2538313 Notice of Emergency and Proposed rulemaking to replace 27 DCMR chapter 17 covering sole source and emergency procurements.
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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 404, 405, 413, and 1106 of the Procurement Practices Reform Act of 2010, effective April 8, 2011 (D.C. Law 18-371; D.C. Official Code §§ 2-354.04, 2-354.05, 2-354.13, 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 17 (Sole Source and Emergency Procurements), of title 27 (Contracts and Procurement), of the District of Columbia Municipal Regulations (DCMR).
The rulemaking updates chapter 17 and implements the provisions in the Act that apply to sole source and emergency procurements, as well as procurements that are specifically exempt from competition. The current chapter 17 contains regulations that are outdated and inconsistent with the Act. This inconsistency may create legal uncertainty regarding the justification for sole source and emergency procurements. 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 24, 2012, the date of their adoption, and will expire on August 22, 2012 or upon publication of a Notice of Final Rulemaking in the D.C. Register, whichever occurs first.
Chapter 17, SOLE SOURCE AND EMERGENCY PROCUREMENTS, of title 27, CONTRACTS AND PROCUREMENTS, of the DCMR is amended as follows:
Chapter 17, Sole Source and Emergency Procurements, is repealed and replaced with a new chapter 17 to read as follows:
CHAPTER 17 SOLE SOURCE AND EMERGENCY PROCUREMENTS
1700 SOLE SOURCE PROCUREMENT
1700.1 The contracting officer may award a contract through a sole source procurement when there is only one (1) source for the required goods or services.
1700.2 The contracting officer shall prepare a determination and findings (D&F) justifying the use of a sole source procurement which shall include:
(a) Identification of the agency and specific identification of the document as a sole source D&F;
(b) A statement that the requirement is a sole source;
(c) A description of the requirement, including the estimated cost or value;
(d) A description of the factors that establish the proposed vendor is the only source of the required goods or services;
(e) A statement that the anticipated costs to the District will be fair and reasonable;
(f) A specific citation to section 404 of the Procurement Practices Reform Act of 2010, effective April 8, 2011 (D.C. Law 18-371; D.C. Official Code § 2-354.04 (2011 Repl.)) (Act) and applicable provisions of this chapter that provide legal authority for the sole source procurement;
(g) A description of the market survey conducted and the results, including a list of the potential sources contacted by the contracting officer or which expressed, in writing, an interest in the procurement. If no market survey was done, a statement of the reasons why a market survey was not conducted; and
(h) Any other relevant facts to support the use of a sole source procurement.
1700.3 A sole source contract shall not be justified on the basis of:
(a) The lack of adequate advance planning for the procurement of the required goods or services;
(b) Delays in the procurement caused by administrative delays, lack of sufficient procurement personnel, or improper handling of procurement requests or competitive procedures; or
(c) Pending expiration of budget authority.
1700.4 The Director shall approve all sole source D&Fs in excess of the noncompetitive limit established in chapter 18.
1700.5 Justification for a sole source procurement shall cover all of the goods or services being procured under a single contract. The justification for the sole source procurement of goods or services shall not be used to avoid competitive procedures for obtaining other goods or services which do not qualify as a sole source procurement under the same contract.
1701 SOLE SOURCE PROCUREMENT POSTING REQUIREMENTS
1701.1 The contracting officer shall publicize the District’s intent to enter into a sole source contract in accordance with the provisions of chapter 13 of this title.
1701.2 The contracting officer shall publicize all sole source contracts in accordance with the provisions of chapter 13.
1701.3 If a grant or law requires a specific vendor to provide certain goods or services for a requirement, the contracting officer does not have to publicize the notice of intent to enter into a sole source contract.
1702 EMERGENCY PROCUREMENTS
1702.1 The contracting officer may award a contract on an emergency basis when there is an imminent threat to the public health, welfare, property, or safety, or to prevent or minimize serious disruption in District services or when an emergency condition exists as defined in section 1799.
1702.2 The contracting officer shall prepare a D&F that sets forth the justification for the emergency procurement. The D&F shall include:
(a) Identification of the agency and specific identification of the document as an emergency D&F;
(b) A statement that emergency procurement procedures will be used for the procurement;
(c) A description of the requirement;
(d) A description of the emergency;
(e) A description of the efforts made to ensure that proposals or bids are received from as many potential sources as possible;
(f) The estimated value or cost;
(g) A determination that the anticipated costs to the District will be fair and reasonable in light of the emergency;
(h) A specific citation to section 405 of the Act (D.C. Official Code § 2- 354.05) and the applicable provisions of this chapter that provide legal authority for the emergency procurement; and
(i) Any other pertinent facts that support the emergency justification.
1702.3 An emergency contract shall not be justified on the basis of:
(a) The lack of adequate advance planning for the procurement of the required goods or services;
(b) Delays in the procurement caused by administrative delays, lack of sufficient procurement personnel, or improper handling of procurement requests or competitive procedures; or
(c) Pending expiration of budget authority.
1702.4 Emergency procurements shall be limited to those goods or services necessary to meet the emergency.
1702.5 Emergency procurements shall be made with as much competition as is practicable under the circumstances, based on the judgment and determination of the contracting officer.
1702.6 The contracting officer shall have the authority to issue oral orders or notices to proceed to contractors to provide goods or services to the District, provided the directive is reduced to writing within three (3) business days after issuance and the funding for the goods or services provided is certified by the appropriate fiscal official.
1702.7 Emergency procurement procedures shall not be used for contracts exceeding ninety (90) days; provided that if the development time for the goods or services exceeds ninety (90) days, the contract shall not exceed one hundred twenty (120) days.
1702.8 A contract procured on an emergency basis shall not be modified to expand the scope or extend the time of the procurement unless a limited number of additional goods or services are needed to fill an on-going emergency requirement until regular procurement action procedures can be completed.
1702.9 Notice of all emergency procurements, including D&Fs, shall be publicized in accordance with the provisions of chapter 13.
1703 COMPETITION EXEMPTIONS
1703.1 The procurements that are exempt from competition cited in section 413 of the Act (D.C. Official Code § 2-354.13) are not subject to the requirements of §§1700, 1701, and 1702.
1703.2 The exemption from competition when procuring legal services or negotiation services in connection with proceedings before administrative agencies or state or federal courts, including experts, attorneys, and mediators, cited in section 413(3) of the Act, includes services in connection with present or anticipated proceedings.
1703.3 The exemption from competition when procuring entertainers, cited in section 413(6) of the Act, includes entertainers and speakers.
1703.4 The exemption from competition when procuring job-related seminars and training for District employees, cited in section 413(7) of the Act, applies only to job-related seminars and training that are offered to the general public.
1703.5 The exemption from competition when procuring goods or services provided by another public entity, agency, or authority, cited in section 413(10) of the Act, includes goods and services provided by another governmental entity, public entity, agency, or authority, or an organization consisting of such entities, agencies, or authorities.
1799 DEFINITIONS
1799.1 When used in this chapter, the following terms have the meanings ascribed:
Director - the agency head of the Office of Contracting and Procurement (OCP) or the Chief Procurement Officer (CPO).
Emergency Condition – A situation which creates a threat to public health, welfare, or safety such as may arise by reason of floods, epidemics, riots, or equipment failures. The existence of such condition creates an immediate and serious need for goods or services that cannot be met through normal procurement methods and the lack of which would seriously threaten: (a) the function of District government; (b) the preservation or protection of property; or (c) the health or safety of any person.
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.
