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D.C. Municipal Regulations (Last Updated: September 13, 2017) |
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Title 27. CONTRACTS AND PROCUREMENT |
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Chapter 27-3. PROTEST PROCEDURES OF THE CONTRACT APPEALS BOARD |
Section 27-314. REMEDIES
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314.1If 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;
(c)Recompete 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. Code § 2-302.05(d)(1), the Board shall direct that the contract be canceled and cause a determination to be made pursuant to D.C. Code § 2-302.05(d)(2).
314.2In 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;
(c)Existence of prejudice to other bidders or offerors;
(d)Maintaining the integrity of the procurement system; and
(e)Good faith of District government officials and other parties.
314.3In 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;
(c)Costs to the government from termination; and
(d)Urgent need for the procurement.
314.4If 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.
314.5A 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.
314.6The motion shall be accompanied by sufficient documentation supporting the requested costs and an appropriate proposed order for the Board.
314.7The contracting agency may, within fifteen (15) days after its receipt of the protester's motion, file a written response to the motion.
314.8At 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.
APPENDIX
GOVERNMENT OF THE DISTRICT OF COLUMBIA CONTRACT APPEALS BOARD
APPEAL/PROTEST OF:
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CAB No.
Solicitation/Contract No.:
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Agency:
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PROTECTIVE ORDER
This protective order limits disclosure of certain material and information submitted in the above-captioned appeal/protest, so that no party obtaining access to protected material under this order will gain a competitive advantage as a result of the disclosure. Material to which parties gain access under this protective order is to be used only for the subject appeal/protest proceedings, absent express prior authorization from the District of Columbia Contract Appeals Board ("Board"). Such authorization must be requested in writing, with notice to all parties.
1.This protective order applies to all material that is identified by any party as protected, unless the Board specifically provides otherwise. This protective order applies to all proceedings associated with the appeal/protest, e.g., supplemental/amended appeals/protests requests for reconsideration, and claims for costs.
2Protected material of any kind may be provided only to the Board and to individuals authorized by this protective order, and must be in a sealed parcel containing the legend "PROTECTED MATERIAL ENCLOSED" conspicuously placed on the outside of the parcel containing the protected information. The first page of each document containing protected material is to be clearly marked as follows:
PROTECTED MATERIAL TO BE DISCLOSED ONLY IN ACCORDANCE WITH DISTRICT OF COLUMBIA CONTRACT APPEALS BOARD
The party claiming protection must clearly identify the specific portion of the material for which it is claiming protection. Wherever such protection is claimed for a appeal/protest pleading, the party filing the pleading shall submit a proposed redacted version for public release when the protected version is filed.
3.Only individuals who are admitted under this protective order by the Board, and support staff (paralegal, clerical, and administrative personnel) who are employed or supervised by individuals admitted under this order, and who are not involved in competitive decision making for a party to the appeal/protest or for any firm that might gain a competitive advantage from access to information covered by this order. Individuals admitted under this protective order shall advise such support staff, prior to providing them access to protected material, of their obligations under this order.
4.Each party included under this protective order shall receive a single copy of the protected material and shall not duplicate that material, except as incidental to its incorporation into a submission to the Board or as otherwise agreed to by the parties with the Board's concurrence.
5.When any party sends or receives documents in connection with this appeal/protest that are not designated as protected, including proposed redacted versions of protected documents, the party shall refrain from releasing the documents to anyone not admitted under this protective order, including clients, until the end of the second day following receipt of the documents by all parties. This practice permits parties to identify documents that should have been marked protected before the documents are disclosed to individuals not admitted under this protective order.
6.Each individual covered under this protective order shall take all necessary precautions to prevent disclosure of protected material, including but not limited to physically securing, safeguarding, and restricting access to the protected material. The confidentiality of protected material shall be maintained in perpetuity.
7.Within 20 days after the disposition of the appeal/protest(s) (or if a request for reconsideration or a claim for costs is filed, 20 days after the disposition of those matters), all protected material furnished to individuals admitted under this protective order, including all copies of such material, with the exception of a single copy of a protected decision or letter issued by the Board, shall be: (1) returned to the party that produced them; or (2) with the prior written agreement of the party that produced them; or (3) with the prior written agreement of the party that produced the protected material, retained under the terms of this order for such period as may be agreed. Within the same 20-day period, protected pleadings (including copies in archival files and computer backup files) and written transcripts of protest conferences and hearings shall be destroyed, and the destruction certified to the Board and the other parties, unless the parties agree otherwise; video transcripts produced by the Board shall be returned to the Board. In the absence of such agreement and for good cause shown, the period for retention of the protected material under this paragraph may be extended by order of the Board. Any individual retaining material received under this protective order (except for the single copy of a protected decision or letter issued by the Board) beyond the 20-day period without the authorization of the Board or the prior written agreement of the party that produced the material is in violation of this order. The terms of this protective order (except those terms regarding the return or destruction of protected material) shall apply indefinitely to the single copy of the protected decision or letter issue by the Board that is retained by a party admitted under this order.
8.Any violation of the terms of this protective order may result in the imposition of such sanctions at the Board deems appropriate, including but not limited to referral of the violation to appropriate bar associations or other disciplinary bodies, and restricting the practice of counsel before the Board. A party whose protected information is improperly disclosed shall be entitled to all remedies under law or equity, including breach of contract.
Signature Date
APPENDIX
GOVERNMENT OF THE DISTRICT OF COLUMBIA CONTRACT APPEALS BOARD
APPEAL/PROTEST OF:
)
)
)
CAB No.
Solicitation/Contract No.:
)
)
Agency:
)
APPLICATION FOR ACCESS TO MATERIALS UNDER PROTECTIVE ORDER FOR IN-HOUSE COUNSEL
1.I, , hereby apply for access to protected materials covered by the protective order issued in connection with this appeal/protest.
2.I am in-house counsel for a party to this , appeal/protest.
3.I am a member of the bar(s) of , membership number(s) is/are [Bar Number].
4.My professional relationship with the party I represent in this appeal/protest and its personnel is strictly one of legal counsel. I am not involved in competitive decision making as discussed in U.S. Steel Corp. v. United States, 730 F.2d 1465 (Fed. Cir. 1984), for or on behalf of the party I represent, any entity that is an interested party to this appeal/protest, or for any other firm that might gain a competitive advantage from access to the material disclosed under the protective order. I do not provide advice or participate in any decisions of such parties in matter involving similar or corresponding information about a competitor. This means that I do not, for example, provide advise concerning or participate in decisions about marketing or advertising strategies, product research and development, product design or competitive structuring and composition of bids, offers, or proposals with respect to which the use of protected material could provide a competitive advantage.
5.I have attached a detailed narrative providing the following information:
(a)My position and responsibilities as in-house counsel, including my role in providing advice in procurement-related matters;
(b)The person(s) to whom I report to, and their position(s) and responsibilities;
(c)The number of in-house counsel at the office in which I work, and their involvement, if any, in competitive decision making and in providing advice in procurement-related matters;
(d)My relationship to the nearest person involved in competitive decision making (both in terms of physical proximity and corporate structure); and
(e)Measures taken to isolate me from competitive decision-making and to protect against the inadvertent disclosure of protected material to persons not admitted under the protective order.
6.I identify here (by writing "none" or listing names, positions, and responsibilities) any member of my immediate family who is an officer or holds a management position with an interested party in the appeal/protest or with any other firm that might gain a competitive advantage from access to the material disclosed under the protective order:
7.I identify here (by writing "none" or identifying the name of the forum, case number, date, and circumstances) instances in which I have been denied admission to a protective order, or had admission revoked, or been found to have violated a protective order issued by DCCAB or by an administrative or judicial tribune:
8.I identify here (by writing "none" or listing the protest name and file number) any pending application for admission to a protective order issued by DCCAB:
9.I have read the protective order issued by DCCAB in this appeal/protest, and I will comply in all respects with that protective order and will abide by its terms and conditions in handling any protected material filed or produced in connection with the protest.
10.I acknowledge that any violation of the terms of the protective order may result in the imposition of sanctions as DCCAB deems appropriate, including but not limited to referral of the violation to appropriate bar associations or other disciplinary bodies, and restricting any practice before DCCAB. I further acknowledge that a party whose protected information is improperly disclosed shall be entitled to all remedies under law or equity, including breach of contract.
CERTIFICATION:
By my signature, I certify, that, to the best of my knowledge, the representations set forth above (including any attached statement) are true and correct. I recognize that knowingly making a false statement on this application could render me liable to a $1,000 fine or 180 days imprisonment, or both, pursuant to D.C. Code § 22-2514.
Signature, Title Date Executed
APPENDIX
GOVERNMENT OF THE DISTRICT OF COLUMBIA CONTRACT APPEALS BOARD
APPEAL/PROTEST OF:
)
)
)
CAB No.
Solicitation/Contract No.:
)
)
Agency:
)
APPLICATION FOR ACCESS TO MATERIALS UNDER PROTECTIVE ORDER FOR OUTSIDE COUNSEL
1.I, , hereby apply for access to protected materials covered by the protective order issued in connection with this appeal/protest.
2.I am in-house counsel for , a party to this appeal/protest.
3.I am a member of the bar(s) of , membership number(s) is/are [Bar Number] .
4.My professional relationship with the party I represent in this appeal/protest and its personnel is strictly one of legal counsel. I am not involved in competitive decision making as discussed in U.S. Steel Corp. v. United States, 730 F.2d 1465 (Fed. Cir. 1984), for or on behalf of the party I represent, any entity that is an interested party to this appeal/protest, or for any other firm that might gain a competitive advantage from access to the material disclosed under the protective order. I do not provide advice or participate in any decisions of such parties in matter involving similar or corresponding information about a competitor. This means that I do not, for example, provide advise concerning or participate in decisions about marketing or advertising strategies, product research and development, product design or competitive structuring and composition of bids, offers, or proposals with respect to which the use of protected material could provide a competitive advantage.
5.I identify here (by writing "none" or listing names and relevant circumstances) those attorneys in my firm who, to the best of my knowledge, cannot make the representations set forth in the preceding paragraph:
6.I identify here (by writing "none" or listing names, positions, and responsibilities) any member of my immediate family who is an officer or holds a management position with an interested party in the appeal/protest or with any other firm that might gain a competitive advantage from access to the material disclosed under the protective order:
7.I identify here (by writing "none" or identifying the name of the forum, case number, date, and circumstances) instances in which I have been denied admission to a protective order, or had admission revoked, or been found to have violated a protective order issued by DCCAB or by an administrative or judicial tribunal:
8.I identify here (by writing "none" or listing the appeal/protest name and file number) any pending application for admission to a protective order issued by DCCAB:
9.I have read the protective order issued by DCCAB in this appeal/protest, and I will comply in all respects with that protective order and will abide by its terms and conditions in handling any protected material filed or produced in connection with the protest.
10.I acknowledge that any violation of the terms of the protective order may result in the imposition of sanctions as DCCAB deems appropriate, including but not limited to referral of the violation to appropriate bar associations or other disciplinary bodies, and restricting any practice before DCCAB. I further acknowledge that a party whose protected information is improperly disclosed shall be entitled to all remedies under law or equity, including breach of contract.
CERTIFICATION:
By my signature, I certify, that, to the best of my knowledge, the representations set forth above (including any attached statement) are true and correct. I recognize that knowingly making a false statement on this application could render me liable to a $1,000 fine or 180 days imprisonment, or both, pursuant to D.C. Code § 22-2514.
Signature, Title Date Executed
APPENDIX
GOVERNMENT OF THE DISTRICT OF COLUMBIA CONTRACT APPEALS BOARD
APPEAL/PROTEST OF:
)
)
)
CAB No.
Solicitation/Contract No.:
)
)
Agency:
)
APPLICATION FOR ACCESS TO MATERIALS UNDER PROTECTIVE ORDER FOR CONSULTANT
1.I, , am a consultant employed by, and hereby apply for access to protected material covered by the protective order issued in connection with this appeal/protest.
2.I have been retained by , and will, under the direction and control of that attorney, assist in the representation of in this appeal/protest.
3.I hereby certify that I am not involved in competitive decision-making for or on behalf of any party to this appeal/protest or any other firm that might gain a competitive advantage for access to the material disclosed under the protective order. Neither I nor my employer provides advice or participates in any decisions of such parties in matters involving similar or corresponding information about a competitor. This means, for example, that neither I nor my employers provides advice concerning or participates in decisions about marketing or advertising strategies, product research and development, product design or composition of bids, offers, or proposals with respect to which the use of protected material could provide a competitive advantage.
4.My professional relationship with the party I represent in this appeal/protest and its personnel is strictly as a consultant on issues relevant to the protest. Neither I, my spouse, nor any member of my immediate family holds office or a management position in any company that is a party.
5.I have attached the following information:
(a)A current resume describing my education and employment experience to date;
(b)A list of all clients for whom I have performed work within the 2 years prior to the date of this application, and a brief description of the work performed;
(c)A list of all clients for whom my employer has performed work within the 2 years prior to the day of this application and for whom the use of protected material could provide a competitive advantage, and a brief description of the work performed;
(d)A statement of the services I am expected to perform in connection with this appeal/protest.
(e)A description of the financial interests that I, my spouse, and/or my family has in any entity that is an interested party in this appeal/protest or whose protected material will be reviewed; if none, I have so stated;
(f)A list identifying by name of forum, case number, date, and circumstances all instances in which I have been granted admission or been denied admission to a protective order, or had a protective order admission revoked, or been found to have violated a protective order issued by DCCAB or by an administrative or judicial tribunal; if none, I have so stated; and
(g)A statement of the professional associations to which I belong including membership numbers.
6.I have read a copy of the protective order issued by DCCAB in this appeal/protest, and I will comply in all respects with all terms and conditions of that order in handling any protected material filed or produced in connection with the appeal/protest. I will not disclose any protected material to any individual other than those individuals admitted under the protective order by DCCAB.
7.For a period of 2 years from the date this application is granted, I will not engage or assist in the preparation of a proposal to be submitted to any agency of the District of Columbia government where I know or have reason to know that any party to the appeal/protest, or any successor entity, will be a competitor, subcontractor, or teaming member. *Describe subject of procurement at issue in the appeal/protest.
8.For a period of 2 years from the date this application is granted, I will not engage or assist in the preparation of a proposal for submission to the contracting agency nor will I have any personal involvement in any such activity. *Name of contracting agency. *Describe procurement at issue in the appeal/protest.
9.I acknowledge that any violation of the terms of the protective order may result in the imposition of such sanctions as DCCAB deems appropriate, including but not limited to referral of the violation to appropriate disciplinary bodies or professional associations, and restricting my practice before DCCAB. I further acknowledge that a party whose protected information is improperly disclosed shall be entitled to all remedies under law or equity, including breach of contract.
CERTIFICATION:
By my signature, I certify, that, to the best of my knowledge, the representations set forth above (including any attached statement) are true and correct. I recognize that knowingly making a false statement on this application could render me liable to a $1,000 fine or 180 days imprisonment, or both, pursuant to D.C. Code § 22-2514.
Signature, Title Date Executed
ATTORNEY’S CERTIFICATION:
The consultant named above has been retained by me to assist in the representation of in this appeal/protest and will perform his/her duties in connection with this appeal/protest under my direction and control.
Signature, Title Date Executed