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DISTRICT OF COLUMBIA RETIREMENT BOARD
NOTICE OF FINAL RULEMAKING
The District of Columbia Retirement Board (the Board), pursuant to the authority set forth in section 121(i) of the District of Columbia Retirement Reform Act of 1979 (Pub. L. 96-122, 93 Stat. 866 (Nov. 17, 1979) (codified at D.C. Official Code § 1-711(i)(2001)) (the Reform Act), hereby gives notice of the adoption of final rulemaking to amend Chapter 16 of Title 7 of the District of Columbia Municipal Regulations (DCMR). The purpose of the final rules is to modify the Board’s governing standards for the procurement of goods and services.
The Board stated its intent to adopt the proposed rules as final in the Notice of Proposed Rulemaking published in the D.C. Register on June 4, 2010 at 57 DCR 4895. No comments were received and no substantive changes were made to the proposed rulemaking. The proposed rules were deemed approved without D.C. Council action October 22, 2010. These rules will become final upon publication of this notice in the D.C. Register.
Title 7, EMPLOYMENT BENEFITS, is amended by adding a new Chapter 16 to read as follows:
CHAPTER 16 DISTRICT OF COLUMBIA RETIREMENT BOARD PROCUREMENT RULES
1600 Purpose and Governance
1600.1 Board. In accordance with section 121(i) of the "District of Columbia Retirement Reform Act," as amended, Public Law 96-122 (codified at D.C. Official Code § 1-711(i) (2001)), the District of Columbia Retirement Board (“Board”) is vested with contracting authority and is required to issue rules governing the procurement of goods and services pursuant to such authority to carry out its responsibilities under the Reform Act.
1600.2 District Procurement Law. The Board’s statutory contracting authority is unencumbered by the District’s procurement provisions in chapter 3 of title 2 of the D.C. Official Code (D.C. Official Code § 2-303.20(h) (2001)).
1600.3 Appropriations. The Mayor and the Council may not specify the purposes for which funds appropriated for the administrative expenses of the Board may be expended or the amounts which may be expended for the various activities of the Board. Pub. L. 96-122 § 121(f)(3) (codified at D.C. Official Code § 1-711(f)(3) (2001)).
1600.4 Administration. The Executive Director appointed by the Board pursuant to Title 7, Chapter 15, Section 1503.1 of the District of Columbia Municipal Regulations, who serves as the Chief Contracting Officer, shall develop and administer operating policies, procedures, and guidelines implementing this Chapter.
1600.5 Applicability. This Chapter applies to the procurement of goods and services, except for contracts with the governments of the District of Columbia and the United States. This Chapter is not applicable to the retention of investment counsel and investment-related services, which is governed by separate rules developed and adopted by the Board's Investment Committee and approved by a majority vote of the Board.
1600.6 Rules of Construction. The titles to sections and subparts of sections contained in these rules are for convenience and reference only. Unless otherwise stated, a listing of factors, criteria, or subjects in these rules does not constitute an order of precedence.
1600.7 Severability. If any provision of this Chapter is deemed by a court of competent jurisdiction to be invalid, void or unenforceable for any reason, such a determination shall not affect the validity of any other provision of this Chapter.
1601 General Provisions
1601.1 These regulations shall govern the procurement of goods and services.
1601.2 Procurements shall be conducted using full and open competition, except as otherwise provided for in these regulations.
1601.3 In conformity with its statutory mandate, the Board reserves the right, at any time and in its sole discretion, to modify, rescind, delete, or otherwise change the provisions of the regulations.
1601.4 The Executive Director shall issue a Procurement Manual setting forth guidelines and procedures to be followed consistent with these regulations.
1601.5 The Board delegates to the Executive Director the authority to develop, implement and enforce such policies and procedures, consistent with these regulations, as deemed necessary or useful.
1601.6 Contract Funding
(a) Prior to the execution of any contract or modification increasing the price of the contract, the Chief Financial Officer shall certify that sufficient funds are available for obligation in accordance with applicable legal requirements.
(b) In accordance with the District of Columbia Antideficiency Act (D.C.
Official Code §§ 47-355.01, et seq.) and the federal Antideficiency Act (31 U.S.C. §§ 1341, et seq.), the Board shall not make or authorize the encumbrance or expenditure of funds, in advance of appropriations, which exceeds the budget authority available.
(c) If the contract provides for expenditures in a future fiscal year, the Contracting Officer shall not sign the contract unless the contract contains a provision which expressly provides that the portion of the contract requiring expenditures in a future fiscal year is conditioned upon the appropriation of budget authority for that fiscal year.
1601.7 Books and records of services rendered to the Board shall be maintained by the Contractor for a period of not less than six (6) years from the date of final payment under a contract and shall be made available for inspection upon reasonable request by the Board.
1602 General Standards of Ethical Conduct
1602.1 Board employees involved in the procurement process shall conduct business impartially and in a manner above reproach, with preferential treatment for none. Board employees shall strictly avoid any conflict of interest or the appearance of a conflict of interest in the procurement process.
1602.2 Any attempt by an employee to realize personal gain through employment with the Board by conduct inconsistent with proper discharge of duties is a breach of ethical standards.
1602.3 Any attempt by a non-employee to influence any Board employee to breach the standards of ethical conduct set forth in this Section is a breach of ethical standards.
1602.4 Any attempt by a Board member to realize personal gain through the exercise of the duties or responsibilities of Board members or to influence any employee to violate the standards of ethical conduct set forth in this Section is a breach of ethical standards.
1602.5 The Executive Director shall designate an Ethics Officer to provide guidance on ethical matters.
1603 Ethics Sanctions
1603.1 The Board may take action against employees and others who violate any provision of §§ 1602-1604.
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1603.2 Any employee who violates any provision of §§ 1602-1604 will be subject to discipline, up to and including termination.
1603.3 Any Board member who violates any provision of §§ 1602-1604 or who violates fiduciary responsibilities will be subject to sanctions in accordance with District law.
1603.4 Any effort made by or on behalf of a non-employee, including an offeror or contractor, to influence an employee to breach the ethical standards set forth in §§ 1602-1604 is prohibited and may be referred to appropriate authorities for civil enforcement or criminal prosecution.
1604 Conflict of Interest
1604.1 No Board member or Board employee shall participate in or attempt to influence any procurement when the Board member or employee knows or has reason to know:
(a) The Board member or employee, or any relative of a Board member or employee, has a financial interest pertaining to the procurement;
(b) A business or organization in which the Board member or employee, or any relative of Board member or employee has a financial interest pertaining to the procurement; or
(c) The Board member or employee or any relative of a Board member or employee has an agreement or arrangement for prospective employment with a business or organization involved with the procurement.
1604.2 It is a breach of ethical standards for any employee to receive or attempt to realize personal gain or advantage, either directly or indirectly, as a result of their participation in any action related to any procurement. No Board member or employee may solicit or accept, directly or indirectly any benefit, such as a gift, gratuity, favor, compensation, offer of employment or anything having more than a nominal monetary value from any person or entity having or seeking to have a contractual, business, or financial relationship with the Board.
1604.3 In the event a Board employee, other than the Executive Director, is offered or receives any benefit in violation of any provision of §§ 1602-1604 from any person or entity, the employee shall report the matter to the Executive Director or designee who shall determine the disposition of the benefit. The failure to report such offer or benefit to the Executive Director or designee is a breach of these ethical standards.
1604.4 In the event the Executive Director or a Board member other than the Board Chairperson receives any offer or benefit in violation of any provision of §§ 1602-1604 from any person or entity, the Board member or Executive Director shall report the benefit to the Board Chairperson who shall determine the disposition of the matter or benefit. In the event that the Board Chairperson receives any offer or benefit in violation of any provision of §§ 1602-1604 from any person or entity, the Board Chairperson shall report the benefit to the full Board who shall determine the disposition of the matter or benefit.
1605 Executive Director
1605.1 The Executive Director is designated as the Chief Contracting Officer for the Board. The Executive Director is authorized to enter into, administer, terminate and otherwise manage contracts subject to any threshold amounts established by the Board.
1605.2 The Executive Director shall determine the qualifications of Contracting Officers and may delegate contracting authority in whole or in part to one (1) or more Contracting Officers. Such delegation shall be in writing specifying the limits of the authority granted.
1606 Contracting Officers
1606.1 Contracting Officers have only such authority delegated to them pursuant to § 1605.2.
1606.2 Contracting Officers have discretion to determine the method of procurement, project delivery and type of contract to use for each requirement, unless this function is excluded from the delegation of contracting authority.
1606.3 Contracting Officers shall determine responsive bids and responsible offerors. A responsive bid is a response to a solicitation which conforms in all material respects to the solicitation.
1606.4 A responsible offeror has the capability in all respects to perform fully the contract requirements, and the integrity and reliability which will assure good faith performance.
1607 Contracting Officer’s Technical Representative
1607.1 Contracting Officers may appoint, in writing, a Contracting Officer’s Technical Representative (“COTR”) to provide such management oversight and technical direction for a particular procurement or contract as the Contracting Officer shall determine is necessary or useful.
1607.2 The COTR shall maintain an arm’s length relationship with the contractor. COTRs have no authority to modify or amend contracts.
1608 Methods of Procurement
1608.1 Board procurements shall be conducted using a method or combination of methods which:
(a) Serve the Board’s interest considering price, delivery, quality, effect on the Board’s operations and services, and other factors affecting the Board’s interests; and
(b) Deal fairly with offerors and contractors.
1608.2 The Board may use any of the following methods of procurement:
(a) Sealed Bids;
(b) Competitive Proposals;
(c) Small Purchases;
(d) Commercial Item Purchases;
(e) Expedited Purchases;
(f) Limited Competition Purchases;
(g) Joint Procurements;
(h) Rider Procurements;
(i) General Services Administration Schedule/District Supply Schedule Purchases; or
(j) Unsolicited Proposals.
1608.3 The Board may select and employ a project delivery method determined to be appropriate to the specific contract and to serve the Board’s interests.
1608.4 Each solicitation shall clearly indicate the type or types of contract that will be used for the specific procurement.
1608.5 All contracts, except as provided in § 1610.5 for emergencies, shall be in writing.
1608.6 Dividing Procurements Prohibited: Procurements shall not be divided as a means to circumvent the competitive process, or to avoid the procedures applicable to procurements of greater value.
1608.5 The use of cost plus a percentage of cost contracts is prohibited.
1609 Competitive Procurement Methods
1609.1 The sealed bid method includes publicizing the solicitation, issuing an Invitation for Bids (“IFB”), and the receipt of bids. The Board may award a contract to the responsible bidder who submits the lowest responsive bid. The sealed bid method may be used if:
(a) There is an adequate and realistic specification or purchase description available;
(b) The award will be made on the basis of price and other price-related factors;
(c) It is not necessary to conduct discussions with the responding offerors about their bids; and
(d) There is a reasonable expectation of receiving more than one (1) sealed bid.
1609.2 The competitive proposal method includes both one-step and two-step proposal processes.
(a) The one-step process entails:
(1) The publicizing of the solicitation;
(2) The issuance of a Request for Proposals (“RFP”); and
(3) The receipt of proposals.
(b) The two-step process entails:
(1) The publicizing of the solicitation;
(2) The issuance of a Request for Qualifications (“RFQ”);
(3) The receipt of Statements of Qualifications from interested
offerors;
(4) The issuance of an RFP to a shortlist of offerors that have responded to the RFQ and are deemed most qualified; and
(5) The receipt of proposals.
(c) Under either process, the Board may negotiate with offerors and seek revised offers. This procurement method may include a Request for Information or an Expression of Interest before the RFP or RFQ is publicized.
(d) In competitive proposal procurements, the Board may award a contract to the offeror whose proposal is most advantageous to the Board.
(e) The competitive proposal method may be used when time permits the solicitation, submission, and evaluation of proposals in one (1) or more steps and one (1) or more of the following circumstances apply:
(1) There is not a complete, adequate, and realistic specification or purchase description available;
(2) The award will be made on the basis of criteria in addition to price or price-related factors;
(3) It may be necessary to conduct discussions with the responding offerors about their proposals; or
(4) There is a reasonable expectation of receiving more than one (1) Statement of Qualifications and/or proposal.
1609.4 The Board may use multi-step methods of procurement including any combination of competitive methods such as the two-step sealed bidding.
1609.5 The small purchase method is used for procurements with an estimated value less than the threshold amount established in the Procurement Manual. Small purchases may be made considering price and the best interests of the Board and a determination that the price is reasonable.
1609.6 The small purchase method may be used for any purchase of commercial items.
1609.7 The small purchase method may be used for any purchase when time is of the essence (expedited purchase). Offers shall be sought from two (2) or more sources and purchases may be made considering price and other factors.
1609.8 Competition may be limited to selected sources when it is determined that there are limited sources of supply to fulfill the Board’s requirements.
1609.9 The Board may use the following procurement methods with governmental entities:
(a) Joint Procurement: The Board may participate in, sponsor, conduct, or administer a joint procurement agreement with one (1) or more public bodies to increase efficiency or reduce administrative expenses.
(b) Rider Procurements: The Board may purchase goods and services if:
(1) A public body has entered into a contract for goods or services according to general principles of competitive procurement; and
(2) The Board is named or otherwise described in the list of agencies that may purchase under the contract.
(c) General Services Administration Schedule and District Supply Schedule Purchases: The Board may purchase goods or services under schedule contracts awarded by the General Services Administration or the District of Columbia Government.
1610 Exemptions
1610.1 The following procurements may be made without competition and are not subject to the competitive requirements set forth in § 1609.
1610.2 Small purchases: Procurements at or under the threshold amounts for micro purchases established in the Procurement Manual may be made without competition.
1610.3 Sole Source: Goods and services, that are available from only one (1) vendor or contractor (sole source) may be purchased without competition. Circumstances where sole source purchasing is permitted include:
(a) Specific replacement parts or components for equipment;
(b) Equipment upgrade and repair, repair services, or parts unavailable from any other source except the original equipment manufacturer or designated service representative;
(c) Upgrade to existing software, available only from the producer of the software who sells only on a direct basis;
(d) When there is a need to standardize equipment, or to facilitate the interoperability of equipment or systems;
(e) When there is substantial duplication of costs to the Board that is not expected to be recovered through competition;
(f) Utility services, when from only one (1) source; or
(g) Intellectual property rights that are owned or controlled by one (1) source and made available through that source. These rights would include patents, copyrights, licenses, secret processes, and material monopolies or other established rights that affect distribution of goods and services.
1610.4 Categorical Exemptions: The following categories of purchases are exempt from the competitive procurement methods and may be purchased without competition:
(a) Purchase, rent or lease of land or other interest in real property;
(b) Memberships, films, manuscripts, publications, educational services;
(c) Personal property sold at an auction by a licensed auctioneer;
(d) Personal property or services provided by another public entity, agency or board;
(e) Legal services;
(f) Research programs;
(g) Advertisements in newspapers or other publications;
(h) Intergovernmental agreements and cooperative agreements with other institutions where the primary purpose is not the purchase of goods or services; and
(i) Travel services.
1610.5 Emergency Procurements: Emergency Procurements may be made with limited competition or without competition. An emergency is a situation which creates an immediate need for goods or services that cannot be met through normal procurement methods because the lack of these goods or services would seriously threaten any of the following:
(a) The health or safety of any person;
(b) The preservation or protection of property;
(c) The continuation of necessary governmental functions; or
(d) The Board’s compliance with legal requirements.
1610.6 The Executive Director, or designee, may approve a non-competitive procurement on an emergency basis which does not otherwise comply with the requirements of the regulations if the procurement is essential for:
(a) Preventing or avoiding an imminent emergency; or
(b) Responding to, mitigating or resolving an existing emergency condition.
1610.7 In case of an emergency procurement under this Section, a contractor may be given a verbal authorization by the Contracting Officer to proceed, provided that a written contract or modification is executed as soon thereafter as is reasonably practicable.
1611 Unsolicited Proposals
1611.1 The Board will review unsolicited proposals and consider the feasibility of their implementation. An unsolicited proposal is one which:
(a) Is innovative or unique;
(b) Is independently originated and developed by the offeror;
(c) Is prepared without the Board’s supervision;
(d) Includes sufficient detail to permit a determination that the proposed product, services or work could benefit the Board’s mission or allow it to meet its responsibilities; and
(e) Is not an advance proposal for a known or anticipated Board requirement that can be procured by competitive methods.
1611.2 Unsolicited proposals may be the basis of a competitive procurement if deemed to be in the best interests of the Board.
1611.3 An offeror may designate portions of its proposal to be confidential if they include proprietary information or contain sensitive personnel information.
1611.4 An unsolicited proposal shall be returned to an offeror, citing reasons, when the proposal:
(a) Does not meet the criteria in § 1612.1; or
(b) Is not deemed to be advantageous to the Board.
1611.5 Acceptance of an unsolicited proposal may be recommended to the Executive Director, who may accept or reject it.
1612 Requests Before Soliciting Offer
1612.1 Prior to publicizing a solicitation of offers, the Board may, when applicable and in consideration of its best interests, publicize and issue Requests for Information or an Expression of Interest.
1612.2 The Board may publicize the solicitation and issue Requests for Qualifications from prospective offerors before soliciting offers under any method of procurement. In such case, the Board may limit its solicitation of offers only to firms that submit a response or only to those firms that submit a response and are deemed most qualified.
1612.3 If the IFB or RFP is issued only to selected firms, further publicizing the IFB or RFP is not required.
1613 Disputes
1613.1 This section shall govern all disputes arising under or related to contracts awarded by the Board to procure goods or services.
1613.2 In order to make a claim under a contract, a party to the contract shall submit to the Executive Director a written assertion that the party is entitled to the payment of money in a sum certain, the adjustment or interpretation of a contract provision, or other relief under the contract.
1613.3 If a claim on behalf of a contractor has a value of more than fifty thousand dollars ($50,000), the claim shall be accompanied by the certification of the contractor that the claim is made in good faith and that the amount or adjustment requested and the supporting data are accurate and complete to the best of the contractor’s knowledge and belief.
1613.4 If the Executive Director cannot resolve a claim after informal discussion, the Executive Director shall, within sixty (60) days of receipt of the claim, issue a written decision granting or denying the claim, giving the Executive Director’s reasoning, and setting forth the contractor’s rights. The Executive Director’s failure to issue a decision within this time shall be deemed to be a denial of the claim for the purpose of the contractor filing a claim with the Superior Court of the District of Columbia.
1613.5 The parties waive the right to trial by jury in any judicial action, proceeding or counterclaim arising from any agreement that is not resolved by the Executive Director.
1613.6 Pending a final settlement or a final decision from a court on an action or appeal, of a dispute or a claim asserted by the contractor against the Board, the contractor shall proceed diligently with performance of the agreement in accordance with its terms and conditions.
1615 Business Development Programs
1615.1 The Board will endeavor to include opportunities for the participation of eligible local and small business enterprises in its contracting and procurement activities.
1615.2 Pursuant to the requirements applicable to the receipt of federal grants and other financial assistance, the Board will implement programs designed to increase participation by federally-designated business enterprises.
1615.3 A Business Development Plan implementing these programs will be in the Procurement Manual.
1616 Protecting the Environment
1616.1 The Board encourages respect for and the proper management of our finite natural resources. Accordingly, the Board will plan and conduct its procurement as an environmental steward. The Board recognizes that how it carries out its environmental stewardship will have effects on a regional and global scale.
1699 Definitions
1699.1 When used in the regulations, the following words and phrases shall have the meanings ascribed:
Bid – An offer to furnish goods and services in conformity with and in response to specifications, delivery terms and conditions, and other requirements included in an Invitation For Bids (IFB).
Commercial Items – Items sold to the general public in the course of normal business operations that are competitively priced and based on established catalogue or market prices. Commercial products may include corresponding services for the installation, repair or maintenance associated with the item.
Contracting Officer – The Executive Director and any other employee designated by the Executive Director, possessing written and express authority to bind the Board in specified contract matters.
Contracting Officer’s Technical Representative (COTR) – An employee appointed, in writing, by a Contracting Officer to perform specified technical and administrative functions as are detailed in the appointment.
Ethics – Practices or requirements pertaining to appropriate conduct or motives that conform to professional standards of conduct.
Expression of Interest – A process used to identify potential offerors that might be interested in an upcoming procurement, and/or to invite comment from companies with expertise and experience in the matter that will benefit the development of the specifications or statement of work.
Full and Open Competition – A manner of conducting procurements in which all responsible sources are permitted to compete.
Goods – Physical (tangible) products, including but not limited to, supplies, equipment, materials, printing, information technology hardware and software, and commodities.
Invitation for Bids (IFB) – The solicitation document used for competitive sealed bidding for the purchase of goods or services.
Offeror – A person or entity that submits a bid or proposal to the Board, generally in response to an IFB or RFP.
Procurement – The process by which the Board acquires goods and services, by and for its use through purchase or lease. Procurement begins at the point when the Board determines that an established need shall be met through contracting and includes the description of requirements to satisfy the Board’s needs, solicitation and selection of sources, award of contracts, contract financing, contract performance, contract administration, and those technical and management functions directly related to the process of fulfilling Board needs by contract.
Proposal – An offer to furnish goods or services, in response to a Request for Proposals (RFP) that, if accepted, would bind the offeror to perform the resultant contract.
Public Body – Any state, the District of Columbia, any unit or political subdivision or component of any of the foregoing and any agency of the United States Government.
Request for Information (RFI) – A process preliminary to a solicitation requesting information from potential vendors about their products and services.
Request for Proposals (RFP) – The solicitation document used in the competitive proposal process in which proposals are evaluated on the basis of technical standards, price and other criteria and in which negotiations with proposers prior to final selection and award of a contract
is permissible.
Request for Qualifications (RFQ) – The solicitation document used to obtain Statements of Qualifications from prospective offerors in advance of the issuance of an Invitation for Bids or a Request for Proposals.
Services – Any activity that directly engages the time and effort of a contractor whose primary purpose is to perform an identifiable task rather than to furnish goods. Insurance is a service. Services also include consultation, advice, design and other work performed by either professional or non-professional personnel whether on an individual or organizational basis. This term shall not include employment agreements or collective bargaining agreements.
Solicitation – Any request to submit qualifications, expressions of interest, bids, proposals, or quotations to the Board. A Solicitation under sealed bid procedures are called “Invitations for Bids.” A Solicitation under competitive proposal procedures is called a “Request for Proposals” under one-step procurement, and is called “Request for Qualifications” and “Request for Proposals” under a two-step procurement. Small purchase solicitations may require submission of either a quotation or an offer (bid or proposal).
Statement of Qualifications – The submission of qualifications by an offeror in response to a Request for Qualifications.
