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THE OFFICE OF CONTRACTING AND PROCUREMENT
NOTICE OF EMERGENCY AND PROPOSED RULEMAKING
The Chief Procurement Officer of the District of Columbia, pursuant to authority granted by section 3 of the Excellence in Local Business Contract Grading Act of 2008, effective March 26, 2008 (D.C. Law 17-137; D.C. Official Code § 2-235.05 (2009 Supp.)) (Act) and Mayor’s Order 2009-8 (dated January 29, 2009), hereby gives notice of the adoption of the following emergency rules and of the intent to adopt final rulemaking to add a new section to Chapter 22 of Title 27 of the District of Columbia Municipal Regulations (Contracts and Procurements). The Act requires the Mayor to issue rules to implement the provisions of the Act. The rulemaking is intended to add a new section 2219 to Chapter 22 concerning procedures for declaring a contractor ineligible to apply for or work on any District contracts because it has received a final evaluation grade of F on a District contract.
Without these emergency rules, the Office of Contracting and Procurement will not be able to declare ineligible those contractors who have already received a final evaluation grade of F on a District contract. Adoption of these emergency rules to amend Chapter 22 is thus necessary for the immediate preservation of the public safety or welfare, in accordance with District law as codified at D. C. Official Code § 2-505(c) (2001). These emergency rules will remain in effect for up to one hundred twenty (120) days from the date of adoption or upon publication of a Notice of Final Rulemaking in the D.C. Register, whichever occurs first. The Chief Procurement Officer 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. The Chief Procurement Officer will submit the rules to the Council of the District of Columbia for a forty-five (45) day period of review pursuant to section 3 of the Act, and will not take final rulemaking action until completion of the 45-day review period or Council approval of the rules by resolution before the end of the review period.
Chapter 22 of Title 27 DCMR is amended by adding a new section 2219 to read as follows:
2219 INELIGIBILITY PROCEEDINGS UNDER THE Excellence in LOCAL BUSINESS Contract Grading Act of 2008
2219.1 This section shall apply to contractor ineligibility proceedings in accordance with the Excellence in Local Business Contract Grading Act of 2008, effective March 26, 2008 (D.C. Law 17-137; D.C. Official Code § 2-325.04 et seq. (2009 Supp.)) (Act).
2219.2 The Director shall initiate ineligibility proceedings by notifying the contractor by certified mail, return receipt requested, of the following:
(a) That the contractor has received a grade of F as its evaluation grade on a District contract.
(b) That, within fifteen (15) days after receipt of the notice, the contractor may request from the Director a final written decision on its grade of F and that, in making its request, the contractor may submit in person, in writing, or through a representative, information and argument in opposition to the proposed ineligibility, including any additional specific information that raises a genuine issue of fact; and
(c) That, if the contractor fails to request from the Director a final written decision on its grade of F within fifteen (15) days after receipt of the notice, the contractor will be subject to the same consequences of ineligibility as described in § 2212 for a one (1)-year period which shall commence on the sixteenth (16th) day after the date of the notice.
2219.3 The Director shall include a copy of the final evaluation letter and the vendor evaluation for which the contractor received a grade of F with the notice provided pursuant to § 2219.2.
2219.4 If the contractor timely requests a final written decision from the Director on its grade of F, the Director shall issue his final decision on the matter within fifteen (15) days after receipt of the contractor’s request. The Director shall base his decision on the facts as found together with any information and argument submitted by the contractor.
2219.5 If the Director decides not to change the grade of F, the Director shall notify the contractor by certified mail, return receipt requested. The final written decision shall include:
(a) A reference to the original notice of proposed ineligibility;
(b) Notice to the contractor of its right to appeal the final decision to the Contract Appeals Board (CAB) within thirty (30) days after receipt of the final decision; and
(c) A statement that the contractor will be subject to the same consequences of ineligibility as described in § 2212 of this chapter for a one (1)-year period. The ineligibility period shall commence on the earlier of the thirty-first (31st) day after the date of the final written decision if the contractor chooses not to appeal the final decision, or the day after the CAB dismisses or denies the contractor’s appeal.
2219.6 If the Director decides to change the grade of F, the Director shall notify the contractor of his decision by certified mail, return receipt requested.
2219.7 A contractor who has received a grade of F as its final evaluation shall remain eligible to apply for or work on any District contract until the CAB appeal process has been concluded.
2219.8 The Director shall ensure that ineligible contractors are included on the consolidated list of debarred, suspended, and ineligible contractors as provided in § 2211.
All persons desiring to comment on the subject matter of this proposed rulemaking should file comments, in writing, to the Chief Procurement Officer, 441 4th Street, 700 South, Washington, D.C. 20001. Comments must be received no later than thirty (30) days from 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.
