4318942 Notice of Emergency and Proposed Rules to replace the regulations for small purchase and simplified purchasing procedures
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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 204, 407, 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, 2-354.07, 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 18 (Small Purchase and Other Simplified Purchase Procedures), of Title 27 (Contracts and Procurement), of the District of Columbia Municipal Regulations (DCMR).
The rulemaking updates the regulations, and implements the provisions in the Act, that apply to small purchase and other simplified purchase procedures. The current Chapter 18 is outdated and inconsistent with the Act and current policy. These inconsistencies will create legal uncertainty regarding small purchase procedures. Adoption of these emergency rules is therefore necessary for the immediate preservation and promotion of public safety and welfare.
The emergency rules will remain in effect for up to one hundred twenty (120) days from April 18, 2013, the date of their adoption, and will expire on August 16, 2013 or upon publication of a Notice of Final Rulemaking in the D.C. Register, whichever occurs first.
Chapter 18, SMALL PURCHASE AND OTHER SIMPLIFIED PURCHASE PROCEDURES), of Title 27, CONTRACTS AND PROCUREMENTS, of the DCMR is amended as follows:
Section 1800, USE OF SMALL PURCHASE PROCEDURES, is amended to read as follows:
1800 USE OF SMALL PURCHASE PROCEDURES
1800.1 The Director may use small purchase procedures for goods or services being procured if the total amount of the procurement does not exceed one hundred thousand dollars ($100,000).
1800.2 Requirements procured under this Chapter shall not be parceled, split, divided, or purchased over a period of time in order not to exceed the small purchase limit.
1800.3 The contracting officer may make a procurement for an amount of ten thousand dollars ($10,000) or less without obtaining competitive quotations.
1800.4 For each procurement in an amount over ten thousand dollars ($10,000) but less than or equal to one hundred thousand dollars ($100,000), a contracting officer shall obtain at least three (3) written quotations.
1800.5 In determining whether or not to obtain quotations from more or fewer vendors than required in §1800.4, the contracting officer shall consider the following factors:
(a) The nature of the item or service to be purchased and whether it is highly competitive and readily available in several makes or brands, or if it is relatively non-competitive;
(b) Information obtained in making recent purchases of the same or similar item;
(c) The urgency of the proposed purchase;
(d) The dollar value of the proposed purchase; and
(e) Past experience concerning specific contractor prices.
1800.6 For procurements in excess of the amounts specified in §1800.3, a contracting officer may award a small purchase solicitation on a sole source basis when the contracting officer determines that the conditions in Section 404(a) of the Act are satisfied, in accordance with Chapter 17 of this title.
Section 1801, NON-COMPETITIVE SMALL PURCHASES, is repealed and replaced with:
1801 DETERMINATION OF REASONABLE PRICE AND AWARD
1801.1 The contracting officer shall determine that the price to be paid for small purchases made pursuant to this chapter to the successful offeror is fair and reasonable.
Section 1802, COMPETITIVE SMALL PURCHASES, is repealed and replaced with:
1802 BLANKET PURCHASE AGREEMENTS
1802.1 A blanket purchase agreement (BPA) is not a contract and may be established without a purchase requisition or the obligation of funds.
1802.2 The contracting officer may use a BPA as a small purchase procedure to fill anticipated repetitive needs for goods or services by establishing charge accounts with sources of supply if at least one (1) of the following criteria apply:
(a) There is a wide variety of items in a broad class of goods or services that are generally purchased, but the exact items, quantities, and delivery requirements are not known in advance and may vary considerably; or
(b) The administrative cost of writing numerous purchase orders can be avoided through the use of this procedure.
1802.3 The contracting officer shall not use a BPA to:
(a) Procure goods or services for which a requirements type contract has been issued by the District; or
(b) Avoid the small purchase authority limitation.
1802.4 The contracting officer shall include the following information in each BPA:
(a) A statement that the supplier will furnish goods or services, described in general terms, if and when requested by the contracting officer during a specified period and within a stipulated total amount;
(b) A statement that the District is obligated only to the extent that authorized purchases are actually made under the BPA;
(c) A statement that the prices to the District shall be as low or lower than those charged to the supplier's most favored customer for comparable quantities under similar terms and conditions, in addition to any discounts for prompt payment;
(d) A statement that specifies the dollar limitation for purchases under the BPA (not to exceed the small purchase limit); and
(e) A requirement that all deliveries or shipments under the BPA shall be accompanied by delivery tickets or sales slips which contain the following minimum information:
(i) The name of the supplier;
(ii) The BPA number;
(iii) The date of purchase;
(iv) The purchase order number;
(v) An itemized list of goods or services furnished;
(vi) The quantity, unit price, and extension of each item, less applicable discounts; and
(vii) The date of delivery or shipment.
1802.5 To the extent practicable, BPAs for items of the same type shall be placed concurrently with more than one (1) supplier. All competitive sources shall be given an equal opportunity to furnish goods, services, or other items under a BPA.
1802.6 When there are an insufficient number of vendors with BPAs to ensure maximum practicable competition for a particular purchase, the contracting officer shall:
(a) Solicit quotations from other sources and make the purchase as appropriate; and
(b) Establish additional BPA's to facilitate future purchases when recurring requirements for the same or similar items or services seem likely, when qualified sources are willing to accept a BPA, or when it is otherwise practical to do so.
1802.7 A BPA shall be considered terminated when the procurements under it are equal to its total dollar limitation or when the stated time period expires.
Section 1803, DETERMINATION OF REASONABLE PRICE AND AWARD, is repealed and replaced with:
1803 UNPRICED PURCHASE ORDERS
1803.1 The contracting officer shall use an unpriced purchase order only under the following circumstances:
(a) When the transaction will not exceed the small purchase limit;
(b) When it is impractical to obtain pricing in advance of issuance of the purchase order; and
(c) When the purchase is for repairs to equipment requiring disassembly to determine the nature and extent of repairs, material is available from only one (1) source, and for which cost cannot be readily established, or goods or services for which prices are known to be competitive but exact prices are not known.
1803.2 The contracting officer shall issue each unpriced purchase order by using a purchase order form and shall set a realistic dollar ceiling, either for each line item or for the total order. The dollar limitation shall be an obligation subject to adjustment when the firm price is established.
Section 1804, DETERMINATION OF REASONABLE PRICE AND AWARD, is repealed and replaced with:
1804 MODIFICATION, TERMINATION, AND CANCELLATION OF PURCHASE ORDERS
1804.1 Each purchase order modification shall identify the order it modifies and shall contain an appropriate modification number.
1804.2 The contracting officer shall obtain a contractor's written acceptance of a purchase order modification if the contracting officer determines the written acceptance is necessary to ensure the contractor's compliance with the revised purchase order.
1804.3 If a purchase order that has been accepted in writing by the contractor is to be terminated, the contracting officer shall process the termination action in accordance with the provisions of Chapter 37 of this title.
1804.4 If a purchase order that has not been accepted in writing by the contractor is to be canceled, the contracting officer shall notify the contractor in writing that the purchase order has been canceled, request the contractor's written acceptance of the cancellation, and proceed in accordance with the provisions of §§ 1804.5 and 1804.6.
1804.5 If the contractor accepts the cancellation and does not claim that costs were incurred as a result of beginning performance under the purchase order, no further action shall be required and the purchase order shall be considered canceled.
1804.6 If the contractor does not accept the cancellation or claims that costs were incurred as a result of beginning performance under the purchase order, the contracting officer shall treat the action as a termination in accordance with the provisions of Chapter 37 of this title.
Section 1810, BLANKET PURCHASE AGREEMENTS, is repealed.
Section 1811, BLANKET PURCHASE PROCEDURES, is repealed.
Section 1815, IMPREST FUNDS, is repealed.
Section 1820, PURCHASE ORDERS, is repealed.
Section 1821, UNPRICED PURCHASE ORDERS, is repealed.
Section 1822, MODIFICATION OF PURCHASE ORDERS, is repealed.
Section 1823, TERMINATION AND CANCELLATION OF PURCHASE ORDERS, is repealed.
Section 1899, DEFINITIONS, is repealed and replaced with:
1899 DEFINITIONS
1899.1 When used in this chapter, the following terms and phrases shall have the meanings ascribed:
Blanket purchase agreement (BPA) - a pre-contractual agreement with a vendor that establishes a charge account for goods or services which allows an agency to make small purchases without the issuance of a purchase order for each individual purchase. Payments are made on a monthly basis.
Director - the Director of the Office of Contracting and Procurement (OCP) or the District of Columbia Chief Procurement Officer (CPO).
Purchase order - an offer by the District to buy certain goods or services from commercial sources upon specified terms and conditions.
Quotation - a citation of price and delivery terms or a period of performance by a contractor in response to a contracting officer's request on procurements of one hundred thousand dollars ($100,000) or less.
Small purchase - a procurement of goods or services in an aggregate amount not exceeding the small purchase authority limitations set forth in this chapter.
Unpriced purchase order - an order for goods or services, the price of which is not established at the time of issuance of the order.
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.
