1774826 Notice of Emergency and Proposed Rulemaking - updating chapter 10 and implementing the provisions in the Procurement Practices Reform Act of 2010 (D.C. Law 18-371) that apply to the delegation of contracting authority and procurement ...
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OFFICE OF CONTRACTING AND PROCUREMENT
NOTICE OF EMERGENCY AND PROPOSED RULEMAKING
The Chief Procurement Officer of the District of Columbia (CPO), pursuant to the authority set forth in sections 201, 204, 416, 1105 and 1106 of the Procurement Practices Reform Act of 2010, effective April 8, 2011 (D.C. Law 18-371; D.C. Official Code §§ 2-352.01, 2-352.04, 2-354.16, 2-361.05 and 2-361.06 (2011 Repl.)) (Act), hereby gives notice of the adoption of the following emergency rules and of the intent to adopt final rulemaking to replace chapter 10 (District of Columbia Procurement System), of title 27 (Contracts and Procurement), of the District of Columbia Municipal Regulations (DCMR).
The rulemaking updates chapter 10 and implements the provisions in the Act that apply to the delegation of contracting authority and procurement planning. The current chapter 10 contains regulations on the delegation of contracting authority which are inconsistent with the Act. This inconsistency may create legal uncertainty regarding proper delegation procedures. Adoption of these emergency rules is therefore necessary for the immediate preservation and promotion of the public safety and welfare.
The emergency rules will remain in effect for up to one hundred twenty (120) days from September 27, 2011, the date of their adoption, and will expire on January 25, 2012 or upon publication of a Notice of Final Rulemaking in the D.C. Register, whichever occurs first.
Chapter 10, DISTRICT OF COLUMBIA PROCUREMENT SYSTEM, of title 27, CONTRACTS AND PROCUREMENTS, of the DCMR is amended as follows:
Chapter 10, District of Columbia Procurement System, is repealed and replaced in its entirety to read as follows:
1000 IMPLEMENTATION OF PROCUREMENT CODE
1000.1 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.
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
(c) A court of competent jurisdiction.
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.
1002 [RESERVED]
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
(c) The signature of the Director.
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.
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:
(a) Make all determinations and findings required by the Act or this title 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, Mayor's Orders, Mayor's Memoranda, rules, and all other applicable procedures (including approvals) have been met;
(c) Have wide latitude to exercise business judgment;
(d) Ensure that contractors receive impartial, fair, and equitable treatment in accordance with the Act and this title;
(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, in accordance with chapter 32 of this title; and
(g) Not make any purchase or enter into any contract for an amount in excess of his or her specifically delegated contracting authority.
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.
1006 [RESERVED]
1007 [RESERVED]
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.
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.
1099 DEFINITIONS
1099.1 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.
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.
