and

(b) Requires the contractor to deliver any additional quantities OAG may order during the contract period subject to the stated maximum quantity limitations in the contract.

5029.6 The Contracting Officer may award a single indefinite quantity contract for particular goods or services or may award multiple contracts and choose between the selected contractors in awarding subsequent orders.

5029.7 If multiple indefinite quantity contracts are awarded, the Contracting Officer shall establish in the solicitation and resultant contracts the procedure by which orders will be placed with each contractor.

5029.8 Generally, one (1) of the following two (2) award procedures shall be used:

(a) The rotating award procedure, where work is assigned on a rotation basis (that is, the first order is given to Contractor A, the second order to Contractor B, etc.); or

(b) The competitive award procedure, where the Contracting Officer requests task order proposals from two (2) or more contractors holding an indefinite delivery contract.

5029.9 The competitive award procedure is preferred.

5029.10 If the competitive award procedure is used for ordering, each bid or proposal request shall specify:

(a) The specific goods or services required;

(b) A delivery schedule or period of performance; and

History

SOURCE: Final Rulemaking published at 65 DCR 4406 (April 20, 2018); as amended by Final Rulemaking published at 68 DCR 011740 (November 5, 2021). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 5029

27 DCMR § 5030 TIME AND MATERIALS CONTRACTS AND LABOR HOURS CONTRACTS

5030.1 Time-and-materials contracts provide for acquiring supplies or services on the basis of:

(a) Direct labor hours charged at loaded fixed hourly rates, which include overhead, general and administrative expenses, and profit; and

(b) Materials (which may be charged either at their actual cost or at fixed unit prices, as specified in the contract).

5030.2 A labor hours contract is a time-and-materials contract that does not involve materials.

5030.3 Both time-and-materials contracts and labor hours contracts must specify a ceiling (not-to-exceed) amount.

History

SOURCE: Final Rulemaking published at 65 DCR 4406 (April 20, 2018); as amended by Final Rulemaking published at 68 DCR 011740 (November 5, 2021). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 5030

27 DCMR § 5031 CONTRACTING PROCEDURES GENERALLY

5031.1 In general, every procurement by OAG should be conducted in accordance with competitive contracting procedures, suitable to the specific procurement, that produce reasonable value and reasonable results.

5031.2 The contracting procedures that the Contracting Officer may use include, but are not limited to, the procedures described in this chapter. In any procurement including change orders or supplemental agreements, the Contracting Officer may require the bidder, offeror or contractor to submit to OAG factual information reasonably available to the bidder, offeror or contractor, in order to substantiate that the price or cost offered, or some portion of it, is reasonable.

History

SOURCE: Final Rulemaking published at 65 DCR 4406 (April 20, 2018); as amended by Final Rulemaking published at 68 DCR 011740 (November 5, 2021). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 5031

27 DCMR § 5032 SOLE SOURCE CONTRACTS

5032.1 Procurement contracts may be awarded through noncompetitive negotiations when the Contracting Officer determines in writing that there is only one source for the required commodity, service, construction, or litigation experts.

5032.2 If the Contracting Officer makes a determination pursuant to § 5032.1 that a sole source procurement is necessary to meet an essential requirement of OAG, the Contracting Officer shall document such determination in writing and may procure goods, services, or construction without regard to the procedures set forth elsewhere in this chapter; provided that the Contracting Officer shall comply with the provisions of § 5022 regarding posting notice of intent to award a sole source procurement and posting notice of contract award.

5032.3 A written determination by the Contracting Officer supporting a sole source procurement pursuant to this Section shall include:

(a) A description of the nature of the goods or services; and

(b) An explanation of why the goods or services are only available from a single source.

5032.4 The Contracting Officer shall publicize OAG’s intent to enter into a sole source contract in accordance with the provisions of §5022.

5032.5 If a grant or law requires a specific vendor to provide certain goods or services for a requirement, the Contracting Officer does not have to publicize the notice of intent to enter into a sole source contract.

5032.6 A sole source contract shall not be justified on the basis of:

(a) The lack of adequate advance planning for the procurement of the required goods or services;

(b) Delays in the procurement caused by administrative delays, lack of sufficient procurement personnel, or improper handling of procurement requests or competitive procedures; or

History

SOURCE: Final Rulemaking published at 65 DCR 4406 (April 20, 2018); as amended by Final Rulemaking published at 68 DCR 011740 (November 5, 2021). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 5032

27 DCMR § 5033 EMERGENCY PROCUREMENTS

5033.1 The Contracting Officer may award a contract on an emergency basis when there is an imminent threat to the public health, welfare, property, or safety, or to prevent or minimize serious disruption in District services.

5033.2 The Contracting Officer shall prepare a D&F that sets forth the justification for the emergency procurement. The D&F shall include:

(a) A description of the requirement;

(b) A description of the emergency;

(c) A description of steps taken, to solicit bids or proposals from as many potential competitors as possible under the emergency condition;

(d) A determination that the anticipated costs to the District will be fair and reasonable in light of the emergency;

(e) A specific citation to Section 405 of the PPRA (D.C. Code § 2- 354.05) and the applicable provisions of this chapter that provide legal authority for the emergency procurement; and

(f) Any other pertinent facts that support the emergency justification.

5033.3 Emergency procurements shall be limited to those goods or services necessary to meet the emergency.

5033.4 Emergency procurements shall be made with as much competition as is practicable under the circumstances, based on the judgment and determination of the Contracting Officer.

5033.5 When the funding for the goods or services intended to be procured is certified by the appropriate fiscal official, the Contracting Officer shall have the authority to issue oral or written orders allowing the contractor to proceed with an emergency procurement; provided that oral orders must be reduced to writing within three (3) business days. After issuing the emergency order, the Contracting Officer shall execute the emergency contract and publish it, along with the written determination, on the OAG website within seven (7) business days.

5033.6 Emergency procurement procedures shall not be used for contracts exceeding ninety (90) days; provided that if the development time for the goods or services exceeds ninety (90) days, the contract shall not exceed one hundred twenty (120) days.

5033.7 A contract procured on an emergency basis shall not be modified to expand the scope or extend the time of the procurement unless a limited number of additional goods or services are needed to fill an on-going emergency requirement until regular procurement action procedures can be completed.

5033.8 Notice of all emergency procurements, including D&Fs, shall be publicized in accordance with the provisions of §5024.

History

SOURCE: Final Rulemaking published at 65 DCR 4406 (April 20, 2018); as amended by Final Rulemaking published at 68 DCR 011740 (November 5, 2021). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 5033

27 DCMR § 5034 COMPETITIVE SEALED BIDS

5034.1 The solicitation used to initiate a procurement conducted by sealed bidding is known as an Invitation for Bids (IFB).

5034.2 The evaluation factors used in sealed bid procurements are limited to price and price-related factors (including price evaluation preferences for CBEs).

5034.3 The IFB shall specify:

(a) Any information necessary to explain how the Contracting Officer will evaluate price (for example, whether option prices will be evaluated);

(b) Any price-related factors that will be evaluated and their relative importance in the overall evaluation scheme;

(d) The contract delivery schedule;

(e) A description of any special qualification requirements the contractor must satisfy;

(g) The period during which bids must remain open for acceptance; and

(h) The contract’s terms and conditions.

5034.4 If the Contracting Officer deems it advisable, the IFB may contain either an estimate that generally describes the price range contemplated by OAG or a funding limitation for the procurement.

5034.5 Any changes in the information set forth in an IFB must be made by an amendment to the IFB.

5034.6 Bidders are responsible for submitting bids and any modifications or withdrawals so as to reach the Contracting Officer designated in the invitation for bid (IFB) by the time specified in the IFB. Bids shall be submitted by a method specifically permitted by the IFB (for example, hand delivery, mailing, or electronic transmission). If no time is specified in the IFB, the time for receipt is 2:00 p.m., local time, on the date that bids are due.

5034.7 A bid may be withdrawn or modified at any time before bid opening by any of the methods permitted for submitting bids.

5034.8 Any bid, modification, or withdrawal of a bid received after the exact time specified for receipt of bids is late and will not be considered unless:

(a) It was transmitted through an electronic method authorized by the IFB, it was received at the initial point of entry to the Government infrastructure prior to the due date and time;

(b) There is acceptable evidence that it was transmitted in sufficient time to be received by the exact time specified, however the Government infrastructure caused the bid to not be transmitted or the Government otherwise mishandled the bid;

(d) A late modification is of an otherwise successful bid, that makes its terms more favorable to the Government; or

(e) An emergency or unanticipated event interrupts normal Government processes so that bids cannot be received at the Government office designated for receipt of bids by the exact time specified in the IFB and an amendment to bid opening date and time could not be issued.

5034.9 Notwithstanding the requirements of 5034.8, the District may accept a late bid, modification, or withdrawal if such bid, modification, or withdrawal is received prior to award and the contracting officer determines, in his or her sole discretion, that acceptance of such bid, modification, or withdrawal is in the best interest of the District.

5034.10 The Contracting Officer shall prepare and maintain in the contract file an abstract listing the bid prices.

5034.11 The contract shall be awarded to the responsive and responsible bidder with the lowest evaluated bid.

5034.12 To be considered responsive, a bid must comply in all material respects with the IFB. Responsiveness involves matters that relate to the bid itself as opposed to the responsibility or other qualifications of the bidder. In determining whether a bid is responsive, the Contracting Officer has the discretion to permit correction of minor informalities or irregularities. However, a bidder who fails to submit a subcontracting plan as required in the IFB will not be considered responsive.

5034.13 The Contracting Officer should include with every IFB solicitation the form of the contract that the contractor will be required to enter into. To the greatest extent possible, the Contracting Officer should provide clear and concise contract documents. Prior to award of the contract, the contracting officer shall create a single conformed contract document, which includes the relevant terms of the solicitation, amendments, and bid.

History

SOURCE: Final Rulemaking published at 65 DCR 4406 (April 20, 2018); as amended by Final Rulemaking published at 68 DCR 011740 (November 5, 2021). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 5034

27 DCMR § 5035 COMPETITIVE SEALED PROPOSALS

5035.1 A contract may be awarded using the competitive sealed proposal method when the Contracting Officer determines that the use of competitive sealed bidding is not practicable or not advantageous to the District. The solicitation used to initiate a procurement conducted by the competitive sealed proposal method is known as a Request for Proposals (RFP).

5035.2 RFPs shall be drafted in a manner that encourages participation from the maximum number of qualified sources, and in a manner consistent with the nature of, and the need for, the goods or services being acquired.

5035.3 The RFP may, if the Contracting Officer deems it advisable, contain either an estimate that generally describes the price range contemplated by the Contracting Officer or a funding limitation for the procurement.

5035.4 The RFP shall specify all evaluation factors and subfactors and their relative importance. The RFP must include the following evaluation factors:

(a) The Offeror’s proposed price or cost to the District;

(b) One or more technical (non-cost) factors that address the quality of the product or service. Such evaluation factors should 1) represent key areas of importance and emphasis to be considered in the source selection decision and 2) allow the CO to distinguish between proposals.; and

(c) Offeror’s past performance. If an Offeror does not have a record of relevant past performance, the Offeror may not be evaluated favorably or unfavorably on this factor. The RFP must clarify what rating will be given if an Offeror lacks relevant information.

5035.5 The RFP must also include:

(a) A description of the goods, services, or scope of construction work sought (including quantity or estimated quantity);

(b) The contract delivery schedule (including any permitted variations in the delivery schedule), if applicable;

(d) Instructions for submitting proposals including:

(i) The deadline for proposal submission,

(ii) The method(s) proposals must be submitted, the information to be provided in the proposal (including any requirements for past performance information or for subcontracting plans), and

(iii) Any representations or certifications the offeror must submit;

(e) The period during which proposals must remain open for acceptance; and

(f) The anticipated contract terms and conditions.

5035.6 Any changes in the information set forth in an RFP must be made by an amendment to the RFP. Amendments should be made no less than two (2) business days before the proposal submission date specified by the RFP.

5035.7 Offerors are responsible for submitting proposals, and any modifications or withdrawals, so as to reach the Contracting Officer designated in the request for proposal (RFP) by the time specified in the RFP. Offers shall be submitted by a method specifically permitted by the RFP (for example, hand delivery, mailing, or electronic transmission). If no time is specified in the RFP, the time for receipt is 2:00 p.m., local time, on the date that offers are due.

5035.8 Any proposal, modification, or withdrawal of an offer received after the exact time specified for receipt of proposals is late and will not be considered unless:

It was transmitted through an electronic method authorized by the RFP, it was received at the initial point of entry to the Government infrastructure prior to the due date and time;

(b) There is acceptable evidence that it was transmitted in sufficient time to be received by the exact time specified, however the Government infrastructure caused the proposal to not be transmitted or the Government otherwise mishandled the proposal;

(d) A late modification is of an otherwise successful proposal, that makes its terms more favorable to the Government; or

(e) An emergency or unanticipated event interrupts normal Government processes so that proposals cannot be received at the Government office designated for receipt of proposals by the exact time specified in the RFP, and an amendment to due date and time could not be issued.

5035.9 Notwithstanding the requirements of 5035.10, the District may accept a late bid, modification, or withdrawal if such bid, modification, or withdrawal is received prior to award and the Contracting Officer determines, in his or her sole discretion, that acceptance of such bid, modification, or withdrawal is in the best interest of the District.

5035.10 The Contracting Officer shall evaluate proposals based solely on the evaluation criteria specified in the RFP. In evaluating past performance, the Contracting Officer is not limited to considering only the information from references listed by the offeror.

5035.11 After initial proposals have been evaluated, the Contracting Officer may:

(a) Make an award based on initial proposals;

(b) Proceed with negotiations with the highest-ranked prospective contractor; and if a satisfactory contract cannot be negotiated with the highest-ranked prospective contractor, negotiate terms of the contract with the second most qualified prospective contractor or lower- ranked prospective contractors in order of ranking until a satisfactory contract can be awarded; or

(c) Establish a competitive range consisting of those proposals that remain under consideration, which shall include all proposals that, in the Contracting Officer’s judgment (erring on the side of the offeror), could be awarded the procurement.

5035.12 If the Contracting Officer establishes a competitive range and holds discussions, he or she must hold discussions with all offerors in the competitive range. Discussions with the offerors may be written (including electronic) or oral. The primary objective of discussions is to maximize OAG’s ability to obtain the best value based on the evaluation factors set forth in the RFP.

5035.13 At the conclusion of discussions, the Contracting Officer shall request that the offerors with whom discussions were held submit best and final offers by a common cut-off date.

5035.14 The contract shall be awarded to the qualified offeror whose offer is most advantageous to OAG based on the evaluation criteria stated in the RFP.

5035.15 The Contracting Officer shall prepare documentation explaining the basis for the contract award decision, which shall be maintained in the contract file.

5035.16 To the greatest extent possible, the Contracting Officer should provide clear, concise contract documents. Prior to award of the contract, the contracting officer shall create a single conformed contract document, that includes the relevant terms of the solicitation, amendments, and bid.

History

SOURCE: Final Rulemaking published at 65 DCR 4406 (April 20, 2018); as amended by Final Rulemaking published at 68 DCR 011740 (November 5, 2021). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 5035

27 DCMR § 5036 SMALL PURCHASE PROCEDURES

5036.1 Small purchase procedures may be used only with contracts that have an estimated value equal to or less than one hundred thousand dollars ($100,000) for the base year and for each option year.

5036.2 Requirements procured under this section shall not be parceled, split, divided, or purchased over a period of time in order not to exceed the small purchase limit.

5036.3 The Contracting Officer shall conduct small purchases in the manner that is most suitable, efficient, and economical based on the circumstances of each acquisition. As appropriate, the Contracting Officer may elect to use or adapt procedures that apply to competitive sealed bids or competitive sealed proposals.

5036.4 In small purchases, the Contracting Officer shall:

(a) Promote competition to the extent practicable and efficient;

(b) Establish reasonable deadlines for the submission of responses to solicitations; and

5036.5 The contracting officer may make a purchase for an amount of ten thousand dollars ($10,000) or less without obtaining competitive quotes.

6 The contracting officer shall solicit written quotes from at least three sources for each procurement in an amount that is estimated to be over ten thousand dollars ($10,000), but less than or equal to one hundred thousand dollars ($100,000).

5036.7 The Contracting Officer may solicit quotations orally in appropriate cases when soliciting in writing is not practical (e.g., emergency). When soliciting quotations orally, the Contracting Officer shall instruct suppliers to respond in writing.

5036.8 An oral solicitation shall provide a clear description of OAG’s requirements (e.g., the type of goods or services sought, quantities, and schedule) and the basis on which the award will be made. The Contracting Officer shall ensure that each potential supplier is provided the same information about the requirements.

5036.9 Written solicitations shall provide a complete statement of relevant information without being unnecessarily lengthy. A written solicitation should include the same information required in an oral solicitation, plus the following:

(a) Anticipated contract terms and conditions (and the extent to which they are negotiable);

(b) Applicable certifications or representations; and

5036.10 The basis for award may be price or cost alone or price/cost and other factors. Solicitations shall state the relative importance assigned to each evaluation factor. If not, all factors will be given equal weight.

5036.11 The price/cost and other terms of the award shall be set forth in a written contract or purchase order. The Contracting Officer shall include a comment or statement in the electronic contract file briefly explaining the basis for the award decision.

History

SOURCE: Final Rulemaking published at 65 DCR 4406 (April 20, 2018); as amended by Final Rulemaking published at 68 DCR 011740 (November 5, 2021). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 5036

27 DCMR § 5037 COMPETITION EXEMPTIONS

5037.1 The procurements that are exempt from competition pursuant to Section 413 of the PPRA (D.C. Code §2-354.13) are not subject to the competition requirements of the Act or to the SCBEDA Act, as amended.

5037.2 The exemption from competition when procuring legal or negotiation services in connection with proceedings before administrative agencies or state or federal courts, including experts, attorneys, and mediators, cited in Section 413(3) of the PPRA, includes services in connection with present or anticipated proceedings, and services to provide advice or to prevent litigation.

5037.3 The exemption from competition when procuring entertainers, cited in Section 413(6) of the PPRA, includes entertainers and speakers.

5037.4 The exemption from competition when procuring job-related seminars and training for District employees, cited in Section 413(7) of the PPRA, applies to job-related seminars and training that are intended to enhance OAG employees’ knowledge, skill and ability to perform the duties of their positions.

5037.5 The exemption from competition when procuring goods or services provided by another (non-District) public entity, agency, or authority, cited in Section 413(10) of the PPRA, includes goods and services provided by another governmental entity, public entity, agency, or authority, or an organization consisting of such entities, agencies, or authorities.

5037.6 The exemption from competition when procuring maintenance and support of existing software and technology to the extent that the creator of the intellectual property is still protected and is the only source of the maintenance and support of the existing software and technology, cited in Section 413(8) of the PPRA, also applies to renewal of existing software licenses purchased either directly from the creator or from an authorized dealer.

5037.7 Procurements of gift cards for incentive awards from the Office of the Chief Financial Officer are exempt from competition.

History

SOURCE: Final Rulemaking published at 65 DCR 4406 (April 20, 2018); as amended by Final Rulemaking published at 68 DCR 011740 (November 5, 2021). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 5037

27 DCMR § 5038 BLANKET PURCHASE AGREEMENTS

5038.1 A blanket purchase agreement (BPA) is not a contract and is established without a purchase requisition or the obligation of funds.

5038.2 The Contracting Officer may use a BPA as a simplified contracting procedure to fill anticipated repetitive needs for goods or services by establishing fixed pricing with sources of supply if at least one (1) of the following criteria apply:

(b) The administrative cost of writing numerous purchase orders can be avoided through the use of this procedure; or

(c) There is no existing requirements-type contract for the same supply or service that the contracting activity is required to use.

5038.3 BPAs may be established with:

(a) More than one supplier for supplies or services of the same type to provide maximum practicable competition;

(b) A single firm from which numerous individual purchases at or below the small purchase threshold will likely be made in a given period; or

5038.4 The Contracting Officer shall include the following information in each BPA:

(a) A statement that the supplier will furnish goods or services, described in general terms, if and when requested by the contracting officer during a specified period and within a stipulated total ceiling amount of the BPA. The statement shall also stipulate that no individual order placed under the BPA shall exceed $100,000;

(b) A statement that the District is obligated only to the extent that authorized purchases are actually made under the BPA;

(d) A statement that specifies the dollar limitation for purchases under the BPA (not to exceed the small purchase limit); and

(e) A requirement that all deliveries or shipments under the BPA shall be accompanied by delivery tickets or sales slips that contain the following minimum information:

(1) The name of the supplier;

(2) The BPA number;

(3) The date of purchase;

(4) The purchase order number;

(5) An itemized list of goods or services furnished;

(6) The quantity, unit price, and extension of each item, less applicable discounts; and

(7) The date of delivery or shipment.

5038.5 To the extent practicable, BPAs for items of the same type shall be placed concurrently with more than one (1) supplier. All competitive sources shall be given an equal opportunity to furnish goods, services, or other items under a BPA.

5038.6 A BPA shall be considered expired when the procurements under it are equal to its total dollar limitation or when the stated time period expires.

History

SOURCE: Final Rulemaking published at 65 DCR 4406 (April 20, 2018); as amended by Final Rulemaking published at 68 DCR 011740 (November 5, 2021). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 5038

27 DCMR § 5039 DISTRICT OF COLUMBIA SUPPLY SCHEDULES

5039.1 The Contracting Officer shall award contracts of $250,000 or less to a qualified Small Business Enterprise (SBE), as that term is defined in the SCBEDA Act,, on the District of Columbia Supply Schedule (DCSS).

5039.2 If the Contracting Officer determines that there are at least two (2) qualified SBEs on the DCSS that can provide the goods or services, the Contracting Officer shall procure the goods and services in accordance with this section. If there are not at least two (2) such qualified SBEs, the Contracting Officer may use a qualified CBE on the DCSS that can provide the goods or services in accordance with Section 5040.

5039.3 If the Contracting Officer determines in writing that the price offered by the SBE or CBE is believed to be 12% or more above the likely price in the open market, the Contracting Officer may decline to award a contract under this section and may issue the solicitation in the set-aside market under § 5040.

5039.4 A copy of each determination made under this section shall be submitted promptly to the Director of the Department of Small and Local Business Development (DSLBD).

History

SOURCE: Final Rulemaking published at 65 DCR 4406 (April 20, 2018); as amended by Final Rulemaking published at 68 DCR 011740 (November 5, 2021). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 5039

27 DCMR § 5040 MANDATORY SET-ASIDES

5040.1 If, after concluding there are no qualified SBEs or CBEs on the DCSS, the Contracting Officer shall seek to award contracts of $250,000 or less to a qualified SBE in accordance with this Section.

5040.2 If the Contracting Officer determines in writing that there are not at least two (2) qualified SBEs that can provide the goods or services, the Contracting Officer may use a qualified CBE that can provide the goods or services. If there are no qualified SBEs or CBEs, the CO can award to a non-CBE. Similarly, if no SBE or CBE responds to a solicitation, the CO can use other contracting methods. The CO shall document in the contract file, the reason for not setting aside a procurement of $250,000 or less to a qualified SBE.

5040.3 If the Contracting Officer determines in writing that the price offered by the SBE or CBE is believed to be 12% or more above the likely price in the open market, the Contracting Officer may decline to award a contract under this section and issue the solicitation in the open market or use another procurement method.

5040.4 A copy of each determination made under this section shall be submitted promptly to the Director of the DSLBD.

History

SOURCE: Final Rulemaking published at 65 DCR 4406 (April 20, 2018); as amended by Final Rulemaking published at 68 DCR 011740 (November 5, 2021). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 5040

27 DCMR § 5041 FEDERAL SCHEDULES

5041.1 The Contracting Officer may utilize federal schedules that offer supplies and services to the District following the applicable schedule procedures.

5041.2 Except as otherwise provided in a federal schedule, all schedule contract terms and conditions apply to contracts between the schedule contractor and the District.

History

SOURCE: Final Rulemaking published at 65 DCR 4406 (April 20, 2018); as amended by Final Rulemaking published at 68 DCR 011740 (November 5, 2021). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 5041

27 DCMR § 5042 CONTRACT ADMINISTRATION

5042.1 The Contracting Officer shall designate a Contract Administrator whose primary duty will be to monitor the contractor's performance to ensure that all of the technical requirements under the contract are met by the delivery date or within the period of performance, and at the price or within the estimated cost stipulated in the contract.

5042.2 The Contracting Officer may delegate the following duties to the Contract Administrator (CA):

(a) Ensuring that the contractor complies with all of the requirements of the statement of work, specifications, or performance work statement, and when requested by the contractor, provide technical direction to the contractor. The technical assistance must be within the scope of the contract (e.g., interpreting specifications, statement of work, performance work statement, etc.). The CA shall notify the Contracting Officer immediately when a difference of opinion between the CA and the contractor occurs;

(b) Inspecting, and accepting or rejecting, all deliverables under the contract;

(c) Ensuring that the contractor personnel qualifications are of the same caliber that was originally proposed by the contractor to OAG. The CA may not approve the substitution key personnel without the Contracting Officer’s approval;

(d) Reviewing the contractor's invoices, vouchers, timesheets, travel claims etc., for reasonableness and applicability to the contract, and promptly approving all proper invoices for payment to ensure compliance with the Quick Payment Act. The CA must ensure that the invoice is consistent with the terms of the contract.

(f) Providing the Contracting Officer with a written analysis and rationale for any changes to the contract requested by the contractor and evaluation of any additional costs or cost savings associated with the change;

(g) Recognizing and reporting to the Contracting Officer any changes required to the contract (e.g., items or work no longer required, changes in the specifications, etc.);

(h) When applicable, making site visits to the contractor's location to: (1) evaluate the contractor's performance; (2) evaluate any changes in the technical performance affecting personnel, the schedule, deliverables, and price or costs; (3) inspect and monitor the use of DC Government property, if applicable; and (4) ensure that contractor employees being charged to the contract are actually performing the work under the contract;

(i) Fully informing the Contracting Officer of any technical and contractual difficulties that are encountered throughout the duration of the contract;

(j) Evaluating proposals for and participate in negotiation of Change Orders, Contract Modifications, and Contract Claims at the request of the Contracting Officer;

(k) Maintaining independent status of the contractor in the interest of procurement integrity as well as sound contract management. Proper care should be taken to avoid improper business practices and personal conflicts of interest consistent with Chapter 18 of the District’s Personnel Manual;

(l) Maintaining an organized contract administration file to record all contractor and DC Government actions pertaining to the contract; and

(m) When requested by the Contracting Officer, completing an evaluation form to document contractor performance.

5042.3 The CA cannot authorize the contractor to stop work, and the CA is not authorized to delete, change, waive, or negotiate any of the technical requirements or other terms and conditions of the contract. Should any change to the contract become necessary, it must be made by a contract modification issued by the Contracting Officer.

History

SOURCE: Final Rulemaking published at 65 DCR 4406 (April 20, 2018); as amended by Final Rulemaking published at 68 DCR 011740 (November 5, 2021). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 5042

27 DCMR § 5043 PAYMENT REQUESTS

5043.1 Contractors shall create and submit payment requests in an electronic format through the DC Vendor Portal, https://vendorportal.dc.gov.

5043.2 Contractor payment requests shall include or attach any information necessary to demonstrate entitlement to the requested payment under the contract’s terms.

5043.3 Depending on the contract’s payment provisions, a payment request may consist of, for example, a statement that specified work has been completed in a satisfactory manner, documentation showing that contract deliverables have been accepted by OAG, or information detailing the reimbursable costs incurred by the contractor.

5043.4 Payment shall not be made unless authorized by OAG.. A payment authorization shall not preclude OAG from seeking repayment (or pursuing other remedies) if it subsequently concludes that the contractor was overpaid, paid in error, or otherwise misled OAG.

5043.5 In addition to the payment authorization, all payment requests must be certified and approved by the District’s Chief Financial Officer (or his or her designee) prior to making any payment.

5043.6 No OAG employee shall authorize payment for the value of supplies and services received without a valid written contract or for supplies or services that have not been verified to be received or satisfactorily delivered. Any vendor who enters into an oral agreement with an OAG employee to provide supplies or services to OAG without a valid written contract shall not be paid unless approved by the CCO. This subsection shall not apply to a payment required by court order, or a final decision of the District of Columbia Contract Appeals Board.

History

SOURCE: Final Rulemaking published at 65 DCR 4406 (April 20, 2018); as amended by Final Rulemaking published at 68 DCR 011740 (November 5, 2021). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 5043

27 DCMR § 5044 EXERCISING OF OPTIONS

5044.1 To exercise an option over one hundred thousand dollars ($100,000) the Contracting Officer must first obtain the approval of the CCO.

5044.2 In addition to the approval of the CCO (if applicable), prior to exercising any option, the Contracting Officer must obtain certification of OAG’s Agency Fiscal Officer (AFO) that funds are available for the exercise of the option.

5044.3 When exercising an option, the Contracting Officer shall provide written notice to the contractor within the time period specified in the contract.

History

SOURCE: Final Rulemaking published at 65 DCR 4406 (April 20, 2018); as amended by Final Rulemaking published at 68 DCR 011740 (November 5, 2021). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 5044

27 DCMR § 5045 CONTRACT MODIFICATIONS

5045.1 The Contracting Officer may modify a contract subject to the provisions of this section.

5045.2 A modification must be within the general scope of the original contract. Any requirement for extra work that goes beyond the contract’s general scope shall be the subject of a new procurement.

5045.3 A contract modification in excess of one hundred thousand dollars ($100,000) shall be approved by the CCO.

5045.4 A contract modification may be made:

(a) By a bilateral supplemental agreement executed by the Contracting Officer and an authorized representative of the contractor;

(c) By a Contracting Officer’s unilateral action that makes administrative changes to the contract or exercises an option.

History

SOURCE: Final Rulemaking published at 65 DCR 4406 (April 20, 2018); as amended by Final Rulemaking published at 68 DCR 011740 (November 5, 2021). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 5045

27 DCMR § 5046 CONTRACT TERMINATION

5046.1 All contracts awarded by the Contracting Officer shall include “Termination for Default” and “Termination for Convenience” clauses specifically defining OAG’s termination rights.

5046.2 When exercising OAG’s rights under a termination clause in the contract, the Contracting Officer shall provide the contractor with a written notice specifying:

(a) Whether the termination is for default or for convenience;

(b) The effective date of the termination;

(d) Any special instructions that apply to the termination (for example, instructions concerning the disposition of contract inventory).

5046.3 Unless a settlement can be reached beforehand, after terminating a contract for convenience, the Contracting Officer shall request a settlement proposal from the contractor and shall attempt to negotiate a settlement that resolves all of the parties’ rights and liabilities (except those arising from any portion of the contract still in effect). If the parties negotiate a settlement, the Contracting Officer shall prepare a memorandum describing the principal elements of the settlement and shall include the memorandum in the contract file. If the parties fail to negotiate a settlement within one year from the effective date of termination, the contracting officer shall make a final determination of settlement.

History

SOURCE: Final Rulemaking published at 65 DCR 4406 (April 20, 2018); as amended by Final Rulemaking published at 68 DCR 011740 (November 5, 2021). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 5046

27 DCMR § 5047 CONTRACT DOCUMENTATION

5047.1 The Contracting Officer is responsible for maintaining documentation regarding the contract and the procurement.

5047.2 The contract file, which may be entirely electronic, shall include:

(a) The solicitation and any amendments;

(b) The contract and any modifications;

(c) Any type of documentation that is specifically required to be maintained in the contract file by other sections of this chapter; and

(d) Any other documentation that may be necessary to memorialize determinations and important decisions or events relating to the procurement or the contract.

History

SOURCE: Final Rulemaking published at 65 DCR 4406 (April 20, 2018); as amended by Final Rulemaking published at 68 DCR 011740 (November 5, 2021). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 5047

27 DCMR § 5048 TRANSFER OF CONTRACTS

5048.1 Contracts or pending procurements related to OAG may be transferred by OAG to any agency or instrumentality of the District in accordance with the provisions of this section.

5048.2 The CCO shall review the proposed procurement or contract and determine whether it is in the best interest of OAG to transfer the procurement or contract.

5048.3 If the CCO determines it is in OAG’s best interest to transfer a contract or procurement, the Contracting Officer shall have the authority to transfer the contract.

5048.4 Transfer of a contract or procurement shall not operate to transfer funds to support the assigned contract or procurement. Funds shall be transferred pursuant to an intra-District memorandum of understanding, reprogramming, or other appropriate process.

History

SOURCE: Final Rulemaking published at 65 DCR 4406 (April 20, 2018); as amended by Final Rulemaking published at 68 DCR 011740 (November 5, 2021). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 5048

27 DCMR § 5049 DISPUTES

5049.1 Each contract entered into by the Contracting Officer shall include a disputes clause that sets forth the procedures by which disputes shall be resolved.

History

SOURCE: Final Rulemaking published at 65 DCR 4406 (April 20, 2018); as amended by Final Rulemaking published at 68 DCR 011740 (November 5, 2021). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 5049

27 DCMR § 5050 PROTESTS

5050.1 All protests to a solicitation or to the award of a contract shall be resolved by the Contracting Officer in accordance with Code §§100 – 400 of this Title 27 District of Columbia Municipal Regulations.

History

SOURCE: Final Rulemaking published at 65 DCR 4406 (April 20, 2018); as amended by Final Rulemaking published at 68 DCR 011740 (November 5, 2021). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 5050

27 DCMR § 5051 REQUESTS FOR RECORDS

5051.1 A request for a record of OAG shall be made to OAG’s designated Freedom of Information Officer.

5051.2 OAG’s response to a request for a record shall be made in accordance with the provisions of the D.C. Freedom of Information Act (Title II of the District of Columbia Administrative Procedure Act, effective March 29, 1977, as amended, (D.C. Law 1-96; D.C. Code §§ 2-531 et seq. (2012 Repl.)) (“FOIA Act”), and Title I, Chapter 4 of the D.C. Municipal Regulations.

History

SOURCE: Final Rulemaking published at 65 DCR 4406 (April 20, 2018); as amended by Final Rulemaking published at 68 DCR 011740 (November 5, 2021). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 5051

27 DCMR § 5052 PRIVACY AND DISCLOSURE

5052.1 The Contracting Officer shall include in every solicitation and contract the following provisions:

(a) If a contractor collects, retains, or has in its possession any document, record, or other information obtained in the performance of a District contract, which document, record, or information may be exempt from disclosure under the FOIA Act, the contractor shall not disclose the document, record, or other information to any person other than an authorized District employee or agent;

(b) If a contractor collects, retains, or has in its possession any document, record, or other information obtained in the performance of a District contract the disclosure of which is prohibited by any District or federal law or regulation, the contractor shall not disclose the document, record, or other information to any person other than an authorized District employee or agent; and

(c) If a contractor is not sure whether a document, record, or other information may be disclosed, the contractor shall refer the matter to the contracting officer.

History

SOURCE: Final Rulemaking published at 65 DCR 4406 (April 20, 2018); as amended by Final Rulemaking published at 68 DCR 011740 (November 5, 2021). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 5052

27 DCMR § 5053 APPLICABLE LAWS

5053.1 To the extent applicable, OAG shall comply with the requirements related to:

(a) Council review of multiyear contracts and contracts in excess of one million dollars ($1,000,000) as set forth in Section 451 of the District of Columbia Home Rule Act, approved December 24, 1973 (87 Stat. 788; D.C. Code §1-204.51); and in Section 105a of the PPRA.

(b) Anti-Deficiency Act – OAG’s obligations and responsibilities under the terms of the contract and the contract documents are and shall remain subject to the provisions of (i) the federal Anti-Deficiency Act, 31 U.S.C. §§1341, 1342, 1349, 1350, 1351, (ii) D.C. Code §47-105, (iii) the District of Columbia Anti-Deficiency Act, D.C. Code §§47-355.01 - 47-355.08, as the foregoing statutes may be amended from time to time, and (iv) Section 446 of the District of Columbia Home Rule Act.

(c) Other contracting laws applicable to OAG – District of Columbia Quick Payment Act of 1984, as amended, D.C. Code §2-221.01; Living Wage Act of 2006, as amended, D.C. Code §2-220.01; SCBEDA Act; as amended (D.C. Law 16-133; D.C. Code §2-218), First Source Employment Agreement Act of 1984, as amended, D.C. Code §2-219.01; Service Contract Act, 41 USC 351(a); Health Insurance Portability and Accountability Act of 1996, P.L. 104- 191; the Privacy and Security Rules codified at 45 C.F.R. Parts 160 and 164.

History

SOURCE: Final Rulemaking published at 65 DCR 4406 (April 20, 2018); as amended by Final Rulemaking published at 68 DCR 011740 (November 5, 2021). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 5053

27 DCMR § 5054 CONTINGENCY FEE CONTRACTS

5054.1 OAG may enter into a contingency fee contract with private counsel when:

(a) There is a substantial need for the legal services;

(b) The legal services cannot be adequately performed by the attorneys and supporting personnel of the agency; and

(c) The legal services cannot reasonably be obtained from attorneys in private practice under a contract providing only for the payment of hourly fees, without regard to the outcome of the matter, because of the nature of the matter for which the services will be obtained or because the agency does not have appropriated funds available to pay the estimated amounts required under a contract providing only for the payment of hourly fees.

5054.2 Before entering into a contingency fee contract, the CCO must make a determination that the retention of qualified outside counsel will substantially assist the Office of the Attorney General (OAG) in protecting District residents and is in the public interest.

History

SOURCE: Final Rulemaking published at 68 DCR 011740 (November 5, 2021). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 5054

27 DCMR § 5099 DEFINITIONS

5099 .1 When used in this chapter, the following terms have the meanings ascribed:

Accepted or Acceptance - the act of an authorized representative of the District by which the District, for itself or as agent of another, assumes ownership of existing identified goods tendered or approves specific services rendered or construction completed as partial or complete performance of the contract.

Actual costs - amounts determined on the basis of costs incurred, as distinguished from forecasted costs. Actual costs include standard costs properly adjusted for applicable variances.

Adequate evidence - information sufficient to support the reasonable belief that a particular act or omission has occurred.

Amendment - any change to a solicitation issued by the contracting officer.

Attorney General - the agency head of the Office of the Attorney General (OAG) for the District of Columbia.

Prohibited contingent fee - any commission, percentage, brokerage, or other fee that is dependent upon or tied to the success that a person or concern has in securing a District contract.

Contingency fee contract - a contract for legal services in which payment by the District is based on, and limited to, a percentage of revenue, if any, recovered by the District.

Contract modification - any written change in the terms of a contract.

Cooperative purchasing agreement - an agreement between a vendor and one or more government agencies that allows other government agencies to purchase goods and services under it.

Cost - the amount paid or charged for something. Cost does not include the contractor's profit.

Cost-no-fee contract - a cost-reimbursement contract in which the contractor receives no fee.

Cost-plus-award-fee contract - a cost-reimbursement type contract that provides for a fee consisting of an amount fixed at the beginning of the contract and potential award of additional fee amounts based upon a judgmental evaluation by the contracting officer, sufficient to provide motivation for excellence in contract performance.

Cost-plus-fixed-fee contract - a cost-reimbursement type contract that provides for the payment of a fixed fee to the contractor. The fixed fee, once negotiated, does not vary with actual cost, but may be adjusted as a result of any subsequent changes in the work or services to be performed under the contract.

Cost-plus-incentive-fee contract - a cost-reimbursement type contract that provides for an initially negotiated fee to be adjusted later by a formula based on the relationship of total allowable costs to total target costs. After performance of the contract, the fee payable to the contractor is determined in accordance with a negotiated formula.

Cost-reimbursement contract - a contract that provides for payment of allowable costs incurred in the performance of a contract, to the extent prescribed in the contract. This type of contract establishes an estimate of total cost for the purpose of obligating funds and establishes a ceiling that the contractor may not exceed (except at its own risk) without prior approval of, or subsequent ratification by, the contracting officer.

Definitive contract - the contract executed pursuant to letter contract commitment.

District of Columbia Supply Schedule - indefinite quantity contracts made with more than one (1) CBE supplier for comparable goods and services at varying prices.

Expert - a person with excellent qualifications and a high degree of attainment in a professional, scientific, technical, or other field, whose knowledge and mastery of the principles, practices, problems, methods, and techniques of his or her field or activity, or of a specialized area in the field, are clearly superior to those usually possessed by ordinarily competent persons in that activity, and whose attainment is such that he or she usually is regarded as an authority or as a practitioner of unusual competence and skill by other persons in the profession, occupation, or activity.

Firm-fixed-price contract - a fixed-price contract that provides for a price that is not subject to any adjustment of the basis of the contractor's cost experience in performing the contract. This type of contract places maximum risk and full responsibility for all costs and resulting profit or loss upon the contractor and provides maximum incentive for the contractor to control costs and perform effectively.

Fixed-price contract with economic price adjustment - a fixed-price contract that provides for the upward and downward revision of the stated contract price upon the occurrence of certain contingencies that are specifically defined in the contract.

Incentive contract - a fixed-price or cost-reimbursement type contract that provides for relating the amount of profit or fee payable under the contract with the contractor's performance in order to obtain specific procurement objectives.

Indefinite-quantity contract - a contract that provides for an indefinite quantity, within written stated limits, of specific goods or services to be furnished during a fixed period, with deliveries to be scheduled by placing orders with the contractor. The contract requires the District to order and the contractor to furnish at least a stated minimum of goods or services.

Labor-hour contract - a contract that is a variant of the time-and-materials type contract differing only in that materials are not supplied by the contractor.

Legal services - Work performed by an attorney or experts or legal support personnel under the supervision of an attorney on behalf of a client, involving law-related matters including, but not limited to: 1) issuing advice or opinions in general or to prepare for or prevent litigation; 2) filing, pleading, and defending present or anticipated administrative, civil, or criminal claims; or 3) mediating, arbitrating, or any other pre or post trial negotiating or alternative dispute resolutions.

Letter contract - a written preliminary contractual instrument that authorizes the contractor to begin immediately manufacturing or delivering goods or performing services. A letter contract is always associated with a definitive contract, and a letter contract by itself cannot be the sole document used for a complete procurement.

Market survey - a testing of the marketplace to ascertain whether qualified sources capable of satisfying the District's requirement exist. It may range from written or telephone contacts with knowledgeable experts regarding similar or duplicate requirements, and the results of any market test recently undertaken, to the more formal sources-sought announcements in pertinent publications (such as technical or scientific journals) or solicitations for information or planning purposes.

Maximum liability - the amount, not to exceed fifty percent (50%) of the overall contract price ceiling, obligated by the letter contract over which the District cannot be liable if the letter contract is terminated.

Multiyear contract - as used in this chapter, a contract for a base period longer than twelve (12) months.

Nonrecurring costs - those production costs that are generally incurred on a one-time basis and include costs such as plant or equipment relocation, plant rearrangement, pre-production engineering, initial spoilage and rework, and specialized workforce training.

Option - a unilateral right in a contract under which, for a specified time, the District may elect to extend the term of a contract.

Person - any business entity, individual, union, committee, club, or other organization or group of individuals.

Price - the amount the District anticipates it will pay the contractor for full performance under the terms of a contract, including costs and profit.

Price ceiling - an amount established during negotiations or at the discretion of the contracting officer that constitutes the maximum amount that may be paid to the contractor for performance of a contract.

Recurring costs - the production costs that vary with the quantity being produced, such as labor and materials.

Requirements contract- a contract that provides for the filling of all actual purchase requirements of designated District agencies for specific goods or services during a specified contract period, with deliveries to be scheduled by placing orders with the contractor as needs arise.

Settlement proposal - a proposal for effecting settlement of a contract terminated, in whole or in part, submitted by a contractor or subcontractor.

Subcontractor - any supplier, distributor, vendor, or firm who furnishes goods, services, or construction to or for a prime contractor or another subcontractor.

Supplemental agreement - a bilateral contract modification.

Term contract - a requirements contract or an indefinite-quantity contract.

Time-and-materials contract - a type of contract that provides for the procurement of goods or services on the basis of direct labor hours at specified fixed hourly rates (which include wages, overhead, general and administrative expenses, and profit) and material at cost.

History

SOURCE: Final Rulemaking published at 65 DCR 4406 (April 20, 2018); as amended by Final Rulemaking published at 68 DCR 011740 (November 5, 2021). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 5099

27-51 CIVIL FALSE CLAIMS PENALTY INFLATION ADJUSTMENT

27 DCMR § 5100 AUTHORITY FOR INFLATION ADJUSTMENT

5100.1 Pursuant to Section 822 of the District of Columbia Procurement Practices Act of 1985 (Act), effective February 21, 1986 (D.C. Law 6-85; D.C. Official Code § 2-381.10), the Attorney General for the District of Columbia (OAG) is authorized at least once every four (4) years to promulgate rules to adjust the amounts of the civil penalties listed in Section 814 of the Act.

History

SOURCE: Final Rulemaking published at 65 DCR 13372 (December 7, 2018). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 5100

27 DCMR § 5101 INFLATION ADJUSTED CIVIL FALSE CLAIMS PENALTIES

5101.1 By operation of law and the application of procedures described in Section 822 of the Act, after January 1, 2019, for each false claim or fraudulent claim described in the Act the amount of the civil penalty a person is liable to the District shall be not less than Eleven Thousand One Hundred Eighty-One Dollars ($11,181.00) and not more than Twenty-Two Thousand Three Hundred Sixty-Three Dollars ($22,363.00).

History

SOURCE: Final Rulemaking published at 65 DCR 13372 (December 7, 2018). District of Columbia Municipal Regulations Contracts and Procurement 27 DCMR § 5101