1271881 Notice of Emergency and Proposed Rulemaking - adding a new section 2219 to chapter 22 concerning procedures for debarring a contractor from applying for or working on any District contracts because it has received a final evaluation grade of ...

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 and 1106 of the Procurement Practices Reform Act of 2010, effective April 8, 2011, D.C. Law 18-371, D.C. Official Code §§ 2-351.01, et seq.(Supp. 2011))(Act), hereby gives notice of the adoption of the following emergency rules, which add a new section to Chapter 22 (Contractors) of Title 27 (Contracts and Procurement) of the District of Columbia Municipal Regulations.  This rulemaking adds a new section 2219 to Chapter 22 concerning procedures for debarring a contractor from applying for or working on any District contracts because it has received a final evaluation grade of F on a District contract. 

 

Emergency rulemaking action, pursuant to section 6(c) of the District of Columbia Administrative Procedure Act, approved October 21, 1968 (82 Stat. 1206; D.C. Official Code § 2-505(c)), is necessary to allow the Office of Contracting and Procurement to debar those contractors who have already received a final evaluation grade of F on a District contract. 

 

The Chief Procurement Officer also gives notice of intent to take final rulemaking action to adopt this amendment in not less than thirty (30) days after the date of publication of this notice in the D.C. Register.

 

The emergency rules will remain in effect for up to one hundred twenty (120) days from June 6, 2011, or upon publication of a Notice of Final Rulemaking in the D.C. Register, whichever occurs first. 

 

Chapter 22, CONTRACTORS, of Title 27, CONTRACTS AND PROCUREMENTS, of the DCMR is amended as follows:

 

A new section 2219 is added to read as follows:

 

2219                DEBARMENT PROCEEDINGS FOR UNSATISFACTORY PERFORMANCE

 

2219.1             Each contractor’s performance shall be evaluated and graded after expiration or termination of each contract.

 

2219.2             A contractor may receive one (1) of the following performance grades in a final evaluation letter:

 

(a)        A (Excellent), which shall have a numeric value of four-point-zero (4.0);

 

(b)        C (Satisfactory), which shall have a numeric value of two-point-zero (2.0); or

 

(c)        F (Unsatisfactory), which shall have a numeric value of zero (0).

 

2219.3             If a contractor receives a final grade of F on a contract, the Director shall determine a cumulative grade by averaging all of the grades that the contractor has received on the performance of its contracts for the preceding twelve (12) month period. If the average grade for the preceding twelve (12) month period equals one-point-nine (1.9) or below, that cumulative grade shall be considered a grade of F, and the Director shall initiate debarment proceedings against the contractor.

 

2219.4             The Director shall initiate debarment proceedings against a contractor by notifying the contractor by certified mail, return receipt requested, of the following:

 

(a)        The contractor has received a grade of F as its cumulative grade;

 

(b)        The contractor may, within fifteen (15) days after receipt of the notice, file a written appeal of the cumulative grade to the Director;

 

(c)        If the contractor files a written appeal, the Director will review the cumulative grade and make a final written decision on the contractor’s cumulative grade;

 

(d)       In making its appeal, the contractor may submit in person, in writing, or through a representative, information and argument in opposition to the proposed cumulative grade of F, including any additional specific information that raises a genuine issue of fact; and

           

(e)        If the contractor fails to file a written appeal within fifteen (15) days after receipt of the notice, the contractor will be subject to the same consequences of debarment as described in § 2212 for a one (1)-year period, which shall commence on the sixteenth (16^th) day after the date of the notice.

 

2219.5             The Director shall include a copy of the final evaluation letter and the contractor evaluation(s) which resulted in the contractor receiving a cumulative grade of F with the notice provided pursuant to § 2219.5.

 

2219.6             If the contractor timely files an appeal with the Director, the Director shall issue his final decision on the matter within fifteen (15) days after receipt of the contractor’s appeal.  The Director shall base his decision on the facts as found together with any information and argument submitted by the contractor.

 

2219.7             If the Director in his final decision decides not to change the contractor’s cumulative grade of F, the Director shall notify the contractor by certified mail, return receipt requested.  The final written decision shall include:

 

(a)        A copy of the final written decision;

 

(b)        Notice to the contractor of its right to appeal the final decision to the Contract Appeals Board (CAB) within thirty (30) days after receipt of the final decision;

 

(c)        A statement that the contractor will be subject to the same consequences of debarment as described in § 2212 of this chapter for a one (1)-year period; and

 

(d)       A statement that the debarment period shall commence on the thirty-first (31^st) day after the date of the final written decision if the contractor chooses not to appeal the final decision, or the day after the CAB dismisses or denies the contractor’s appeal.

 

2219.8             If the Director in his final decision decides to change the cumulative grade of F, the Director shall notify the contractor of his decision by certified mail, return receipt requested.

 

2219.9             A contractor who has received a cumulative grade of F shall remain eligible to apply for or work on any District contract until the CAB appeal process has been concluded.

 

2219.10           The Director shall ensure that debarred contractors are included on the consolidated list of debarred, suspended, and ineligible contractors maintained pursuant to § 2211.

 

 

All persons desiring to comment on the subject matter of this proposed rulemaking should submit comments, in writing, to the Chief Procurement Officer, 441 4^th Street, 700 South, Washington, D.C. 20001. Comments may be sent by email to [e-mail] or may be submitted by postal mail or hand delivery to the address above.   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 obtained at the same address.