5354805 Contracting and Procurement, Office of - Notice of Emergency and Proposed Rulemaking - Amending 27 DCMR Chapter 21 to implement provisions of the CBE Act

OFFICE OF CONTRACTING AND PROCUREMENT

NOTICE OF EMERGENCY AND PROPOSED RULEMAKING

 

The Chief Procurement Officer of the District of Columbia (CPO), pursuant to the authority set forth in Sections 204 and 1106 of the Procurement Practices Reform Act of 2010, effective April 8, 2011 (D.C. Law 18-371; D.C. Official Code §§ 2-352.04 and 2-361.06) (2012 Repl.)) (the “Act”), hereby gives notice of the adoption of the following emergency rules and of the intent to adopt a final rulemaking to amend Chapter 21 (Required Sources of Goods and Services), of Title 27 (Contracts and Procurement), of the District of Columbia Municipal Regulations (DCMR).

 

The rulemaking updates Chapter 21 and implements the provisions in the Act that apply to required sources of goods and services. It also incorporates the source requirements of the Small and Certified Business Enterprise Development and Assistance Act of 2014, effective June 10, 2014 (D.C. Law 20-108; D.C. Official Code §§ 2-218.01 et seq., as amended) (the “CBE Act”). The current Chapter 21 contains regulations that are outdated and inconsistent with the Act and the CBE Act. These inconsistencies create legal uncertainty regarding the priorities for use of required sources of goods and services. 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 25, 2015, the date of their adoption, and will expire on June 25, 2015, or upon publication of a Notice of Final Rulemaking in the D.C. Register, whichever occurs first. 

 

Chapter 21, REQUIRED SOURCES OF GOODS AND SERVICES, of Title 27 DCMR, CONTRACTS AND PROCUREMENTS, is amended as follows:

 

Section 2100, PRIORITIES FOR USE OF GOVERNMENT SUPPLY SOURCES, is repealed and replaced with:

 

2100                PRIORITIES FOR USE OF REQUIRED SOURCES

 

2100.1             Except as otherwise authorized by this title or law, each agency shall satisfy requirements for goods and services from or through the sources listed below in descending order of priority:

 

(a)        Existing agency inventories;

 

(b)        Excess personal property from the Surplus Property Division of the Office of Contracting and Procurement (OCP);

 

(c)        Existing requirements contracts;

 

(d)       Existing indefinite quantity contracts, to the extent of the minimums stated in those contracts;

 

(e)        For contracts of $250,000 or less, qualified small business enterprises (SBE) on the District of Columbia Supply Schedules (DCSS) in accordance with § 2104;

 

(f)        For contracts of $250,000 or less, qualified certified business enterprises (CBE) on the DCSS in accordance with § 2104;

 

(g)        For contracts of $250,000 or less, qualified small business enterprises (SBE) in accordance with § 2105­­­­;

 

(h)        For contracts of $250,000 or less, qualified CBEs, in accordance with § 2105; and

                       

(i)         Other sources, including federal schedules and cooperative purchasing agreements.

 

Section 2101, EXCESS PERSONAL PROPERTY, is amended to read as follows:

 

2101                EXCESS PERSONAL PROPERTY

 

2101.1             When requirements cannot be met from existing agency inventories, each agency shall use excess personal property as its first source of supply in fulfilling its requirements.

 

2101.2             Each agency shall ensure that all personnel make positive efforts to satisfy agency requirements by obtaining and using excess personal property before initiating contract action, including obtaining current information regarding the availability of excess personal property from the Surplus Property Division of the OCP.

 

Section 2102, PROCUREMENT OF UTILITY SERVICES, is repealed and replaced with:

                                                                                                                  

2102                EXISTING REQUIREMENTS CONTRACTS

 

2102.1             The use of District requirements contracts shall be mandatory for all District agencies listed under the contract as using agencies.

 

2102.2             When goods or services are available under a District requirements contract, a contracting officer shall not:

 

(a)        Solicit bids, proposals, quotations, or otherwise test the market solely for the purpose of seeking alternative sources to the requirements contract; or

 

(b)        Request formal or informal quotations from other contractors for the purpose of making price comparisons.

 

Section 2103, DISTRICT TERM CONTRACTS AND FEDERAL SUPPLY SCHEDULES, is repealed and replaced with:

 

2103                EXISTING INDEFINITE QUANTITY CONTRACTS

 

2103.1             The use of District indefinite quantity contracts shall be mandatory to the extent of the minimums stated in those contracts.

 

Section 2104, ORDERING FROM THE SUPPLY SCHEDULES, is repealed and replaced with:

 

2104                DISTRICT OF COLUMBIA SUPPLY SCHEDULES

 

2104.1             Except as provided by §§ 2101, 2102, 2103, 2104.2 and 2104.3, the contracting officer shall award contracts of $250,000 or less to a qualified SBE on the DCSS.

 

2104.2             If the contracting officer determines in writing that there are not at least two (2) qualified SBEs on the DCSS that can provide the goods or services, the contracting officer may use a qualified CBE on the DCSS that can provide the goods or services.

 

2104.3             If the contracting officer determines in writing that the price offered by the SBE or CBE is believed to be 12% or more above the likely price in the open market, the contracting officer may decline to award a contract under this section, and may issue the solicitation in the set-aside market under § 2105. 

 

2104.4             A copy of each determination made under this section shall be submitted promptly to the Director of the Department of Small and Local Business Development (DSLBD).

 

Section 2105, TERMINATION OF ORDERS, is repealed and replaced with:

 

2105                MANDATORY SET-ASIDES

 

2105.1             Except as provided by §§ 2101, 2102, 2103, 2104 and 2105.2 and 2105.3, the contracting officer shall award contracts of $250,000 or less to a qualified SBE.

 

2105.2             If the contracting officer determines in writing that there are not at least two (2) qualified SBEs that can provide the goods or services, the contracting officer may use a qualified CBE that can provide the goods or services.

 

2105.3             If the contracting officer determines in writing that the price offered by the SBE or CBE is believed to be 12% or more above the likely price in the open market, the contracting officer may decline to award a contract under this section, and issue the solicitation in the open market. 

 

2105.4             A copy of each determination made under this section shall be submitted promptly to the Director of the DSLBD.

 

Section 2106, SALES DISCOUNT UNDER MULTIPLE AWARD SCHEDULE PROCUREMENT PROGRAM, is repealed and replaced with:

 

2106                FEDERAL SCHEDULES

 

2106.1             Except as provided by §§ 2101, 2102, 2103, 2104 and 2105, the contracting officer may utilize federal schedules that offer programs to the District following the applicable schedule procedures.

 

2106.2             Except as otherwise provided in a federal schedule, all schedule contract terms and conditions apply to contracts between the schedule contractor and the District.

 

Section 2107, RESERVED, is amended to read as follows:

 

2107                SALES DISCOUNT UNDER DISTRICT OF COLUMBIA SUPPLY SCHEDULE PROGRAM

 

2107.1             The Director may charge and collect, on a quarterly basis, a sales discount in the amount of one percent (1%), on all sales, purchase orders, delivery orders, task orders, and purchase card transactions invoiced under contracts awarded under the DCSS.

 

Section 2108, RESERVED is repealed.

 

Section 2109, RESERVED, is repealed.

 

Section 2110, PROCUREMENT FROM THE BLIND AND SEVERELY HANDICAPPED, is repealed.

 

Section 2111, PROCUREMENT FROM FEDERAL PRISON INDUSTRIES, INC., is repealed.

 

Section 2112, EXCEPTIONS FROM HANDICAPPED AND FEDERAL PRISON INDUSTRIES, INC. SOURCE REQUIREMENTS, is repealed.

 

Section 2113, RESERVED, is repealed.

 

Section 2114, RESERVED, is repealed

 

Section 2115, PROCUREMENT OF PRINTING AND RELATED GOODS, is repealed.

 

Section 2116, LEASING OF MOTOR VEHICLES, is repealed.

 

Section 2199, DEFINITIONS, is amended to read as follows:

 

2199                DEFINITIONS

 

2199.1             When used in this chapter, the following terms and phrases shall have the meaning ascribed:

 

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

 

Excess personal property - any personal property under the control of a District agency that the agency head or a designee determines is not required for its needs and for the discharge of its responsibilities.

 

District of Columbia Supply Schedule - indefinite quantity contracts made with more than one (1) CBE supplier for comparable goods and services at varying prices.

 

 

All persons desiring to comment on the subject matter of this proposed rulemaking should submit comments to the Chief Procurement Officer, 441 4^th Street, 700 South, Washington, D.C. 20001.  Comments may be sent by email to [e-mail], by postal mail or hand delivery to the address above, or by calling [phone].  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.