4168689 Notice of Final Rulemaking to replace and update the District's regulations covering procurements by competitive sealed propsals

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 intent to adopt final rulemaking to replace Chapter 16 (Procurement by Competitive Sealed Proposals), of Title 27 (Contracts and Procurement), of the District of Columbia Municipal Regulations (DCMR).

The rulemaking updates Chapter 16 and implements the provisions in the Act that apply to procurements under the competitive sealed proposal process.

The CPO gave notice of his intent to adopt these rules on November 15, 2012, and the proposed rules were published in the D.C. Register on December 7, 2012, at 59 DCR 14039. No changes have been made to the text of the rules as published. The CPO took final action to adopt these rules on January 22, 2013.

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

Chapter 16, PROCUREMENT BY COMPETITIVE SEALED PROPOSALS, of Title 27, CONTRACTS AND PROCUREMENTS, of the DCMR is amended as follows:

Section 1600, USE OF COMPETITIVE SEALED PROPOSALS, is amended to read as follows:

1600 USE OF COMPETITIVE SEALED PROPOSALS

1600.1 If the contracting officer determines competitive sealed bidding is not practicable or advantageous to the District, a procurement may be conducted using the competitive sealed proposal (CSP) method.

1600.2 Proposals shall be solicited from the maximum number of qualified sources, and in a manner consistent with the nature of, and the need for, the goods or services being acquired.

Section 1601, NEGOTIATION AFTER CANCELLATION OF INVITATION FOR BIDS, is repealed and replaced with:

1601 SOLICITATIONS FOR INFORMATION AND PLANNING PURPOSES

1601.1 When information necessary for planning purposes cannot be obtained from potential sources by more economical and less formal means, the contracting officer may use a solicitation for information or planning.

1601.2 A request for information (RFI) shall include the following:

(a) A description of the information to be furnished in the response;

(b) An indication of whether the notice will be followed by a conference and a formal solicitation; and

1601.3 The contracting officer shall safeguard all information received in response to an RFI from unauthorized disclosure.

Section 1602, SOLICITATION OF PROPOSALS, is repealed and replaced with:

1602 PRESOLICITATION NOTICES AND CONFERENCES

1602.1 The contracting officer may use presolicitation notices and conferences as preliminary steps in procurements by CSP in order to accomplish any of the following:

(a) Develop or identify interested sources;

(b) Request preliminary information based on a general description of the goods or services involved;

(d) Explain complicated specifications and requirements to interested sources; or

(e) Aid prospective offerors in later submitting proposals without undue expenditure of effort, time, and money.

1602.2 If presolicitation notices are used, the contracting officer shall publicize the notice on the OCP Internet and, if the Director deems appropriate, in newspapers of general circulation and trade publications.

1602.3 At a minimum, the notice shall contain sufficient information to permit a potential offeror to make an informed decision about whether to participate in the acquisition.

1602.4 In complex procurements, the presolicitation notice may request information pertaining to management, engineering, or production capabilities.

Section 1603, SOLICITATIONS FOR INFORMATION AND PLANNING PURPOSES, is repealed and replaced with:

1603 [RESERVED]

Section 1604, PRESOLICITATION NOTICES AND CONFERENCES, is repealed and replaced with:

1604 SOLICITATION OF PROPOSALS

1604.1 A request for proposals (RFP) shall be the solicitation used to communicate the District's requirements to prospective contractors when the CSP method is used.

1604.2 The contracting officer shall issue solicitations which contain all information necessary to enable prospective contractors to prepare proposals properly.

1604.3 The contracting officer shall furnish identical information concerning a proposed procurement to all prospective contractors.

1604.4 District personnel shall not provide advance knowledge or information about a future solicitation to any prospective contractor.

1604.5 Except for solicitations for information or planning purposes, the contracting officer shall not solicit proposals unless there is a definite intention to award a contract.

1604.6 Each RFP shall be publicized in accordance with the provisions of chapter 13 of this title.

1604.7 An RFP shall not be used as a solicitation for information or planning purposes.

Section 1605, PRE-PROPOSAL CONFERENCES, is repealed and replaced with:

1605 REQUESTS FOR PROPOSALS IN THE SET-ASIDE MARKET

1605.1 Before the contracting officer restricts a CSP procurement to the small business set-aside market, the contracting officer shall determine that:

(a) There is a reasonable expectation that proposals will be obtained from at least two (2) responsible small business enterprises certified by the Department of Small and Local Business Development (DSLBD); and

(b) An award will be made at reasonable prices.

1606 [RESERVED ]

Section 1607, AMENDMENT OF SOLICITATIONS BEFORE CLOSING DATE, is repealed and replaced with:

1607 [RESERVED]

Section 1608, RECEIPT OF PROPOSALS, is repealed and replaced with:

1608 UNSOLICITED PROPOSALS

1608.1 Unsolicited proposals may be considered by agencies in order to obtain innovative or unique methods or approaches to accomplishing their missions from sources outside the District.

1608.2 A valid unsolicited proposal shall meet all of the following criteria:

(a) Be innovative or unique;

(b) Be independently originated and developed by the offeror;

(d) Include sufficient detail to permit a determination that District support would be worthwhile; and

(e) Show that the proposed work could benefit the mission of the agency.

1608.3 Unsolicited proposals shall contain the following information to permit consideration in an objective and timely manner:

(a) Offeror's name, address, and type of organization, such as profit, non- profit, educational or certified business enterprise;

(b) Names of and contact information for technical and business personnel to be contacted for evaluation or negotiation purposes;

(d) Signature of a person authorized to represent and contractually obligate the offeror;

(e) Proposed price or total estimated cost for the effort in sufficient detail for meaningful evaluation;

(f) The period of time for which the proposal is valid;

(g) The type of contract preferred; and

(h) The proposed duration of effort.

Section 1609, LATE PROPOSALS, LATE MODIFICATIONS, AND LATE WITHDRAWALS, is repealed and replaced with:

1609 EVALUATION OF UNSOLICITED PROPOSALS

1609.1 The agency shall consider the following factors when evaluating a valid unsolicited proposal:

(a) Unique or innovative methods, approaches, or concepts demonstrated by the proposal;

(b) Overall scientific, technical, or socio-economic merits of the proposal;

(d) The offeror's capabilities, related experience, facilities, techniques, or unique combinations of these which are integral factors for achieving the proposal objectives; and

(e) Qualifications, capabilities, and experience of the proposed team leader or key personnel who are critical to achieving the proposal objective.

1609.2 An agency shall return an unsolicited proposal to an offeror, citing reasons, when its substance meets any of the following criteria:

(a) It is available to the District without restriction from another source;

(b) It closely resembles a pending competitive requirement; or

1609.3 A favorable evaluation of an unsolicited proposal shall not, by itself, justify awarding a contract without full and open competition.

1609.4 The contracting officer may commence negotiations only when all of the following conditions are met:

(a) The unsolicited proposal has received a favorable comprehensive evaluation;

(b) The unsolicited proposal is not disqualified under the provisions of § 1609.2;

(c) The agency supports its recommendations with facts and circumstances that preclude competition, and has the necessary funds;

(d) The agency has obtained written approval from the Director; and

(e) The contracting officer has publicized the requirement in accordance with chapter 13 of this title.

Section 1610, DISCLOSURE AND USE OF INFORMATION BEFORE AWARD, is repealed and replaced with:

1610 PRICES FOR SERVICES PROVIDED UNDER THE DISTRICT’S TEMPORARY ASSISTANCE TO NEEDY FAMILIES PROGRAM

1610.1 Notwithstanding the requirements of § 1612.1, for services provided under the District’s Temporary Assistance to Needy Families (TANF) Program, implementing the Self-sufficiency Promotion Amendment Act of 1998 (D.C. Law 12-241), the Director sets the following prices to be paid to contractors selected through the solicitation, and no price evaluation factor will be required for procurement of these services:

(a) Work Readiness and Placement Services

(1) Base compensation - The District shall make the monthly base payments set out in the table below depending on the contractor’s number of not-employed Point-In-Time (PIT) caseload:

Not-employed PIT	Monthly Base Compensation
150	$34,000
300	$54,000
450	$75,000
600	$82,000
750	$103,000
900	$110,000

(2) Outcome-based compensation - The District shall pay the outcome-based compensation set out in the following table based on the contractor’s achievement of specific outcomes:

Outcomes	Performance Standard	Incentive
Payment Point 1: Education or training program completion payment	A not-employed customer completes the education or training program(s) specified in the customer’s Individual Responsibility Plan (IRP). Upon verification of the successful completion of the education or training program(s), the contractor determines that the customer is employable and is eligible to receive Job Placement Services.	$400 per customer who meets the performance standard for Payment Point 1. The District shall pay the contractor a maximum of one education or training program completion payment per customer who meets the performance standard per 12-month calendar period.
Payment Point 2: Participation payment	A not-employed customer meets his or her full monthly participation requirements, through a combination of approved core and non-core TANF activities.	$200 per month per customer who meets the performance standard for Payment Point 2.
Payment Point 3: Work placement payment	The contractor places a customer in unsubsidized employment. Payment shall be made to the contractor when the customer successfully completes two weeks of work and has fully met his or her work participation requirements for those two weeks. Participation weeks do not have to be consecutive.	$400 per customer who obtains unsubsidized work either within four months of the education and work slot completion date or while still engaged in an education or work slot. $200 per customer who obtains unsubsidized work more than four months after the education and work slot completion date. The District shall pay the contractor a maximum of two work placement payments per customer per 12-month calendar period; however, should the contractor be eligible for two work placement payments of $400 each in a 12-month calendar period, the contractor shall be limited to only one $400 payment, with the second one being a $200 payment.

Outcomes

Performance Standard

Incentive

Payment Point 4: Higher wage payment

The contractor places a customer in unsubsidized employment, where the customer’s wages exceed an amount equal to $2.50 per hour less than the District’s Living Wage rate.

Payment shall be made to the contractor when the customer successfully completes two weeks of work and has fully met his or her work participation requirements for those two weeks.

Participation weeks do not have to be consecutive.

$300 per customer who meets the performance standard for Payment Point 4.

The District shall pay the contractor a maximum of two higher wage payments per customer per 12-month calendar period.

Payment Point 5: Employment retention payment

A customer who is placed in unsubsidized employment by the contractor meets his or her full monthly participation requirements through a combination of core and non-core TANF activities.

$400 per month per customer who meets performance standard for Payment Point 5.

The District shall pay the contractor a maximum of six employment retention payments (six months of full participation) per customer per 12-month calendar period. Participation months do not have to be consecutive.

(3) Reimbursable costs - The District shall reimburse the contractor the following amounts for allowable incentives, stipends and discrete work-related expenses for which the contractor can provide documentation:

(i) Education or training program(s) completion incentives: Three hundred dollars ($300) per customer who completes the education or training program(s) specified in the customer’s IRP, is subsequently determined employable by the contractor, and becomes eligible to receive Job Placement Services; limited to one (1) such incentive per customer per twelve (12)-month calendar period.

(ii) Employment retention incentives: A total incentive payment not to exceed one thousand two hundred fifty dollars ($1,250) per customer per twelve (12)-month calendar period; for a customer who enters unsubsidized employment, and retains the unsubsidized job for six (6) months. The employment retention incentives shall be calculated as follows:

a. Two (2)-week employment retention incentive: One hundred fifty dollars ($150) when the customer enters an unsubsidized job and works for at least two (2) weeks and has met his or her full work participation requirements over these two (2) weeks. Participation weeks do not have to be consecutive.

b. One (1)-month employment retention incentive: One hundred twenty dollars ($120) when the customer retains the unsubsidized job and has met his or her full work participation requirements for one (1) month.

c. Two (2)-month employment retention incentive: One hundred twenty dollars ($120) when the customer retains the unsubsidized job and has met his or her full work participation requirements for two (2) months. Participation months do not have to be consecutive.

d. Three (3)-month employment retention incentive: One hundred twenty dollars ($120) when the customer retains the unsubsidized job and has met his or her full work participation requirements for three (3) months. Participation months do not have to be consecutive.

e. Four (4)-month employment retention incentive: One hundred twenty dollars ($120) when the customer retains the unsubsidized job and has met his or her full work participation requirements for four (4) months. Participation months do not have to be consecutive.

f. Five (5)-month employment retention incentive: One hundred twenty dollars ($120) when the customer retains the unsubsidized job and has met his or her full work participation requirements for five (5) months. Participation months do not have to be consecutive.

g. Six (6)-month employment retention incentive: Five hundred dollars ($500) when the customer retains the unsubsidized job and has met his or her full work participation requirements for six (6) months. Participation months do not have to be consecutive.

(iii) Stipends: Fifteen dollars ($15) per day per customer who participates in approved core and non-core TANF activities for at least four (4) hours per day. Stipends shall not be reimbursed for a customer once he or she enters unsubsidized employment and has received his or her first paycheck.

(iv) Discrete work-related expenses: No more than two hundred fifty dollars ($250) per customer per twelve (12)-month calendar period for actual allowable costs to enable the customer to defray significant, discrete customer work-related expenses such as obtaining a medical test not covered by Medicaid or purchasing uniforms for customers who have a firm job offer. The total discrete work-related expense shall not exceed two hundred fifty dollars ($250) per customer per twelve (12)-month calendar period, unless pre-approved in writing by DHS.

(b) Job Placement Services

(1) Base compensation - The District shall make the monthly base payments set out in the table below depending on the contractor’s not-employed PIT:

Not-employed PIT	Monthly Base Compensation
150	$18,000
300	$19,000
450	$19,000
600	$12,000
750	$12,000
900	$6,000

(2) Outcome-based compensation - The District shall pay the outcome-based compensation set out in following table based on the contractor’s achievement of specific outcomes:

Outcomes	Performance Standard	Incentive
Payment Point 1: Education or training program completion payment	This payment point is not applicable to the Job Placement Services solicitation.	This payment point is not applicable to the Job Placement Services solicitation.
Payment Point 2: Participation payment	A not-employed customer meets his or her full monthly participation requirements, through a combination of approved core and non-core TANF activities.	$150 per month per customer who meets the performance standard for payment point 2.
Payment Point 3: Work placement payment	The contractor places a customer in unsubsidized employment. Payment shall be made to the contractor when the customer successfully completes two weeks of work and has fully met his or her work participation requirements for those two weeks. Participation weeks do not have to be consecutive.	$400 per customer who obtains unsubsidized work within three months of the date DHS referred the customer to the contractor. $200 per customer who obtains unsubsidized work more than three months after the date DHS referred the customer to the contractor. The District shall pay the contractor a maximum of two work placement payments per customer per 12-month calendar period; however, should the contractor be eligible for two work placement payments of $400 each in a 12-month calendar period, the contractor shall be limited to only one $400 payment, with the second one being a $200 payment.

Outcomes

Performance Standard

Incentive

Payment Point 4: Higher wage payment

The contractor places a customer in unsubsidized employment, where the customer’s wages exceed an amount equal to the District’s Living Wage rate.

Payment shall be made to the contractor when the customer successfully completes two weeks of work and has fully met his or her work participation requirements for those two weeks.

Participation weeks do not have to be consecutive.

$300 per customer who meets the performance standard for Payment Point 4.

The District shall pay the Contractor a maximum of two higher wage payments per customer per 12-month calendar period.

Payment Point 5: Employment retention payment

A customer who is placed in unsubsidized employment by the contractor meets his or her full monthly participation requirements through a combination of core and non-core TANF activities.

$300 per month per customer who meets the performance standard for Payment Point 5.

The District shall pay the Contractor a maximum of six employment retention payments (six months of full participation) per customer per 12-month calendar period. Participation months do not have to be consecutive.

(i) Employment retention incentives: A total incentive payment not to exceed one thousand two hundred fifty dollars ($1,250) per customer per twelve (12)-month calendar period; for each customer who enters unsubsidized employment, and retains the unsubsidized job for six (6) months. The employment retention incentives shall be calculated as follows:

a. Two (2)-week employment retention incentive: one hundred fifty dollars ($150) when the customer enters an unsubsidized job and works for at least two (2) weeks and has met his or her full work participation requirements over these two (2) weeks. Participation weeks do not have to be consecutive.

b. One (1)-month employment retention incentive: one hundred twenty dollars ($120) when the customer retains the unsubsidized job and has met his or her full work participation requirements for one (1) month.

c. Two (2)-month employment retention incentive: one hundred twenty dollars ($120) when the customer retains the unsubsidized job and has met his or her full work participation requirements for two (2) months. Participation months do not have to be consecutive.

d. Three (3)-month employment retention incentive: one hundred twenty dollars ($120) when the customer retains the unsubsidized job and has met his or her full work participation requirements for three (3) months. Participation months do not have to be consecutive.

e. Four (4)-month employment retention incentive: one hundred twenty dollars ($120) when the customer retains the unsubsidized job and has met his or her full work participation requirements for four (4) months. Participation months do not have to be consecutive.

f. Five (5)-month employment retention incentive: one hundred twenty dollars ($120) when the customer retains the unsubsidized job and has met his or her full work participation requirements for five (5) months. Participation months do not have to be consecutive.

g. Six (6)-month employment retention incentive: five hundred dollars ($500) when the customer retains the unsubsidized job and has met his or her full work participation requirements for six (6) months. Participation months do not have to be consecutive.

(ii) Stipends: Fifteen dollars ($15) per day per customer who participates in approved core and non-core TANF activities for at least four (4) hours per day. Stipends shall not be reimbursed for customers once he or she enters unsubsidized employment and has received his or her first paycheck.

(iii) Discrete work-related expenses: No more than two hundred fifty dollars ($250) per customer per twelve (12)-month calendar period for actual allowable costs to enable the customer to defray significant, discrete customer work-related expenses such as obtaining a medical test not covered by Medicaid or purchasing uniforms for customers who have a firm job offer. The total discrete work-related expense shall not exceed two hundred fifty dollars ($250) per customer per twelve (12)-month calendar period, unless pre-approved in writing by DHS.

Section 1611, SOLICITATIONS FOR THE DEVELOPMENT, CONSTRUCTION AND MANAGEMENT OF THE ANACOSTIA GATEWAY GOVERNMENT CENTER, is repealed and replaced with:

1611 [RESERVED]

Section 1612, UNSOLICITED PROPOSALS, is repealed and replaced with:

1612 SOURCE SELECTION

1612.1 Selection of a contractor through the use of CSPs shall be based on the following:

(a) Cost or price competition among proposals that meet the District's minimum requirements stated in the solicitation; or

(b) Competition involving an evaluation and comparison of cost or price and other factors.

1612.2 The contracting officer shall be responsible for source selection.

1612.3 The contracting officer shall be responsible for contractual actions related to the CSP process, including, but not limited to, the following:

(a) Issuing solicitations in accordance with the provisions of this chapter;

(b) Conducting or controlling all negotiations concerning cost or price, technical requirements, and other terms and conditions; and

Section 1613, EVALUATION OF UNSOLICITED PROPOSALS, is repealed and replaced with:

1613 EVALUATION FACTORS OF PROPOSALS

1613.1 The evaluation factors that will be considered in evaluating proposals shall be tailored to each procurement and shall include only those factors that will have an impact on the source selection decision.

1613.2 The contracting officer shall include in the solicitation the evaluation factors, including price or cost, and any significant subfactors. The solicitation shall include the minimum requirements that apply to particular evaluation factors or significant subfactors.

1613.3 The contracting officer shall include in the solicitation the numerical weights that will be used in the evaluation of the proposals.

1613.4 Evaluation factors shall be stated in descending order of importance.

1613.5 While the lowest price or lowest total cost to the District may be an important or even a deciding factor in most source selections, the District may select the source whose proposal is more advantageous to the District in terms of technical merit and other factors.

Section 1614, SOURCE SELECTION, is repealed and replaced with:

1614 [RESERVED]

Section 1615, CHANGES IN DISTRICT REQUIREMENTS, is repealed and replaced with:

1615 REQUEST FOR QUALIFICATIONS BEFORE ISSUING A REQUEST FOR PROPOSALS

1615.1 The contracting officer may issue a request for qualifications (RFQ) before an RFP when the contracting officer determines that the RFQ process will be the most advantageous to the District. This selection process will determine which prospective contractors are qualified to receive RFPs and submit responses to the RFPs, based on financial and professional responsibility criteria established by the contracting officer for pre-qualification of a prospective contractor.

1615.2 The District shall issue an RFQ to firms to determine whether they have the expertise, ability, and entrepreneurship to:

(a) Assemble the labor and capital necessary for the completion of the procurement;

(b) Manage all components of the procurement; and

1615.3 The contracting officer shall give public notice of the RFQ in accordance with chapter 13 of this title.

1615.4 The RFQ shall invite interested prospective contractors to respond in writing with a statement of their qualifications to perform the required services, including financial and professional responsibility information. The RFQ shall provide, at a minimum:

(a) A detailed description of the statement of work;

(b) The District’s intent of the project;

(c) The selection process, schedule, and criteria to be used by the District in determining which prospective contractors are qualified;

(d) Submission requirements and evaluation criteria that will be used to determine whether each prospective contractor is qualified;

(e) The deadline for submission of information; and

(f) A statement of the number of the highest ranked offerors determined to be most qualified that will be selected to submit proposals in the subsequent RFP.

1615.5 The contracting officer may conduct oral or written discussions with prospective contractors who submitted responses to the RFQ. If the contracting officer conducts discussions, he or she shall conduct discussions with all prospective contractors who submitted responses to the RFQ.

1615.6 The contracting officer may provide the information submitted by all prospective contractors in response to the RFQ to an evaluation panel who may recommend to the contracting officer, based upon the panel’s analysis of the information according to the criteria set forth in the RFQ, whether or not a prospective contractor should be among the highest ranked offerors to proceed to the second step.

1615.7 The contracting officer shall determine the financial and professional responsibility of each prospective contractor and rank them in writing from the most qualified to the least qualified on the basis of the information provided.

1615.8 The contracting officer shall then issue an RFP in accordance with the provisions of section 1612 to at least three (3) of the highest-ranked offerors who have been determined most qualified. The RFP shall not be advertised in newspapers or publicly posted.

1615.9 If there are fewer than three (3) offerors, the contracting officer may issue the RFP to the highest-ranked offeror(s).

1615.10 The contracting officer’s decision regarding how many proposals to solicit shall not be subject to review.

Section 1616, DISCLOSURE OF MISTAKES BEFORE AWARD, is repealed and replaced with:

1616 [RESERVED]

Section 1617, EVALUATION FACTORS OF PROPOSALS, is repealed and replaced with:

1617 [RESERVED]

Section 1618, PROPOSAL EVALUATION, is repealed and replaced with:

1618 [RESERVED]

Section 1619, DISCUSSIONS WITH OFFERORS, is repealed and replaced with:

1619 [RESERVED]

Section 1620, DETERMINATION OF COMPETITIVE RANGE, is repealed and replaced with:

1620 [RESERVED]

Section 1621, CONDUCT OF DISCUSSIONS WITH OFFERORS, is repealed and replaced with:

1621 PRE-PROPOSAL CONFERENCES

1621.1 The contracting officer may conduct a pre-proposal conference to brief prospective offerors after a solicitation has been issued but before offers are submitted.

1621.2 The contracting officer or designated representative shall:

(a) Conduct the pre-proposal conference;

(b) Furnish all prospective offerors identical information concerning the proposed procurement;

(d) Promptly publish a copy of that record to all prospective offerors.

1621.3 The contracting officer shall inform all pre-proposal conference attendees that:

(a) Remarks and explanations at the conference do not qualify or amend the terms of the solicitation; and

(b) Nothing stated at the pre-proposal conference shall change an RFP unless a change is made by the contracting officer by written amendment.

Section 1622, BEST AND FINAL OFFERS, is repealed and replaced with:

1622 CHANGES IN DISTRICT REQUIREMENTS

1622.1 When, either before or after receipt of proposals, the District increases, decreases or otherwise changes its requirements, the contracting officer shall issue a written amendment to the solicitation in accordance with § 1623.

1622.2 In deciding which firms to notify of a change, the contracting officer shall consider the state in the procurement cycle at which the change occurs and the magnitude of the change, as follows:

(a) If proposals are not yet due, the amendment shall be published in the same manner as the solicitation;

(b) If the time for receipt of proposals has passed but proposals have not yet been evaluated, the amendment shall be sent only to the responding offerors; and

(c) If a competitive range has been established, the amendment shall be sent only to those offerors within the competitive range.

1622.3 If a change is so substantial that it warrants complete revision of a solicitation, the contracting officer shall cancel the original solicitation and issue a new one, regardless of the state of the procurement. The new solicitation shall be advertised in accordance with the requirements of chapter 13 of this title.

1622.4 If the proposal considered to be most advantageous to the District (as determined by using the established evaluation criteria and selection procedure) involves a departure from the stated requirements, the contracting officer shall provide all offerors an opportunity to submit new or amended proposals on the basis of the revised requirements, if this can be done without revealing to the other offerors the solution proposed in the original departure or any other information that is entitled to protection.

Section 1623, PRICE NEGOTIATION, is repealed and replaced with:

1623 AMENDMENT OF SOLICITATION BEFORE CLOSING DATE

1623.1 After the issuance of a solicitation, but before the date set for receipt of proposals, the contracting officer may make changes in the solicitation to reflect any of the following:

(a) Significant changes in quantity, specifications, or delivery schedules;

(b) The correction of defects or ambiguities;

(d) Any other appropriate purpose affecting the procurement.

1623.2 The contracting officer shall determine if the closing date and time needs to be changed when amending a solicitation, and shall notify all prospective offerors of

any change in the closing date necessitated by an amendment.

1623.3 The contracting officer shall not award a contract unless all amendments made to the RFP have been issued in sufficient time to be considered by prospective offerors.

Section 1624, COST AND PRICING DATA, is repealed and replaced with:

1624 PROPOSAL SUBMISSION REQUIREMENTS

1624.1 The procedures for submitting proposals shall be in accordance with the RFP and requirements of § 1521 of this title.

Section 1625, PRICE ANALYSIS, is repealed and replaced with:

1625 RECEIPT AND SAFEGUARDING OF PROPOSALS

1625.1 The procedures for receipt and handling of proposals shall be in accordance with the requirements of § 1526 of this title.

Section 1626, COST ANALYSIS, is repealed and replaced with:

1626 [RESERVED]

Section 1627, PRE-NEGOTIATION OBJECTIVES, is repealed and replaced with:

1627 LATE PROPOSALS, LATE MODIFICATIONS, AND LATE WITHDRAWALS

1627.1 Any proposal or modification to proposal received at the location designated in the RFP after the time and date set for receipt of proposals shall be considered "late" unless it was received prior to the contract award and any of the following applies:

(a) It was sent by registered or certified mail not later than five (5) calendar days before the date and time specified for receipt of offers;

(b) It was sent by mail and the contracting officer determines that the late receipt was due solely to mishandling by the District after receipt at the location specified in the RFP;

(c) It was sent electronically by the offeror prior to the time and date specified and there is objective evidence in electronic form confirming that the offer was received prior to the date and time specified for receipt; or

(d) It was the only proposal received.

1627.2 Any request for withdrawal or request for modification of an offer received after the time and date set for receipt of proposals is late.

1627.3 A late proposal, late request for modification, or late request for withdrawal shall not be considered, except as provided in this section.

1627.4 A late modification of a successful proposal which makes its terms more favorable to the District shall be considered at any time it is received and may be accepted.

1627.5 A late proposal, late modification of offer, or late withdrawal of offer that is not considered shall be held unopened, unless opened for identification, until after award and then retained with unsuccessful offers.

1627.6 If any information received electronically is unreadable, the contracting officer immediately shall notify the offeror and permit the offeror to resubmit the unreadable portion of the information. The method and time for resubmission shall be prescribed by the contracting officer after consultation with the offeror, and documented in the contract file. The resubmission shall be considered as if it were received at the date and time of the original unreadable submission for the purpose of determining timeliness, provided the offeror complies with the time and format requirements for resubmission prescribed by the contracting officer.

Section 1628, PRICE NEGOTIATION MEMORANDUM, is repealed and replaced with:

1628 [RESERVED]

Section 1629, PROFIT OR FEES, is repealed and replaced with:

1629 DISCLOSURE AND USE OF INFORMATION BEFORE AWARD

1629.1 After receipt of proposals, the information contained in them and the number or identity of offerors shall not be made available to the public or to anyone in the District not required to have access to the information in the performance of his or her duties.

1629.2 During the pre-award period of a CSP procurement, only the contracting officer and others specifically authorized may transmit technical or other information and conduct discussions with prospective contractors.

1629.3 No District employee or agent shall furnish information to a prospective contractor if, alone or together with other information, it might give the prospective contractor an advantage over others. However, general information that is not prejudicial to others may be furnished upon request.

1629.4 The contracting officer may release proposals outside the District for evaluation, consistent with the following requirements:

(a) The outside evaluator shall provide a written agreement stating that the information contained in the qualifications or proposal will be used only for evaluation purposes and will not be further disclosed; and

(b) Any authorized restrictive legends placed on the proposal by the prospective contractor or subcontractor, or by the District, shall be affixed to any reproduction or abstracted information made by the evaluator.

Section 1630, NOTIFICATIONS, PROTESTS, AND MISTAKES, is repealed and replaced with:

1630 PROPOSAL EVALUATION

1630.1 The contacting officer shall evaluate each proposal using only the evaluation criteria stated in the RFP and in accordance with the weightings provided in the RFP.

1630.2 The contracting officer shall evaluate the cost estimate or price, not only to determine whether it is reasonable, but also to determine the offeror's understanding of the work and ability to perform the contract.

1630.3 If any technical evaluation is necessary beyond ensuring that the proposal meets the minimum requirements in the solicitation, the contracting officer shall forward the proposals to the appropriate technical official for technical evaluation.

1630.4 If a technical evaluation is done, a technical evaluation report shall be prepared by the technical official and shall contain the following:

(a) The basis for evaluation;

(b) An analysis of the technically acceptable and unacceptable proposals, including an assessment of each offeror's ability to accomplish the technical requirements;

(d) A summary of findings.

1630.5 When evaluating a cost-reimbursement contract, the cost proposal shall not be controlling. The contracting officer shall consider which offeror can perform the contract in a manner most advantageous to the District as determined by evaluation of proposals according to the established evaluation criteria.

1630.6 The contracting officer may reject all proposals received in response to a solicitation by a written determination that to do so would be in the best interest of the District. The contracting officer's determination shall be approved by the Director.

1630.7 The reasons given for rejection may include, but are not limited to, the following:

(a) All otherwise acceptable proposals received are at unreasonable prices; or

(b) The proposals were not independently arrived at in open competition, were collusive or were submitted in bad faith.

1630.8 When all proposals are rejected and no award will be made as a result of the RFP, the contracting officer shall cancel the RFP.

1630.9 The contracting officer shall prepare supporting documentation for the selection decision that shows the relative differences among the proposals and their strengths, weaknesses, and risks in terms of the evaluation factors. The supporting documentation shall include the basis for the selection.

Section 1631, SOLICITATIONS FOR DESIGN AND CONSTRUCTION OF THE 11^TH STREET BRIDGE PROJECT, is repealed and replaced with:

1631 DISCLOSURE OF MISTAKES BEFORE AWARD

1631.1 The contracting officer shall examine all proposals before award for minor informalities or irregularities and apparent clerical mistakes.

1631.2 Limited exchanges to clarify or resolve ambiguities, apparent minor mistakes or irregularities shall be only for clarification, not discussion. If the resulting communication prejudices the interest of other offerors, and the contracting is proceeding under § 1632.1(c), the contracting officer shall not make award without discussions with all offerors within the competitive range.

Section 1632, TWO-STEP SOLICITATIONS, is repealed and replaced with:

1632 SELECTION OF NEGOTIATION PROCESS

1632.1 After evaluation of the proposals using only the criteria stated in the RFP and in accordance with weightings provided in the RFP, the contracting officer may elect to proceed with:

(a) Award of the contract without negotiations or discussions in accordance with § 1633;

(b) Negotiations with the highest ranked offeror in accordance with § 1634;

(d) Negotiations with the highest ranked offeror after discussions with offerors in the competitive range or after receipt of best and final offers in accordance with § 1634.

Section 1633, DEBRIEFINGS, is repealed and replaced with:

1633 AWARD WITHOUT DISCUSSIONS

1633.1 Discussions are not necessary:

(a) If prices are fixed by law or regulation; or

(b) It can be clearly demonstrated from the existence of full and open competition or prior cost experience with the goods or services that acceptance of the most advantageous initial proposal without discussion would result in a fair and reasonable price.

1633.2 If discussions are not held pursuant to § 1633.1(b), the contracting officer may elect to award the contract to the highest ranked offeror, provided that:

(a) All offerors have been notified of the possibility that an award might be made without discussions; and

(b) The terms of the contract are within the scope of the RFP; and

Section 1634 is added to read as follows:

1634 NEGOTIATIONS WITH THE HIGHEST RANKED OFFEROR

1634.1 Pursuant to § 1632.1(b) or § 1632.1(d), the contracting officer may elect to proceed with negotiations with the highest-ranked offeror on price or technical matters within the scope of the RFP.

1634.2 During negotiations the contracting officer shall do the following:

(a) Control all negotiations;

(b) Advise the offeror of deficiencies in its proposal so that the offeror is given an opportunity to satisfy the District's requirements;

(c) Attempt to resolve any uncertainties concerning the technical proposal and other terms and conditions of the proposal;

(d) Resolve any suspected mistakes by calling them to the offeror's attention as specifically as possible; and

(e) Provide the offeror a reasonable opportunity to submit any cost or price, technical, or other revisions to its proposal that may result from the negotiations.

1634.3 If a satisfactory contract cannot be negotiated with the highest-ranked offeror, the contracting officer may enter negotiations on price or technical matters within the scope of the RFP, as provided under §§ 1634.2 and 1634.3, with the lower-ranked offerors in order of ranking until a satisfactory contract can be awarded.

1634.4 If a contract cannot be negotiated, the contracting officer may reopen negotiations with any offeror with whom negotiations were terminated.

1634.5 If the contracting officer makes changes to the general scope of the RFP after negotiations, the contracting officer shall issue a request for best and final offers to all of the offerors which submitted proposals to the RFP.

1634.6 After evaluation of the best and final offers under §1634.5, the contracting officer shall award to the highest-ranked offeror whose best and final offer is most advantageous to the District, considering only price and other factors included in the solicitation. The contracting officer may negotiate further with the highest-ranked offeror prior to award, provided that the terms of the contract are within the scope of the RFP.

Section 1635 is added to read as follows:

1635 [RESERVED]

Section 1636 is added to read as follows:

1636 DISCUSSIONS WITH OFFERORS WITHIN THE COMPETITIVE RANGE

1636.1 If the contracting officer elects not to award without discussions under § 1633, or not to negotiate with the highest ranked offeror before determining a competitive range under § 1634, the contracting officer may choose to conduct written or oral discussions with all offerors in the competitive range pursuant to § 1632.1(c).

1636.2 If this process is chosen, the contracting officer shall determine which proposals are in the competitive range, and shall conduct written or oral discussions with the offerors which submitted those proposals.

Section 1637 is added to read as follows:

1637 DETERMINATION OF THE COMPETITIVE RANGE

1637.1 The competitive range shall be determined on the basis of price and other factors, in accordance with the evaluation criteria that were stated in the RFP, and shall include all of the most highly rated proposals.

1637.2 If all offerors have been notified in the solicitation of the possibility that the competitive range can be limited for purposes of efficiency, the contracting officer may determine to limit the number of proposals in the competitive range to the greatest number that will permit an efficient competition among the most highly rated proposals.

1637.3 If the contracting officer decides that an offeror’s proposal should no longer be included in the competitive range, the proposal shall be eliminated from consideration for award.

1637.4 The contracting officer shall notify, in writing, an unsuccessful offeror at the earliest practicable time that its proposal is no longer being considered for award.

Section 1638 is added to read as follows:

1638 CONDUCT OF DISCUSSIONS WITH OFFERORS WITHIN THE COMPETITIVE RANGE

1638.1 The contracting officer shall ensure that, if discussions are held with any offeror within the competitive range pursuant to § 1636, discussions are held with all offerors in the competitive range.

1638.2 During discussions with offerors, the contracting officer shall do the following:

(a) Control all discussions;

(b) Advise each offeror of weaknesses and deficiencies in its proposal so that the offeror is given an opportunity to revise its proposal to satisfy the District's requirements;

(c) Attempt to resolve any uncertainties concerning the technical proposal and other terms and conditions of the proposal;

(d) Resolve any suspected mistakes by calling them to the offeror's attention as specifically as possible without disclosing information concerning other offerors' proposals or the evaluation process; and

(e) Provide each offeror a reasonable opportunity to submit any price, technical, or other revisions to its proposal that may result from the discussions.

1638.3 The contracting officer shall not assist an offeror to bring its proposal up to the level of other proposals through successive rounds of discussion, such as pointing out weaknesses resulting from the offeror's lack of diligence, competence, or inventiveness in preparing the proposal.

1638.4 The contracting officer shall not disclose technical information pertaining to a proposal that results in improvement of a competing proposal.

1638.5 The contracting officer shall not indicate to an offeror a price it must meet to obtain further consideration, advise an offeror of its standing relative to another offeror, or otherwise furnish information about any other offeror's prices.

1638.6 If, after discussions have begun, an offeror originally in the competitive range is no longer considered to be among the most highly rated offerors being considered for award, that offeror may be eliminated from the competitive range whether or not all material aspects of the proposal have been discussed, or whether or not the offeror has been afforded an opportunity to submit a proposal revision.

Section 1639 is added to read as follows:

1639 BEST AND FINAL OFFERS OF OFFERORS WITHIN THE COMPETITIVE RANGE

1639.1 Upon completion of discussions, the contracting officer shall issue to all offerors within the competitive range a request for best and final offers.

1639.2 The request for best and final offers shall include the following:

(a) Notice that discussions are concluded;

(b) Notice that this is the opportunity to submit a best and final offer;

(c) A common cut-off date and time that allows a reasonable opportunity for submission of written best and final offers; and

(d) Notice that if any modification is submitted, it must be received by the date and time specified and is subject to the provisions of this chapter covering late proposals.

1639.3 After evaluation of the best and final offers, the contracting officer may award the contract to the highest-ranked offeror, considering only price and other factors included in the solicitation. The contracting officer may negotiate further with the highest-ranked offeror prior to award in accordance with §1634.

Section 1640 is added to read as follows:

1640 [RESERVED]

Section 1641 is added to read as follows:

1641 PRICE NEGOTIATION WITH OFFERORS

1641.1 Among other areas of negotiations under § 1634 and discussions under §1638, the contracting officer may enter into price negotiations with the offeror with the intent of agreeing on a fair and reasonable price.

1641.2 The contracting officer shall not be required to reach agreement on every element of cost, and may make reasonable compromises if necessary.

Section 1642 is added to read as follows:

1642 SUBSTANTIATING OFFERED PRICES

1642.1 The contracting officer shall select whatever price or cost analysis techniques will ensure a fair and reasonable price.

1642.2 The contracting officer may request factual information reasonably available to the offeror to substantiate that the price or cost offered, or some portion of it, is reasonable, if:

(a) The price is not:

(i) Based on adequate price competition;

(ii) Based on an established catalogue or market prices; or

(iii) Set by law or regulation; or

(b) The price or cost exceeds an amount established by law or regulation.

1642.3 The offeror shall submit the requested factual information at the time and in the manner specified by the contracting officer.

1642.4 If an offeror refuses to supply the requested information, the contracting officer may disqualify the offeror, or delay the award pending further analysis.

Section 1643 is added to read as follows:

1643 [RESERVED]

Section 1644 is added to read as follows:

1644 CANCELLATION OF REQUESTS FOR PROPOSALS

1644.1 An RFP shall not be canceled unless the Director determines in writing that cancellation is in the best interest of the District.

1644.2 If an RFP is canceled before the date and time set for receipt of proposals, the contracting officer shall:

(a) Return to the offerors unopened proposals that have been received via mail or hand-delivery; or

(b) Purge all bids that have been received electronically from primary and backup data storage systems.

1644.4 If an RFP is canceled after opening of proposals, the proposals shall be retained in the procurement file.

1644.5 The contracting officer shall post on the Internet a notice of cancellation which shall briefly explain the reason the RFP is being canceled.

Section 1645 is added to read as follows:

1645 PAYMENT OF STIPENDS

1645.1 Agencies may pay stipends to compensate one or more unsuccessful offerors for a portion of proposal development costs, the use of information contained in their proposals, and to encourage competition.

1645.2 Stipends shall be paid only to offerors which have submitted acceptable proposals complying with the conditions of the RFP.

1645.3 The solicitation must include a provision describing the amount, conditions, and the process of distribution for stipends. The stipend provision must include the

following at a minimum:

(a) The agency’s commitment to pay a stipend;

(b) The amount and timing of stipend payment;

(d) A requirement that the offeror submit an acceptable proposal complying with the conditions of the RFP;

(e) A requirement that the proposal meet a minimum quality;

(f) A statement that the District may retain the right to use ideas from unsuccessful offerors if they accept the stipends;

(g) An agreement form; and

(h) A statement advising the offerors that the acceptance of a stipend is optional on the part of the unsuccessful offeror.

Section 1646 is added to read as follows:

1646 NOTIFICATIONS

1646.1 The contracting officer shall notify each offeror whose proposal is determined to be unacceptable before award unless disclosure might prejudice the best interest of the District.

1646.2 The contracting officer shall award a contract by transmitting written notice of the award with reasonable promptness to the responsible offeror whose proposal will be the most advantageous to the District.

1646.3 Promptly after the award of each contract, the contracting officer shall notify unsuccessful offerors in writing, unless notice was given before award.

Section 1647 is added to read as follows:

1647 [RESERVED]

Section 1648 is added to read as follows:

1648 DEBRIEFINGS

1648.1 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.

1648.2 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.

1648.3 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.

Section 1699, DEFINITIONS, is amended to read as follows:

1699 DEFINITIONS

1699.1 When used in this chapter, the following words have the meanings ascribed:

Base compensation: A fixed monthly payment that the District pays the providers of employment services in support of the District’s TANF Employment Program for performing specific duties and delivering specific services. Base compensation varies depending on the size of the provider’s not-employed PIT.

Clarification - communication with an offeror for the sole purpose of eliminating minor irregularities, informalities, or apparent clerical mistakes in the proposal. It is achieved by explanation or substantiation, either in response to District inquiry or as initiated by the offeror.

Deficiency - a material failure of a proposal to meet a District requirement or a combination of significant weaknesses in a proposal that increase the risk of unsuccessful contract performance to an unacceptable level.

Director - the Director of the Office of Contracting and Procurement (OCP) or the District of Columbia Chief Procurement Officer (CPO).

Discussion - any oral or written communication between the District and an offeror (other than communications conducted for the purpose of minor clarification) whether or not initiated by the District, that involves information essential for determining the acceptability of a proposal, or provides the offeror an opportunity to revise or modify its proposal.

Individual Responsibility Plans (IRP): A written agreement developed jointly by a TANF customer and the providers of employment services in support of the District’s TANF Employment Program that acts as the customer’s roadmap to securing employment and becoming self-sufficient. The IRP outlines specific steps that the customer agrees and commits to take in order to address and remove barriers, and find and retain employment.

Outcome-based compensation: A variable monthly payment that the District pays the providers of employment services in support of the District’s TANF Employment Program for achieving outcomes defined by the District. The outcome-based payment varies depending on the number of payment points that the provider achieves and the volume of outcomes within each payment point.

Payment point: Payment point refers to elements of the TANF employment services provider’s incentive compensation. The compensation is structured to encourage the provider to deliver distinct results or outcomes. Achievement of each outcome triggers a specific payment amount. Payments points are independent of each other. Consequently, it is feasible for the provider to achieve more than one (1) payment point for a given customer in any given month.

Point-In-Time caseload (PIT): Also referred to as caseload, is the number of TANF customers (or cases) that the provider of employment services in support of the District’s TANF Employment Program is serving in a given period or at any given time. The provider shall be managing two (2) types of PIT:

(a) A not-employed PIT (such as a caseload of not-employed TANF customers); and

(b) An employed PIT (such as a caseload of employed customers).

Price - cost plus any fee or profit applicable to the contract type.

Solicitation – request for proposals (RFP), except as provided otherwise in § 1601.

Technical analysis - the examination and evaluation by personnel having specialized knowledge, skills, experience, or capability in factors set forth in a proposal.

Unsolicited proposal – a written proposal that is submitted to an agency on the initiative of the submitter for the purpose of obtaining a contract with the District that is not in response to a solicitation.

4168689 Notice of Final Rulemaking to replace and update the District's regulations covering procurements by competitive sealed propsals

OFFICE OF CONTRACTING AND PROCUREMENT

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