5362565 Contracting and Procurement, Office of - Notice of Emergency and Proposed Rulemaking - To permit pre- and post-award debriefings

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 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 final rulemaking to amend Sections 1647 and 1648, of Chapter 16 (Procurement by Competitive Proposals), of Title 27 (Contracts and Procurement), of the District of Columbia Municipal Regulations (DCMR).

 

This rulemaking updates the regulations and outlines the procedures applicable to procurement by competitive proposals.  This rulemaking authorizes preaward debriefings for unsuccessful offerors, and outlines the applicable process.  This rulemaking also clarifies the procedures for postaward debriefings to unsuccessful offerors.  These changes are necessary to fully implement the Act and to ensure transparent and fair procurement.  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; thus, expiring on June 25, 2015, or upon publication of a Notice of Final Rulemaking in the D.C. Register, whichever occurs first. 

 

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

 

Section 1647 is amended to read as follows:

 

1647                PREAWARD DEBRIEFINGS

 

1647.1             Offerors excluded from the competitive range or otherwise excluded from the competition before award may submit a written request for a preaward debriefing to the contracting officer. 

 

1647.2             The contracting officer shall make reasonable efforts to debrief the unsuccessful offeror as soon as practicable, unless the Director determines that to do so is not in the best interest of the District. 

 

1647.3             A preaward debriefing shall include, at a minimum:

 

(a)                The District’s evaluation of significant elements in the offeror’s proposal;

 

(b)               A summary of the rationale for eliminating the offeror from the competition; and

 

(c)                Reasonable responses to relevant questions about whether source selection procedures contained in the solicitation, applicable regulations, and other applicable authorities were followed. 

 

1647.4             A preaward debriefing shall not disclose:

 

(a)                The number of offerors;

 

(b)               The identity of another offeror;

 

(c)                The content of another offeror’s proposal;

 

(d)               The ranking of other offerors;

 

(e)                The evaluation of other offerors; or

 

(f)                Any information prohibited by § 1648.3(b) of this chapter.

 

Section 1648 is amended to read as follows:

 

1648                POSTAWARD DEBRIEFINGS

 

1648.1             If a contract is awarded on a basis other than price alone, the contracting officer shall provide a postaward debriefing for any unsuccessful offeror that submits a written request for a debriefing, unless the Director determines that to do so is not in the best interest of the District.    

 

1648.2             If a postaward debriefing is held, the information provided shall include, at a minimum:

 

(a)                The District’s evaluation of the significant weak or deficient factors in the unsuccessful offeror’s proposal;  

 

(b)               The overall evaluated cost or price (including unit prices), the numeric technical rating, if applicable, of the successful offeror and the debriefed offeror, and past performance information on the debriefed offeror;

 

(c)                The overall numeric ranking of all offerors, if any ranking was developed by the procuring agency during the evaluation;

 

(d)               A summary of the rationale for award; and

 

(e)                Reasonable responses to relevant questions about whether source selection procedures contained in the solicitation, applicable regulations and other applicable authorities were followed.

 

1648.3             The postaward debriefing shall not:

 

(a)                Include point-by-point comparisons of the debriefed offeror's proposal with those of other offerors; or

 

(b)               Reveal any information prohibited from disclosure by Subsection 417 of the Procurement Practices Reform Act of 2010, effective April 8, 2011 (D.C. Law 18-371; D.C. Official Code § 2-354.17 (2012 Repl.)) or exempt from release under the District of Columbia Freedom of Information Act, effective March 25, 1977 (D.C. Law 1-96; D.C. Official Code §§ 2-531 et seq. (2012 Repl.)), including:

 

(1)               Information which has been designated as confidential and proprietary by an offeror;

 

(2)               Trade secrets and commercial or financial information where disclosure would impair the competitive position of an offeror, including cost breakdowns, profit, indirect cost rates, and similar information;

 

(3)               Inter-agency or intra-agency memoranda or letters which would not be available by law to a party other than an agency in litigation with the agency, including the names and written comments of the members of the evaluation panel;

 

(4)               Information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy, including offerors’ employees’ names, résumés, contact information, the names of offerors’ partners and the names of individuals providing reference information about an offeror's past performance; and

 

(5)        Federal tax identification numbers or other information specifically exempted from disclosure by statute.

 

 

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