2000157 Notice of Emergency and Proposed Rulemaking updating chapter 38 and implementing the provisions in the Procurement Practices Reform Act of 2010 that apply to protests, claims, and disputes.
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OFFICE OF CONTRACTING AND PROCUREMENT
NOTICE OF EMERGENCY AND PROPOSED RULEMAKING
The Chief Procurement Officer of the District of Columbia, pursuant to the authority set forth in sections 906, 908, 1003, 1004, 1008, and 1106 of the Procurement Practices Reform Act of 2010, effective April 8, 2011 (D.C. Law 18-371; D.C. Official Code §§ 2-359.06, 2-359.08, 2-360.03, 2-360.04, 2-360.08, and 2-361.06 (2011 Repl.)) (Act), hereby gives notice of the adoption of the following emergency rules and of the intent to adopt final rulemaking to replace chapter 38 (Protests, Claims, and Disputes), of title 27 (Contracts and Procurement), of the District of Columbia Municipal Regulations (DCMR).
The rulemaking updates chapter 38 and implements the provisions in the Act that apply to protests, claims, and disputes. The current chapter 38 contains regulations that are outdated and inconsistent with the Act. This inconsistency may create legal uncertainty regarding the timeframes for handling claims and disputes. Adoption of these emergency rules is therefore necessary for the immediate preservation and promotion of the public safety and welfare.
The emergency rules will remain in effect for up to one hundred twenty (120) days from February 20, 2012, the date of their adoption, and will expire on June 19, 2012 or upon publication of a Notice of Final Rulemaking in the D.C. Register, whichever occurs first.
Chapter 38, PROTESTS, CLAIMS, AND DISPUTES, of Title 27, CONTRACTS AND PROCUREMENTS, of the DCMR is amended as follows:
Chapter 38, Protests, Claims and Disputes, is amended in its entirety to read as follows:
3800 PROTESTS
3800.1 In accordance with the provisions of § 1003 of the Procurement Practices Reform Act of 2010, effective April 8, 2011 (D.C. Law 18-371; D.C. Official Code § 2-360.03 (2011 Repl.)) (Act), all protests shall be filed with the District of Columbia Contract Appeals Board (CAB) in accordance with the CAB’s rules. The CAB has original jurisdiction to decide all protests of solicitations or awards.
3800.2 Each solicitation issued by the District shall inform prospective bidders or offerors that protests must be filed in accordance with the provisions of § 1008 of the Act and the CAB’s rules.
3801 CONTRACT DISPUTES
3801.1 Each District contract shall contain a disputes clause, approved by the Director, providing for resolution of disputes in accordance with the provisions of this chapter.
3801.2 Any dispute arising under or relating to a contract which is not resolved by informal discussions between the contracting officer and the contractor may be treated as a claim and pursued under the appropriate provisions of the Act and this chapter.
3801.3 Claims by the District against a contractor shall be decided by the contracting officer in accordance with § 906 of the Act (D.C. Official Code § 2-359.06 (2011 Repl.)) and § 3802 of this chapter.
3801.4 Claims by a contractor against the District government shall be filed with and decided by the contracting officer in accordance with § 908 of the Act (D.C. Official Code § 2-359.08 (2011Repl.)) and § 3803 of this chapter.
3802 CLAIMS BY THE DISTRICT AGAINST CONTRACTORS
3802.1 All claims by the District against a contractor arising under or relating to a contract shall be decided by the contracting officer. The contracting officer shall send the written decision regarding the claim to the contractor.
3802.2 The contracting officer's written decision shall do the following:
(a) Provide a description of the claim or dispute;
(b) Refer to the pertinent contract terms;
(c) State the factual areas of agreement and disagreement;
(d) State the reasons for the decision, including any specific findings of fact, although specific findings of fact are not required and, if made, shall not be binding in any subsequent proceeding;
(e) Indicate that the written document is the contracting officer's final decision; and
(f) Inform the contractor of the right to seek further redress by appealing the contracting officer’s decision to the CAB.
3802.3 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 §§ 1004(a) and 1005 of the Act (D.C. Official Code §§ 2-360.04(a) and 2-360.05 (2011 Repl.)).
3802.4 The authority contained in this section shall not apply to a claim or dispute for penalties or forfeitures prescribed by statute or regulation which another District agency is specifically authorized to administer, settle, or determine.
3802.5 This section shall not authorize the contracting officer to settle, compromise, pay, or otherwise adjust any claim involving fraud.
3802.6 Pending final decision of an appeal, action, or final settlement, the contractor shall proceed diligently with performance of the contract in accordance with the decision of the contracting officer.
3803 CLAIMS BY CONTRACTORS AGAINST THE DISTRICT
3803.1 If a contractor is unable to resolve a dispute arising under or relating to a contract through informal discussions, the contractor may file a written claim with the contracting officer in accordance with this section.
3803.2 The contractor's claim shall be in writing, shall be delivered in person or mailed by certified mail, return receipt requested, to the contracting officer, and shall contain at least the following:
(a) A description of the claim and the amount in dispute;
(b) Any data or other information in support of the claim;
(c) A brief description of the contractor's efforts to resolve the dispute prior to filing the claim; and
(d) The contractor's request for relief or other action by the contracting officer.
3803.3 The contracting officer may meet with the contractor in a further attempt to resolve the claim by agreement.
3803.4 The contracting officer shall issue a written decision on any claim within one-hundred twenty (120) days of receipt of such a claim, whenever possible taking into account factors such as the size and complexity of the claim and the adequacy of the information in support of the claim that the contractor provides.
3803.5 The contracting officer's written decision shall do the following:
(a) Provide a description of the claim or dispute;
(b) Refer to the pertinent contract terms;
(c) State the factual areas of agreement and disagreement;
(d) State the reasons for the decision, including any specific findings of fact, although specific findings of fact are not required and, if made, shall not be binding in any subsequent proceeding;
(e) If all or any part of the claim is determined to be valid, determine the amount of monetary settlement, the contract adjustment to be made, or other relief to be granted;
(f) Indicate that the written document is the contracting officer's final decision; and
(g) Inform the contractor of its right to seek further redress by appealing the decision to the CAB.
3803.6 The contracting officer's decision shall be delivered in person or mailed by certified mail, return receipt requested, to the contractor.
3803.7 Any failure by the contracting officer to issue a decision on a claim within the required time period will be deemed to be a denial of the claim, and will authorize the commencement of an appeal to the CAB.
3803.8 If a contractor is unable to support any part of its claim and the contracting officer determines 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 for an amount equal to the unsupported part of the claim in addition to all costs to the District attributable to the cost of reviewing that part of the contractor's claim.
3803.9 Liability under § 3803.8 shall be determined within six (6) years of the commission of the misrepresentation of fact or fraud.
3803.10 The contracting officer’s decision shall be final and not subject to review unless the contractor timely commences an administrative appeal or action for judicial review as authorized by §§ 1004(a) and 1005(a) of the Act (D.C. Official Code §§ 2-360.04(a) and 2-360.05(a) (2011 Repl.).
3803.11 Pending final decision of an appeal, action or final settlement, a contractor shall proceed diligently with performance of the contract in accordance with the decision of the contracting officer.
3899 DEFINITIONS
3899.1 When used in this chapter, the following terms and phrases shall have the meanings ascribed:
Claim - a written demand or written assertion by the District or a contractor seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to the contract.
Person - any business entity, individual, union, committee, club, or other organization or group of individuals.
All persons desiring to comment on the subject matter of this proposed rulemaking should submit comments to the Chief Procurement Officer, 441 4th Street, 700 South, Washington, D.C. 20001. Comments may be sent by email to OCPRulemaking@dc.gov, by postal mail or hand delivery to the address above, or by calling (202) 727-0252. Comments must be received no later than thirty (30) days after the date of publication of this notice in the D.C. Register. A copy of this proposed rulemaking may be requested at the same address, e-mail, or telephone number as above.
