5565780 Contracting and Procurement, Office of - Notice of Emergency and Proposed Rulemaking a- Amends Title 27 DCMR (contracts and Procurement), Chapter 16 (Procurement by Competitive Proposals) by adding standards for the use of alternative ...
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OFFICE OF CONTRACTING AND PROCUREMENT
NOTICE OF EMERGENCY AND PROPOSED RULEMAKING
The Chief Procurement Officer of the District of Columbia, pursuant to the authority set forth in Sections 204 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 final rulemaking to add a new Section 1616 and amend Section 1699, of Chapter 16 (Procurement by Competitive Proposals), of Title 27 (Contracts and Procurement), of the District of Columbia Municipal Regulations (DCMR).
This rulemaking updates the regulations and outlines the procedures applicable to procurement by competitive proposals. This rulemaking establishes standards for the use of Alternative Technical Concepts (ATCs) and provides a definition of ATCs. DDOT intends to use this method in the request for proposals process for the South Capitol Street Corridor project.
The emergency rulemaking is necessary to promote the public health, safety and welfare, as it will facilitate a major infrastructure project that will include replacing the Frederick Douglass Memorial Bridge and transforming related sections of urban freeway into a scenic boulevard in order to increase pedestrian and vehicular safety, improve multi-modal transportation options, increase community accessibility and support economic development.
The emergency rules will remain in effect for up to one hundred twenty (120) days from June 10, 2015, the date of their adoption; thus, expiring on October 8, 2015, or upon publication of a Notice of Final Rulemaking in the D.C. Register, whichever occurs first.
Chapter 16, PROCUREMENT BY COMPETITIVE SEALED PROPOSALS, of Title 27 DCMR, CONTRACTS AND PROCUREMENT, is amended as follows:
A new Section 1616 is added to read as follows:
1616 ALTERNATIVE TECHNICAL CONCEPTS
1616.1 An RFP for the construction of a road, bridge or other transportation system, or a facility or structure appurtenant to a road, bridge, or other transportation system, may allow prospective contractors to submit alternative technical concepts (ATCs) for preapproval by the date specified within the RFP.
1616.2 An RFP allowing prospective contractors to submit ATCs must specifically state the requirements for ATC content, submission, review, and pre-approval; and procedures for confidential meetings (if used); and methods for evaluating ATCs in the proposal review process.
1616.3 An ATC shall be eligible for pre-approval only if it would result in performance and quality of the end product that are equal or better than the performance and quality that would result from the agency-supplied base design configuration, project scope, design criterion, or construction criterion, as determined by the contracting officer, and if they have been used successfully elsewhere under comparable circumstances as determined by the contracting officer.
1616.4 A proposed ATC shall not be eligible for pre-approval if it is premised upon or would require:
(a) A reduction in the project scope, performance or reliability;
(b) The addition of a separate project to the RFP;
(c) An increase in the amount of time required for substantial completion of the work under the RFP; or
(d) Any other requirements that the contracting officer does not deem necessary for a particular project.
1616.5 In addition, a proposed ATC is not eligible for pre-approval if it would conflict with criteria agreed upon in the environmental decision-making process, as incorporated in the RFP.
1616.6 An ATC that, if implemented, would require further environmental evaluation of the project, may be allowed, provided that the prospective contractor will bear the schedule and cost risk associated with such additional environmental evaluation. If the prospective contractor is not able to obtain the approvals necessary to implement the ATC, it will be obligated to develop the project in accordance with existing approvals without additional cost or extension of time.
1616.7 To be authorized for inclusion with a prospective contractor’s proposal, an ATC must be submitted by the prospective contractor for pre-approval pursuant to the terms of the RFP and pre-approved in writing by the contracting officer. All technical proposals must include the contracting officer’s pre-approval letters for consideration of the ATCs.
1616.8 The prospective contractor’s price proposal shall reflect any incorporated ATCs.
1616.9 Except for incorporating approved ATCs, the proposal may not contain exceptions to or deviations from the requirements of the RFP.
1616.7 The RFP shall not distinguish between a proposal that does not include any ATCs and proposals that include ATCs. Both types of proposals shall be evaluated against the same technical evaluation factors, and an award determination shall be made in the same manner.
1616.8 Each submittal of an ATC for pre-approval shall include the following:
(a) A detailed description and schematic drawings of the configuration of the ATC or other appropriate descriptive information, including necessary design exceptions and an operational analysis, if applicable;
(b) Where and how the ATC would be used on the project;
(c) References to requirements of the RFP documents that are inconsistent with the proposed ATC, an explanation of the nature of the deviations from said requirements, and a request for approval of such deviations;
(d) An analysis justifying use of the ATC and why the deviation(s) from the requirements of the RFP documents should be allowed;
(e) A discussion of potential impacts on vehicular traffic, environmental impacts identified on appropriate environmental documents, community impact, safety and life-cycle project impacts, and infrastructure costs (including impacts on the cost of repair and maintenance);
(f) A description of other projects where the ATC has been used, the success of such usage, and names and contact information for project owner representatives that can confirm such statements;
(g) A description of added or reduced risks to the District or third parties associated with implementing the ATC; and
(h) Estimated price and cost impacts.
1616.9 A prospective contractor may incorporate one or more pre-approved ATCs into its technical and price proposal. However, each prospective contractor may submit only one technical and price proposal.
1616.10 An approved ATC that is incorporated into a prospective contractor’s proposal will become part of the contract upon award of the contract.
1616.11 To the extent authorized by law, ATCs properly submitted by the prospective contractor and all subsequent communications regarding its ATCs will be considered confidential prior to the award of the contract.
Section 1699 is amended by adding the following definition before the definition of Base Compensation:
1699 DEFINITIONS
1699.1 When used in this chapter, the following words have the meanings ascribed:
Alternate technical concept: A proposed change to a District-supplied base design configuration, project scope, design criterion, or construction criterion that the District determines is equal to or better than a requirement in a request for proposals.
All persons desiring to comment on the subject matter of this proposed rulemaking should submit comments, in writing, to the Chief Procurement Officer, 441 4th Street, 700 South, Washington, D.C. 20001. Comments may be sent by email to OCPRulemaking@dc.gov 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.
