Section 27-3111. PROPRIETARY OR CONFIDENTIAL INFORMATION IN BIDS AND PROPOSALS

 

3111.1In accordance with §317(d) of the Procurement Practices Act of 1985 ("the Act"), D.C. Code §1-1183.17(d) (1981), 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.

 

3111.2A 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 for evaluation purposes:

 

(a)That the bid or offer includes proprietary or confidential information that shall not be disclosed outside the District government and shall not be duplicated, used, or disclosed, in whole or in part, for any purpose other than to evaluate the bid or proposal;

 

(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 specifically identified, by page number or otherwise, the proprietary or confidential information subject to the restriction.

 

3111.3In addition to the requirements of §3111.2, 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 on the sheet is subject to the restriction set forth on the first page of the bid or offer.

 

3111.4The 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.

 

3111.5If, after inspection of a bid or proposal, the contracting officer or other District official determines that all or any part of the information designated as confidential or proprietary may be subject to disclosure under the D.C. Freedom of Information Act, D.C. Code §1-1521 et seq. (1981), the contracting officer shall notify the bidder or offeror of that determination and allow the contractor ten (10) days to respond.

 

3111.6If the contracting officer does not agree that evidence presented by the bidder or offeror supports the confidential or proprietary designation of the information identified by the contracting officer, the contracting officer shall do one (1) of the following:

 

(a)Declare the bid non-responsive or the proposal unacceptable and eliminate the bid or proposal from consideration; or

 

(b)If the contracting officer determines that it would be in the best interests of the District to consider the bid or proposal, the contracting officer may remove the confidential or proprietary designation and consider the bid or proposal.

 

3111.7The bidder or offeror shall be notified in writing of the contracting officer's decision under §3111.6. If the bid or proposal will be considered, the notice to the contractor shall include a warning that the bidder's or offeror's designation has been removed, and the information may be subject to disclosure under the D.C. Freedom of Information Act.

 

3111.8If the bid or proposal is eliminated under §3111.6(a), the designated information shall not be disclosed. If the bid is modified by the contracting officer to remove any designation of information as confidential or proprietary under §3111.6(b), the bidder or offeror may appeal the contracting officer's determination to the Director after award. The Director shall consider the evidence submitted by the bidder or offeror and the findings and determination of the contracting officer, and shall render a decision upholding or overruling the contracting officer's determination, in whole or in part. The Director may conduct an informal hearing or obtain a review and recommendation by the Procurement Review Committee before making a final decision.

 

3111.9Each solicitation shall contain a provision, approved by the Director, which indicates the right of the contractor to designate confidential or proprietary information in response to the solicitation, as well as the right of the contracting officer to challenge the designation and either eliminate the bid or proposal or remove the designation under §3111.6.

 

source

Final Rulemaking published at 35 DCR 1621 (February 26, 1988).