1909074 Notice of Final Rulemaking for DGS Procurement Rules

DEPARTMENT OF GENERAL SERVICES

 

NOTICE OF FINAL RULEMAKING

 

The Interim Director of the Department of General Services (Department), pursuant to section 1106(a)(2) of the Procurement Practices Reform Act of 2010, effective April 8, 2011(D.C. Law 18-371; D.C. Official Code § 2-361.06(a)(2))(2011 Repl.); sections 1025(a) and 1029 of the Department of General Services Establishment Act of 2011, effective September 14, 2011(D.C. Law 19-21; 58 DCR 6226); and Mayor’s Order  2011-168, dated October 5, 2011,  hereby gives notice of the adoption of the following rules which create a new chapter in title 27 (Contracts and Procurements) of the District of Columbia Municipal Regulations (DCMR).  New chapter 47 is entitled “Department of General Services Procurement Rules for Construction and Related Services.”  These new rules will permit the Department of General Services to procure needed services in a timely and cost effective manner.

 

The proposed rulemaking was published in the D.C. Register at 58 DCR 8805 (October 14, 2011).  No changes have been made to the rulemaking as originally proposed.  The Department took final rulemaking action on February 6, 2012.

 

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

 

Chapter 47 of title 27 of the DCMR is added to read as follows:

 

CHAPTER 47           DEPARTMENT OF GENERAL SERVICES PROCUREMENT RULES FOR CONSTRUCTION AND RELATED SERVICES

 

Sections

 

4700    General

4701    Applicability

4702    Chief Contracting Officer

4703    Delegation of Authority to Contracting Officers

4704    Authority and Duties of Contracting Officer

4705    Contractor Qualification Requirements

4706    Responsibility

4707    Organizational Conflicts of Interest; Disqualification

4708    Market Research

4709    Preparing Solicitations

4710    Publicizing Procurement Opportunities

4711    Contract Types

4712    Fixed-Price Contracts

4713    Cost Reimbursement Contracts

4714    Project Delivery Methods

4715    Basic Ordering Agreements

4716    Time and Materials Contracts and Labor Hours Contracts

4717    Contracting Procedures Generally

4718    Sole Source Procurements

4719    Emergency Procurements

4720    Sealed Bidding

4721    Competitive Negotiation

4722    Simplified Contracting Procedures

4723    Special Pilot Procurements

4724    D.C. Supply Schedule; General Services Administration Schedule

4725    The Contracting Officer’s Responsibility for Contract Administration

4726    Payment Requests

4727    Exercising Contract Options

4728    Contract Modifications

4729    Contract Termination

4730    Contract Documentation

4731    Transfer of Contracts

4732    Claims By the District Against Contractors

4733    Claims by the Contractor Against the District

4734    Disputes and Protests

4735    Transparency

4736    Bonds and Other Forms of Security

4737    Collusion                                                  

4738    Contingent Fees

4739    Confidentiality

4740    Right to Audit Records; Right to Inspect

4741    Reasonable Prices

4742    Sovereign Immunity; Punitive Damages; Interest

4743    Green Procurement

 

4700                GENERAL

 

4700.1             This chapter sets forth the rules of the Department of General Services (Department) for the procurement of construction and construction-related services as authorized by section 1106(a)(2) of the Procurement Practices Reform Act of 2010 (PPRA), effective April 8, 2011(D.C. Law 18-371; D.C. Official Code § 2-361.06(a)(2))(2011 Repl.) and sections 1025(a) and 1029 of the Department of General Services Establishment Act of 2011, effective September 14, 2011 (D.C. Law 19-21; 58 DCR 6226 (July 29, 2011)).  The Department is an agency within the executive branch of the District of Columbia government.  Its general mission is to serve a broad range of real estate management functions, including managing the capital improvement and construction program for District government facilities and providing building services for facilities owned and operated by the District government.

 

4700.2             These procurement rules are for the benefit of the Department, and are not intended to confer any rights or benefits on third parties.  The principal purposes of these rules are to ensure that the Department’s procurement activities: 

 

(a)        Are carried out in a fair and objective manner that promotes confidence in the Department’s integrity; and

 

(b)        Produce reasonable value and reasonable results for the Department, as determined by the Director of Department of General Services, or his or her designee (hereinafter Director).

 

4700.3             These rules are intended to encourage participation by Certified Business Enterprises (CBEs), in accordance with the Small, Local, and Disadvantaged Business Enterprise Development and Assistance Act of 2005, effective October 20, 2005 (D.C. Law 16-33; D.C. Official Code §§ 2-218.01, et seq. (2011 Repl.)).  The Department’s goals include expanding and retaining disadvantaged businesses located within the District. 

 

4700.4             The Director may waive the applicability of any provisions in these rules that are not specifically required by statute if the Director finds, in writing, that:

 

(a)        Such waiver is in the best interest of the Department;

 

(b)        Such waiver is not inconsistent with fair, competitive, and transparent procurement practices; and

 

(c)        Such waiver is technical in nature and would not alter the substantive business terms of a procurement after proposals are received.

 

4701                APPLICABILITY

 

4701.1             These rules apply to the procurement by the Department of goods or services, whether through purchase or lease and whether the goods or services are already in existence or must be developed, including construction and related services which may include but are not limited to: 

 

(a)                Architectural and engineering services;

 

(b)               Construction management;

 

(c)                Construction management at risk;

 

(d)               Design-bid-build;

 

(e)                Design-build;

 

(f)                Design-build-finance-operate-maintain;

 

(g)               Design-build-operate-maintain; and

 

(h)               Operations and maintenance.

 

4701.2             A procurement of goods or services does not include any goods or services that the Department may acquire as a gift or from a grant, on a pro bono basis, or pursuant to agreements with any agency of the District or federal governments.

 

4701.3             These rules do not apply to: 

 

(a)        The purchase or lease of real property by the Department; or

 

(b)        The disposition of real or personal property by the Department.

 

4702                CHIEF CONTRACTING OFFICER

 

4702.1             The Director shall serve as the Department’s Chief Contracting Officer (CCO). 

 

4702.2             The CCO shall have overall responsibility for supervising the Department’s procurement activities and to award any contracts pursuant to this chapter. 

 

4703                DELEGATION OF AUTHORITY TO CONTRACTING OFFICERS

4703.1             The CCO may delegate his or her contracting authority to employees of the Department, or employees of the District of Columbia government acting on behalf of the Department, who shall be designated as “Contracting Officers.”  Any such delegation shall be in writing and shall specify any limits on a Contracting Officer’s delegated authority (for example, limits on the dollar value of contracts the individual is authorized to award).  In no case shall a Contracting Officer’s authority exceed the CCO’s authority.  All such delegations shall be made publicly available on the Department’s website. 

 

4703.2             In delegating his or her contracting authority, the CCO shall ensure that each delegated Contracting Officer has the experience, knowledge, and judgment necessary to fulfill the duties of a Contracting Officer, including a solid understanding of the Department’s procurement rules. 

 

4703.3             Subject to compliance with these rules, Contracting Officers have wide latitude to exercise business judgment in conducting procurements.  Consequently, the ability to exercise that discretion wisely and responsibly is an important job qualification. 

 

4703.4             The CCO shall ensure that Contracting Officers and other contracting personnel periodically receive training to strengthen and update their skills and knowledge concerning contracting and procurement matters.

 

4704                AUTHORITY AND DUTIES OF CONTRACTING OFFICER

 

4704.1             Only the CCO or a Contracting Officer shall have the authority to award, modify, or terminate contracts; provided, however, that prior to terminating any contract in excess of two hundred fifty thousand dollars ($250,000), the Contracting Officer shall first obtain the approval of the CCO.  As necessary or appropriate in exercising his or her authority, a Contracting Officer shall request and consider the advice of specialists in auditing, law, technical disciplines, and other relevant fields.

 

4704.2             A Contracting Officer for a particular procurement shall be responsible for: 

 

(a)        Making any determination or findings that may be required in connection with that procurement;

 

(b)        Ensuring that all statutory and regulatory requirements that apply to the procurement have been identified and observed;

 

(c)        Ensuring that all necessary preconditions to contract award have been satisfied before the contract is awarded;

 

(d)       Maintaining the contract file, which serves as the repository for all required documentation concerning the procurement and any resulting contracts; and

 

(e)        Ensuring that all offerors participating in a procurement receive fair and impartial treatment.

 

4705                CONTRACTOR QUALIFICATION REQUIREMENTS

 

4705.1             To be eligible to receive a contract from the Department, a prospective contractor must satisfy two (2) basic qualification requirements.  Specifically, the prospective contractor must: 

 

(a)        Be responsible; and

 

(b)        Not be disqualified on the basis of conflicts of interest either personal or organizational, or related ethical concerns. 

 

4706                RESPONSIBILITY

 

4706.1             To receive a contract from the Department, a contractor must be responsible.  To be considered responsible, a contractor must: 

 

(a)        Have or can obtain the necessary financial, technical, organizational, experience, accounting, operational control skills, resources, and the facilities and equipment necessary to perform the contract in accordance with its terms;

 

(b)        Be able to comply with the proposed delivery or performance schedule;

 

(c)        Have a satisfactory performance record;

 

(d)       Have a satisfactory record of integrity and business ethics;

 

(e)        Have not exhibited a pattern of overcharging the District;

 

(f)        Have a satisfactory record of compliance with the law;

 

(g)        Have not been suspended, debarred, or otherwise ineligible to receive contracts from the District Government or the federal Government;

 

(h)        Meet any other qualification criteria that may be imposed by applicable laws or regulations; and

 

(i)         Provide adequate evidence that he or she has paid and filed all applicable District of Columbia and federal taxes and tax returns.

 

4706.2             Prior to awarding a contract in excess of one hundred thousand dollars ($100,000), the Contracting Officer shall determine whether the contractor is responsible.  The Contracting Officer shall require prospective contractors to provide information regarding their responsibility to the Department and to certify the accuracy of such information. 

 

4706.3             The responsibility of prospective contractors shall be determined on a solicitation-by-solicitation basis. 

 

4706.4             The Contracting Officer shall make a written determination if the contractor is found to be non-responsible.  Depending on the level of formality of the contract and at the Contracting Officer’s discretion, the Contracting Officer may make a written determination if the contractor is found to be responsible.

 

4706.5             In evaluating a prospective contractor’s responsibility, a Contracting Officer may request information from the contractor and may also consider information available from other sources, including the general public.  Where necessary, the Contracting Officer may also perform a pre-award survey involving interviews with contractor personnel or visits to the contractor’s facilities.  Information on the capabilities and suitability of proposed subcontractors also may be considered in evaluating responsibility.

 

4707                ORGANIZATIONAL CONFLICTS OF INTEREST; DISQUALIFICATION

 

4707.1             The Department intends to avoid even the appearance of conflict of interest or impropriety in connection with its procurement activities.  Thus, even if a prospective contractor is determined to be responsible, the CCO has the discretion to disqualify the contractor or to take other appropriate measures based on a conflict of interest or another ethical consideration. 

 

4707.2             If the CCO determines that there is a conflict of interest, the appearance of a conflict of interest, or another ethical consideration, the CCO may: 

 

(a)        Disqualify a contractor at any point during a procurement;

 

(b)        Rescind or terminate a contract subsequent to contract award; or

 

(c)        Take other appropriate corrective measures, such as canceling a pending solicitation and initiating a new procurement; provided, however, that prior to taking any such action, the Contracting Officer shall first obtain the CCO’s approval.. 

 

4707.3             A determination by the CCO to take a corrective measure described in
subsection 4707.2 shall be made in writing and included in the contract file. 

 

4707.4             The ethical considerations that may authorize disqualification or another corrective measure are not limited to the ethics and conflict of interest rules of the Department or the prospective contractor, if any.  The CCO may properly take corrective measures whenever necessary or prudent to avoid the appearance of impropriety or otherwise eliminate doubts about the integrity and fairness of a procurement.  For example, situations in which corrective measures might be warranted include, but are not limited to: 

 

(a)        Cases where a director or employee of the Department involved in a procurement had a relationship with a contractor that fell outside the Department or the District’s recusal rules, but nonetheless raised questions about the procurement’s integrity;

 

(b)        Cases where a prospective contractor received preferential treatment in relation to its competitors;

 

(c)        Cases where a prospective contractor hired a former employee of the District who was privy to non-public information about the procurement, and involved that individual in its proposal preparation efforts; or

 

(d)       Cases where there is clear evidence suggesting collusive bidding or similar anti-competitive practices by prospective contractors.

 

4707.5             “Organizational conflicts of interest” also may warrant disqualification or other corrective measures.  Organizational conflict of interest means a situation in which a contractor: 

 

(a)        May be unable to render impartial and objective assistance or advice to the Department; or

           

(b)        May have an unfair advantage over potential competitors. 

 

4707.6             Organizational conflicts of interests can arise in a variety of circumstances.  For example, a contractor that develops the technical specifications for an item that will be the subject of a future procurement may have an incentive to develop specifications favoring its own products unless it is barred from participating in the future procurement.  Another example is a case where a contractor performs services for the Department that require access to non-public information (for example, proprietary data of other companies) and could therefore gain an unfair advantage over competitors in future procurements.

 

4707.7             A number of measures may be appropriate for eliminating or mitigating organizational conflicts of interest, and the CCO has broad discretion to select the approach that is most suitable in any particular case.  For example, a contract to assist the Department in developing requirements for a future procurement ordinarily should include a clause prohibiting the contractor from participating in the future procurement.  A contract in which the contractor gains access to proprietary information of other companies (or non-public information on the Department’s procurement plans) should include an appropriate clause that prevents the contractor from using such information in any manner that might give it an unfair advantage. 

 

4707.8             In each case, the mechanism adopted to address an organizational conflict of interest should be designed to prevent: 

 

(a)        The existence of conflicting roles that might bias a contractor’s judgment; and

 

(b)        An unfair competitive advantage.

 

4708                MARKET RESEARCH

 

4708.1             Before issuing a solicitation or making a purchase, the Department shall: 

 

(a)        Estimate the likely cost of the proposed procurement; and

 

(b)        Conduct appropriate market research.

 

4708.2             Market research is designed primarily to familiarize the Department with the market for the goods or services it seeks to acquire in order to develop an appropriate strategy for conducting a prompt and efficient procurement that promotes reasonable competition between qualified firms.  The extent of market research will vary depending on factors such as urgency, the size and complexity of the proposed procurement, and the Department’s existing knowledge of the market based on its or its key personnel’s past experience in procuring similar goods or services. 

 

4708.3             Market research, to the extent it is relevant to the particular procurement and not already known to the Department, generally should focus on obtaining information such as the following: 

 

(a)        Customary practices in the relevant market;

 

(b)        The prospective sources that may be able to supply the goods or services;

 

(c)        The opportunities for participation by firms that qualify as CBEs;

 

(d)       The benchmarks available to evaluate the likely cost of the procurement and the reasonableness of prices or costs proposed by prospective contractors; and

 

(e)        The requirements of any laws or regulations unique to the procurement.

 

4708.4             In conducting market research, the Department may solicit information from prospective sources on matters such as their interest in the potential procurement, the characteristics and costs of their products or services, their customary practices, and their knowledge of the industry generally.  Such information may be solicited by requesting interested parties to submit written information (for example, by posting a notice on the Department’s website seeking information pertinent to the proposed procurement), through meetings or telephone contacts, by distributing and seeking comments on a draft solicitation, or through other prudent means.

 

4708.5             In addition to soliciting information from prospective contractors, the Department may also obtain information from other sources.  For example, price information that can assist in estimating the likely cost of a procurement and in evaluating price reasonableness is frequently available from sources such as catalogs, Internet sites, or records of past procurements, and the Department may obtain information from these sources.

 

4709                PREPARING SOLICITATIONS

 

4709.1             After conducting market research, the Contracting Officer shall make a determination as to which procurement method identified in these regulations is most beneficial to the Department.  The Department will ordinarily prepare a solicitation requesting responses; however, the Department may determine to purchase the required goods or services through its small purchase procedures or from a federal or District supply schedule contract.

 

4709.2             When the Department issues a solicitation, its length and contents will depend on factors such as the size of the procurement, the nature and complexity of the goods or services, the contracting procedure to be used, and the contract type.  In general, however, a solicitation should clearly describe the Department’s needs (for example, by providing a statement of work outlining the type of services required or information specifying product characteristics or capabilities) and its evaluation criteria.

 

4709.3             In preparing a solicitation, the Department should seek to enhance competition by carefully scrutinizing and eliminating, to the extent possible, any unnecessary requirements that may restrict the number of prospective sources or the range of goods or services they can offer.  Such provisions may include, for example, technical specifications that unnecessarily limit the competitive field, unnecessarily aggressive delivery schedules, or burdensome terms and conditions that might deter smaller companies from competing.

 

4709.4             The Department may issue solicitations in paper form or electronically.  The Department may also use oral solicitations where efficient and practical (for example, where the procurement does not involve extensive specifications, detailed evaluation criteria, or numerous line items), and those oral solicitations shall direct that proposals be submitted in writing.  Oral solicitations shall not be used for contracts that have an estimated value in excess of twenty-five thousand dollars ($25,000).

 

4709.5             The Department may cancel a solicitation or reject all bids or proposals received at any time before the contract award when cancellation is in the Department’s best interests.

 

4710                PUBLICIZING PROCUREMENT OPPORTUNITIES

 

4710.1             The Department may use a variety of methods to publicize a procurement.  The specific method or methods used should be tailored to the particular procurement, taking into account factors such as the size of the procurement, the type of goods or services sought, the urgency associated with the requirement, and the most efficient means of disseminating information in the relevant market.  The methods available to publicize procurement opportunities offered by the Department include:

 

                        (a)        Print advertising;

 

                        (b)        Internet notices;

 

                        (c)        Developing source lists of qualified firms known to supply particular          categories of goods or services;

 

                        (d)       Soliciting specific sources through written notices or telephone contacts;     and

 

                        (e)        Holding pre-bid or pre-proposal conferences.

 

4710.2             The Department shall use its best efforts to provide, either electronically or in a paper format, a copy of solicitations to CBEs which the Department is aware may be capable of providing some or all of the services or goods required by a solicitation. 

 

4710.3             The Department shall use its best efforts to provide a copy of all solicitations, other than solicitations issued through its small purchase procedures, to the Department of Small and Local Business Development for distribution to CBE firms listed on the Department of Small and Local Business Development’s website that may be capable of providing some or all of the services or goods required by a solicitation. 

 

4710.4             The Department shall conduct outreach and provide information to CBEs on at least an annual basis. 

 

4710.5             In addition to publication or other method of publicizing the procurement opportunity described in subsection 4710.1, unless otherwise specified in this chapter, including as provided in subsection 4722.5, the Department shall also compile a list of at least three (3) vendors that the Department reasonably believes are qualified to provide the services or goods specified in a solicitation and shall provide those vendors with a copy of the solicitation.  If the Department is unable to locate at least three (3) potential vendors, the Department shall provide the solicitation to as many vendors as it can reasonably identify.

 

4710.6             The Department shall provide public notice of an Invitation for Bid (IFB) for fourteen (14) days unless the contracting officer issues a determination and findings that it is appropriate to shorten the notice period.  In no event shall the public notice period for an IFB be less than three (3) days. 

 

4710.7             The Department shall provide public notice of a Request for Proposals (RFB) for twenty one (21) days unless the contracting officer issues a determination and findings that it is appropriate to shorten the notice period.  In no event shall the public notice period for an RFB be less than fourteen (14) days.

 

4710.8             The Department shall not be required to provide public notice of solicitations issued through the procedures set forth in section 4722.  

 

4711                CONTRACT TYPES

 

4711.1             The type of contract the Department awards will generally depend on factors such as the particular goods or services to be acquired, whether the costs of the goods or services can be estimated in advance with reasonable accuracy, and the degree to which the precise nature and extent of the contract work is known at the time of award.

 

4711.2             The Department may use a variety of contract types, including: 

 

(a)        Fixed price contracts;

 

(b)        Cost reimbursement contracts;

 

(c)        Delivery order contracts;

 

(d)       Time-and-materials or labor hours contracts; and

 

(e)        Letter contracts. 

 

4711.3             The Department may also award any alternative type of contract that will produce reasonable value in the context of a particular procurement.  However, the Department shall not award cost-plus-percentage-of-cost contracts or oral contracts. 

 

4712                FIXED-PRICE CONTRACTS

 

4712.1             Fixed-price contracts include several variants: 

 

(a)        Firm, fixed-price contracts;

 

(b)        Fixed-price contracts with economic price adjustment; and

 

(c)        Fixed-price incentive contracts. 

 

4712.2             Unlike cost reimbursement contracts, any type of fixed-price contract obligates the contractor to complete the contractually-specified work for a fixed price.

 

4712.3             A firm fixed-price contract provides for a price that is not subject to adjustment, except in the event of a change to the contract work.

 

4712.4             A fixed-price contract with economic price adjustment provides for an upward or downward adjustment in the stated contract price based on changes in certain benchmarks specifically identified in the contract (for example, catalog prices or the producer price index for a particular commodity), subject to a ceiling on upward adjustments.

 

4712.5             A fixed-price incentive contract generally provides for establishing a final price by applying a formula based on the relationship between the total cost actually incurred by the contractor and a total target cost.  A fixed price incentive contract results in the parties sharing in the cost savings or increases associated with differences between the actual and target cost.  These contracts also can include incentive formulas based on the contractor’s schedule or technical performance.

 

4713                COST REIMBURSEMENT CONTRACTS

 

4713.1             Cost reimbursement contracts provide for the contractor to recover the reimbursable costs it incurs in contract performance, plus a fee (that is, a profit).

 

4713.2             A reimbursable cost shall be: 

 

(a)        Reasonable in nature and amount;

 

(b)        Properly allocable to the contract;

 

(c)        Determined in accordance with generally accepted accounting principles; and

 

(d)       Identified as reimbursable under the terms of the particular contract.

 

4713.3             To ensure that the Department’s payment obligations are not open-ended, a cost reimbursement contract must specify an estimated total cost that the contractor cannot exceed (the not-to-exceed limit), except at its own risk, without the Contracting Officer’s written approval.  Because the contractor can cease performance once it reaches the estimated total cost, unless the Contracting Officer approves an increase, it is not obligated to complete the contract work unless it can do so within the not-to-exceed limit.

 

4713.4             Cost reimbursement contracts can take three (3) forms: 

 

(a)        Cost-plus-fixed-fee;

 

(b)        Cost-plus-incentive-fee; and

 

(c)        Cost-plus-award-fee. 

 

4713.5             The differences between the types of cost reimbursement contracts listed in subsection 4713.4 relate to the manner in which the contractor’s fee is determined.

 

4713.6             A cost-plus-fixed-fee contract provides for a fee that is fixed at the contract’s inception and is not subject to adjustment unless the contract is modified to change the contract work.

 

4713.7             A cost-plus-incentive-fee contract provides for a fee that generally is determined by applying a formula based on the relationship between the contractor’s total reimbursable cost and a total target cost, subject to a specified minimum and maximum.  These contracts can also include incentive formulas based on the contractor’s schedule or technical performance.

 

4713.8             A cost-plus-award-fee contract provides for: 

 

(a)        A base fee fixed at the contract’s inception; and

 

(b)        An award fee that the contractor may earn in whole or in part during performance, which is designed to motivate superior performance. 

 

4713.9             The award fee in a cost-plus-award-fee contract is determined unilaterally by the Department, based on its judgment and evaluation of how well the contractor has performed in relation to the award fee criteria identified in the contract.  In no event shall the total award fee available to the contractor exceed ten percent (10%).

 

4713.10           In appropriate circumstances, the Department may include a guaranteed maximum price (GMP) in a cost reimbursement contract.  A GMP differs from a not-to-exceed amount in that a contractor is required to complete performance of the base scope of work required under the contract for an amount that does not exceed the GMP.  Under such an approach, if the total cost exceeds the GMP, the contractor shall be required to complete performance of the base scope of work at its own cost and expense.

 

4713.11           The Department shall only award a cost-reimbursement type contract pursuant to an IFB, RFP, or a sole source procurement after making a determination and findings that that a cost-reimbursement type contract is likely to cost less than any other type of contract and that it is impractical to obtain the goods or services of the kind or quality required except under a cost-reimbursement type contract. 

 

4714                PROJECT DELIVERY METHODS

 

4714.1             Within the contract types described in sections 4711 through 4713, the Department may adopt a number of project delivery methods, including those set forth in subsection 4701.1 as may be in District’s best interest. 

 

4714.2             As part of the procurement planning process, the Director or Deputy Director, pursuant to a delegation from the Director to make such determinations, will determine the most appropriate delivery method for the project based on, among other considerations:

 

                        (a)        The scope of work;

 

                        (b)        The complexity of design required;

 

                        (c)        Existing building or site conditions;

 

                        (d)       Project delivery schedule;

 

                        (e)        Project budget;

 

                        (f)        Existing market conditions; and

 

                        (g)        Other relevant considerations.  

 

4714.3             The general types of delivery methods include:

 

(a)        Design-Bid-Build:  Under this delivery method, the Department retains an architect to design the project.  Once the design is complete, the drawings are put out to bid.  This delivery method results in a fixed-price or lump sum type contract;

 

(b)        Construction Manager at Risk:  Under this delivery method, the Department will retain an architect to design the project.  However, shortly after the design begins, the Department will engage a contractor to act as a construction manager.  Typically, the contractor’s work is divided into two (2) phases.  During the first, or preconstruction, phase, the builder will work with the architect to ensure that the design is constructible, properly coordinated, and affordable.  During the second, or construction, phase, the contractor is required to construct the project.  At this point, the contractor may be required to provide the Department with a guaranteed maximum price.  In order to ensure that costs are properly controlled, the Department requires that the contractor bid its fee upfront and that all of the major trade packages be competitively bid by the contractor; 

 

(c)        Construction Manager with Design Assist:  Under this delivery method, the Department conducts the project in a manner similar to the Construction Manager at Risk approach.  However, in the Construction Manager with Design Assist approach, a portion of the design work — typically the mechanical, electrical, and plumbing systems — is managed by the contractor;  

 

(d)       Design-Build:  Under this approach, the Department retains a single entity to be responsible for the design and construction activities.  Work under the Design-Build approach is typically divided into two (2) phases:  preconstruction and construction.  The contractor is required to bid its fees upfront and all of the major trade packages must be competitively bid as well; 

 

(e)        Modified Design-Build:  Under this approach, the Department uses a bridging methodology where it will engage an architect during the early stages of the project (referred to as design development) and then assign the architect’s contract to the contractor at the appropriate stage of the project.  The remainder of the project then proceeds under the Design-Build approach;

 

(f)        Design-Build-Finance-Operate-Maintain:  Under this approach, the Department retains a single entity to be responsible for the design and construction activities.  Work under the Design-Build approach is typically divided into two (2) phases:  preconstruction and construction.  The contractor is required to bid its fees upfront and all of the major trade packages must be competitively bid as well.  In addition, the contractor would be responsible for operating and maintaining the facility.  Payment for design and construction services would be paid out over a negotiated term; and

 

(g)        Design-Build-Operate-Maintain:  Under this approach, the Department retains a single entity to be responsible for the design and construction activities.  Work under the Design-Build approach is typically divided into two (2) phases:  preconstruction and construction.  The contractor is required to bid its fees upfront and all of the major trade packages must be competitively bid as well.  In addition, the contractor would be responsible for operating and maintaining the facility. 

 

4714.4             The Department may combine aspects of the methods listed in subsection 4714.3 or alter aspects of these methods if doing so is in the best interest of the District.

 

4714.5             Contractors, including architects, construction managers, and design builders, required to facilitate these delivery methods shall be selected in accordance with the contracting procedures in sections  4717 through 4722.

 

4715                BASIC ORDERING AGREEMENTS

 

4715.1             Under basic ordering agreements (also known as task order contracts or term contracts), the contractor’s performance obligations are triggered when the Department subsequently issues task orders pursuant to the contract. 

 

4715.2             Basic ordering agreements include: 

 

(a)        Requirements contracts; and

 

(b)        Indefinite quantities contracts.

 

4715.3             A requirement contract provides the mechanism for the Department to order from the contractor all of its requirements for designated supplies or services during a specified period subject to any maximum ordering limitation in the contract.  This type of contract should only be used when the Department determines that a requirement contract will provide superior economic benefits to an indefinite quantity contract as it locks the Department into one (1) source of supply for the goods or services required under the basic ordering agreement.  The CCO and the Contracting Officer must approve requirement contracts.

 

4715.4             An indefinite quantity contract provides for an indefinite quantity, within specified limits, of supplies or services to be furnished during a fixed period.

 

4715.5             An indefinite quantity contract: 

 

(a)        Requires the Department to order and the contractor to deliver at least the stated minimum quantity of supplies or services; and

 

(b)        Requires the contractor to deliver any additional quantities the Department may order during the contract period subject to any maximum quantity limitations in the contract. 

 

4715.6             The Department may award a single indefinite quantity contract for particular goods or services, or may award multiple contracts and choose between the selected contractors in awarding subsequent delivery orders.

 

4715.7             If an indefinite quantity contract is used, the Department shall establish, at the time the basic ordering agreements are awarded, a procedure by which work will be awarded under the basic ordering agreements (award procedure).

 

4715.8             Generally, one (1) of the following three (3) award procedures shall be used for indefinite quantity contracts: 

 

(a)        The rotating award procedure, where work is assigned on a rotation basis (that is, the first task order is given to Contractor A, the second task order to Contractor B, and so on);

 

(b)        The competitive award procedure, where the Department requests task order proposals from two (2) or more contractors holding an indefinite delivery contract; or

 

(c)        Attempt to otherwise divide the work (for example, by geographic area or facility) equitably among the contractors.

 

4715.9             The competitive award procedure is preferred.

 

4715.10           If the competitive award procedure is used, each task order request shall specify:

 

(a)        The specific goods or services required;

 

(b)        A delivery date; and

 

(c)        Such other information as the Department may reasonably request. 

 

4716                TIME-AND-MATERIALS CONTRACTS AND LABOR HOURS CONTRACTS

 

4716.1             Time-and-materials contracts provide for acquiring supplies or services on the basis of: 

 

(a)        Direct labor hours charged at fixed hourly rates that include overhead and profit; and

 

(b)        Materials which may be charged either at their actual cost or at fixed unit prices. 

 

4716.2             A labor hours contract is a time-and-materials contract that does not involve materials. 

 

4716.3             Time-and-materials contracts and labor hours contracts shall specify a ceiling price.

 

4717                CONTRACTING PROCEDURES GENERALLY

 

4717.1             Every procurement by the Department shall be conducted in accordance with competitive contracting procedures, suitable to the specific procurement, that produce reasonable value and reasonable results.  The following procurement methods shall be utilized for the delivery methods indicated, except as provided in sections 4718 and 4719,  and sections 4722 through 4724.

 

4717.2             Generally, the Department shall utilize competitive sealed bidding for design-bid-build procurements, unless use of competitive sealed bidding would not be practicable or would not be advantageous to the District.  In such a case, competitive sealed proposals shall be utilized to procure construction management at-risk services. 

 

4717.3             In general, when drawings are not fully completed and coordinated, use of competitive sealed bidding shall not be advantageous to the District.  In such cases, competitive sealed proposals shall be used to procure construction management services unless another delivery method is more appropriate. 

 

4717.4             Generally, competitive sealed proposals shall be used for design-build, design-build-operate-maintain, and design-build-finance-operate-maintain. 

 

4717.5             Architect and Engineering services, unless procured pursuant to section 4722 of this chapter shall be procured in accordance with section 604 of the PPRA.

 

4717.6             For all other contracts exceeding one hundred thousand dollars ($100,000), the preferred procurement procedure shall be competitive sealed bidding unless competitive sealed bidding is not practicable or in the best interests of the District.  If competitive sealed bidding is not practicable or advantageous to the District, competitive sealed proposals may be used. 

 

4717.7             The contracting procedures the Department may utilize includes, but is not limited to, the procedures described in sections 4718 through 4724. 

 

4717.8             The Contracting Officer may cancel a solicitation if it is determined in writing that such action is in the best interest of the District. 

 

4718                SOLE SOURCE PROCUREMENTS

 

4718.1             The Contracting Officer may award contracts on a sole-source basis only if the goods or services sought by the Department are available from only one (1) source.

 

4718.2             Prior to entering into a sole-source contract, the Contracting Officer shall first make a determination and finding justifying the sole source procurement; provided, however, that if the sole-source contract will be in an amount over two hundred fifty thousand dollars ($250,000), the CCO’s approval shall also be required.  If the Contracting Officer makes a determination pursuant to subsection 4718.1 that a sole source procurement is necessary to meet an essential requirement of the Office, the Contracting Officer shall document such determination in writing and may procure goods, services, or construction without regard to the procedures set forth in sections 4719 through 4724.  In all other cases, the Contracting Officer shall use the procedures specified in sections 4719 through 4724.

 

4718.3             A written determination by the Contracting Officer supporting a single available source procurement pursuant to subsection 4718.1 shall include:

 

(a)        A description of the nature of the goods or services;

 

(b)        An explanation of why the goods or services are available from a single source; and

 

(c)        The intended sole source contractor. 

 

4718.4             Notice of the Department’s intent to enter into a sole source contract shall be posted on the Department’s website at least ten (10) days prior to the award of such contract and shall include the information set forth in subsection 4718.3.

 

4719                EMERGENCY PROCUREMENTS

 

4719.1             The Contracting Officer may award contracts through an emergency procurement:

 

                        (a)        When there is an imminent threat to the public, health, welfare, property     or safety; or

 

                        (b)        To prevent or minimize serious disruption in agency operations. 

 

4719.2             Emergency procurements shall be made with as much competition as practicable under the circumstances, based on the judgment and determination of the Contracting Officer

 

4719.3             A written determination by the Contracting Officer supporting an emergency procurement shall include the following findings:

 

(a)        The circumstances giving rise to the emergency procurement presenting an imminent threat to the public, health, welfare, property, or safety; or

 

(b)        The circumstances that created a need for goods, services, or construction, which if not immediately filled, will endanger the continuation of an essential function of the Department.

 

4719.4             The Contracting Officer shall not make a procurement under this section to meet a continuing need of the Department beyond what is necessary to meet the emergency condition.  Contracts awarded using emergency procurement procedures shall not exceed ninety (90) days.  

 

4719.5             Notice of all emergency procurements shall be posted on the Department’s website no more than seven (7) days after the contract is awarded and shall contain:

 

(a)        A finding that circumstances giving rise to the emergency procurement present an imminent threat to the public, health, welfare, property, or safety, and have created a need for goods, services, or construction which, if not immediately filled, will endanger the continuation of an essential function of the Department;

 

(b)        A description of the items procured;

 

(c)        The designated contractor; and

 

(d)       A copy of the contract.

 

4719.6             The Contracting Officer may issue oral orders or notices to proceed to contractors to provide services or goods to the District; provided, that the directive shall be reduced to writing within three (3) business days after issuance and funding for the services or goods provided shall be certified by the appropriate fiscal official.

 

4720                SEALED BIDDING

 

4720.1             The solicitation used to initiate a procurement conducted by competitive sealed bidding is known as an Invitation for Bids (IFB). 

 

4720.2             If the Department issues an IFB, the Department shall allow prospective bidders a reasonable time to prepare and submit bids.  Except in the event of an emergency, this time period shall be no less than ten (10) business days.

 

4720.3             The evaluation factors used in sealed bid procurements are limited to price and price-related factors, including price evaluation preferences for CBEs. 

 

4720.4             The IFB shall specify: 

 

(a)        Any information necessary to explain how the Department will evaluate price (for example, whether option prices will be evaluated);

 

(b)        Any price-related factors that will be evaluated and their relative importance in the overall evaluation scheme (for example, escalators);

 

(c)        A description of the goods or services sought, including quantity requirements;

 

(d)       The contract delivery schedule;

 

(e)        A description of any special qualification requirements the contractor must satisfy;

 

(f)        Instructions for submitting bids, including:

 

            (1)        The deadline for bid submission;

           

            (2)        The method(s) for submitting bids;

 

            (3)        Any representations or certifications bidders must submit; and

 

            (4)        any requirements for the submission of items such as bid samples,             subcontracting plans, or payment or performance bond;

 

(g)        The period during which bids must remain open for acceptance; and

 

(h)        The contract’s terms and conditions.

 

4720.5             Any changes in the information set forth in an IFB must be made by an amendment to the IFB.

 

4720.6             Bids shall be submitted by a method specifically permitted by the IFB (for example, hand delivery, mailing, electronic transmission, or fax).

 

4720.7             A bid may be withdrawn or modified at any time before bid opening by any of the methods permitted for submitting bids.

 

4720.8             A late bid, late modification, or withdrawal shall not be considered, except that the Department may accept a late modification to an otherwise successful bid that makes the bid more favorable to the Department.  A late bid is any bid received after the bid date, unless such delay is caused by the Department. 

 

4720.9             The Contracting Officer shall prepare and maintain in the contract file an abstract listing the bid prices.

 

4720.10           The contract shall be awarded to the qualified bidder whose bid is responsible and responsive to the IFB and is most advantageous to the Department considering only price and the price-related evaluation factors identified in the IFB. 

 

4720.11           To be considered responsive, a bid must comply in all material respects with the IFB.   Responsiveness involves matters that relate to the bid itself as opposed to the responsibility or other qualifications of the bidder.  In determining whether a bid is responsive, the Contracting Officer has the discretion to permit correction of minor informalities or irregularities.

 

4720.12           The Contracting Officer shall endeavor to include with every IFB solicitation the form of the contract that the contractor will be required to enter into.  To the greatest extent possible, the Department should endeavor to provide clear, concise contract documents.  Contracts which consist of the solicitation, the proposal, and other documents attached together but not integrated into a single contract document are discouraged.

 

4720.13           Bids shall be opened publicly at a time and place provided for in the IFB and shall be open for public inspection. 

 

4721                COMPETITIVE NEGOTIATION

 

4721.1             The solicitation used to initiate a procurement conducted by competitive negotiation or competitive sealed proposals is known as a Request for Proposals (RFP). 

 

4721.2             If the Department issues an RFP, the Department shall establish a reasonable deadline for offerors’ submission of initial proposals.  Proposals shall be solicited from the maximum number of qualified sources consistent with the nature of goods and services which are the subject of the procurement. 

 

4721.3             The evaluation criteria used in procurements conducted by competitive negotiation or competitive sealed proposals include price or cost (including, but not limited to, hourly rates for services and fixed fees for cost reimbursement contracts) along with any other factors appropriate to the particular procurement (for example, the offeror’s technical approach, past performance, or status as a CBE or plans for subcontracting with such enterprises). 

 

4721.4             If the Department deems it advisable, the RFP may contain either an estimate that generally describes the price range contemplated by the Department or a funding limitation for the procurement.

 

4721.5             The RFP shall specify all evaluation factors and their relative importance.  The RFP should also include: 

 

(a)        A description of the goods, services, or scope of construction work sought, including quantity or estimated quantity;

 

(b)        The contract delivery schedule, including any permitted variations in the delivery schedule;

 

(c)        A description of any special qualification requirements the contractor must satisfy;

 

(d)       Instructions for submitting proposals including:

 

            (1)        The deadline for proposal submission;

 

            (2)        The method(s) for submitting proposals;

 

            (3)        The information to be provided in the proposal, including any          requirements for past performance information or for         subcontracting plans; and

 

            (4)        Any representations or certifications the offeror must submit;

 

(e)        The period during which proposals must remain open for acceptance; and

 

(f)        The anticipated contract terms and conditions and the extent to which they are negotiable.

 

4721.6             Any changes in the information set forth in an RFP must be made by an amendment to the RFP.  Amendments shall be made no less than three (3) business days before the proposal submission date specified by the RFP.

 

4721.7             Proposals shall be submitted by a method specifically permitted by the RFP. 

 

4721.8             The Department shall evaluate proposals based solely on the evaluation criteria specified in the RFP.  Where past performance is an evaluation factor, the Department is not limited to considering only the information from references listed by the offeror.

 

4721.9             After initial proposals are evaluated, the Contracting Officer may: 

 

(a)        Make an award based on initial proposals; or

 

(b)        Establish a competitive range consisting of those proposals that remain under consideration, or a single proposal that remains under consideration, and initiate discussions with competitive range offerors.  A competitive range shall include all proposals that, in the Contracting Officer’s judgment, erring on the side of the offeror, could be awarded the procurement. 

 

4721.10           If the Contracting Officer elects to enter into discussions, such discussions shall be undertaken with offerors in the order of ranking of the prospective offerors based on the criteria for evaluation set forth in the RFP. Discussions with offerors may be written, including electronic or oral.  The primary objective of discussions is to maximize the Department’s ability to obtain the best value based on the evaluation factors set forth in the RFP.  The scope and extent of discussions are a matter of Contracting Officer’s judgment.  The Contracting Officer may re-open negotiations with any prospective contractor with which it has terminated discussions.   

 

4721.11           After the proposals are submitted, the Contracting Officer may make changes to the general scope of the RFP and shall request that all offerors submit best and final offers by a common cut-off date.

 

4721.12           The contract shall be awarded to the qualified offeror whose offer is most advantageous to the Department under the RFP’s evaluation criteria. 

 

4721.13           The Contracting Officer shall prepare documentation explaining the basis for the contract award decision which shall be maintained in the contract file.  The contract shall be awarded by written notice to the responsive and responsible bidder whose proposal is most advantageous to the District. 

 

4721.14           The Contracting Officer shall endeavor to include with every RFP solicitation the form of the contract that the contractor will be required to enter into.  To the greatest extent possible, the Department should endeavor to provide clear and concise contract documents.  Contracts which consist of the solicitation, the proposal, and other documents attached together but not integrated into a single contract document are discouraged.

 

4722                SIMPLIFIED CONTRACTING PROCEDURES

 

4722.1             The basic purposes of simplified contracting procedures are to: 

 

(a)        Promote economy, efficiency, and innovation in contracting;

 

(b)        Reduce administrative costs to the Department; and

 

(c)        Avoid unnecessary burdens or complexities that could reduce competition, such as by deterring smaller contractors from participating in a procurement.

 

4722.2             Simplified contracting procedures may be used only with contacts that have an estimated value equal to or less than one hundred thousand dollars ($100,000).

 

4722.3             The Contracting Officer shall conduct simplified procurements in the manner that is most suitable, efficient, and economical based on the circumstances of each acquisition.  As appropriate, the Contracting Officer may elect to use or adapt procedures that are part of the sealed bidding or competitive negotiation process. 

 

4722.4             On a simplified procurement, the Contracting Officer shall: 

 

(a)        Promote competition to the extent practicable and efficient;

 

(b)        Establish reasonable deadlines for the submission of responses to solicitations; and

 

(c)        Evaluate quotations or offers in an impartial manner on the basis established in the solicitation. 

 

4722.5             If a contract that has an estimated value of more the ten thousand dollars ($10,000) is procured through the simplified contracting procedures, the Department shall obtain written quotes from at least two (2) potential contractors. 

 

4722.6             If a contract that has an estimated value of less than ten thousand dollars ($10,000) is procured through the simplified contracting procedures, the Department need only obtain a written quote from a single potential contractor. 

 

4722.7             The Contracting Officer may solicit quotations orally in appropriate cases when doing so is practical and economical.  When soliciting quotations orally, the Contracting Officer shall require contractors to respond in writing. 

 

4722.8             An oral solicitation shall provide a clear description of the Department’s requirements (for example the type of goods or services sought, quantities, and schedule) and the basis on which the award will be made. 

 

4722.9             Written solicitations shall provide a complete statement of relevant information without being unnecessarily lengthy.  A written solicitation should include the same information required in an oral solicitation plus the following: 

 

(a)        Anticipated contract terms and conditions, including the extent to which they are negotiable;

 

(b)        Applicable certifications or representations; and

 

(c)        Instructions for submitting responses.

 

4722.9             The basis for an award may be price or cost alone or price and cost combined with other factors.  Solicitations are not required to state the relative importance assigned to each evaluation factor. 

 

4722.10           The price and cost combined with other terms of the award shall be set forth in a written contract or purchase order.  The Contracting Officer shall include a statement in the contract file briefly explaining the basis for the award decision.

 

4722.11           No later than ten (10) days after award of any contract pursuant to the procedures outlined in this section 4722, the Department shall post on the Department’s website the name of the contractor to whom the contract was awarded, a description of the services or goods procured and the value of the contract.  

 

4723                SPECIAL PILOT PROCUREMENTS

 

4723.1             The Department may engage in special pilot procurements in accordance with Section 408 of the PPRA and this chapter. 

 

4724                D.C. SUPPLY SCHEDULE; GENERAL SERVICES ADMINISTRATION SCHEDULE

 

4724.1             The Department may purchase goods and services but not construction or any other type of contract awarded on a cost reimbursement basis from the D.C. Supply Schedules or the General Services Administration (GSA) Schedule.

 

4725                THE CONTRACTING OFFICER’S RESPONSIBILITY FOR CONTRACT ADMINISTRATION

 

4725.1             The Contracting Officer for a particular contract has overall responsibility for the contract’s administration.  Among other things, this requires the Contracting Officer to: 

 

(a)        Monitor whether goods or services are delivered or completed on schedule and conform to contract requirements;

 

(b)        Ensure that any contractually required inspection or acceptance procedures are followed;

 

(c)        Monitor the contractor’s compliance with any subcontracting requirements contained in the contract;

 

(d)       Identify and attempt to resolve issues or problems that arise during contract performance; and

 

(e)        Monitor whether the contractor is complying with First Source hiring requirements, CBE Utilization requirements and other similar economic inclusion requirements in the contract.

 

4725.2             The Contracting Officer is the only representative of the Department with the authority to take the following actions: 

 

(a)        Authorize contract payments;

 

(b)        Exercise contract options;

 

(c)        Terminate the contract; and

 

(d)       Modify the contract.

 

4725.3             Prior to terminating a contract, the Contracting Officer shall first obtain the approval of the CCO.

 

4725.4             No representative of the Department, including a Contracting Officer, shall: 

 

(a)        Act in a manner that misleads a contractor regarding the limits of his or her authority; or

 

(b)        Direct or encourage a contractor to perform work that has not been properly authorized.

 

4726                PAYMENT REQUESTS

 

4726.1             Requests for payment must be submitted in writing by the contractor.  Payment shall not be authorized without a valid written contract. 

 

4726.2             Contractor payment requests shall: 

 

(a)        Certify that the contractor is entitled to payment in the requested amount; and

 

(b)        Include or attach any information necessary to demonstrate entitlement to the requested payment under the contract’s terms. 

 

4726.3             Depending on the contract’s payment provisions, a payment request may consist of, for example, a statement that specified work has been completed in a satisfactory manner, documentation showing that contract deliverables have been accepted by the Office, or information detailing the reimbursable costs incurred by the contractor. 

 

4726.4             Unless the Contracting Officer authorizes the payments, they shall not be made.  A Contracting Officer’s payment authorization shall not preclude the Department from seeking repayment or pursuing other remedies if it subsequently concludes that the contractor was overpaid or otherwise mispaid.

 

4726.5             In addition to the Contracting Officer’s payment authorization, the Department’s CFO or his or her designee shall certify and approve all payment requests prior to making any payment.

 

4727                EXERCISING CONTRACT OPTIONS

 

4727.1             The Contracting Officer may exercise a contract option upon determining that: 

 

(a)        Funds are available and authorized for this purpose;

 

(b)        The goods or services covered by the option fulfill an existing need; and

 

(c)        Exercising the option is the most advantageous method of fulfilling the Department’s need. 

 

4727.2             The determination to exercise a contract option shall be in writing and shall be included in the contract file. 

 

4727.3             To exercise an option over two hundred fifty thousand dollars ($250,000) the Contracting Officer must first obtain the approval of the CCO.

 

4727.4             In addition to the approval of the CCO, if applicable, prior to exercising any option, the approval of the Department’s Chief Financial Officer shall be obtained as to whether funds are available for the exercise of the option.  Approval of the Council shall also be obtained as required. 

 

4728                CONTRACT MODIFICATIONS

 

4728.1             The Contracting Officer may modify a contract subject to the provisions of this section.

 

4728.2             A modification must be within the general scope of the original contract.  Any requirement for extra work that goes beyond the contract’s general scope shall be the subject of a new procurement.

 

4728.3             The CCO shall approve a contract modification in excess of one hundred thousand dollars ($100,000).

                

4728.4             A contract modification may be effected: 

 

(a)        By a bilateral agreement executed by the Contracting Officer and an authorized representative of the contractor; or

 

(b)        By the Contracting Officer’s issuance of a unilateral written change, when the contract includes a changes clause permitting the Department to make unilateral changes in the contract work.  Under such a clause, the contractor is obligated to perform in accordance with a change order issued by the Contracting Officer, and the contract price is adjusted to reflect the increase or decrease in costs caused by the change.

 

4729                CONTRACT TERMINATION

 

4729.1             All contracts awarded by the Department shall include “Termination for Default” and “Termination for Convenience” clauses specifically defining the Department’s termination rights. 

 

4729.2             When exercising the Department’s rights under a termination clause in the contract, the Contracting Officer shall provide the contractor with a written notice specifying: 

 

(a)        Whether the termination is for default or for convenience;

 

(b)        The effective date of the termination;

 

(c)        The extent of the termination if the termination is partial; and

 

(d)       Any special instructions that apply to the termination (for example, instructions concerning the disposition of contract inventory). 

 

4729.3             After terminating a contract for convenience, the Contracting Officer shall request a settlement proposal from the contractor and shall attempt to negotiate a settlement that resolves all of the parties’ rights and liabilities except those arising from any portion of the contract still in effect.  If the parties negotiate a settlement, the Contracting Officer shall prepare a memorandum describing the principal elements of the settlement and shall include the memorandum in the contract file.

 

4729.4             The Department may terminate, without liability, any contract if the contractor has been convicted of a crime arising out of or in connection with the procurement of any work to be done or any payment to be made under the contract, or there has been a violation of the PPRA.  The Director shall be entitled to recover from the contractor those sums outlined in section 903 of the PPRA in addition to any other rights or remedies provided by law. 

 

4730                CONTRACT DOCUMENTATION

 

4730.1             The Contracting Officer is responsible for maintaining documentation regarding the contract and the procurement. 

 

4730.2             The contract file shall include: 

 

(a)        The solicitation and any amendments;

 

(b)        The contract and any modifications;

 

(c)        Any type of documentation that is specifically required to be maintained in the contract file by other sections of this chapter; and

 

(d)       Any other documentation that may be necessary to memorialize important decisions or events relating to the procurement or the contract.

 

4731                TRANSFER OF CONTRACTS

 

4731.1             Procurements pending on October 1, 2011, and transferred to the Department on that date shall be completed, including the award of contracts pursuant thereto, in accordance with the procurement rules and regulations pursuant to which those procurements were commenced. 

 

4731.2             Following the transfer of duties, responsibilities, contracts and procurements to the Department upon its creation, contracts or pending procurements related to facilities maintenance and/or capital projects held by other District agencies may be assigned to the Department in accordance with the provisions of this section.

 

4731.3             The CCO shall review the proposed procurement or contract and determine whether it is in the best interest of the Department to accept the assignment of the procurement or contract or to terminate the procurement or contract.

 

4731.4             If the Department determines it is in its best interest to accept the assignment of a contract or procurement, the Department shall have the authority to modify the contract or procurement so as to conform with the best practices and procedures employed by the Department on its own procurements.

 

4731.5             Assignment of contracts or procurements to the Department shall not confer on the Department any authority not otherwise granted to it by law or regulation.  Acceptance of an assignment by the Department shall be predicated on the Department’s statutory authority to conduct the work contemplated by the assigned contract or procurement.

 

4731.6             Assignment of a contract or procurement shall not operate to transfer funds to support the assigned contract or procurement.  Funds shall be transferred pursuant to an intra-District memorandum of understanding, reprogramming, or other appropriate process.

 

4732                CLAIMS BY THE DISTRICT AGAINST CONTRACTORS

 

4732.1             All claims by the District government against a contractor arising under or relating to a contract shall be decided by the contracting officer.  The contracting officer shall issue a written decision and furnish a copy of the decision to the contractor.

 

4732.2             The Contracting Officer’s decision shall be supported by reasons and shall inform the contractor of his or her rights as provided in title IX of the PPRA.  Specific findings of fact shall not be required, but, if made, shall not be binding in any subsequent proceeding.

 

4732.3             The decision of the Contracting Officer shall be final and not subject to review unless an administrative appeal or action for judicial review is timely commenced as authorized by section 1004 of the PPRA. 

 

4732.4             Appeals of decisions by the contracting officer shall be made to the District of Columbia Contract Appeals Board in accordance with title X of the PPRA. 

 

4732.5             Interest on amounts found due to the District from a contractor on claims shall be payable at the rate set in D.C. Official Code § 28-3302(b) (2011 Repl.)) applicable to judgments against the District government from the date the contractor receives a contracting officer's written decision asserting the claim on behalf of the District until payment of the claim.

 

4733                CLAIMS BY THE CONTRACTOR AGAINST THE DISTRICT

 

4733.1             All claims by a contractor against the District government arising under or relating to a contract shall be in writing and shall be submitted to the Contracting Officer for a decision.

 

4733.2             Within one hundred twenty (120) days after receipt of a claim, the Contracting Officer shall issue a decision, whenever possible taking into account factors such as the size and complexity of the claim and the adequacy of the information the contractor provides to support his or her claim.  Failure of the Contracting Officer to issue a decision on a contract claim within the required time period shall be deemed to be a denial of the claim and shall authorize the commencement of an appeal on the claim.

 

4733.3             If a contractor is unable to support any part of his or her claim and it is determined that the inability is attributable to a material misrepresentation of fact or fraud on the part of the contractor, the contractor shall be liable to the District government for an amount equal to the unsupported part of the claim in addition to all costs to the District government attributable to the cost of reviewing that part of the contractor's claim.  Liability under this section shall be determined within six (6) years of the commission of the misrepresentation of fact or fraud.

 

4733.4             Appeals of decisions by the Contracting Officer shall be made to the District of Columbia Contract Appeals Board in accordance with title X of the PPRA.

 

4733.5             Interest on amounts found due to a contractor on claims shall be payable at a rate set in D.C. Official Code § 28-3302(b) (2011 Repl.) applicable to judgments against the District government from the date the contracting officer receives the claim until payment of the claim.

 

4734                DISPUTES AND PROTESTS

 

4734.1             The District of Columbia Contract Appeals Board shall be the exclusive hearing tribunal for bid protests and disputes in connection with decisions by the contracting officer under sections 4732 and 4733.  Claims shall be made in accordance with title X of the PPRA.

 

4735                TRANSPARENCY

 

4735.1             Within one (1) business day of issuance, the Contracting Officer shall transmit to the Chief Procurement Officer for posting on the Department’s website all solicitations and amendments or addenda thereto for contracts in excess of one hundred thousand dollars ($100,000). 

 

4735.2             Within five (5) business days of the effective date thereof, the Contracting Officer shall transmit to the Chief Procurement Officer any contract in excess of one hundred thousand dollars ($100,000) and any change orders or contract modifications thereto or any written findings or determinations related thereto. 

 

4735.3             Within five (5) business days of the effective date thereof, the Director shall transmit to the Chief Procurement Officer the names of personnel with delegated contracting authority. 

 

4736                BONDS AND OTHER FORMS OF SECURITY

 

4736.1             For all construction contracts estimated to exceed one hundred thousand dollars ($100,000), the CCO shall require bid security in the form of a bond, cash or other acceptable form of bid security outlined in the solicitation document.  All bonding companies must be licensed to conduct business in the District of Columbia and must be included on the Department of Treasury’s Listing of Approved Sureties.

 

4736.2             If a bidder that has furnished bid security in a form other than a bond is awarded a contract and fails to post a payment and performance bond for the full value of the contract, the bidder shall forfeit the full amount of the bid security provided. 

 

4736.3             Bid security shall be in amount equal to not less than five percent (5%) of the estimated cost of the contract to be awarded pursuant to the procurement. 

 

4736.4             For all construction contracts awarded in excess of one hundred thousand dollars ($100,000), the CCO shall require that the contractor provide both a payment bond and a performance bond each in an amount equal to one hundred percent (100%) of the contract price.  All such bonds shall be issued by bonding companies licensed to conduct business in the District of Columbia and included on the Department of Treasury’s Listing of Approved Sureties.  The CCO, in its reasonable discretion, may reduce the value of the payment bond and performance bond required, however, the value of each may not be reduced to less than fifty percent (50%) of the contract price.   

 

4736.5             The Contracting Officer may, in his or her reasonable discretion, require additional forms of security as set forth in section 704 of the PPRA. 

 

4737                COLLUSION

 

4737.1             A person who enters into a contract with the District after engaging in collusion with another person for the purpose of defrauding the District shall be liable for damages equal to three (3) times the value of the loss to the District attributable to the collusion.

 

4737.2             If there is a reasonable basis for believing that collusion has occurred among any individuals or entities for the purpose of defrauding the District, the CPO shall send a written notice of this belief to the Attorney General and the Mayor.

 

4737.3             All documents involved in any procurement in which collusion is suspected shall be retained until the Attorney General gives notice that they may be destroyed. All documents shall be made available to the Attorney General.

 

4738                CONTINGENT FEES

 

4738.1             A contractor shall not offer to pay any fee or other consideration that is contingent on the making of a contract.

 

4738.2             Every contract shall contain the following prohibition against contingent fees:

 

The contractor warrants that no person or selling agency has been employed or retained to solicit or secure the contract upon an agreement or understanding for a commission, percentage, brokerage fee, or contingent fee, except bona fide employees or bona fide established commercial or selling agencies maintained by the contractor for the purpose of securing business. For a breach or violation of this warranty, the District shall have the right to terminate the contract without liability or in its discretion to deduct from the contract price or consideration, or otherwise recover, the full amount of the commission, percentage, brokerage, or contingent fee.

 

4738.3             A District employee shall not solicit or secure, or offer to solicit or secure, a contract for which the employee is paid or is to be paid any fee or other consideration contingent on the making of the contract between the employee and any other person.

 

4739                CONFIDENTIALITY

 

4739.1             The Contracting Officer shall review information which a person designates as confidential or proprietary and which is submitted in response to an IFB or RFB. 

 

4739.2             If the Contracting Officer determines that the designation is proper, the information shall be treated by the contracting officer, and any other District employee, in a confidential manner, shall be disclosed only to District employees for use in the procurement process, and shall not be disclosed to other persons or parties without the prior written consent of the person, except as provided by the Freedom of Information Act of 1976, effective March 25, 1977 (D.C. Law 1-96; D.C. Official Code §§ 2-531, et seq.) (2011 Repl.)).

 

4740                RIGHT TO AUDIT RECORDS; RIGHT TO INSPECT

 

4740.1             The Director may, at reasonable times and places, audit the books and records of any person who has submitted data to substantiate offered prices pursuant to section 4741 of these rules to the extent that the books and records relate to that data. A person who receives a contract, change order, or contract modification for which the data is required, shall maintain books and records that relate to the cost or pricing data for three (3) years from the date of final payment under the contract, unless a shorter period is otherwise authorized in writing.

 

4740.2             The Inspector General, District of Columbia Auditor, or Director shall be entitled to audit the books and records of a contractor or any subcontractor under any negotiated contract or subcontract, other than a firm fixed-price contract, to the extent that the books and records relate to the performance of the contract or subcontract. Books and records shall be maintained by the contractor for a period of three (3) years from the date of final payment under the prime contract and by the subcontractor for a period of three (3) years from the date of final payment under the subcontract, unless a shorter period is otherwise authorized in writing.

 

4740.3             The Inspector General, District of Columbia Auditor, or Director may, at reasonable times, inspect the part of the place of business of a contractor or any subcontractor which is related to the performance of any contract awarded or to be awarded by the District.

 

4741                REASONABLE PRICES

 

4741.1             A contracting officer may request factual information reasonably available to the contractor or prospective contractor to substantiate that the price or cost offered, or some portion of it, is reasonable.

 

4741.2             In determining the reasonableness of prices, the Contracting Officer shall utilize the process developed by the Chief Procurement Officer of the District. 

 

4742                SOVEREIGN IMMUNITY; PUNITIVE DAMAGES; INTEREST

 

4742.1             Unless otherwise specifically provided by law of the District, the District government and every officer, department, agency, or other unit of the District government shall not raise the defense of sovereign immunity in the courts of the District in an action based upon a written procurement contract executed on behalf of the District government.

 

4742.2             In an action in contract based upon a written contract executed on behalf of the District government, or by an official or employee acting within the scope of the official's or the employee's authority, the District government, and its officers, departments, agencies, or other units of government, shall not be liable for punitive damages.

 

4743                GREEN PROCUREMENT

 

4743.1             Except for contracts entered into pursuant to sections 4719 and 4722, the Department shall incorporate green procurement practices.

 

4743.2             Except as set forth in Subsection 4743.3, in solicitations and contracts for design services, the Department shall solicit contractors to design to LEED Silver standards as established by the United States Green Building Council (USGBC).  Solicitations for design-build services shall also include this requirement. 

 

4743.3             When projects undertaken by the Department are of a size and nature not amenable to certification under the USGBC’s LEED certification system, the solicitation and contract shall require the contractor to incorporate into the project sustainable design and construction techniques that would be utilized in the pursuit of LEED certification. 

 

4743.4             In all other cases, the solicitation and contract shall require that the contractor comply with the Default Environmental Preference Standard, as defined in the PPRA,  or provide an environmental certification as required by section 1101 of the PPRA.