1805963 Notice of Final Rulemaking deleting subsections 1630.5 through 1630.7 and adding a new section to chapter 16 concerning procedures for the debriefing of unsuccessful offerors.

OFFICE OF CONTRACTING AND PROCUREMENT

NOTICE OF FINAL 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.)) (Act), hereby gives notice of the adoption of the following rulemaking to revise chapter 16 (Procurement by Competitive Sealed Proposals) of title 27 (Contracts and Procurement) of the District of Columbia Municipal Regulations (DCMR). The rulemaking will delete subsections 1630.5 through 1630.7 and add a new section to chapter 16 concerning procedures for the debriefing of unsuccessful offerors.

 

These rules were adopted as emergency and proposed rules on December 13, 2010, and published in the D.C. Register on January 7, 2011, at 58 DCR 150. Emergency rules were adopted on April 12, 2011, and published in the D.C. Register on May 6, 2011, at 58 DCR 4039. A new Notice of Emergency and Proposed Rulemaking was published in the D.C. Register at 58 DCR 8080 (September 16, 2011).  No changes have been made to the rulemaking as originally proposed.  The CPO took final action to adopt these rules on November 7, 2011.

 

The rulemaking will become effective upon publication in the D.C. Register.

 

Title 27, CONTRACTS AND PROCUREMENTS, of the DCMR is amended as follows:

 

Chapter 16 (Procurement by Competitive Sealed Proposals) of title 27 (Contracts and Procurement) of the DCMR is amended as follows:

 

Section 1630 (Notifications, Protests, and Mistakes) is amended by repealing subsections 1630.5, 1630.6 and 1630.7 in their entirety.

 

A new section 1633 is added to read as follows:

 

1633                DEBRIEFINGS

 

1633.1             If a contract is awarded on a basis other than price alone, the contracting officer shall provide a 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.     

 

1633.2             If a debriefing is held, the information provided shall include, at a minimum:

 

(a)                The District’s evaluation of the significant weak or deficient factors in the unsuccessful offeror’s proposal;  

 

(b)               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;

 

(c)                The overall numeric ranking of all offerors, if any ranking was developed by the procuring agency during the evaluation;

 

(d)               A summary of the rationale for award; and

 

(e)                Reasonable responses to relevant questions about whether source selection procedures contained in the solicitation, applicable regulations and other applicable authorities were followed.

 

1633.3             The debriefing shall not:

 

(a)                Include point-by-point comparisons of the debriefed offeror's proposal with those of other offerors; or

 

(b)               Reveal any information prohibited from disclosure by subsection 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) (2011 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.) (2011 Repl.)), including:

 

(1)               Information which has been designated as confidential and proprietary by an offeror;

 

(2)               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;

 

(3)               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;

 

(4)        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.

                             

1633.4             The contracting officer shall include a written summary of the debriefing in the contract file.