5471302 Contracting and Procurement, Office of - Notice of Final Rulemaking - To align Title 27 DCMR, Chapter 19 (Contracting for Services) with the Procurement Practices Reform Act

OFFICE OF CONTRACTING AND PROCUREMENT

NOTICE OF FINAL RULEMAKING

                       

The Chief Procurement Officer of the District of Columbia, pursuant to the authority set forth in Sections 204 and 1106 of the Procurement Practices Reform Act of 2010, effective April 8, 2011 (D.C. Law 18-371; D.C. Official Code §§ 2-352.04 and 2-361.06 (2012 Repl.)) (the “Act”), hereby gives notice of the adoption of the following emergency rules and of the intent to adopt a final rulemaking to amend Chapter 19 (Contracting for Services) of Title 27 (Contracts and Procurement) of the District of Columbia Municipal Regulations (DCMR).

 

The rulemaking updates Chapter 19 and implements the provisions in the Act that apply to contracting for services, as the current Chapter 19 contains regulations that are outdated and inconsistent with the Act. 

 

The CPO gave notice of her intent to adopt these rules on March 18, 2015, and the emergency and proposed rules were published in the D.C. Register on April 10, 2015, at 62 DCR 4643.  No comments were received and no changes have been made to the text of the rules as published.  The CPO took final action to adopt these rules on May 11, 2015 and they will be effective upon publication in the D.C. Register.

 

Chapter 19, CONTRACTING FOR SERVICES, of Title 27 DCMR, CONTRACTS AND PROCUREMENT, is amended as follows:

 

Section 1900, GENERAL PROVISIONS, is amended to read as follows:

 

1900                GENERAL PROVISIONS

 

1900.1             The provisions of this chapter apply to contracts for the provision of “services,” as that term is defined in § 104(58) of the District of Columbia Procurement Practices Reform Act of 2010, effective April 8, 2011 (D.C. Law 18-371; D.C. Official Code § 2-351.04(58) (2012 Repl.)) (the “Act”).

 

1900.2             The provisions of the Act and this title requiring competition and setting forth the requirements and procedures for competitive procurement shall apply to the procurement of services.

 

1900.3             A contract for services may provide for services to be performed by professional or non-professional personnel on an individual or organizational basis.

 

1900.4             A contract may be used to provide services including, but not limited to, the following:

                        

(a)        Maintenance, overhaul, and repair;

 

(b)        Routine or recurring maintenance of real property;

 

(c)        Housekeeping services;

 

(d)       Expert and consulting services;

 

(e)        Engineering and technical services;

 

(f)        Operation of District-owned equipment, facilities, and systems;

 

(g)        Communications services;

 

(h)        Architectural and engineering services (in accordance with Chapter 26 of this title);

 

(i)         Transportation and related services;

 

(j)         Day care services;

 

(k)        Janitorial services;

 

(l)         Stenographic reporting services;

 

(m)       Human care services (in accordance with §§ 1905 to 1908 of this chapter); and

 

(n)        Real property appraisal services.

 

1900.5             The contracting officer shall ensure that the applicable provisions of the Service Contract Act of 1965 (41 U.S.C. §§ 6702 to 6707), the Davis-Bacon Act of 1931 (40 U.S.C. §§ 3141 to 3148), the Way to Work Amendment Act of 2006, effective June 9, 2006 (D.C. Law 16-118; D.C. Official Code §§ 2-220.01 et seq.), and any applicable wage determination, are incorporated in accordance with federal regulations into all solicitations and awards.

 

Section 1901, EXPERT AND CONSULTING SERVICES, is amended to read as follows:

 

1901                EXPERT AND CONSULTING SERVICES

 

1901.1             A contracting officer may contract for expert and consulting services when essential to the agency’s mission, when necessary to comply with a court order, or when those services would improve the agency’s effectiveness or economy of operations.  Expert and consulting services may include, but are not limited to, the following:

 

(a)        Specialized opinions or professional or technical advice not available within the agency or from another District agency;

 

(b)        Outside points of view, to avoid too limited a judgment on critical issues;

 

(c)        Advice on developments in industry, university, or foundation research;

 

(d)       The opinions, special knowledge, or skills of noted experts;

 

(e)        Assistance with the understanding of, and development of alternative solutions to, complex issues;

 

(f)        Advice on making the operation of managerial or hardware systems more efficient or effective; or

 

(g)        Citizen advisory participation in developing or implementing District programs that by their nature or by statutory provision require citizen participation.

 

1901.2             Except as provided in § 1901.4, a contracting officer shall not contract for expert or consulting services for any of the following purposes:

 

(a)        To perform work of a policy-making, decision-making, or managerial nature that is the direct responsibility of agency officials;

 

(b)        To bypass or undermine personnel ceilings, pay limitations, or competitive employment procedures; or

 

(c)        To specifically aid in influencing or enacting legislation in the Council of the District of Columbia.

 

1901.3             Except as provided in § 1901.4, the contracting officer shall ensure that a contract for expert or consulting services does not establish or allow any of the following:

 

(a)        An employer-employee relationship between the District and the contractor;

 

(b)        Detailed control or supervision by District personnel of the contractor or its employees with respect to the day-to-day operations of the contractor or the methods of accomplishment of the services;

 

(c)        A regularly established tour of duty for the contractor; or

 

(d)       Supervision of District employees by the contractor.

 

1901.4             When an expert or consultant is engaged by a court-appointed receiver or, upon review by and the concurrence of the Attorney General, by any other contracting officer pursuant to or in order to comply with a court order, §§ 1901.2 and 1901.3 shall not apply.

 

1901.5             The contracting officer shall not award a contract for consulting or expert services in a manner that gives preferential treatment to former District employees. 

 

Section 1902, CONTRACTING FOR INFORMATION TECHNOLOGY SERVICES, is repealed.

 

Section 1905, HUMAN CARE SERVICES, is amended to read as follows:

 

1905                HUMAN CARE SERVICES

 

1905.1             If an agency intends to provide human care services through a human care agreement, the contracting officer shall give public notice of a request for qualifications that:

 

(a)        States the general requirements of the service; and

 

(b)        Requests interested service providers to respond in writing with a statement of their qualifications to perform the service.

 

1905.2             The contracting officer shall use the procedures set forth in §§ 1905 through 1908 to procure human care services rather than the solicitation or source selection procedures specified elsewhere in this title, if the human care service is:

 

(a)        To be negotiated on a fee-for-service or unit-rate basis using benchmarks and quantifiable measurements that are uniformly provided to providers of the same service;

 

(b)        To be purchased at rates adopted by rule; or

 

(c)        One that the agency typically purchases as needs arise, but for which the quantity, rate of utilization, delivery area, or specific beneficiaries of the service cannot be accurately estimated at the outset of the procurement process.

 

1905.3             Compliance with §§ 1905 through 1908 of this chapter shall constitute a competitive procedure for the procurement of human care services.

 

1905.4             The contracting officer shall certify the financial and professional responsibility of each service provider based on the following criteria:

 

(a)        The type of business or organization and its history;

 

(b)        The resumes and professional qualifications of the business or organization’s staff, including relevant professional or business licenses, affiliations, and specialties;

 

(c)        Information attesting to financial capability, including financial statements;

 

(d)       Specialized experience and technical competence in the type of work required;

 

(e)        Capacity to accomplish the work in the required time;

 

(f)        A summary of similar contracts awarded to the service provider, and the service provider’s performance of those contracts;

 

(g)        A certification of compliance with all applicable tax and filing requirements;

 

(h)        A statement attesting to compliance with wage, hour, workplace safety and other standards of labor law;

 

(i)         A statement attesting to compliance with federal and District equal employment opportunity law;

 

(j)         Information about pending lawsuits or investigations, and judgments, indictments, or convictions against the service provider or its proprietors, partners, directors, officers, or managers; and

 

(k)        Acceptability under other appropriate characteristics of a prospective service provider.

 

Section 1906, SELECTION OF HUMAN CARE SERVICES PROVIDERS, is amended to read as follows:

 

1906                SELECTION OF HUMAN CARE SERVICES PROVIDERS

 

1906.1             Prior to conducting discussions with a service provider who has submitted a statement of qualifications, the contracting officer shall make a written determination that the service provider is qualified, based on the criteria in § 1905.6.

 

1906.2             Following pre-qualification of service providers, the contracting officer may:

 

(a)        Conduct discussions with all qualified service providers, and negotiate a price on a unit rate or fee for service basis using benchmarks and quantifiable measurements that are uniformly applied, including, but not limited to, each service provider’s cost data attributable to provision of the services and consideration of each service provider’s maximum customer capacity; and

 

(b)        Award a human care agreement to one or more qualified service providers to satisfy all or part of the District’s anticipated requirements at a price that is reasonable.

 

1906.3             The contracting officer shall retain statements of qualifications for approved service providers, and consider those providers for award of human care agreements, for a period of three years following pre-qualification of the providers.

 

Section 1907, HUMAN CARE AGREEMENT, is amended to read as follows:

 

1907                HUMAN CARE AGREEMENT

 

1907.1             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 orders that may be issued pursuant to the agreement.

 

1907.2             A human care agreement is not a commitment to purchase any quantity of a particular service covered under the agreement.

 

1907.3             The District is obligated only to the extent that authorized purchases are made pursuant to the human care agreement.

 

1907.4             When ordering services under a human care agreement, the contracting officer shall issue a task order for required services under each human care agreement, and secure all appropriate approvals and funding prior to execution of the task order.

 

1907.5             As much as practicable, the contracting officer shall give qualified service providers fair and equal treatment with respect to the issuance of task orders.

 

Section 1908, VOUCHERS, is amended to read as follows:

 

1908                VOUCHERS

 

1908.1             Upon a written determination by the Director approving the use of vouchers for a human care agreement, the contracting officer following award of the agreement may issue vouchers to eligible customers to use for the purchase of human care services.

 

Section 1909, HUMAN CARE AGREEMENTS UNDER THE TEMPORARY ASSISTANCE TO NEEDY FAMILIES (TANF) PROGRAM, is amended to read as follows:

 

1909                HUMAN CARE AGREEMENTS UNDER THE TEMPORARY ASSISTANCE TO NEEDY FAMILIES (TANF) PROGRAM            

 

1909.1             The Director sets the prices established in § 1610.1(a) of this title, to be paid to contractors selected through the human care procurement method for services provided under the District’s Temporary Assistance to Needy Families (TANF) Program, implementing the Self-Sufficiency Promotion Amendment Act of 1998, effective April 20, 1999 (D.C. Law 12-241; D.C. Official Code § 4-205.54).

 

Section 1915, REAL PROPERTY APPRAISAL SERVICES, is repealed and replaced with:

 

1915                DISMANTLING, DEMOLITION, OR REMOVAL OF STRUCTURES

 

1915.1             Contracts for dismantling, demolition, or removal of structures shall be awarded in accordance with either the Service Contract Act 1965 (41 U.S.C. §§ 6702 to 6707), or the Davis-Bacon Act (40 U.S.C. §§ 3141 to 3148), as follows:

 

(a)        When the contract is solely for dismantling, demolition, or removal of a structure, the provisions of the Service Contract Act shall apply.

 

(b)        When the contract is for dismantling, demolition, or removal of a structure, and further work will result in the construction, alteration, or repair of a public building or public work at the same location, even if by separate contract, the provisions of the Davis-Bacon Act shall apply with respect to the contract for dismantling, demolition, or removal of the structure and the contract for the construction, alteration, or repair of the public building or public work.

 

1915.2             When a contract is solely for dismantling, demolition, or removal of a structure, the contracting officer may require the contractor to furnish a performance bond or other security in accordance with the provisions of Chapter 27 of this title in an amount that the contracting officer considers adequate to do the following:

 

(a)        Ensure completion of the work;

 

(b)        Protect property to be retained by the District;

 

(c)        Protect property to be provided as compensation to the contractor; and

 

(d)       Protect the District against damage to adjoining property.

           

Section 1916, REAL PROPERTY APPRAISAL SERVICES EVALUATION BOARDS, is repealed and replaced with:

 

1916                PAYMENTS FOR SALVAGE AND REMOVAL

 

1916.1             A contract may provide that the District pay the contractor for the dismantling or demolition of a structure or that the contractor pay the District for the right to salvage and remove the materials resulting from the dismantling or demolition operation.

 

1916.2             The contracting officer shall determine whether the District shall retain materials resulting from a dismantling or demolition operation in accordance with §§ 1915.3 and 1915.4.

 

1916.3             If property is determined more useful to the District than its value as salvage to the contractor, the contract shall expressly designate that the property be retained by the District.

 

1916.4             The contracting officer, on advice of technical personnel, shall determine the fair market value of any property designated as salvage which will be retained by the contractor.  The fair market value estimate shall be used in determining the amount of payment, if any, that will be made to the contractor.

 

Section 1917, REAL PROPERTY APPRAISAL SERVICES SELECTION, is repealed.

 

Section 1918, REAL PROPERTY APPRAISAL: SMALL PURCHASE CONTRACTS, is repealed:

 

Section 1919, REAL PROPERTY APPRAISAL: QUALIFICATIONS, is repealed.

 

Section 1920, DISTRICT COST ESTIMATE FOR REAL PROPERTY APPRAISAL SERVICES, is repealed.

 

Section 1921, NEGOTIATION OF REAL PROPERTY APPRAISAL CONTRACTS, is repealed.

 

Section 1922, REAL PROPERTY APPRAISAL PERFORMANCE EVALUATIONS, is repealed.

 

Section 1923, RESERVED, is repealed.

 

Section 1924, RESERVED, is repealed.

 

Section 1925, DISMANTLING, DEMOLITION, OR REMOVAL OF STRUCTURES, is repealed.

 

Section 1926, PAYMENTS FOR SALVAGE AND REMOVAL, is repealed.

 

Section 1999, DEFINITIONS, is amended to read as follows:

 

1999                DEFINITIONS

 

1999.1             When used in this chapter, the following words and terms shall have the meanings ascribed:

 

Appraisal services - services performed by an expert licensed by a state, city, county, or other governmental unit which are associated with the purchase and lease of real property relating to the determination of the value of real property.

 

Consultant - a firm or individual with knowledge and special abilities not generally available to an agency who renders services of a purely advisory nature relating to governmental functions or agency administration and management.

 

Consulting services - services of a purely advisory nature relating to governmental functions, agency administration and management, or program management which are normally provided by persons that are considered to have knowledge and expertise not generally available within the agency.

 

Customer - a recipient of human care services.

 

Expert - a person with excellent qualifications and a high degree of attainment in a professional, scientific, technical, or other field, whose knowledge and mastery of the principles, practices, problems, methods, and techniques of his or her field of activity, or of a specialized area in the field, are clearly superior to those usually possessed by ordinarily competent persons in that activity, and whose attainment is such that he or she usually is regarded as an authority or as a practitioner of unusual competence and skill by other persons in the profession, occupation, or activity.

 

Human care services - education or special education, health, human, or social services, to be provided directly to individuals who are disabled, disadvantaged, displaced, elderly, indigent, mentally ill, physically ill, unemployed, or minors in the custody of the District of Columbia.

 

Pre-qualification - the process by which the contracting officer determines whether a prospective service provider under a human care agreement is responsible.

 

Voucher - a written authorization, to a service provider who has been awarded a human care agreement, to provide the services authorized in the agreement and described in the voucher directly to a customer identified in writing.