1774729 Notice of Proposed Rulemaking - replacing the District’s regulations for the management and administration of its contracts.
-
OFFICE OF CONTRACTING AND PROCUREMENT
NOTICE OF PROPOSED RULEMAKING
The Chief Procurement Officer of the District of Columbia (CPO), pursuant to the authority set forth in sections 204 and 1106 of the Procurement Practices Reform Act of 2010, effective April 8, 2011 (D.C. Law 18-371; D.C. Official Code §§ 2-352.04 and 2-361.06)(2011 Repl.), hereby gives notice of the intent to adopt final rulemaking to replace chapter 12 (Contract Management and Administration) of title 27 (Contracts and Procurement) of the District of Columbia Municipal Regulations (DCMR). This rulemaking will replace the District’s regulations for the management and administration of its contracts.
The CPO gives notice of intent to take final rulemaking action in not less than thirty (30) days from the date of publication of this notice in the D.C. Register.
Chapter 12, CONTRACT MANAGEMENT AND ADMINISTRATION, of title 27, CONTRACTS AND PROCUREMENTS, of the DCMR is amended as follows:
Chapter 12, Contract Management and Administration, is repealed and replaced in its entirety to read as follows:
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:
(a) 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.
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.
1202 [RESERVED]
1203 [RESERVED]
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.
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.
1206 [RESERVED]
1207 [RESERVED]
1208 [RESERVED]
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:
(a) Prepare a clear and concise statement of work;
(b) Determine the allowability, suspension, or disapproval of costs;
(c) Approve or disapprove contractor invoices;
(d) Review and approve or disapprove a contractor’s requests for payments under progress payments or performance-based payment structures;
(e) Take action to recover overpayments from the contractor;
(f) Perform production support, oversight, and status reporting, including timely reporting of potential and actual slippages in contract delivery schedules;
(g) Advise the contracting officer of any actual or potential labor disputes;
(h) Ensure contractor compliance with contractual quality assurance requirements;
(i) Ensure contractor compliance with contractual safety requirements;
(j) Perform surveillance to assess compliance with contractual terms for schedule, cost, and technical performance in the areas of design, development and production;
(k) Report to the contracting officer any inadequacies noted in the specifications;
(l) Ensure timely submission of required reports;
(m) Monitor contractor compliance with specifications or other contractual requirements;
(n) Prepare evaluations of contractor performance in accordance with chapter 22 of this title; and
(o) Any other function relating to contract administration not expressly reserved by these rules to the contracting officer.
1210 [RESERVED]
1211 [RESERVED]
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;
(c) Evidence of the transferee's capability to perform the contract(s);
(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.
1212.4 When it is in the best interests 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 interests 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 interests 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.
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) 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
(b) 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.
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.
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.
All persons desiring to comment on the subject matter of this proposed rulemaking should submit comments, in writing, to the Chief Procurement Officer, 441 4th Street, 700 South, Washington, D.C. 20001. Comments may be sent by email to OCPRulemaking@dc.gov or may be submitted by postal mail or hand delivery to the address above. Comments must be received no later than thirty (30) days after the date of publication of this notice in the D.C. Register. A copy of this proposed rulemaking may be obtained at the same address.
