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NOT-FOR-PROFIT HOSPITAL CORPORATION
NOTICE OF EMERGENCY AND PROPOSED RULEMAKING
The Board of Directors of the Not-for-Profit Hospital Corporation (Board), pursuant to authority granted by sections 105(a), 106(6), and 111 of the Not-for-Profit Hospital Corporation Establishment Emergency Amendment Act of 2010 (Act), D.C. Act 18-476, effective July 9, 2010, and applicable sections of any subsequent substantially identical emergency, temporary, or permanent legislation, hereby gives notice of the adoption of the following emergency rules and of the intent to adopt final rulemaking. The rules will replace the recently expired chapter 46 in Title 27, “Contracts and Procurement,” in the District of Columbia Municipal Regulations entitled “Not-for-Profit Hospital Corporation Procurement Rules.”
Emergency action to adopt these rules is necessary to provide for additional clarity, adjust to meet the needs of the Hospital, and avoid a further lapse. These constructive changes will (i) establish better policies for contracting and procurement that are consistent with the principles of competitive procurement in the industry and, subject to District law, (ii) authorize the corporation to make and execute contracts, agreements with another organization, public or private, for goods and services as needed for its corporate purposes; (iii) retain auditors, engineers, and private consultants by contract for rendering professional, management, or technical services and advice; and (iv) engage in a joint venture and participate in a network, alliance, consortium pool, or other cooperative arrangement with a public or private entity.
Without these emergency rules, the Hospital will continue to experience challenges in contracting, procurement, and payment. The modifications ensure effective regulatory procedures for procurement and contracts consistent with the Act and the industry, and without them, existing inconsistencies will continue to create legal uncertainty regarding procurement and contracts. Adoption of these emergency rules is necessary for the immediate preservation of the public safety and welfare, in accordance with D. C. Official Code § 2-505(c) (2001).
Action was taken by the Board on March 30, 2011 to adopt the following rules on an emergency basis effective on that date. These emergency rules will remain in effect for up to one hundred twenty (120) days after the date of adoption or until publication of a Notice of Final Rulemaking in the D.C. Register, whichever occurs first.
CHAPTER 46 NOT-FOR-PROFIT-HOSPITAL CORPORATION PROCUREMENT RULES
Sections
4600 General
4601 Applicability
4602 Chief Contracting Officer
4603 Delegation of Authority to Contracting Officers
4604 Authority and Duties of Contracting Officers
4605 Contractor Qualification Requirements
4606 Responsibility
4607 Organizational Conflicts of Interest; Disqualification
4608 Market Research
4609 Preparing Solicitations
4610 Publicizing Procurement Opportunities
4611 Contract Types
4612 Fixed-Price Contracts
4613 Cost Reimbursement Contracts
4614 Special Methods of Contracting
4615 Basic Ordering Agreements
4616 Time and Materials Contracts and Labor Hours Contracts
4617 Contracting Procedures Generally
4618 Sole Source Contracts
4619 Sealed Bidding
4620 Competitive Negotiation
4621 Simplified Contracting Procedures
4622 DC Supply Schedule; GSA Schedules
4323 The Contracting Officer’s Responsibility for Contract Administration
4624 Payment Requests
4625 Exercising the Contract Options
4626 Contract Modifications
4627 Contract Termination
4628 Contract Documentation
4629 Transfer of Contracts
4630 Disputes
4631 Protests
4632 Applicable Laws
4600 GENERAL
4600.1 This chapter sets forth the procurement rules of the Not-for-Profit Hospital Corporation (Hospital), pursuant to authority granted by sections 105(a), 106(6), and 111 of the Not-for-Profit Hospital Corporation Establishment Emergency Amendment Act of 2010, effective July 7, 2010 (Act), and any subsequent substantially identical emergency, temporary, or permanent legislation. The Hospital is an instrumentality of the District of Columbia government. Its general mission is to provide community-centered health care east of the Anacostia River. In accordance with the Act, the Hospital is exempt from the requirements of the District of Columbia Procurement Practices Act of 1985, effective February 21, 1986 (D.C. Law 6-85; D.C. Official Code § 2-301.01 et seq.), except for provisions regarding review and approval by the Council of multiyear contracts and review and approval by the Council of contracts in excess of $1 million during a 12-month period pursuant to District of Columbia Home Rule Act, approved December 24, 1973, 87 Stat. 790, Pub. L. 93-198, D. C. Official Code § 1-204.51 and pursuant to section 105a of the District of Columbia Procurement Practices Act of 1985, effective March 8, 1991, (D.C. Law 8-257; D.C. Official Code § 2-301.05a) and the Hospital has the authority to issue and implement its own procurement rules.
4600.2 The Board of Directors (Board), as the governing body of the Hospital, is authorized to enter into contracts to assist the Hospital in carrying out its mission acting by and through the Board. The Board may delegate that authority in accordance with the Act and these rules.
4600.3 These procurement rules are for the benefit of the Hospital, and are not intended to confer any rights or benefits on third parties. The principal purposes of these rules are to ensure that the Hospital’s procurement activities:
(a) Are carried out in a fair, efficient and objective manner that promotes confidence in the Hospital’s integrity; and
(b) Produce reasonable value and results for the Hospital.
4600.4 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 16-133; D.C. Official Code § 2-218). The Hospital’s goals include expanding the use of CBEs.
4600.5 The Board may waive the applicability of any provisions in these rules that are not specifically required by statute if the Board finds in writing that:
(a) Such waiver is in the best interest of the Hospital;
(b) Such waiver is not inconsistent with fair, competitive, and transparent procurement practices; and
(c) Such waiver would not alter the terms of a contract.
4601 APPLICABILITY
4601.1 These rules apply to the procurement of goods or services, including construction services, by and for the Hospital:
(a) Whether through purchase or lease; and
(b) Whether the goods or services are already in existence or must be developed.
4601.2 This chapter does not apply to any goods or services that the Hospital may acquire as a gift, or on a pro bono basis.
4601.3 These rules shall not apply to:
(a) The purchase or lease of real property by the Hospital;
(b) The disposition of real or personal property by the Hospital; and
(c) The disposition, sale or provision of services by the Hospital.
4602 CHIEF CONTRACTING OFFICER
4602.1 The Chief Executive Officer shall serve as the Hospital’s Chief Contracting Officer (CCO). The CCO shall have plenary contracting authority and have responsibility for supervising the Hospital’s procurement activities. The CCO shall prescribe the standard contract format and standard contract provisions to be included in the contracts, consistent with this chapter.
4602.2 If the CCO determines that it is in the best interest of the Hospital to do so, including in an emergency situation, it is in the CCO’s discretion to:
(a) issue emergency rules that shall remain in effect for 120 day periods;(b) waive contract provisions; and
(c) substitute contract provisions.4603 DELEGATION OF AUTHORITY TO CONTRACTING OFFICERS
4603.1 The CCO may delegate contracting authority to employees of the Hospital, or employees of the District of Columbia government acting on behalf of the Hospital, 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).
4603.2 In delegating 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 Hospital’s procurement rules. Subject to compliance with these rules, Contracting Officers shall 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. In addition, the CCO shall ensure that Contracting Officers periodically receive training to strengthen and update their skills and knowledge concerning procurement matters.
4604 AUTHORITY AND DUTIES OF CONTRACTING OFFICERS
4604.1 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, 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.
4604.2 A Contracting Officer shall be responsible for:
(a) Making any determination and 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 prospective contractors participating in the procurement receive fair and impartial treatment.
4605 CONTRACTOR QUALIFICATION REQUIREMENTS
4605.1 A 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.
4605.2 The issues of responsibility and conflicts of interests/disqualification are addressed in sections 4606 and 4607, respectively.
4606 RESPONSIBILITY
4606.1 To receive a contract from the Hospital, a contractor must be responsible. To be considered responsible, a contractor must:
(a) Have or provide evidence that it can obtain the financial, technical, and organizational skills and resources, and the facilities and equipment, necessary to perform the contract in accordance with its terms;
(b) Have a satisfactory performance record;
(c) Have a satisfactory record of integrity and business ethics;
(d) Not be suspended, debarred, or otherwise ineligible to receive contracts from the District Government or the Federal Government;
(e) Meet any other qualification criteria that may be imposed by applicable laws or regulations; and
(f) Provide adequate evidence that it has paid all applicable District of Columbia and Federal taxes and filed District and Federal tax returns.
4606.2 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. Award of a contract shall be considered the Contracting Officer’s determination that the contractor is responsible.
4606.3 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. 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.
4607 ORGANIZATIONAL CONFLICTS OF INTEREST; DISQUALIFICATION
4607.1 The Hospital 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, the appearance thereof, or other ethical considerations as further described in subsections 4607.4 – 4607.7.
4607.2 If the Contracting Officer determines that there is a conflict of interest, the appearance of a conflict of interest, or another ethical consideration, the Contracting Officer may:
(a) Disqualify a contractor at any point during 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 approval of the CCO.
4607.3 A determination by the Contracting Officer and the CCO to take a corrective measure described in subsection 4607.2 shall be made in writing and included in the contract file.
4607.4 The ethical consideration(s) that may authorize disqualification or another corrective measure go beyond a violation of the ethics and conflict of interest rules of the Hospital and 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 procurement. For example, situations in which corrective measures might be warranted include (but are not limited to):
(a) Cases where a member of the Board of the Hospital or the CCO have any interest, direct or indirect, as principal, surety, or otherwise in a contract, where the expense or consideration of the contract is payable from Hospital funds.
(b) Cases where a director or employee of the Hospital involved in a procurement had an affiliation with a contractor that raised questions about the procurement’s integrity;
(c) Cases where a prospective contractor received preferential treatment in relation to its competitors;
(d) Cases where a prospective contractor hired a former employee of the Hospital who was privy to non-public information about the procurement, and involved that individual in its proposal preparation efforts; or
(e) Cases where there is clear evidence suggesting collusive bidding or similar anti-competitive practices by prospective contractors.
4607.5 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 Hospital; or
(b) May have an unfair advantage over potential competitors.
4607.6 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 Hospital 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.
4607.7 A number of measures may be appropriate for eliminating or mitigating organizational conflicts of interest, and the Contracting Officer has broad discretion to select the approach that is most suitable in any particular case. For example, a contract to assist the Hospital 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 Hospital’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 and prohibits the contractor from disclosing this proprietary information.
4607.8 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.
4608 MARKET RESEARCH
4608.1 Before issuing a solicitation, making a purchase, or awarding a contract, the Hospital may:
(a) Estimate the likely cost of the proposed procurement and assure that adequate funds are available; and
(b) Conduct appropriate market research and establish minimum needs.
4608.2 Market research is designed primarily to familiarize the Hospital 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 Hospital’s existing knowledge of the market based on its (or its key personnel’s) past experience in procuring similar goods or services. If the Hospital has such existing knowledge, market research is not required.
4608.3 Market research, to the extent it is relevant to the particular procurement and not already known to the Hospital, 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.
4608.4 In conducting market research, the Hospital 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 Internet 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.
4608.5 In addition to soliciting information from prospective contractors, the Hospital may also obtain information from other sources. For example, price information that can assist in estimating the likely cost of the procurement and in evaluating price reasonableness is frequently available from sources such as catalogs, Internet sites, or records of past procurements.
4609 PREPARING SOLICITATIONS
4609.1 After conducting market research, when required, the Contracting Officer shall make a determination as to which procurement method identified in section 4614 of these regulations is most beneficial to the Hospital. The Contracting Officer will ordinarily prepare a solicitation requesting responses; however, the Contracting Officer may determine to purchase the required goods or services through its small purchase procedures or from a federal or District supply schedule contract, or any other method set forth in this chapter.
4609.2 When the Contracting Officer 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 Hospital’s needs (for example, by providing a statement of work outlining the type of services required or information specifying product characteristics or capabilities) and method of award.
4609.3 In preparing a solicitation, the Contracting Officer 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.
4609.4 The Contracting Officer may issue solicitations in paper form or electronically. The Contracting Officer 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). Oral solicitations shall not be used for contracts that have an estimated value in excess of twenty-five thousand dollars ($25,000).
4609.5 The Contracting Officer with the approval of the CCO may cancel a solicitation or reject all bids or proposals received at any time before the contract award when the Contracting Officer determines in writing that the cancellation is in the Hospital’s best interests.
4610 PUBLICIZING PROCUREMENT OPPORTUNITIES
4610.1 The Contracting Officer may use a variety of methods to publicize 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 may include print advertising, Internet notices, developing source lists of qualified firms known to supply particular categories of goods or services, soliciting specific sources through written notices or telephone contacts, and holding pre-bid or pre-proposal conferences.
4610.2 The Contracting Officer shall use best efforts to provide (either electronically or in paper format) a copy of all solicitations (other than solicitations issued through its small purchase procedures) 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. The Contracting Officer shall also conduct outreach and provide information to CBEs on at least an annual basis.
4610.3 In addition to publication or other method of publicizing the procurement opportunity described in subsection 4610.1, unless otherwise specified in this chapter, the Contracting Officer shall also compile a list of at least three (3) vendors that the Contracting Officer 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 Contracting Officer is unable to locate at least three (3) potential vendors, the Contracting Officer shall provide the solicitation to as many vendors as the Contracting Officer can reasonably identify.
4611 CONTRACT TYPES
4611.1 The type of contract awarded by the Contracting Officer 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.
4611.2 The Contracting Officer may use a variety of contract types, including:
(a) Fixed price contracts (fixed price contracts will generally be used in connection with the purchases of discrete and identifiable goods or assets, and for other appropriate purchases);
(b) Cost reimbursement contracts;
(c) Delivery order contracts;
(d) Time-and-materials or labor-hours contracts;
(e) Indefinite Delivery, Indefinite Quantity contracts; and
(f) Purchase Orders.
4611.3 The Contracting Officer may also award any alternative type of contract that will produce reasonable value in the context of a particular procurement.
4611.4 The Contracting Officer may, when in the best interest of the Hospital, use cost-plus-percentage-of-cost contracts.
4612 FIXED-PRICE CONTRACTS
4612.1 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.
4612.2 Unlike cost reimbursement contracts, any type of fixed price contract obligates the contractor to complete the contractually-specified work for a fixed price.
4612.3 A firm fixed price contract provides for a price that is not subject to adjustment, except in the event of a change to the scope of work.
4612.4 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.
4612.5 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.
4613 COST REIMBURSEMENT CONTRACTS
4613.1 Cost reimbursement contracts provide for the contractor to recover the reimbursable costs it incurs in contract performance, plus a fee (that is, a profit).
4613.2 A reimbursable cost must be:
(a) Reasonable in nature and amount;
(b) Properly allocable to the contract;
(c) Determined in accordance with generally accepted accounting principles; and
(d) Not identified as nonreimbursable under the terms of the particular contract.
4613.3 To ensure that the Hospital’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.
4613.4 Cost reimbursement contracts can take three (3) forms:
(a) Cost-plus-fixed-fee;
(b) Cost-plus-incentive-fee; and
(c) Cost-plus-award-fee.
4613.5 The differences between the types of cost reimbursement contracts listed in subsection 4613.4 relate to the manner in which the contractor’s fee is determined.
4613.6 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.
4613.7 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 also can include incentive formulas based on the contractor’s schedule or technical performance.
4613.8 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.
4613.9 The award fee in a cost-plus-award-fee contract is determined unilaterally by the Contracting Officer, based on the Contracting Officer’s 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%).
4613.10 In appropriate circumstances, the Contracting Officer 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.
4614 SPECIAL METHODS OF CONTRACTING
4614.1 Notwithstanding any other provision of this chapter, a Contracting Officer may award contracts with other organizations, public or private, for goods and services that are in the Hospital’s best interest. As part of the procurement planning process, the Contracting Officer will determine the most appropriate method of contracting based on, among other considerations, the scope of work, delivery schedules, existing market conditions, and other relevant considerations. The selection of any Special Method of Contracting shall be considered a competitive procurement for the purposes of this chapter.
(a) Cooperative Purchasing Agreements. The Hospital shall be authorized and encouraged to participate in, sponsor, conduct, or administer Cooperative Purchasing Agreements and contracts with any other organization, public or private, including group purchasing organizations, hospitals and hospital consortiums, state, county, or municipal jurisdictions, for the purpose of procuring supplies and services, which shall include construction services or architectural and engineering services related to construction repairs, upgrades, restoration, alteration, and reconstruction of existing buildings and facilities.
(b) Cooperative Purchasing Agreements entered into by the Hospital shall be in accordance with, to the extent practicable, all laws, statutes, and regulations applicable to the Hospital with respect to contracting, and shall not be inconsistent with laws, statutes, and regulations of the United States government that apply specifically to the District.
(c) Human Care Agreements –
(1) The Contracting Officer may award a human care agreement if:
(i) The procurement is for education or special education, health, human care, or social services to be provided directly to persons with disabilities, the disadvantaged, displaced, elderly, indigent, mentally ill, physically ill, unemployed, or minors in the custody of the Hospital;
(ii) The services being procured are negotiated on a fee for service or unit-rate basis using benchmarks and quantifiable measurements that shall be uniformly applied to providers of the same service, or purchased at rates adopted by regulation; and
(iii) The procurement is for one or more services that the Hospital typically purchases as needs arise, but for which the quantity, rate of utilization, delivery areas, or specific beneficiaries of the services cannot be accurately estimated at the outset of the procurement process.
(2) The Contracting Officer shall publish, when a human care agreement is to be awarded, and at least annually after the initial awarding of the agreement, a request for qualifications that:
(i) States the general requirements for the human care orservice; and
(ii) Requests interested service providers to respond in writingwith a statement of their qualifications to perform the
required services on a form prescribed by the CCO.
(3) The Contracting Officer shall retain statements of qualifications submitted by providers for a period of three (3) years.
(4) The Contracting Officer may conduct negotiations with any responsible service provider who has submitted a statement of qualifications, without any additional public notice or solicitation required, to satisfy all or part of the District's anticipated requirements for a particular human care service.
(5) The Contracting Officer shall make a written determination that the service provider is a responsible provider, based on the criteria set forth in section 4606, prior to conducting negotiations with a service provider for a human care agreement.
(6) The Contracting Officer may award a human care agreement if he or she finds that the agreement is in the best interest of the District, based on an analysis of the District's statement of requirements, the service provider's qualifications, and a judgment that the fee or unit-cost for services is reasonable.
(7) The Contracting Officer may authorize the use of vouchers to authorize the delivery of service provided by providers who enter into human care agreements.
(8) The Contracting Officer shall provide public notice of the award of a human care agreement pursuant to this section on the Internet site maintained by the Hospital.
(9) The human care agreement shall identify the services to be rendered during the term of the agreement and shall set forth the terms and conditions of any purchases issued pursuant to the agreement. The Contracting Officer shall include in each human care agreement the following information:
(i) A statement that the human care agreement is not a commitment to purchase any quantity of a particular good or service covered under the agreement; and
(ii) A statement that the District is obligated only to the extent that authorized purchases are made pursuant to the human care Agreement.
(d) Contracts with Federal Agencies - The CCO or designee, may authorize Contracting Officers to place orders, if the CCO determines it to be in the best interest of the Hospital, with any federal department, establishment, bureau, or office for materials, supplies, equipment, work, or services of any kind that such federal agency may be in a position to supply or be equipped to render, by contract, supply schedule, or otherwise, and shall pay promptly by check to such federal agency, upon its written request, either in advance or upon furnishing or performance thereof, all or part of the estimated or actual costs thereof as determined by such department, establishment, bureau, or office as may be requisitioned; but proper adjustments on the basis of the actual costs of the materials, supplies or equipment furnished or work or services performed, paid for in advance, shall be made as may be agreed upon by the departments, establishments, bureaus, or offices concerned. Orders placed as provided in this subsection shall be considered as obligations upon appropriations in the same manner as orders or contracts placed with private contractors.
(e) Contracts with District Agencies - The CCO or designee may authorize Contracting Officers to place orders with any department, office, or agency of the District for materials, supplies, equipment, work, or services of any kind that the requisitioned department, office, or agency may be in a position to supply or equipped to render. The Hospital placing any such orders shall either advance, subject to proper adjustment on the basis of actual cost, or reimburse, such department, office or agency the actual cost of materials, supplies, or equipment furnished or work or services performed as determined by such department, office, or agency as may be requisitioned. Orders placed as provided in this subsection shall be considered as obligations upon appropriations in the same manner as orders or contracts placed with private contractors.
(f) Letter Contracts - A letter contract may be used only after the Contracting Officer determines, in writing, that no other type of contract is suitable. A letter contract shall not commit the Hospital to a definitive contract in excess of the funds available at the time the letter contract is executed. The Contracting Officer may use a letter contract when the Hospital’s interests demand that the contractor be given a binding commitment so that work can start immediately and executing a definitive contract is not possible in sufficient time to meet the requirement. Each letter contract shall be as complete and definite as possible under the circumstances and shall include clauses approved and required by the CCO. When a letter contract is executed, the Contracting Officer shall include a price ceiling for the anticipated definitive contract. The price ceiling shall not be exceeded. Each letter contract shall also include a clause indicating the maximum liability of the Hospital under the letter contract. The maximum liability to the Hospital shall be the estimated amount necessary to cover the contractor's requirement for funds before execution of the definitive contract. The Contracting Officer may execute a definitive contract after the date of execution of the letter contract. Prior to execution of a letter contract, the Contracting Officer shall ensure that funds are encumbered for obligation in the amount of the maximum Hospital liability for the term of the letter contract. For purposes of review and approval of letter contracts, and for purposes of contracting authority, the Contracting Officer shall use the estimated cost of the definitive contract for determining the type and level of review and approval required.
4615 BASIC ORDERING AGREEMENTS
4615.1 Under basic ordering agreements (also known as task order contracts or term contracts), the contractor’s performance obligations are triggered when the Contracting Officer subsequently issues task orders pursuant to the contract.
4615.2 Basic ordering agreements include:
(a) Requirements contracts; and
(b) Indefinite quantities contracts.
4615.3 A requirements contract provides the mechanism for the Contracting Officer 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 Contracting Officer determines that a requirements contract will provide superior economic benefits to an indefinite quantity contract as it locks the Contracting Officer into one (1) source of supply for the goods or services required under the basic ordering agreement. A requirements contract must be approved by the CCO in addition to the contracting Officer.
4615.4 An indefinite quantity contract provides for an indefinite quantity, within specified limits, of supplies or services to be furnished during a fixed period.
4615.5 An indefinite quantity contract:
(a) Requires the Hospital 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 Hospital may order during the contract period (subject to any maximum quantity limitations in the contract).
4615.6 The Contracting Officer 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.
4615.7 If an indefinite quantity contract is used, the Contracting Officer 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”).
4615.8 Generally, one (1) of the following two (2) award procedures shall be used:
(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, etc.); or
(b) The competitive award procedure, where the Contracting Officer requests task order proposals from two (2) or more contractors holding an indefinite delivery contract.
4615.9 The competitive award procedure is preferred.
4615.10 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 Contracting Officer may reasonably request.
4616 TIME AND MATERIALS CONTRACTS AND LABOR HOURS CONTRACTS
4616.1 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).
4616.2 A labor hours contract is a time-and-materials contract that does not involve materials.
4616.3 Both time-and-materials contracts and labor hours contracts should specify a ceiling price.
4617 CONTRACTING PROCEDURES GENERALLY
4617.1 Unless otherwise specified, every procurement by the Hospital should be conducted in accordance with competitive contracting procedures, suitable to the specific procurement, that produce reasonable value and reasonable results.
4617.2 The Contracting Officer may include the procedures described in sections 4618 through 4622. In any procurement including change orders or supplemental agreements, the Contracting Officer may require the bidder, offeror or contractor to submit to the Hospital factual information reasonably available to the bidder, offeror or contractor, in order to substantiate that the price or cost offered, or some portion of it, is reasonable.
4618 SOLE SOURCE CONTRACTS
4618.1 Procurement contracts may be awarded through noncompetitive negotiations when the CCO or the CCO designee determines in writing that one of the following conditions exists:
(a) There is only one (1) source for the required commodity, service, or construction item;
(b) The scope of work is necessary to meet an essential requirement of the Hospital and the vendor is the only source that is readily available to perform in the time necessary to meet the essential requirement of the Hospital;
(c) The contract is with a vendor who maintains a price agreement or schedule with any federal agency, so long as no contract executed under this provision authorizes a price higher than is contained in the contract between the federal agency and the vendor;
(d) The contract is with a vendor who agrees to adopt the same pricing schedule for the same services or goods as that of a vendor who maintains a price agreement or schedule with any federal agency, if no contract executed under this paragraph authorizes a price higher than is contained in the contract between the federal agency and the vendor; or
(e) When an emergency has been declared by the Board.
4618.2 If the Contracting Officer makes a determination pursuant to subsection 4618.1 that a sole source procurement is necessary to meet an essential requirement of the Hospital, the Contracting Officer shall document such determination in writing and may procure goods, services, or construction without regard to the procedures set forth elsewhere in this chapter.
4618.3 A written determination by the Contracting Officer supporting a single available source procurement pursuant to subsection 4618.1(a) shall include:
(a) A description of the nature of the goods or services; and
(b) An explanation of why the goods or services are only available from a single source.
4618.4 A written determination by the Contracting Officer supporting an emergency procurement pursuant to subsection 4618.1(e) shall include:
(a) A finding that circumstances which were not reasonably foreseeable by the Hospital have created a need for goods, services, or construction which, if not immediately filled, will endanger the continuation of an essential function of the Hospital;
(b) A description of steps taken, if any, to solicit bids or proposals under the emergency condition; and
(c) A finding that anticipated costs to the Hospital will be fair and reasonable.
4618.5 The Contracting Officer shall not make a procurement under this section to meet a continuing need of the Hospital beyond what is necessary to meet the emergency condition.
4619 SEALED BIDDING
4619.1 The solicitation used to initiate a procurement conducted by sealed bidding is known as an Invitation for Bids (IFB).
4619.2 If the Contracting Officer issues an IFB, the Contracting Officer 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.
4619.3 The evaluation factors used in sealed bid procurements are limited to price and price-related factors (including price evaluation preferences for CBEs).
4619.4 The IFB shall specify:
(a) Any information necessary to explain how the Contracting Officer 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;
(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 the deadline for bid submission, the method(s) for submitting bids, any representations or certifications bidders must submit, and any requirements for the submission of items such as bid samples, subcontracting plans, or payment or performance bonds);
(g) The period during which bids must remain open for acceptance; and
(h) The contract’s terms and conditions.
4619.5 Any changes in the information set forth in an IFB must be made by an amendment to the IFB.
4619.6 Bids shall be submitted by a method specifically permitted by the IFB (for example, hand delivery, mailing, electronic transmission, or fax).
4619.7 A bid may be withdrawn or modified at any time before bid opening by any of the methods permitted for submitting bids.
4619.8 A late bid (or late modification or withdrawal) shall not be considered, unless such delay is caused by the Hospital.
4619.9 The Contracting Officer shall prepare and maintain in the contract file an abstract listing the bid prices.
4619.10 The contract shall be awarded to the qualified bidder whose bid is responsive to the IFB and is most advantageous to the Hospital considering only price and the price-related evaluation factors identified in the IFB.
4619.11 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.
4619.12 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 Contracting Officer 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.
4620 COMPETITIVE NEGOTIATION
4620.1 The solicitation used to initiate a procurement conducted by competitive negotiation is known as a Request for Proposals (RFP).
4620.2 If the Contracting Officer issues an RFP, the Contracting Officer shall establish a reasonable deadline for offerors’ submission of initial proposals.
4620.3 The evaluation criteria used in procurements conducted by competitive negotiation 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 CBEs).
4620.4 The RFP may, if the Contracting Officer deems it advisable, contain either an estimate that generally describes the price range contemplated by the Contracting Officer or a funding limitation for the procurement.
4620.5 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: the deadline for proposal submission, the method(s) for submitting proposals, the information to be provided in the proposal (including any requirements for past performance information or for subcontracting plans), and 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.
4620.6 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.
4620.7 Proposals shall be submitted by a method specifically permitted by the RFP.
4620.8 The Contracting Officer shall evaluate proposals based solely on the evaluation criteria specified in the RFP. Where past performance is an evaluation factor, the Contracting Officer is not limited to considering only the information from references listed by the offeror.
4620.9 After initial proposals have been 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, which shall include all proposals that, in the Contracting Officer’s judgment (erring on the side of the offeror), could be awarded the procurement.
4620.10 The Contracting Officer may begin discussions with only the top three ranked offerors in the competitive range. Discussions with the offerors may be written (including electronic) or oral. The primary objective of discussions is to maximize the Hospital’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 judgment.
4620.11 At the conclusion of discussions, the Contracting Officer shall request that the offerors submit best and final offers by a common cut-off date. If the Contracting Officer is unable to award a contract after best and final offers have been evaluated and negotiated, the Contracting Officer may proceed to negotiate with the next three highest ranked offerors. The Contracting Officer may proceed to select a contractor by the method set forth in this subchapter until a contract is awarded or the solicitation cancelled.
4620.12 The contract shall be awarded to the qualified offeror whose offer is most advantageous to the Hospital under the RFP’s evaluation criteria and this subchapter.
4620.13 The Contracting Officer shall prepare documentation explaining the basis for the contract award decision which shall be maintained in the contract file.
4620.14 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 Contracting Officer 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.
4621 SIMPLIFIED CONTRACTING PROCEDURES
4621.1 The basic purposes of simplified contracting procedures are to:
(a) Promote economy, efficiency, and innovation in contracting;
(b) Reduce administrative costs to the Hospital; and
(c) Avoid unnecessary burdens or complexities that could reduce competition, such as by deterring smaller contractors from participating in a procurement.
4621.2 Simplified contracting procedures may be used only with contracts, as listed in subsection 4611.2, that have an estimated value equal to or less than seven hundred fifty thousand dollars ($750,000).
4621.3 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.
4621.4 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.
4621.5 If a contract that has an estimated value of more the twenty-five thousand dollars ($25,000) is procured through the simplified contracting procedures, the Contracting Officer may obtain written quotes from potential suppliers.
4621.6 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 instruct suppliers to respond in writing.
4621.7 An oral solicitation shall provide a clear description of the Hospital’s requirements (for example the type of goods or services sought, quantities, and schedule) and the basis on which the award will be made.
4621.8 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 (and the extent to which they are negotiable);
(b) Applicable certifications or representations; and
(c) Instructions for submitting responses.
4621.9 The basis for award may be price or cost alone or price/cost and other factors. Solicitations are not required to state the relative importance assigned to each evaluation factor.
4621.10 The price/cost and 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.
4622 DC SUPPLY SCHEDULE; GSA SCHEDULES
4622.1 The Contracting Officer may purchase goods and services directly from the DC Supply Schedule or the U.S. General Service Administration (GSA) Schedule.
4623 THE CONTRACTING OFFICER’S RESPONSIBILITY FOR CONTRACT ADMINISTRATION
4623.1 The Contracting Officer has overall responsibility for the contract’s administration. Among other things, this requires the Contracting Officer:
(a) To monitor whether goods or services are delivered or completed on schedule and conform to contract requirements;
(b) To ensure that any contractually required inspection or acceptance procedures are followed;
(c) To monitor the contractor’s compliance with any subcontracting requirements contained in the contract; and
(d) To identify and attempt to resolve issues or problems that arise during contract performance.
4623.2 The Contracting Officer has the authority to take the following actions:
(a) Authorize contract payments;
(b) Exercise contract options;
(c) Terminate the contract; and
(d) Modify the contract.
4623.3 Prior to terminating a contract, the Contracting Officer shall first obtain the approval of the CCO.
4623.4 No representative of the Hospital, 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.
4624 PAYMENT REQUESTS
4624.1 Except as provided by subsection 4624.8, requests for payment must be submitted in writing by the contractor together with a valid written contract.
4624.2 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.
4624.3 Depending on the contract 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 Hospital, or information detailing the reimbursable costs incurred by the contractor.
4624.4 Payment shall not be made unless authorized by the Contracting Officer. A Contracting Officer’s payment authorization shall not preclude the Hospital from seeking repayment (or pursuing other remedies) if it subsequently concludes that the contractor was overpaid or otherwise misled the Hospital.
4624.5 In addition to the Contracting Officer’s payment authorization, all payment requests, except those utilizing simplified contracting procedures under section 4621, must be certified and approved by the Hospital’s Chief Financial Officer (or his or her designee) prior to making any payment.
4624.6 No Hospital employee shall authorize payment for the value of supplies and services received without a valid written contract. Any vendor who enters into an oral agreement with a Hospital employee to provide supplies or services to the Hospital without a valid written contract shall not be paid. This subsection shall not apply to a payment required by court order, a final decision of an authorized forum, or an approval by the CCO in accordance with subsection 4624.8 of this section.
4624.7 The CCO or designee shall review and verify requests submitted by a Contracting Officer for authorization for payment for supplies or services received without a valid written contract, and shall either approve or disapprove requests for authorization for payment.
4624.8 The CCO or designee may authorize payments for supplies or services received without a valid written contract if:
(a) supplies or services have been provided to and accepted by the Hospital, or the Hospital otherwise has obtained or will obtain a benefit resulting from provision of supplies or services without a valid written contract;
(b) the Contracting Officer determines that the price for the supplies or services provided without a valid written contract is fair and reasonable;
(c) the Contracting Officer recommends payment for the supplies or services provided without a valid written contract;
(d) the Chief Financial Officer, or a designee, certifies that appropriated funds are available; and
(e) the request for authorization for payment for supplies or services received without a valid written contract is in accordance with any other procedures or limitations prescribed by the CCO.
4625 EXERCISING CONTRACT OPTIONS
4625.1 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
(b) Exercising the option is the most advantageous method of fulfilling the Hospital’s need.
4625.2 The determination to exercise a contract option shall be in writing and shall be included in the contract file.
4625.3 To exercise an option over one hundred thousand dollars ($100,000) the Contracting Officer must first obtain the approval of the CCO.
4625.4 In addition to the approval of the CCO (if applicable), prior to exercising any option, certification of the Hospital’s Chief Financial Officer shall be obtained as to whether funds are available for the exercise of the option.
4626 CONTRACT MODIFICATIONS
4626.1 The Contracting Officer may modify a contract subject to the provisions of this section.
4626.2 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.
4626.3 A contract modification in excess of one hundred thousand dollars ($100,000) shall be approved by the CCO.
4626.4 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 written change order, when the contract includes a changes clause permitting the Contracting Officer 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 decease in costs caused by the change.
4627 CONTRACT TERMINATION
4627.1 All contracts awarded by the Contracting Officer shall include “Termination for Default” and “Termination for Convenience” clauses specifically defining the Hospital’s termination rights.
4627.2 When exercising the Hospital’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).
4627.3 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.
4628 CONTRACT DOCUMENTATION
4628.1 The Contracting Officer is responsible for maintaining documentation regarding the contract and the procurement.
4628.2 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.
4629 TRANSFER OF CONTRACTS
4629.1 Contracts or pending procurements related to the Hospital may be transferred by the Hospital to any agency or instrumentality of the District in accordance with the provisions of this section.
4629.2 The CCO shall review the proposed procurement or contract and determine whether it is in the best interest of the Hospital to transfer the procurement or contract.
4629.3 If the CCO determines it is in the Hospital’s best interest to transfer a contract or procurement, the Contracting Officer shall have the authority to transfer the contract.
4629.4 Transfer 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.
4630 DISPUTES
4630.1 Each contract entered into by the Contracting Officer shall include a disputes clause that sets forth the procedures by which disputes shall be resolved.
4630.2 The disputes clause may, if the Contracting Officer determines it to be in the best interest of the Hospital, provide for the resolution of disputes through binding arbitration within the District of Columbia.
4631 PROTESTS
4631.1 All protests to the award of a contract by the Contracting Officer shall be resolved in accordance with this section.
4631.2 A protest shall be submitted to the Contracting Officer in writing.
4631.3 A protest shall include:
(a) The name of the protestor;
(b) The name of the protestor’s counsel or other representative;
(c) A detailed description of the basis for the protest; and
(d) A description of the relief requested.
4631.4 The Contracting Officer shall promptly issue a decision with regard to a protest.
4631.5 If the Contracting Officer is someone other than the CCO, the protestor may appeal the Contracting Officer’s decision to the CCO.
4631.6 An appeal of the Contracting Officer’s decision shall be submitted to the CCO within three (3) business days after the protestor receives the Contracting Officer’s decision.
4631.7 The decision of the CCO shall be the Hospital’s final decision with regard to the protest.
4631.8 A protest must be filed within the timeframes established in this subsection to be considered by the Hospital.
4631.9 A protest that is not filed within these timelines will not be considered by the Hospital, and the protestor shall be deemed to have waived the right to protest.
4631.10 A protest that is based on the language or requirements of a solicitation or is otherwise based on facts which are apparent on the face of the solicitation shall be filed with the Contracting Officer no later than five (5) business days before the date responses to the solicitation are due.
4631.11 A protest that is not based on the language or requirements of a solicitation or otherwise based on facts which are apparent on the face of a solicitation must be submitted within five (5) business days after the protestor knows or should have known of the facts that serve as the basis for the protest.
4632 APPLICABLE LAWS
4632.1 The Hospital’s procurement rules shall comply with the requirements related to:
(a) Council review of multiyear contracts and contracts in excess of one million dollars ($1,000,000) - as set forth in section 451 of the District of Columbia Home Rule Act, approved December 24, 1973 (87 Stat. 788; D.C. Official Code § 1-204.51); and Council review of multiyear contracts and contracts in excess of one million dollars ($1,000,000) as set forth in section 105a of the District of Columbia Procurement Practice Act of 1985, effective March 8, 1991 (D.C. Law 8-257; D.C. Official Code § 2-301.05a);
(b) Anti-Deficiency Act - The Hospital’s obligations and responsibilities under the terms of the Contract and the Contract Documents are and shall remain subject to the provisions of (i) the federal Anti-Deficiency Act, 31 U.S.C. §§1341, 1342, 1349, 1350, 1351, (ii) D.C. Code 47-105, (iii) the District of Columbia Anti-Deficiency Act, D.C. Code §§ 47-355.01 - 355.08, as the foregoing statutes may be amended from time to time, and (iv) Section 446 of the District of Columbia Home Rule Act;
(c) Other Contracting Laws Applicable to the Hospital – District of Columbia Quick Payment Act of 1984, as amended, D.C. Official Code sec. 2-221.01; Living Wage Act of 2006, as amended, D.C. Official Code sec. 2-220.01; Small, Local, and Disadvantaged Business Enterprise Development and Assistance Act of 2005, as amended, D.C. Official Code sec. 2-218.01 and 2-218.50; First Source Employment Agreement Act of 1984, as amended, D.C. Official Code sec. 2-219.01; Service Contract Act, 41 USC 351(a); Health Insurance Portability and Accountability Act of 1996, P.L. 104-191; the Privacy and Security Rules codified at 45 C.F.R. Parts 160 and 164; and
(d) The Not-for-Profit Hospital Corporation Personnel Administration Emergency Amendment Act of 2010, effective December 28, 2010 (D.C. Act 18-669; 58 DCR 118).
Persons desiring to comment on these proposed rules should submit comments in writing to Frank Delisi, CEO, Not-for-Profit Hospital Corporation, 1310 Southern Ave., S.E., Washington, DC 20032, no later than thirty (30) days after the date of publication of this notice in the D.C. Register. Copies of these proposed rules may be obtained between 8:30 a.m. and 5:00 p.m. at the address stated above.
