2525315 Final Rulemaking - Procurement by Competitive Sealed Bidding

OFFICE OF CONTRACTING AND PROCUREMENT

NOTICE OF FINAL RULEMAKING

                       

The Chief Procurement Officer of the District of Columbia (CPO), pursuant to the authority set forth in sections 401, 402, 409, 414, 1102, and 1106 of the Procurement Practices Reform Act of 2010, effective April 8, 2011 (D.C. Law 18-371; D.C. Official Code §§ 2-354.01, 2-354.04, 2-354.14, 2-361.02 and 2-361.06 (2011 Repl.)) (Act), hereby gives notice of the adoption of the following final rulemaking to replace chapter 15 (Procurement by Competitive Sealed Bidding), of title 27 (Contracts and Procurement), of the District of Columbia Municipal Regulations (DCMR).   The rulemaking updates chapter 15 and implements the provisions in the Act that apply to procurements by competitive sealed bidding.

 

These rules were adopted as emergency and proposed rules on March 6, 2012, and published in the D.C. Register on April 27, 2012, at 59 DCR 3714.  No changes have been made to the text of the rules as published. The CPO took final action to adopt these rules on May 29, 2012.

 

The rulemaking will become effective upon publication in the D.C. Register.

 

Chapter 15, PROCUREMENT BY COMPETITIVE SEALED BIDDING, of title 27, CONTRACTS AND PROCUREMENTS, of the DCMR is amended as follows:

 

Section 1500, INVITATION FOR BIDS, is amended to read as follows:

 

1500                INVITATION FOR BIDS

 

1500.1             The contracting officer shall solicit goods and services for contracts exceeding                               one hundred thousand dollars ($100,000) using the competitive sealed bidding                              process unless the Director determines that use of competitive sealed bidding is                             not practicable or in the best interest of the District.

 

1500.2             An invitation for bids (IFB) shall be used to solicit goods or services under            competitive sealed bidding procedures.

 

1500.3             Each IFB shall include the following:

 

(a)        Instructions and information to bidders concerning bid submission requirements, including the time and date set for receipt of bids and the location where bids are to be delivered;

 

          (b)        The purchase description, delivery, or performance schedule, and any         special instructions necessary; and

 

(c)        A statement indicating whether contract award will be made on the basis of the lowest bid price or the lowest evaluated bid price, whichever is applicable.

 

1500.4             If the lowest evaluated bid price is the basis of contract award, the objective          measurable criteria to be used shall be set forth in the IFB.  The objective      measurable criteria must be related to price.

 

1500.5             The IFB shall require acknowledgement by each bidder of the receipt of all issued        amendments, addenda, and changes.

 

1500.6             The District shall evaluate bids without discussions with bidders.

 

1500.7             Information concerning proposed acquisitions shall not be released outside the       District before solicitation, except for pre-solicitation notices.

 

Section 1501, PREPARATION OF THE INVITATION FOR BIDS, is repealed and replaced with:

 

1501                [RESERVED]

 

Section 1502, BID REQUIREMENTS, is repealed and replaced with:

 

1502                [RESERVED]

 

Section 1503, TIME FOR SUBMISSION OF BIDS, is amended to read as follows:

 

1503                TIME FOR SUBMISSION OF BIDS

 

1503.1             The contracting officer shall provide a reasonable time for prospective bidders to prepare and submit bids in all IFBs, consistent with the needs of the District, but in no event less than fourteen (14) days from the first day of publication, unless the Director determines that it is appropriate to shorten the notice period to a period not less than three (3) days.

 

1503.2             When establishing a reasonable bidding time, the contracting officer shall   consider the following factors:

 

(a)        The complexity of the procurement;

 

(b)        The subcontracting requirements;

 

(c)        The impact of a shortened notice period on competition;

 

(d)       The degree of urgency; and

 

(e)        Any other relevant factors.

 

Section 1504, TELEGRAPHIC BIDS, is repealed and replaced with:

 

1504                         INVITATION FOR BIDS IN THE SET-ASIDE MARKET

 

1504.1             Before the contracting officer restricts an IFB to the small business set-aside market, the contracting officer shall determine that:

 

(a)        There is a reasonable expectation that bids will be obtained from at least two (2) responsible certified small business enterprises certified by the Department of Small and Local Business Development (DSLBD); and

 

(b)        An award will be made at reasonable prices.

 

1505                [RESERVED]

 

Section 1506, BID SAMPLES, is amended to read as follows:

 

1506              BID SAMPLES

 

1506.1                 Each IFB shall state whether the bidder is required to furnish samples.

 

1506.2                 The contracting officer shall not require bidders to furnish bid samples unless         there are characteristics of the product that cannot be described adequately in the specifications or purchase description.

 

1506.3                 The contracting officer shall only use bid samples to determine the responsiveness

of the bid, and shall not be used to determine a bidder’s ability to produce the required items.

 

1506.4                 The contracting officer shall reject a bid as nonresponsive if the sample fails to       conform to each of the characteristics listed in the IFB.

 

Section 1507, DESCRIPTIVE LITERATURE, is amended to read as follows:

 

1507                       DESCRIPTIVE LITERATURE

 

1507.1  Each IFB shall state whether the bidder is required to furnish descriptive    literature.

 

1507.2                 The contracting officer shall not require bidders to furnish descriptive literature      unless the contracting officer needs it to determine, before award, whether the        product offered meets the specifications or to establish exactly what the bidder         proposes to furnish.

 

1507.3                 The contracting officer shall document, in writing, the reasons why product           acceptability cannot be determined without submission of descriptive literature            and shall include the document in the contract file.

 

1507.4                 The IFB shall clearly identify the following:

 

(a)        The descriptive literature required to be furnished;

 

(b)        The purpose for which the literature is required;

 

(c)        The extent to which the literature shall be considered in the evaluation of

            bids; and

 

(d)               The rules that shall apply if a bidder fails to furnish the literature before bid opening or the literature furnished does not comply with the requirements of the IFB.

 

1507.5                 After receipt of bids, the contracting officer may waive the requirement for            furnishing descriptive    literature if either of the following occurs:

 

(a)        The bidder states in its bid that the product being offered is the same as a  product previously or currently being furnished to the District; or

 

(b)          The contracting officer determines that the product offered by the bidder complies in all material respects with the specification requirements of the IFB.

 

Section 1508, NOTICES OF INVITATIONS FOR BIDS, is amended to read as follows:

 

1508                NOTICES OF INVITATIONS FOR BIDS

 

1508.1             The contracting officer shall publicize IFBs in accordance with the provisions of   chapter 13 of this title.

 

1508.2             Prospective bidders that are debarred or suspended from District or federal            contracts or otherwise determined to be ineligible to receive awards shall not be         eligible to bid.

 

Section 1509, RECORDS OF INVITATIONS FOR BIDS AND BIDS, is repealed and replaced with:

 

1509                                            [RESERVED]

 

Section 1510, SOLICITATION MAILING LISTS, is repealed and replaced with:

 

1510                [RESERVED]

 

Section 1511, REMOVAL OF NAMES FROM MAILING LISTS, is repealed and replaced with:

 

1511                 [RESERVED]

 

Section 1512, REINSTATEMENT ON SOLICITATION MAILING LISTS, is repealed and replaced with:

 

1512                [RESERVED]

 

Section 1513, EXCESSIVELY LONG MAILING LISTS, is repealed and replaced with:

 

1513                PREQUALIFICATION PROCESS

 

1513.1             Before issuing an IFB, the contracting officer may prequalify bidders by

establishing a prequalification process to certify the financial and professional qualifications of prospective bidders.

 

1513.2             The contracting officer may use a prequalification process when he or she

determines that this process will be the most advantageous to the District. The contracting officer may limit participation in certain procurements to prospective contractors who have been prequalified under the process.

 

1513.3             The contracting officer shall conduct the prequalification process as follows:

 

(a)                 The contracting officer shall first advertise a Request for Qualifications pursuant to chapter 13 of this title, for prospective bidders to submit financial and professional responsibility information; and

 

(b)          The contracting officer may only issue an IFB to those prospective bidders determined to be qualified after evaluation of the responses to the Request for Qualifications.  Only qualified prospective bidders may submit bids in response to the IFB. 

 

1513.4             The Request for Qualifications shall include, at a minimum:  

 

(a)        A detailed description of the contract requirements; and

 

(b)        Submission requirements that will be used to determine whether a prospective bidder is qualified.

 

1513.5             The contracting officer may conduct oral or written discussions with prospective bidders who submitted responses to the Request for Qualifications.

 

1513.6             The contracting officer may provide the information submitted by all prospective bidders in response to the request to an evaluation panel.  The panel may recommend to the contracting officer, based upon the panel’s analysis of the information according to the criteria set forth in the request, whether a prospective bidder is qualified.

 

1513.7             After determining the most qualified prospective bidders, the contracting officer shall issue an IFB only to the bidders who have been determined most qualified.

 

1513.8             The IFB shall not be advertised in newspapers or publicly posted.

 

1513.9             The use of the prequalification process shall not nullify the requirement for a         

                        determination of contractor responsibility under chapter 22 of this title.

 

1514                [RESERVED]

 

1515                [RESERVED]

 

Section 1516, PRE-BID CONFERENCES, is amended to read as follows:

 

1516                PRE-BID CONFERENCES

 

1516.1             The contracting officer may conduct pre-bid conferences to explain the procurement requirements.

 

1516.2             The contracting officer shall announce pre-bid conferences in the IFB to all prospective bidders.

 

1516.3             The contracting officer shall hold a pre-bid conference as early as possible after an IFB has been issued and before bids are due.

 

1516.4             Nothing stated at the pre-bid conference shall change an IFB unless a change is made by the contracting officer by written amendment.

 

Section 1517, AMENDMENT OF INVITATIONS FOR BIDS, is amended to read as follows:

 

1517                AMENDMENT OF INVITATIONS FOR BIDS

 

1517.1             The contracting officer shall identify amendments to an IFB and require the bidders to acknowledge receipt of each amendment issued.

 

1517.2             The contracting officer shall amend the solicitation if it becomes necessary to make changes in quantity, specifications, delivery schedules, opening time or date, or to correct a defective or ambiguous IFB.

 

1517.3             The contracting officer shall send each amendment to all prospective bidders and post the amendment on the Internet.

 

1517.4             The contracting officer shall distribute and post each amendment within a reasonable time to allow prospective bidders to consider the information before submitting or modifying their bids.

 

Section 1518, CANCELLATION OF INVITATIONS FOR BIDS BEFORE OPENING, is amended to read as follows:

 

1518                CANCELLATION OF INVITATIONS FOR BIDS BEFORE OPENING

 

1518.1             The contracting officer shall not cancel an IFB unless the Director determines in writing that cancellation is in the best interest of the District.

 

1518.2             If an IFB is canceled before bid opening, the contracting officer shall:

 

(a)        Return to the bidders unopened bids that have been received via mail or hand-delivery; or

 

(b)        Purge all bids that have been received electronically from primary and backup data storage systems. 

 

1518.3             The contracting officer shall promptly publish on the Internet a notice of cancellation.

 

1519                [RESERVED]

 

1520                [RESERVED]

 

Section 1521, SUBMISSION OF BIDS: GENERAL PROVISIONS, is repealed and replaced with:

 

1521                BID SUBMISSION REQUIREMENTS

 

1521.1             To be considered for award, a bid shall comply in all material respects with the IFB.

 

1521.2             Bidders shall complete and submit bids in accordance with the instructions in the IFB.

 

1521.3             Bidders shall submit bids so that they are received at the location designated in the IFB no later than the exact time specified in the IFB.

 

1521.4             Unless the solicitation states another time, the deadline for receipt of bids shall be 2:00 p.m. local time on the date that bids are due.

 

Section 1522, MODIFICATION OR WITHDRAWAL OF BIDS, is repealed and replaced with:

 

1522                [RESERVED]

                       

Section 1523, LATE BIDS, LATE MODIFICATIONS, AND LATE WITHDRAWALS, is repealed and replaced with:

 

1523                PRE-OPENING MODIFICATION OR WITHDRAWAL OF BIDS

 

1523.1             Bids may be modified or withdrawn by written notice received at the location       designated in the IFB prior to the time and date set for bid opening.  An electronic      modification or withdrawal received from the bidder prior to the time and date set         for bid opening will be effective; provided that, there is objective evidence in electronic form confirming that the modification or withdrawal was received prior                 to the time and date set for bid opening.

 

1523.2             If a bid is withdrawn in accordance with this subsection, the bid security, if any,                           shall be returned to the bidder.

 

Section 1524, NOTICE TO BIDDERS OF LATE ACTIONS, is repealed and replaced with:

 

1524                LATE BIDS, LATE WITHDRAWALS, AND LATE MODIFICATIONS

 

1524.1             Any bid received at the location designated in the solicitation after the time and                            date set for receipt of bids shall be considered a "late" bid unless it was received                            prior to the contract award and any of the following applies:

 

(a)        It was sent by registered or certified mail not later than five (5) calendar days before the bid receipt date specified;

 

(b)               It was sent by mail and the contracting officer determines that the late receipt was due solely to mishandling by the District after receipt at the location specified in the IFB; or

 

(c)           It was sent electronically by the bidder prior to the time and date specified and there is objective evidence in electronic form confirming that the bid was received prior to the bid receipt time and date specified.

 

1524.2             Any request for withdrawal or request for modification of a bid received after the bid receipt time and date is late.

 

1524.3             A late bid, late request for modification, or late request for withdrawal shall not be considered, except as provided in this section.

 

1524.4             A late modification of a successful bid which makes its terms more favorable to     the District shall be considered at any time it is received and may be accepted.

 

1524.5             A late bid, late modification of bid, or late withdrawal of bid that is not     considered shall be held unopened, unless opened for identification, until after          award and then retained with unsuccessful bids.

Section 1525 is amended to read as follows:

 

1525                NOTICE TO BIDDERS OF LATE ACTIONS

 

1525.1             The contracting officer shall promptly notify the bidder if a bid, modification of bid, or withdrawal of bid is received late, and it is clear from available information that it cannot be considered.

 

Section 1526, RECEIPT AND SAFEGUARDING OF BIDS, is amended to read as follows:

 

1526                RECEIPT AND SAFEGUARDING OF BIDS

 

1526.1             Upon its receipt, each bid and modification shall be time- and date-stamped but not opened, and shall be stored in a secure place until the date and time set for bid opening.  Bids submitted through electronic means shall be received in such a manner that the time and date of submittal, along with the contents of such bids shall be securely stored until the time and date set for bid opening.

 

1526.2             Except as provided in § 1526.4, 1526.5, 1526.6 and 1526.7, all bids shall remain unopened until the time and date set for bid opening.

 

1526.3             If an IFB is canceled before bid opening, bids shall be handled in accordance with § 1518.2.

 

1526.4             Before bid opening, information concerning the identity and number of bids received shall be made available only to District employees, and then only as required in the execution of their duties.

 

1526.5             When bid samples are submitted, they shall be handled with sufficient care to prevent disclosure of characteristics before bid opening.

 

1526.6             Envelopes or documents marked as bids which do not identify the bidder or the solicitation may be opened solely for the purpose of identification or to determine whether a bidder is eligible to bid, and then only by an official designated for this purpose.

 

1526.7             Any person who opens a sealed bid by mistake, or for the reasons set forth in § 1526.6, shall deliver it to the contracting officer.  The contracting officer shall immediately write the following on the envelope and then sign and reseal the envelope: 

 

(a)        An explanation of the opening;

 

(b)        The date and time opened; and

 

(c)        The IFB number.

               

Section 1527, OPENING OF BIDS, is amended to read as follows:

 

1527                OPENING OF BIDS

 

1527.1             Bids and modifications shall be opened publicly, in the presence of one (1) or more witnesses, at the time, date, and location designated in the IFB.

 

1527.2             The name of each bidder, the bid price and such other information as the contracting officer deems appropriate, shall be read aloud or otherwise made available.  Such information also shall be recorded at the time of bid opening; that is, the bids shall be tabulated or a bid abstract made.

 

1527.3             The names and addresses of required witnesses shall be recorded at the bid opening.

 

1527.4             The opened bids shall be available for public inspection except to the extent the bidder designates trade secrets or other proprietary data to be confidential as set forth in § 1527.7.  Material so designated shall accompany the bid and shall be readily separable from the bid in order to facilitate public inspection of the nonconfidential portion of the bid. 

 

1527.5             Prices, makes and models, or a catalogue of the items offered, deliveries, and terms of payment shall be publicly available at the time of bid opening regardless of any designation to the contrary. 

 

1527.6             If bids are submitted through electronic means, a bid abstract containing the requirements of this section shall be published on the Internet as soon as practicable after bid opening.  

 

1527.7             The contracting officer shall examine the bids to determine the validity of any requests for nondisclosure of trade secrets and other proprietary data identified in writing.  The contracting officer may request that a bidder provide the justification for withholding information. 

 

Section 1528, POSTPONEMENT OF BID OPENING, is amended to read as follows:

 

1528                POSTPONEMENT OF BID OPENING

 

1528.1             The contracting officer may postpone a bid opening until after the time scheduled for bid opening under the following circumstances:

 

(a)        If the contracting officer has reason to believe that the bids of an important segment of bidders have been delayed in the mail or in the electronic system specified for transmission of bids, for causes beyond the control of bidders and without their fault or negligence, such as flood, fire, accident, weather conditions, strikes, or District equipment blackout or malfunction when bids are due; or

 

(b)         If an emergency or unanticipated event interrupts normal governmental processes so that the conduct of bid openings as scheduled is impractical.

 

1528.2             At the time of a determination to postpone a bid opening, an announcement of the determination shall be publicly posted.  If practical, before issuance of a formal amendment to the IFB, the determination shall be otherwise communicated to prospective bidders.

 

1528.3             When a bid opening is postponed, the time of the rescheduled bid opening shall be communicated to prospective bidders.

 

1528.4             The contracting officer may proceed with bid opening as soon as practical after the original scheduled bid opening time without amendment to the IFB or notice to bidders whenever any delay incident to the issuance of the amendment or notice would not be in the best interest of the District.

 

Section 1529, RECORDING OF BIDS, is amended to read as follows:

 

1529                RECORDING OF BIDS

 

1529.1             The contracting officer shall complete and certify the accuracy of the bid abstract prior to contract award.

 

1529.2             The contacting officer shall promptly publish the bid abstract on the Internet.

­­

Section 1530, CANCELLATION OF AN INVITATION FOR BIDS AFTER OPENING, is amended to read as follows:

 

1530                CANCELLATION OF AN INVITATION FOR BIDS AFTER OPENING

 

1530.1             An IFB may be canceled, or all bids rejected, only if the Director determines that the action taken is in the best interest of the District.  If all bids have been rejected, the contracting officer shall cancel the solicitation.

 

1530.2             After bid opening, an IFB shall not be canceled and resolicited due solely to increased requirements for the items being procured.  Contract award shall be made on the initial IFB and any additional quantity shall be treated as a new procurement.

 

1530.3             After bid opening, an IFB may be canceled and all bids rejected before being awarded if the Director determines that cancellation is in the best interest of the District for any reason, including the following:

 

(a)        Inadequate or ambiguous specifications were cited in the IFB;

 

(b)        Specifications have been revised;

 

(c)        The goods or services being contracted for are no longer required;

 

(d)       The IFB did not provide for consideration of all factors of cost to the District;

 

(e)        Bids received indicate that the needs of the District can be satisfied by a less expensive article differing from that for which the bids were invited;

 

(f)        All otherwise acceptable bids received are at unreasonable prices, or only one (1) bid is received and the contracting officer cannot determine the reasonableness of the bid price;

 

(g)        No responsive bid has been received from a responsible bidder; or

 

(h)        The bids were not independently arrived at in open competition, were collusive, or were submitted in bad faith.

 

1530.4             If administrative difficulties arise after bid opening which may delay award beyond the bidders’ acceptance period, the contracting officer should request the lowest bidders to extend the bid acceptance period (with consent of sureties, if any) in order to avoid the need for readvertisement.

 

1530.5             The contracting officer shall post on the Internet a notice of cancellation which shall briefly explain the reason the IFB is being canceled.

 

Section 1531, REJECTION OF INDIVIDUAL BIDS, is repealed and replaced with:

 

1531                NEGOTIATIONS AFTER CANCELLATION

 

1531.1             By determination, the Director may authorize the use of negotiations if an IFB is canceled after bid opening for any of the following reasons:

 

(a)        All otherwise acceptable bids received are at unreasonable prices, or only one (1) bid is received and the contracting officer cannot determine the reasonableness of the bid price;

 

(b)         The bids were not independently arrived at in open competition, were        collusive, or were submitted in bad faith; or

 

(c)        No responsive bid has been received from a responsible bidder.

 

1531.2             If the Director determines that an IFB should be canceled and that the use of negotiations is in the District’s best interest, the contracting officer may negotiate and award a contract without issuing a new solicitation, provided that:

 

(a)                All responsible bidders under the IFB have been given notice that negotiations shall be conducted and have been given the opportunity to participate in the negotiations; and

 

(b)               The contract is awarded to the responsible bidder with the lowest negotiated price.

­­­­

Section 1532, ALL OR NONE QUALIFICATIONS, is repealed and replaced:

 

1532                REJECTION OF INDIVIDUAL BIDS

 

1532.1             The contracting officer shall reject any bid that fails to conform to the essential      requirements of the IFB.

 

1532.2             The contracting officer shall reject any bid that does not conform to the applicable         specifications unless the IFB authorized the submission of alternate bids and the    goods offered as alternates meet the requirements specified in the IFB.

 

1532.3             Any bid that fails to conform to the delivery schedule or permissible alternates       stated in the IFB shall be rejected.

 

1532.4             A bid shall be rejected if the bidder imposes conditions that would modify the      requirements of the IFB or limit the bidder's liability to the District.  For example,       a bid shall be rejected if the bidder:

 

(a)        Protects against future changes in conditions, such as increased costs, if total possible costs to the District cannot be determined;

 

(b)        Fails to state a price and indicates that price shall be "price in effect at time of delivery" or words of equivalent meaning;

 

(c)                States a price but qualifies it as being subject to "price in effect at time of delivery" or words of equivalent meaning;

 

(d)               When not authorized by an IFB, conditions or qualifies a bid by stipulating that it is to be considered only if the bidder receives, or does not receive, an award under a separate solicitation;

 

(e)        Requires the District to determine that the bidder’s product meets applicable District specifications; or

 

(f)        Limits the rights of the District under any contract clause.

 

1532.5             A low bidder may be requested to delete objectionable conditions from a bid, so   long as the conditions do not go to the substance, as distinguished from the form,    of the bid or would give the bidder an unfair advantage over other bidders.  A             condition goes to the substance of a bid when it affects price, quantity, quality, or delivery of the items or services offered.

 

1532.6             The contracting officer may reject any bid if he or she determines that the bid                                   price is unreasonable. Unreasonableness of price includes not only the total price                                        of the bid, but the prices for individual line items as well.

 

1532.7             A bid received from any bidder that is suspended, debarred, or otherwise   ineligible shall be rejected if the period of suspension, debarment, or ineligibility     has not expired by the bid opening date.

 

1532.8             The contracting officer shall reject low bids received from bidders determined not             to be responsible, and shall consider the non-responsible bidders for debarment                  pursuant to chapter 22 of this title. 

 

1532.9             When bid security is required and a bidder fails to furnish the security in    accordance with the requirements of the IFB, the rules set forth in chapter 27 of         this title shall apply.

 

1532.10           If a bid received at the District government facility by electronic data interchange

is unreadable to the degree that conformance to the essential requirements of the IFB cannot be ascertained, the contracting officer shall immediately notify the bidder that the bid will be rejected unless the bidder provides clear and convincing evidence:

 

(a)        Of the content of the bid as originally submitted; and

 

(b)               That the unreadable condition of the bid was caused by District government software or hardware error, malfunction, or other District government mishandling.  

 

Section 1533 is amended to read as follows:

 

1533                ALL OR NONE QUALIFICATIONS

 

1533.1             Unless the solicitation provides otherwise, a bid may be responsive even though the bidder specifies that award will be accepted only on all, or a specified group, of the items.

 

1533.2             Bidders shall not be permitted to withdraw or modify an "all or none"        qualification after bid opening because "all or none" qualifications are substantive    and affect the rights of other bidders.

 

1534                [RESERVED]

 

Section 1535, MINOR INFORMALITIES OR IRREGULARITIES IN BIDS, is amended to read as follows:

 

1535                MINOR INFORMALITIES OR IRREGULARITIES IN BIDS

 

1535.1             The contracting officer may determine that it is in the best interest of the District                              to waive a minor informality or irregularity in a bid or to give a bidder an                                                    opportunity to cure the deficiency.

1535.2                          The contracting officer may determine that the following, among others, are

minor informalities or irregularities:

 

(a)        When a bidder fails to return the number of copies of signed bids required by the IFB;

 

(b)        When the bidder fails to furnish information concerning the number of its employees;

 

(c)        When a bidder fails to sign its bid, but only if one (1) of the following applies:

 

 (1)       The unsigned bid is accompanied by other material indicating the

            bidder's intention to be bound by the unsigned bid (such as the submission of a bid guarantee or a letter signed by the bidder, with the bid, referring to and clearly identifying the bid itself); or

 

 (2)       The firm submitting the bid has formally adopted or authorized, before the time set for bid opening, the execution of documents by typewritten, printed or stamped signature; submits evidence of that authorization; and the bid carries the proper signature; or 

 

(d)               When a bidder fails to acknowledge receipt of an amendment to the IFB, but only if one (1) of the following applies:

 

(1)                The bid received clearly indicates that the bidder received the amendment (such as where the amendment added another item to the IFB and the bidder submitted a bid on the item); or

 

(2)               The amendment involves only a matter of form or has either no effect or merely a negligible effect on price, quantity, quality, or delivery of the item bid upon.

 

1535.3             When a bidder fails to provide timely certifications or information with respect to Equal Opportunity and Affirmative Action Programs, the contracting officer may allow additional time to submit the information prior to contract award.

 

Section 1536, MISTAKES IN BIDS BEFORE AWARD, is amended to read as follows:

 

1536                MISTAKES IN BIDS BEFORE AWARD

 

1536.1             After bid opening, the contracting officer shall examine each bid for mistakes.

 

1536.2             In cases of apparent mistakes and when the contracting officer has reason to believe that a mistake may have been made, the contracting officer shall request from the bidder a verification of the bid and call attention to the suspected mistake.

 

1536.3             If the bidder alleges a mistake, the matter shall be processed before award in accordance with this section.

1536.4             If the mistake and the intended correct bid are clearly evident on the face of the                            bid document, the bid shall be corrected to the intended correct bid and may not                           be withdrawn. Examples of mistakes that may be clearly evident on the face of                                  the bid document are typographical errors, errors in extending unit prices,                                       transposition errors, and arithmetical errors.

1536.5             If the mistake and the intended correct bid are not clearly evident, a bidder may be                       permitted to withdraw a low bid if:

(a)        A mistake is clearly evident on the face of the bid document but the intended correct bid is not similarly evident; or

(b)        The bidder submits proof of evidentiary value which clearly and convincingly demonstrates that a mistake was made.

 

1536.6             The authority to permit corrections of bids is limited to bids that, as submitted, are responsive to the IFB, and shall not be used to permit correction of bids to make them responsive.

 

1536.7             Correction of bids submitted by electronic means shall be effected by including in                         the electronic solicitation file the original bid, the verification request, and the bid                          verification.

 

1536.8             When a bid is corrected or withdrawn, or correction or withdrawal is denied, the contracting officer shall prepare a determination showing that the relief was granted or denied in accordance with this section.

 

Section 1537, MISTAKES IN BIDS AFTER AWARD, is amended to read as follows:

 

1537                MISTAKES IN BIDS AFTER AWARD

 

1537.1             If a mistake in a bid is not discovered until after award, the mistake may be corrected by contract amendment if correcting the mistake would be favorable to the District without changing the essential requirements of the specifications.

 

1537.2             In addition to the cases contemplated in § 1537.1, or as otherwise authorized by law, if a mistake in a bid is not discovered until after the contract is awarded, the Director shall make one (1) of the following determinations:

 

(a)        Rescind the contract;

 

(b)               Reform the contract to delete the items involved in the mistake or to reform the contract to increase the price if the contract price, as corrected, does not exceed that of the next lowest acceptable bid under the original IFB; or

 

(c)        Make no change to the contract as awarded.

 

1537.3             Determinations made under §§ 1537.2(a) and 1537.2(b) shall be made only on the basis of clear and convincing evidence that a mistake was mutual or unilaterally made by a contractor, and was so apparent as to give the contracting officer notice of the probability of the mistake.

 

1538                [RESERVED]

 

1539                [RESERVED]

 

Section 1540, BID EVALUATION, is amended to read as follows:

 

1540                BID EVALUATION

 

1540.1             The contracting officer shall determine whether a prospective contractor is responsible and whether the prices offered are reasonable.

 

1540.2             Prompt payment discounts shall not be considered in the evaluation of bids.  However, any discount offered shall form a part of the award and shall be taken by the District if payment is made within the discount period specified by the bidder.

 

Section 1541, CONTRACT AWARDS, is amended to read as follows:

 

1541                CONTRACT AWARDS

 

1541.1             The contracting officer shall award each contract to the responsible and responsive bidder whose bid meets the requirements set forth in the IFB, and is the lowest bid price or lowest evaluated bid price, considering only price and price-related factors included in the IFB.

 

1541.2             A bid shall not be evaluated for any criterion that is not set forth in the IFB.

 

1541.3             A contract shall not be awarded until all required approvals have been obtained by the contracting officer.

 

1541.4             The contracting officer shall award a contract by written notice within the time for acceptance specified in the bid or an extension.

 

1541.5             The date of contract award shall be the date that the contracting officer signed the contract.

 

Section 1542, ECONOMIC PRICE ADJUSTMENT, is repealed and replaced with:

 

1542                ECONOMIC PRICE ADJUSTMENTS

 

1542.1             If a solicitation does not contain an economic price adjustment clause, but a bidder proposes an adjustment clause with a ceiling that the price will not exceed, the contracting officer shall evaluate the bid on the basis of the maximum possible economic price adjustment of the quoted base price.

 

1542.2             If a bid received with an unsolicited economic price adjustment clause is eligible for award, the contracting officer shall request the bidder to agree to the inclusion in the award of a standard District economic price adjustment clause, approved by the Director, which is subject to the same ceiling.  If the bidder will not agree to an approved clause, the contracting officer may award the contract on the basis of the bid as originally submitted.

 

1542.3             The contracting officer shall reject a bid that contains an economic price adjustment with no ceiling unless a clear basis for evaluation exists.

 

1542.4             If an IFB contains an economic price adjustment clause and no bidder takes exception to the provisions, the contracting officer shall evaluate bids on the basis of the quoted prices without the addition of the allowable economic price adjustment.

 

1542.5             If a bidder increases the maximum percentage of economic price adjustment stipulated in the IFB or limits the downward economic price adjustment provisions of the IFB, the contracting officer shall reject the bid as nonresponsive.

 

1542.6             If a bid indicates deletion of the economic price adjustment clause, the contracting officer shall reject the bid as nonresponsive.

 

1542.7             If a bidder decreases the maximum percentage of economic price adjustment stipulated in the IFB, the contracting officer shall evaluate the bid at the base price on an equal basis with bids that do not reduce the stipulated ceiling.  However, after evaluation, if the bidder offering the lower ceiling is in a position to receive the award, the award shall reflect the lower ceiling.

 

Section 1543, RESOLVING TIE BIDS, is amended to read as follows:

 

1543                RESOLVING TIE BIDS

 

1543.1             When two (2) or more low bids are equal in all respects, priority shall be given in    the following order of priority to:

 

(a)        A certified small business enterprise certified by the DSLBD; and

 

(b)        A certified business enterprise other than a small business enterprise described in § 1543.1(a).

 

1543.2             If two (2) or more bidders remain equally eligible for contract award, award shall be made by a drawing by lot limited to those bidders.

 

1543.3             The drawing shall be witnessed by at least three (3) persons, and the contract file   shall contain the names and addresses of the witnesses and the person supervising      the drawing.

 

Section 1544, INFORMATION TO BIDDERS, is repealed and replaced with:

 

1544                NOTICE OF CONTRACT AWARD

 

1544.1             The contracting officer shall send written notice of award to the successful bidder.

 

1544.2             The contracting officer shall publish notice of contract awards in accordance with

the requirements of chapter 13 of this title.

 

1544.3             The contracting officer shall notify unsuccessful bidders promptly in writing that                              their bids were not accepted, and shall return any bid security to the unsuccessful                                      bidders.

 

1545                [RESERVED]

 

1546                [RESERVED]

 

1547                [RESERVED]

 

1548                [RESERVED]

 

1549                [RESERVED]

 

Section 1550, TWO-STEP SEALED BIDDING, is amended to read as follows:

 

1550                TWO-STEP SEALED BIDDING

 

1550.1             A two-step sealed bidding method may be used for procurements requiring            technical proposals, particularly those involving complex procurements.

 

1550.2             The two-step sealed bidding method shall be conducted as follows:

 

(a)        The first step shall involve the solicitation of technical proposals, evaluation of proposals, and if necessary, discussions of the proposals; and

 

(b)        The second step shall involve the submission of sealed bid prices by those who submitted acceptable technical proposals in step one.

 

1550.3             The contracting officer shall not request, and a bidder shall not submit, price or      price information in step one.

 

1550.4             The contracting officer shall determine the acceptability of the goods or services    offered through clarification and discussion, if necessary, relating to technical     proposals.

 

1550.5             Bids submitted shall be evaluated and awards made in accordance with the            provisions of this chapter.

 

Section 1551, CONDITIONS FOR USE OF TWO-STEP SEALED BIDDING, is amended to read as follows:

 

1551                CONDITIONS FOR USE OF TWO-STEP SEALED BIDDING

 

1551.1             The two-step sealed bidding method may be used when all of the following           conditions are present:

 

(a)                Available specifications or purchase descriptions are not definite or complete, or may be too restrictive without technical evaluation, and discussion of the technical aspects of the requirement is needed to ensure mutual understanding between each prospective bidder and the District;

 

(b)               Definite criteria exist for evaluating technical proposals;

 

(c)                More than one (1) technically qualified source is expected to be available;

 

(d)               Sufficient time will be available for use of the two-step method; and

 

(e)        A firm-fixed-price contract or a fixed-price contract with economic price adjustment will be used.

 

1551.2             None of the following issues shall preclude the use of two-step sealed bidding:

 

(a)        Multiyear contracting;

 

(b)        District-owned facilities to be made available to the successful bidder; or

 

(c)        A set-aside procurement.

 

Section 1552, TWO-STEP BIDDING SOLICITATION, is amended to read as follows:

 

1552                TWO-STEP BIDDING SOLICITATION

 

1552.1             Each request for technical proposals shall be publicized and distributed in   accordance with chapters 13 and 16 of this title, and shall include, at least, the      following:

 

(a)        A description of the goods or services required;

 

(b)        A statement of intent to use the two-step bidding method;

 

(c)        The requirements of the technical proposal;

 

(d)       The evaluation criteria;

 

(e)        A statement that the technical proposals shall not include prices or pricing information;

 

(f)        The date and time by which the proposal must be received;

 

(g)               A statement that, in the second step, only bids based upon technical proposals determined to be acceptable, either initially or as a result of discussions, shall be considered for awards;

 

(h)               A statement that each bid in the second step must be based on the bidder's own technical proposal;

 

(i)                 A statement that bidders must submit proposals that are acceptable without additional explanation or information;

 

(j)                 A statement that the District may make a final determination regarding the acceptability of the proposal solely on the basis of the proposal as submitted;

 

(k)               A statement that the District may proceed with the second step without requesting further information from any bidder; however, the District may request additional information from one (1) or more bidders that it considers reasonably susceptible of being made acceptable, and may discuss the proposals with the bidders;

 

(l)                 A statement that a notice of unacceptability will be forwarded to the bidder upon completion of the proposal evaluation and final determination of unacceptability;

 

(m)              A statement that advises the bidders whether they may submit only one (1) technical proposal, or whether a bidder may submit multiple technical proposals; and

 

(n)               A statement that information provided on delivery or performance requirements is not binding on the District, and that the actual delivery or performance requirements shall be contained in the IFB issued under step two.

 

1552.2             When specifications permit different technical approaches, multiple proposals may be authorized if it would be in the best interest of the District.

 

Section 1553, RECEIPT AND EVALUATION OF STEP ONE PROPOSALS, is amended to read as follows:

 

1553                RECEIPT AND EVALUATION OF STEP ONE PROPOSALS

 

1553.1             Upon receipt of proposals, the contracting officer shall:

 

(a)        Safeguard the proposals against disclosure to unauthorized persons;

 

(b)        Accept and handle data with restrictive disclosure procedures in accordance with chapter 31 of this title; and

 

(c)        Remove any reference to price or cost.

 

1553.2             The contracting officer shall establish a time period for evaluating technical            proposals. The time period may vary with the complexity and the number of            proposals received.

 

1553.3             Proposal evaluations shall be based on the criteria specified in the request for         technical proposals without consideration of responsibility.

 

1553.4             Proposals shall be categorized as one (1) of the following:

 

(a)        Acceptable;

 

(b)        Reasonably susceptible of being made acceptable; or

 

(c)        Unacceptable.

 

1553.5             Any proposal which modifies or fails to conform to the essential requirements or         specifications of the request for technical proposals shall be considered       nonresponsive and categorized as unacceptable.

 

1553.6             The contracting officer may proceed directly with step two if:

 

(a)                There are a sufficient number of acceptable proposals to ensure adequate price competition under step two;  and

 

(b)               Further time, effort and delay to make additional proposals acceptable, and thereby increase competition, would not be in the best interest of the District.

 

1553.7             If it is not in the best interest of the District to proceed directly with step two, the         contracting officer shall request bidders whose proposals may be made       acceptable to submit additional clarifying or supplemental information.

 

1553.8             If discussions are held, the contracting officer must identify the nature of the         deficiencies in the proposal or the nature of the additional information required.

 

1553.9             No proposal shall be discussed with any bidder other than the submitting bidder.

 

1553.10           When initiating a request for additional information, the contracting officer shall fix an appropriate time for bidders to conclude discussions, if any, submit all additional information, and incorporate that additional information as part of their proposals.

 

1553.11           The time for completing the actions under § 1553.10 may be extended at the          contracting officer’s discretion.

 

1553.12           If the additional information incorporated as part of a proposal within the final      time fixed by the contracting officer establishes that the proposal is acceptable, it    shall be so categorized. Otherwise, it shall be categorized as unacceptable.

 

1553.13           If a technical proposal is found unacceptable, either initially or after clarification,   the contracting officer shall promptly notify the bidder of the basis of the     determination and notify the bidder that a revision of its proposal will not be          considered.

 

1553.14           Upon written request, and as soon as possible after award, the contracting officer may debrief unsuccessful bidders in accordance with the provisions of chapter 16 of this title.

 

1553.15           If it is necessary to discontinue the two-step sealed bidding method, the     contracting officer shall include a statement of the facts and circumstances in the     contract file.

 

1553.16           Each bidder shall be notified, in writing, of a discontinuance of the two-step          sealed bidding process.

 

Section 1554, STEP TWO PROCEDURES, is amended to read as follows:

 

1554                STEP TWO PROCEDURES

 

1554.1             Competitive sealed bidding procedures shall be followed except as follows:

 

(a)        An IFB shall be issued only to those bidders which submitted acceptable technical proposals in step one;

 

(b)        The IFB shall prominently state that a bidder shall comply with the specifications and the bidder's technical proposal; and

 

(c)        The IFB shall not be publically advertised.

 

Section 1555 is added to read as follows:

 

1555                                            PAYMENT OF STIPENDS

 

1555.1                                      Agencies may pay stipends to compensate one or more unsuccessful bidders for a portion of bid development costs, the use of information contained in their bids, and to encourage competition.

 

1555.2             Stipends shall be paid only to bidders which have submitted responsive bids                      complying with the conditions of the solicitation.

 

1555.3             The solicitation must include a provision describing the amount, conditions, and    the process of distribution for stipends. The stipend provision must include the

            following at a minimum:

           

(a)                The agency’s commitment to pay a stipend;

 

(b)               The amount and timing of stipend payment;

 

(c)                Conditions to qualify for a stipend;

 

(d)               A requirement that the bidder submit a responsive bid;

(e)                A requirement that the bid meet a minimum quality;

 

(f)                A statement that the District may retain the right to use ideas from unsuccessful bidders if they accept the stipends;

 

(g)               An agreement form; and

 

(h)        A statement advising the bidders that the acceptance of a stipend is optional on the part of the unsuccessful bidder.

 

Section 1556 is added to read as follows:

 

1556                REVERSE AUCTIONS

 

1556.1             The contracting officer may procure goods or services through reverse auctioning                           when it is determined that the reverse auction bidding method is the most                                      effective and advantageous method for the District.

 

1556.2             The contracting officer may place any requirement for goods or non-professional                              services on the District’s procurement software or an established Internet reverse                                       auction exchange that would allow bidders to competitively bid down the price of                                    that good or service over a set period of time established by the contracting                                    officer.

 

1556.3             The contracting officer may require bidders to register before the opening date

                        and time and, as part of that registration, to agree to any terms, conditions or other                           requirements of the solicitation.

 

1556.4             An IFB conducted through reverse auctioning must otherwise comply with the                              requirements of this chapter.

 

Section 1599, DEFINITIONS, is amended to read as follows:

 

1599                DEFINITIONS

 

1599.1             When used in this chapter, the following terms have the meanings ascribed:

 

Apparent clerical mistake - clerical or typographical mistake apparent on the face of a bid.

 

Bid samples - a sample to be furnished by a bidder to show the characteristics of the product offered in a bid.

 

Descriptive literature - information (such as cuts, illustrations, drawings, and brochures) which shows the characteristics or construction of a product or explains its operation.

 

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

 

Lowest evaluated bid price - the lowest bid price after considering all price related factors.

 

Minor informality or irregularity – an immaterial defect in a bid or variation of a bid from the exact requirements of the IFB that can be corrected or waived without being prejudicial to other bidders. The defect or variation is immaterial when the effect on price, quantity, quality, or delivery is negligible when contrasted with the total cost or scope of the requirement.

 

Responsive bid - a bid that conforms in all material respects to the invitation for bids.

 

Reverse auction – an on-line procurement method wherein bidders bid on specified goods or non-professional services through electronic competitive bidding.  During the bidding process, bidders’ prices are public and are revealed electronically, and bidders have the opportunity to modify their bid prices for the duration of the time period established for the auction.

 

Two-step sealed bidding - a method of contracting designed to obtain the benefits of competitive sealed bidding when adequate specifications are not initially available.