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OFFICE OF PUBLIC EDUCATION FACILITIES MODERNIZATION
NOTICE OF EMERGENCY AND PROPOSED RULEMAKING
The Director of the Office of Public Education Facilities Modernization (Office), pursuant to the authority set forth in section 702(b) of the Office of Public Education Facilities Modernization Establishment Act of 2007, effective June 12, 2007 (D.C. Law 17-9; D.C. Official Code § 38-451(b)) (Act), hereby gives notice of the adoption on an emergency basis of an amendment to Subtitle D, School Maintenance, of Title 5 of the District of Columbia Municipal Regulations (DCMR). The amendment will add a new Chapter 1, entitled “Office of Public Education Facilities Modernization Procurement Rules”, to Subtitle D of Title 5.
There is an immediate need to preserve and promote the public’s economic welfare and convenience through implementing contracting methods and procedures employed by the Office that assure, to the utmost, that the District’s public education facilities are modernized in a timely and cost effective manner. The amendments represent changes to the Office’s rules suggested by the Council to improve the fairness and openness of the Office’s procedures. These changes will immediately benefit the public and should not be withheld while the proposed rulemaking process is completed.
The new Chapter 1 sets forth the procurement rules of the Office. Procurement rules for the Office were previously adopted on an emergency basis on August 10, 2007, and published in the D.C. Register on August 24, 2007, at 54 DCR 8359. Those rules were submitted to the Council of the District of Columbia for its review and approval in accordance with section 702(b) of the Act (D.C. Official Code § 38-451(b)). On December 3, 2007, the Council held a public roundtable on the rules and requested that certain changes be made to the rules. The changes requested by the Council have been incorporated into these emergency and proposed rules.
The emergency rules were adopted on September 16, 2010 and became effective immediately. The emergency rule will expire one hundred and twenty (120) days after its effective date or upon publication of a Notice of Final Rulemaking in the D.C. Register. The Director also gives notice of his 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, or upon the approval of the rulemaking by the Council, whichever occurs later.
Chapter 1 of Subtitle D of Title 5 of the DCMR is added to read as follows:
CHAPTER 1 OFFICE OF PUBLIC EDUCATION FACILITIES MODERNIZATION PROCUREMENT RULES
Sections
100 General
101 Applicability
102 Chief Contracting Officer
103 Delegation of Authority to Contracting Officers
104 Authority and Duties of Contracting Officer
105 Contractor Qualification Requirements
106 Responsibility
107 Organizational Conflicts of Interest; Disqualification
108 Market Research
109 Preparing Solicitations
110 Publicizing Procurement Opportunities
111 Contract Types
112 Fixed-Price Contracts
113 Cost Reimbursement Contracts
114 Project Delivery Methods
115 Basic Ordering Agreements
116 Time and Materials Contracts and Labor Hours Contracts
117 Contracting Procedures Generally
118 Sole Source Contracts
119 Sealed Bidding
120 Competitive Negotiation
121 Simplified Contracting Procedures
122 DC Supply Schedule; GSA Schedule
123 The Contracting Officer’s Responsibility for Contract Administration
124 Payment Requests
125 Exercising the Contract Options
126 Contract Modifications
127 Contract Termination
128 Contract Documentation
129 Transfer of Contracts
130 Disputes
131 Protests
132 Applicable Laws
100 GENERAL
100.1 This chapter sets forth the procurement rules of the Office of Public Education Facilities Modernization authorized by Section 702(b) of the Office of Public Education Facilities Modernization Establishment Act of 2007, effective June 12, 2007 (D.C. Law 17-009; D.C. Official Code § 38-451(b)) (the Act). The Office is an agency within the executive branch of the District of Columbia government. Its general mission is to ensure that the public education facilities in the District of Columbia are modernized in a timely and cost effective manner. In accordance with the Act, the Office is exempt from the requirements of the District of Columbia Procurement Practices Act of 1985, effective February 21, 1986 (D.C. Law 6-85; D.C. Official Code § 2-301.01 et seq.), and has the authority to issue and implement its own procurement rules.
100.2 The Director of the Office is authorized to enter into contracts on behalf of the District of Columbia, acting by and through the Office, and may delegate that authority in accordance with these rules.
100.3 These procurement rules are for the benefit of the Office, and are not intended to confer any rights or benefits on third parties. The principal purposes of these rules are to ensure that the Office’s procurement activities:
(a) Are carried out in a fair and objective manner that promotes confidence in the Office’s integrity; and
(b) Produce reasonable value and reasonable results for the Office, as determined by its Director.
100.4 These rules are intended to encourage participation by Certified Business Enterprises (CBEs), in accordance with the Small, Local, and Disadvantaged Business Enterprise Development and Assistance Act of 2005, effective October 20, 2005 (D.C. Law 16-133; D.C. Official Code § 2-218). The Office’s goals include expanding and retaining disadvantaged businesses located within the District.
100.5 The Director may waive the applicability of any provisions in these rules that are not specifically required by statute if the Director finds in writing that:
(a) Such waiver is in the best interest of the Office;
(b) Such waiver is not inconsistent with fair, competitive, and transparent procurement practices; and
(c) Such waiver is technical in nature and would not alter the substantive business terms of a procurement after proposals have been received.
101 APPLICABILITY
101.1 These rules apply to the procurement of goods or services, including construction services, by the Office:
(a) Whether through purchase or lease; and
(b) Whether the goods or services are already in existence or must be developed.
101.2 A procurement of goods or services does not include any goods or services that the Office may acquire as a gift, on a pro bono basis, or pursuant to agreements with any agency of the District or federal governments.
101.3 These rules do not apply to:
(a) The purchase or lease of real property by the Office;
(b) The disposition of real or personal property by the Office; or
(c) The retaining of individuals to serve as on-site consultants for specific, time-limited assignments.
102 CHIEF CONTRACTING OFFICER
102.1 The Director shall serve as the Office’s Chief Contracting Officer (CCO). The CCO shall have overall responsibility for supervising the Office’s procurement activities and to award any contracts pursuant to these rules. The CCO shall have the authority to award any contract.
103 DELEGATION OF AUTHORITY TO CONTRACTING OFFICERS
103.1 The CCO may delegate his or her contracting authority to employees of the Office, or employees of the District of Columbia government acting on behalf of the Office, who shall be designated as Contracting Officers. Any such delegation shall be in writing and shall specify any limits on a Contracting Officer’s delegated authority (for example, limits on the dollar value of contracts the individual is authorized to award). In no case shall a Contracting Officer’s authority exceed the CCO’s authority.
103.2 In delegating his or her contracting authority, the CCO shall ensure that each delegated Contracting Officer has the experience, knowledge, and judgment necessary to fulfill the duties of a Contracting Officer, including a solid understanding of the Office’s procurement rules. Subject to compliance with these rules, Contracting Officers have wide latitude to exercise business judgment in conducting procurements. Consequently, the ability to exercise that discretion wisely and responsibly is an important job qualification. In addition, the CCO shall ensure that Contracting Officers periodically receive training to strengthen and update their skills and knowledge concerning procurement matters.
104 AUTHORITY AND DUTIES OF CONTRACTING OFFICER
104.1 Only the CCO or a Contracting Officer shall have the authority to award, modify, or terminate contracts; provided, however, that prior to terminating any contract, the Contracting Officer shall first obtain the approval of the CCO. As necessary or appropriate in exercising his or her authority, a Contracting Officer shall request and consider the advice of specialists in auditing, law, technical disciplines, and other relevant fields.
104.2 A Contracting Officer for a particular procurement shall be responsible for:
(a) Making any determination or findings that may be required in connection with that procurement;
(b) Ensuring that all statutory and regulatory requirements that apply to the procurement have been identified and observed;
(c) Ensuring that all necessary preconditions to contract award have been satisfied before the contract is awarded;
(d) Maintaining the contract file, which serves as the repository for all required documentation concerning the procurement and any resulting contracts; and
(e) Ensuring that all offerors participating in a procurement receive fair and impartial treatment.
105 CONTRACTOR QUALIFICATION REQUIREMENTS
105.1 To be eligible to receive a contract from the Office, a prospective contractor must satisfy two (2) basic qualification requirements. Specifically, the prospective contractor must:
(a) Be responsible; and
(b) Not be disqualified on the basis of conflicts of interest (either personal or organizational) or related ethical concerns.
The issues of responsibility and conflicts of interests/disqualification are
addressed in Sections 106 and 107, respectively.
106 RESPONSIBILITY
106.1 To receive a contract from the Office, a contractor must be responsible. To be considered responsible, a contractor must:
(a) Have (or can obtain) the financial, technical, and organizational skills and resources, and the facilities and equipment, necessary to perform the contract in accordance with its terms;
(b) Have a satisfactory performance record;
(c) Have a satisfactory record of integrity and business ethics;
(d) Have not been suspended, debarred, or otherwise ineligible to receive contracts from the District Government or the Federal Government;
(e) Meet any other qualification criteria that may be imposed by applicable laws or regulations; and
(f) Provide adequate evidence that it has paid and filed all applicable District of Columbia taxes and tax returns.
106.2 The Contracting Officer shall make a written determination if the contractor is found to be non-responsible. Depending on the level of formality of the contract and at the Contracting Officer’s discretion, the Contracting Officer may make a written determination if the contractor is found to be responsible.
106.3 In evaluating a prospective contractor’s responsibility, a Contracting Officer may request information from the contractor and may also consider information available from other sources. Where necessary, the Contracting Officer may also perform a pre-award survey involving interviews with contractor personnel or visits to the contractor’s facilities. Information on the capabilities and suitability of proposed subcontractors also may be considered in evaluating responsibility.
107 ORGANIZATIONAL CONFLICTS OF INTEREST; DISQUALIFICATION
107.1 The Office intends to avoid even the appearance of conflict of interest or impropriety in connection with its procurement activities. Thus, even if a prospective contractor is determined to be responsible, the CCO has the discretion to disqualify the contractor (or to take other appropriate measures) based on a conflict of interest or another ethical consideration.
107.2 If the CCO determines that there is a conflict of interest, the appearance of a conflict of interest, or another ethical consideration, the CCO may:
(a) Disqualify a contractor at any point during a procurement;
(b) Rescind or terminate a contract subsequent to contract award; or
(c) Take other appropriate corrective measures, such as canceling a pending solicitation and initiating a new procurement; provided, however, that prior to taking any such action, the Contracting Officer shall first obtain the approval of the CCO.
107.3 A determination by the CCO to take a corrective measure described in subsection 107.2 shall be made in writing and included in the contract file.
107.4 The ethical considerations that may authorize disqualification or another corrective measure go beyond a violation of the ethics and conflict of interest rules of the Office and the prospective contractor, if any. The CCO may properly take corrective measures whenever necessary or prudent to avoid the appearance of impropriety or otherwise eliminate doubts about the integrity and fairness of a procurement. For example, situations in which corrective measures might be warranted include (but are not limited to):
(a) Cases where a director or employee of the Office involved in a procurement had a relationship with a contractor that fell outside the Office’s recusal rules, but nonetheless raised questions about the procurement’s integrity;
(b) Cases where a prospective contractor received preferential treatment in relation to its competitors;
(c) Cases where a prospective contractor hired a former employee of the Office who was privy to non-public information about the procurement, and involved that individual in its proposal preparation efforts; or
(d) Cases where there is clear evidence suggesting collusive bidding or similar anti-competitive practices by prospective contractors.
107.5 “Organizational conflicts of interest” also may warrant disqualification or other corrective measures. Organizational conflict of interest means a situation in which a contractor:
(a) May be unable to render impartial and objective assistance or advice to the Office; or
(b) May have an unfair advantage over potential competitors.
107.6 Organizational conflicts of interests can arise in a variety of circumstances. For example, a contractor that develops the technical specifications for an item that will be the subject of a future procurement may have an incentive to develop specifications favoring its own products unless it is barred from participating in the future procurement. Another example is a case where a contractor performs services for the Office that require access to non-public information (for example, proprietary data of other companies) and could therefore gain an unfair advantage over competitors in future procurements.
107.7 A number of measures may be appropriate for eliminating or mitigating organizational conflicts of interest, and the CCO has broad discretion to select the approach that is most suitable in any particular case. For example, a contract to assist the Office in developing requirements for a future procurement ordinarily should include a clause prohibiting the contractor from participating in the future procurement. A contract in which the contractor gains access to proprietary information of other companies (or non-public information on the Office’s procurement plans) should include an appropriate clause that prevents the contractor from using such information in any manner that might give it an unfair advantage.
107.8 In each case, the mechanism adopted to address an organizational conflict of interest should be designed to prevent:
(a) The existence of conflicting roles that might bias a contractor’s judgment; and
(b) An unfair competitive advantage.
108 MARKET RESEARCH
108.1 Before issuing a solicitation or making a purchase, the Office shall:
(a) Estimate the likely cost of the proposed procurement and ensure that adequate funds are available; and
(b) Conduct appropriate market research.
108.2 Market research is designed primarily to familiarize the Office with the market for the goods or services it seeks to acquire in order to develop an appropriate strategy for conducting a prompt and efficient procurement that promotes reasonable competition between qualified firms. The extent of market research will vary depending on factors such as urgency, the size and complexity of the proposed procurement, and the Office’s existing knowledge of the market based on its (or its key personnel’s) past experience in procuring similar goods or services.
108.3 Market research, to the extent it is relevant to the particular procurement and not already known to the Office, generally should focus on obtaining information such as the following:
(a) Customary practices in the relevant market;
(b) The prospective sources that may be able to supply the goods or services;
(c) The opportunities for participation by firms that qualify as CBEs;
(d) The benchmarks available to evaluate the likely cost of the procurement and the reasonableness of prices or costs proposed by prospective contractors; and
(e) The requirements of any laws or regulations unique to the procurement.
108.4 In conducting market research, the Office may solicit information from prospective sources on matters such as their interest in the potential procurement, the characteristics and costs of their products or services, their customary practices, and their knowledge of the industry generally. Such information may be solicited by requesting interested parties to submit written information (for example, by posting a notice on the Internet seeking information pertinent to the proposed procurement), through meetings or telephone contacts, by distributing and seeking comments on a draft solicitation, or through other prudent means.
108.5 In addition to soliciting information from prospective contractors, the Office may also obtain information from other sources. For example, price information that can assist in estimating the likely cost of a procurement and in evaluating price reasonableness is frequently available from sources such as catalogs, Internet sites, or records of past procurements, and the Office may obtain information from these sources.
109 PREPARING SOLICITATIONS
109.1 Following the conduct of market research, the Contracting Officer shall make a determination as to which procurement method identified in these regulations is most beneficial to the Office. The Office will ordinarily prepare a solicitation requesting responses; however, the Office may determine to purchase the required goods or services through its small purchase procedures or from a federal or District supply schedule contract.
109.2 When the Office issues a solicitation, its length and contents will depend on factors such as the size of the procurement, the nature and complexity of the goods or services, the contracting procedure to be used, and the contract type. In general, however, a solicitation should clearly describe the Office’s needs (for example, by providing a statement of work outlining the type of services required or information specifying product characteristics or capabilities) and its evaluation criteria.
109.3 In preparing a solicitation, the Office should seek to enhance competition by carefully scrutinizing and eliminating, to the extent possible, any unnecessary requirements that may restrict the number of prospective sources or the range of goods or services they can offer. Such provisions may include, for example, technical specifications that unnecessarily limit the competitive field, unnecessarily aggressive delivery schedules, or burdensome terms and conditions that might deter smaller companies from competing.
109.4 The Office may issue solicitations in paper form or electronically. The Office may also use oral solicitations where efficient and practical (for example, where the procurement does not involve extensive specifications, detailed evaluation criteria, or numerous line items). Oral solicitations shall not be used for contracts that have an estimated value in excess of twenty-five thousand dollars ($25,000).
109.5 The Office may cancel a solicitation or reject all bids or proposals received at any time before the contract award when cancellation is in the Office’s best interests.
110 PUBLICIZING PROCUREMENT OPPORTUNITIES
110.1 The Office may use a variety of methods to publicize a procurement. The specific method or methods used should be tailored to the particular procurement, taking into account factors such as the size of the procurement, the type of goods or services sought, the urgency associated with the requirement, and the most efficient means of disseminating information in the relevant market. The methods available to publicize procurement opportunities offered by the Office include print advertising, Internet notices, developing source lists of qualified firms known to supply particular categories of goods or services, soliciting specific sources through written notices or telephone contacts, and holding pre-bid or pre-proposal conferences.
110.2 The Office shall use its best efforts to provide (either electronically or in a paper format) a copy of solicitations to CBEs which the Office is aware may be capable of providing some or all of the services or goods required by a solicitation. The Office shall use its best efforts to provide a copy of all solicitations (other than solicitations issued through its small purchase procedures) to CBE firms listed on the Department of Small and Local Business Development’s website that may be capable of providing some or all of the services or goods required by a solicitation. The Office shall also conduct outreach and provide information to CBEs on at least an annual basis.
110.3 In addition to publication or other method of publicizing the procurement opportunity described in Section 110.1, unless otherwise specified in this chapter, the Office shall also compile a list of at least three (3) vendors that the Office reasonably believes are qualified to provide the services or goods specified in a solicitation and shall provide those vendors with a copy of the solicitation. If the Office is unable to locate at least three (3) potential vendors, the Office shall provide the solicitation to as many vendors as it can reasonably identify.
111 CONTRACT TYPES
111.1 The type of contract awarded by the Office will generally depend on factors such as the particular goods or services to be acquired, whether the costs of the goods or services can be estimated in advance with reasonable accuracy, and the degree to which the precise nature and extent of the contract work is known at the time of award.
111.2 The Office may use a variety of contract types, including:
(a) Fixed price contracts (fixed price contracts will generally be used in connection with the Design-Bid-Build delivery method pursuant to Section 114.3(a), purchases of discrete and identifiable goods or assets, and for other appropriate purchases);
(b) Cost reimbursement contracts (cost reimbursement contracts will generally be used in connection with the Construction Manager at Risk, Construction Manager with Design Assist, Design Build; and Modified Design-Build delivery methods pursuant to Section 114.3(b)-(e) and for other appropriate purchases) ;
(c) Delivery order contracts; and
(d) Time-and-materials or labor hours contracts.
111.3 The Office may also award any alternative type of contract that will produce reasonable value in the context of a particular procurement. However, the Office may not award cost-plus-percentage-of-cost contracts.
112 FIXED-PRICE CONTRACTS
112.1 Fixed price contracts include several variants:
(a) Firm, fixed price contracts;
(b) Fixed price contracts with economic price adjustment; and
(c) Fixed price incentive contracts.
112.2 Unlike cost reimbursement contracts, any type of fixed price contract obligates the contractor to complete the contractually-specified work for a fixed price.
112.3 A firm fixed price contract provides for a price that is not subject to adjustment, except in the event of a change to the contract work.
112.4 A fixed price contract with economic price adjustment provides for an upward or downward adjustment in the stated contract price based on changes in certain benchmarks specifically identified in the contract (for example, catalog prices or the producer price index for a particular commodity), subject to a ceiling on upward adjustments.
112.5 A fixed price incentive contract generally provides for establishing a final price by applying a formula based on the relationship between the total cost actually incurred by the contractor and a total target cost. A fixed price incentive contract results in the parties sharing in the cost savings or increases associated with differences between the actual and target cost. These contracts also can include incentive formulas based on the contractor’s schedule or technical performance.
113 COST REIMBURSEMENT CONTRACTS
113.1 Cost reimbursement contracts provide for the contractor to recover the reimbursable costs it incurs in contract performance, plus a fee (that is, a profit).
113.2 A reimbursable cost must be:
(a) Reasonable in nature and amount;
(b) Properly allocable to the contract;
(c) Determined in accordance with generally accepted accounting principles; and
(d) Not identified as nonreimbursable under the terms of the particular contract.
113.3 To ensure that the Office’s payment obligations are not open-ended, a cost reimbursement contract must specify an estimated total cost that the contractor cannot exceed (the “not-to-exceed limit”), except at its own risk, without the Contracting Officer’s written approval. Because the contractor can cease performance once it reaches the estimated total cost (unless the Contracting Officer approves an increase), it is not obligated to complete the contract work unless it can do so within the not-to-exceed limit.
113.4 Cost reimbursement contracts can take three (3) forms:
(a) Cost-plus-fixed-fee;
(b) Cost-plus-incentive-fee; and
(c) Cost-plus-award-fee.
113.5 The differences between the types of cost reimbursement contracts listed in Section 113.4 relate to the manner in which the contractor’s fee is determined.
113.6 A cost-plus-fixed-fee contract provides for a fee that is fixed at the contract’s inception and is not subject to adjustment unless the contract is modified to change the contract work.
113.7 A cost-plus-incentive-fee contract provides for a fee that generally is determined by applying a formula based on the relationship between the contractor’s total reimbursable cost and a total target cost, subject to a specified minimum and maximum. These contracts also can include incentive formulas based on the contractor’s schedule or technical performance.
113.8 A cost-plus-award-fee contract provides for:
(a) A base fee fixed at the contract’s inception; and
(b) An award fee that the contractor may earn (in whole or in part) during performance, which is designed to motivate superior performance.
113.9 The award fee in a cost-plus-award-fee contract is determined unilaterally by the Office, based on its judgment and evaluation of how well the contractor has performed in relation to the award fee criteria identified in the contract. In no event shall the total award fee available to the contractor exceed ten percent (10%).
113.10 In appropriate circumstances, the Office may include a guaranteed maximum price (GMP) in a cost reimbursement contract. A GMP differs from a not-to-exceed amount in that a contractor is required to complete performance of the base scope of work required under the contract for an amount that does not exceed the GMP. Under such an approach, if the total cost exceeds the GMP, the contractor shall be required to complete performance of the base scope of work at its own cost and expense.
114 PROJECT DELIVERY METHODS
114.1 Within the contract types described in Sections 111 through 113, the Office may adopt a number of project delivery methods, including Design-Bid-Build, Construction Manager at Risk, Construction Manager with Design Assist, Design-Build, Modified Design-Build, and other methods that are in the District’s best interest.
114.2 As part of the procurement planning process, the Office will determine the most appropriate delivery method for the project based on, among other considerations, the scope of work, existing building conditions, project delivery schedule, existing market conditions, and other relevant considerations.
114.3 The general types of delivery methods include:
(a) Design-Bid-Build: Under this delivery method, the Office retains an architect to design the project. Once the design is complete, the drawings are put out to bid. This delivery method results in a fixed price (or lump sum) type contract.
(b) Construction Manager at Risk: Under this delivery method, the Office will retain an architect to design the project. However, shortly after the design begins, the Office will engage a contractor to act as a construction manager. Typically, the contractor’s work is divided into two (2) phases. During the first, or preconstruction, phase, the builder will work with the architect to ensure that the design is constructible, properly coordinated, and affordable. During the second, or construction, phase, the contractor is required to construct the project. At this point, the contractor may be required to provide the Office with a guaranteed maximum price. In order to ensure that costs are properly controlled, the Office requires that the contractor bid its fee upfront and that all of the major trade packages be competitively bid by the contractor.
(c) Construction Manager with Design Assist: Under this delivery method, the Office conducts the project in a manner similar to the Construction Manager at Risk approach. However, in the Construction Manger with Design Assist approach, a portion of the design work — typically the mechanical, electrical and plumbing systems — is managed by the contractor.
(d) Design-Build: Under this approach, the Office retains a single entity to be responsible for the design and construction activities. Work under the Design-Build approach is typically divided into two (2) phases: preconstruction and construction. The contractor is required to bid its fees upfront and all of the major trade packages must be competitively bid as well.
(e) Modified Design-Build: Under this approach, the Office uses a bridging methodology where it will engage an architect during the early stages of the project (referred to as design development) and then assign the architect’s contract to the contractor at the appropriate stage of the project. The remainder of the project then proceeds under the Design-Build approach.
114.4 The Office may combine aspects of the methods listed in Section 114.3 or alter aspects of these methods if doing so is in the best interest of the District
114.5 Contractors, including architects, construction managers, and design builders, required to facilitate these delivery methods shall be selected in accordance with the contracting procedures in Sections 117 through 122.
115 BASIC ORDERING AGREEMENTS
115.1 Under basic ordering agreements (also known as task order contracts or term contracts), the contractor’s performance obligations are triggered when the Office subsequently issues task orders pursuant to the contract.
115.2 Basic ordering agreements include:
(a) Requirements contracts; and
(b) Indefinite quantities contracts.
115.3 A requirement contract provides the mechanism for the Office to order from the contractor all of its requirements for designated supplies or services during a specified period (subject to any maximum ordering limitation in the contract). This type of contract should only be used when the Office determines that a requirement contract will provide superior economic benefits to an indefinite quantity contract as it locks the Office into one (1) source of supply for the goods or services required under the basic ordering agreement. A requirements contract must be approved by the CCO in addition to the contracting officer.
115.4 An indefinite quantity contract provides for an indefinite quantity, within specified limits, of supplies or services to be furnished during a fixed period.
115.5 An indefinite quantity contract:
(a) Requires the Office to order and the contractor to deliver at least the stated minimum quantity of supplies or services; and
(b) Requires the contractor to deliver any additional quantities the Office may order during the contract period (subject to any maximum quantity limitations in the contract).
115.6 The Office may award a single indefinite quantity contract for particular goods or services, or may award multiple contracts and choose between the selected contractors in awarding subsequent delivery orders.
115.7 If an indefinite quantity contract is used, the Office shall establish, at the time the basic ordering agreements are awarded, a procedure by which work will be awarded under the basic ordering agreements (“award procedure”).
115.8 Generally, one (1) of the following two (2) award procedures shall be used:
(a) The rotating award procedure, where work is assigned on a rotation basis (that is, the first task order is given to Contractor A, the second task order to Contractor B, etc.); or
(b) The competitive award procedure, where the Office requests task order proposals from two (2) or more contractors holding an indefinite delivery contract.
115.9 The competitive award procedure is preferred.
115.10 If the competitive award procedure is used, each task order request shall specify:
(a) The specific goods or services required;
(b) A delivery date; and
(c) Such other information as the Office may reasonably request.
116 TIME AND MATERIALS CONTRACTS AND LABOR HOURS CONTRACTS
116.1 Time-and-materials contracts provide for acquiring supplies or services on the basis of:
(a) Direct labor hours charged at fixed hourly rates that include overhead and profit; and
(b) Materials (which may be charged either at their actual cost or at fixed unit prices).
116.2 A labor hours contract is a time-and-materials contract that does not involve materials. Both types of contracts should specify a ceiling price.
117 CONTRACTING PROCEDURES GENERALLY
117.1 Every procurement by the Office shall be conducted in accordance with competitive contracting procedures, suitable to the specific procurement, that produce reasonable value and reasonable results.
117.2 The contracting procedures the Office may include, but are not limited to, the procedures described in Sections 118 through 122.
118 SOLE SOURCE CONTRACTS
118.1 The Contracting Officer may award contracts on a sole-source basis only if:
(a) The goods or services sought by the Office are available from only one (1) responsible source; or
(b) Emergency circumstances beyond the Office’s control require an immediate award.
118.2 Prior to entering into a sole-source contract, the CCO shall first certify that the requirement of Section 118.1 has been satisfied.
118.3 If the requirement of Section 118.1 has not been met, the Office shall adopt a competitive procurement strategy in which it evaluates bids or proposals from any source that wishes to compete or from a reasonable number of qualified sources.
118.4 If the Contracting Officer makes a determination pursuant to Section 118.1 that a sole source procurement is necessary to meet an essential requirement of the Office, the Contracting Officer shall document such determination in writing and may procure goods, services, or construction without regard to the procedures set forth in Sections 119, 120, 121 and 122. In all other cases, the Contracting Officer shall use the procedures specified in Sections 119, 120, 121 or 122.
118.5 A written determination by the Contracting Officer supporting a single available source procurement pursuant to Section 118.1(a) shall include:
(a) A description of the nature of the goods or services; and
(b) An explanation of why the goods or services are available from a single source.
118.6 A written determination by the Contracting Officer supporting an emergency procurement pursuant to Section 118.1(b) shall include:
(a) A finding that circumstances which were not reasonably foreseeable by the Office have created a need for goods, services, or construction which, if not immediately filled, will endanger the continuation of an essential function of the Office;
(b) A description of steps taken to solicit bids or proposals from as many potential competitors as possible under the emergency condition; and
(c) A finding that anticipated costs to the Office will be fair and reasonable.
118.7 The Contracting Officer shall not make a procurement under this section to meet a continuing need of the Office beyond what is necessary to meet the emergency condition.
119 SEALED BIDDING
119.1 The solicitation used to initiate a procurement conducted by sealed bidding is known as an Invitation for Bids (IFB).
119.2 If the Office issues an IFB, the Office shall allow prospective bidders a reasonable time to prepare and submit bids. Except in the event of an emergency, this time period shall be no less than ten (10) business days.
119.3 The evaluation factors used in sealed bid procurements are limited to price and price-related factors (including price evaluation preferences for CBEs).
119.4 The IFB shall specify:
(a) Any information necessary to explain how the Office will evaluate price (for example, whether option prices will be evaluated);
(b) Any price-related factors that will be evaluated and their relative importance in the overall evaluation scheme;
(c) A description of the goods or services sought (including quantity requirements);
(d) The contract delivery schedule;
(e) A description of any special qualification requirements the contractor must satisfy;
(f) Instructions for submitting bids (including the deadline for bid submission, the method(s) for submitting bids, any representations or certifications bidders must submit, and any requirements for the submission of items such as bid samples, subcontracting plans, or payment or performance bond);
(g) The period during which bids must remain open for acceptance; and
(h) The contract’s terms and conditions.
119.5 Any changes in the information set forth in an IFB must be made by an amendment to the IFB.
119.6 Bids shall be submitted by a method specifically permitted by the IFB (for example, hand delivery, mailing, electronic transmission, or fax).
119.7 A bid may be withdrawn or modified at any time before bid opening by any of the methods permitted for submitting bids.
119.8 A late bid (or late modification or withdrawal) shall not be considered, except that the Office may accept a late modification to an otherwise successful bid that makes the bid more favorable to the Office. A late bid is any bid received after the bid date, unless such delay is caused by the Office.
119.9 The Contracting Officer shall prepare and maintain in the contract file an abstract listing the bid prices.
119.10 The contract shall be awarded to the qualified bidder whose bid is responsive to the IFB and is most advantageous to the Office considering only price and the price-related evaluation factors identified in the IFB.
119.11 To be considered responsive, a bid must comply in all material respects with the IFB. Responsiveness involves matters that relate to the bid itself as opposed to the responsibility or other qualifications of the bidder. In determining whether a bid is responsive, the Contracting Officer has the discretion to permit correction of minor informalities or irregularities.
119.12 The Contracting Officer shall endeavor to include with every IFB solicitation the form of the contract that the contractor will be required to enter into. To the greatest extent possible, the Office should endeavor to provide clear, concise contract documents. Contracts which consist of the solicitation, the proposal, and other documents attached together but not integrated into a single contract document are discouraged
120 COMPETITIVE NEGOTIATION
120.1 The solicitation used to initiate a procurement conducted by competitive negotiation is known as a Request for Proposals (RFP).
120.2 If the Office issues and RFP, the Office shall establish a reasonable deadline for offerors’ submission of initial proposals.
120.3 The evaluation criteria used in procurements conducted by competitive negotiation include price or cost (including, but not limited to, hourly rates for services and fixed fees for cost reimbursement contracts) along with any other factors appropriate to the particular procurement (for example, the offeror’s technical approach, past performance, or status as a CBE or plans for subcontracting with such enterprises).
120.4 The RFP may, if the Office deems it advisable, contain either an estimate that generally describes the price range contemplated by the Office or a funding limitation for the procurement.
120.5 The RFP shall specify all evaluation factors and their relative importance. The RFP should also include:
(a) A description of the goods, services, or scope of construction work sought (including quantity or estimated quantity);
(b) The contract delivery schedule (including any permitted variations in the delivery schedule);
(c) A description of any special qualification requirements the contractor must satisfy;
(d) Instructions for submitting proposals including: the deadline for proposal submission, the method(s) for submitting proposals, the information to be provided in the proposal (including any requirements for past performance information or for subcontracting plans), and any representations or certifications the offeror must submit;
(e) The period during which proposals must remain open for acceptance; and
(f) The anticipated contract terms and conditions and the extent to which they are negotiable.
120.6 Any changes in the information set forth in an RFP must be made by an amendment to the RFP. Amendments shall be made no less than three (3) business days before the proposal submission date specified by the RFP.
120.7 Proposals shall be submitted by a method specifically permitted by the RFP.
120.8 The Office shall evaluate proposals based solely on the evaluation criteria specified in the RFP. Where past performance is an evaluation factor, the Office is not limited to considering only the information from references listed by the offeror.
120.9 After initial proposals have been evaluated, the Contracting Officer may:
(a) Make an award based on initial proposals; or
(b) Establish a competitive range consisting of those proposals that remain under consideration (or a single proposal that remains under consideration) and initiate discussions with competitive range offerors. A competitive range shall include all proposals that, in the Contracting Officer’s judgment (erring on the side of the offeror), could be awarded the procurement.
120.10 Discussions with offerors may be written (including electronic) or oral. The primary objective of discussions is to maximize the Office’s ability to obtain the best value based on the evaluation factors set forth in the RFP. The scope and extent of discussions are a matter of Contracting Officer judgment.
120.11 At the conclusion of discussions, the Contracting Officer shall request that all offerors that still remain under consideration submit best and final offers by a common cut-off date.
120.12 The contract shall be awarded to the qualified offeror whose offer is most advantageous to the Office under the RFP’s evaluation criteria.
120.13 The Contracting Officer shall prepare documentation explaining the basis for the contract award decision which shall be maintained in the contract file.
120.14 The Contracting Officer shall endeavor to include with every RFP solicitation the form of the contract that the contractor will be required to enter into. To the greatest extent possible, the Office should endeavor to provide clear, concise contract documents. Contracts which consist of the solicitation, the proposal, and other documents attached together but not integrated into a single contract document are discouraged
121 SIMPLIFIED CONTRACTING PROCEDURES
121.1 The basic purposes of simplified contracting procedures are to:
(a) Promote economy, efficiency, and innovation in contracting;
(b) Reduce administrative costs to the Office; and
(c) Avoid unnecessary burdens or complexities that could reduce competition, such as by deterring smaller contractors from participating in a procurement.
121.2 Simplified contracting procedures may be used only with contacts that have an estimated value equal to or less than five hundred thousand dollars ($500,000).
121.3 The Contracting Officer shall conduct simplified procurements in the manner that is most suitable, efficient, and economical based on the circumstances of each acquisition. As appropriate, the Contracting Officer may elect to use or adapt procedures that are part of the sealed bidding or competitive negotiation process.
121.4 On a simplified procurement, the Contracting Officer shall:
(a) Promote competition to the extent practicable and efficient;
(b) Establish reasonable deadlines for the submission of responses to solicitations; and
(c) Evaluate quotations or offers in an impartial manner on the basis established in the solicitation.
121.5 If a contract that has an estimated value of more the twenty-five thousand dollars ($25,000) is procured through the simplified contracting procedures, the Office shall obtain written quotes from at least two (2) potential suppliers.
121.6 The Contracting Officer may solicit quotations orally in appropriate cases when doing so is practical and economical. When soliciting quotations orally, the Contracting Officer shall instruct suppliers to respond in writing.
121.7 An oral solicitation shall provide a clear description of the Office’s requirements (for example the type of goods or services sought, quantities, and schedule) and the basis on which the award will be made.
121.8 Written solicitations shall provide a complete statement of relevant information without being unnecessarily lengthy. A written solicitation should include the same information required in an oral solicitation, plus the following:
(a) Anticipated contract terms and conditions (and the extent to which they are negotiable);
(b) Applicable certifications or representations; and
(c) Instructions for submitting responses.
121.9 The basis for award may be price or cost alone or price/cost and other factors. Solicitations are not required to state the relative importance assigned to each evaluation factor.
121.10 The price/cost and other terms of the award shall be set forth in a written contract or purchase order. The Contracting Officer shall include a statement in the contract file briefly explaining the basis for the award decision.
122 DC SUPPLY SCHEDULE; GSA SCHEDULES
122.1 The Office may purchase goods and services (but not construction or any other type of contract awarded on a cost reimbursement basis) from the DC Supply Schedules, the GSA Schedule, or Metropolitan Washington Council of Government Schedule.
123 THE CONTRACTING OFFICER’S RESPONSIBILITY FOR CONTRACT ADMINISTRATION
123.1 The Contracting Officer for a particular contract has overall responsibility for the contract’s administration. Among other things, this requires the Contracting Officer:
(a) To monitor whether goods or services are delivered or completed on schedule and conform to contract requirements;
(b) To ensure that any contractually required inspection or acceptance procedures are followed;
(c) To monitor the contractor’s compliance with any subcontracting requirements contained in the contract; and
(d) To identify and attempt to resolve issues or problems that arise during contract performance.
123.2 The Contracting Officer is the only representative of the Office with the authority to take the following actions:
(a) Authorize contract payments;
(b) Exercise contract options;
(c) Terminate the contract; and
(d) Modify the contract.
123.3 Prior to terminating a contract, the Contracting Officer shall first obtain the approval of the CCO.
123.4 No representative of the Office, including a Contracting Officer, shall:
(a) Act in a manner that misleads a contractor regarding the limits of his or her authority; or
(b) Direct or encourage a contractor to perform work that has not been properly authorized.
124 PAYMENT REQUESTS
124.1 Requests for payment must be submitted in writing by the contractor.
124.2 Contractor payment requests shall:
(a) Certify that the contractor is entitled to payment in the requested amount; and
(b) Include or attach any information necessary to demonstrate entitlement to the requested payment under the contract’s terms.
124.3 Depending on the contract’s payment provisions, a payment request may consist of, for example, a statement that specified work has been completed in a satisfactory manner, documentation showing that contract deliverables have been accepted by the Office, or information detailing the reimbursable costs incurred by the contractor.
124.4 Payment shall not be made unless authorized by the Contracting Officer. A Contracting Officer’s payment authorization shall not preclude the Office from seeking repayment (or pursuing other remedies) if it subsequently concludes that the contractor was overpaid or otherwise mispaid.
124.5 In addition to the Contracting Officer’s payment authorization, all payment requests must be certified and approved by the Office’s Chief Financial Officer (or his or her designee) prior to making any payment.
125 EXERCISING CONTRACT OPTIONS
125.1 The Contracting Officer may exercise a contract option upon determining that:
(a) Funds are available and authorized for this purpose;
(b) The goods or services covered by the option fulfill an existing need; and
(c) Exercising the option is the most advantageous method of fulfilling the Office’s need.
125.2 The determination to exercise a contract option shall be in writing and shall be included in the contract file.
125.3 To exercise an option over one hundred thousand dollars ($100,000) the Contracting Officer must first obtain the approval of the CCO.
125.4 In addition to the approval of the CCO (if applicable), prior to exercising any option, the approval of the Office’s Chief Financial Officer shall be obtained as to whether funds are available for the exercise of the option.
126 CONTRACT MODIFICATIONS
126.1 The Contracting Officer may modify a contract subject to the provisions of this section.
126.2 A modification must be within the general scope of the original contract. Any requirement for extra work that goes beyond the contract’s general scope shall be the subject of a new procurement.
126.3 A contract modification in excess of one hundred thousand dollars ($100,000) shall be approved by the CCO.
126.4 A contract modification may be effected:
(a) By a bilateral agreement executed by the Contracting Officer and an authorized representative of the contractor; or
(b) By the Contracting Officer’s issuance of a written change order, when the contract includes a changes clause permitting the Office to make unilateral changes in the contract work. Under such a clause, the contractor is obligated to perform in accordance with a change order issued by the Contracting Officer, and the contract price is adjusted to reflect the increase or decease in costs caused by the change.
127 CONTRACT TERMINATION
127.1 All contracts awarded by the Office shall include “Termination for Default” and “Termination for Convenience” clauses specifically defining the Office’s termination rights.
127.2 When exercising the Office’s rights under a termination clause in the contract, the Contracting Officer shall provide the contractor with a written notice specifying:
(a) Whether the termination is for default or for convenience;
(b) The effective date of the termination;
(c) The extent of the termination if the termination is partial; and
(d) Any special instructions that apply to the termination (for example, instructions concerning the disposition of contract inventory).
127.3 After terminating a contract for convenience, the Contracting Officer shall request a settlement proposal from the contractor and shall attempt to negotiate a settlement that resolves all of the parties’ rights and liabilities (except those arising from any portion of the contract still in effect). If the parties negotiate a settlement, the Contracting Officer shall prepare a memorandum describing the principal elements of the settlement and shall include the memorandum in the contract file.
128 CONTRACT DOCUMENTATION
128.1 The Contracting Officer is responsible for maintaining documentation regarding the contract and the procurement.
128.2 The contract file shall include:
(a) The solicitation and any amendments;
(b) The contract and any modifications;
(c) Any type of documentation that is specifically required to be maintained in the contract file by other sections of this chapter; and
(d) Any other documentation that may be necessary to memorialize important decisions or events relating to the procurement or the contract.
129 TRANSFER OF CONTRACTS
129.1 Contracts or pending procurements related to facilities maintenance and/or capital projects held by other District agencies may be assigned to the Office in accordance with the provisions of this section.
129.2 The CCO shall review the proposed procurement or contract and determine whether it is in the best interest of the Office to accept the assignment of the procurement or contract or to terminate the procurement or contract.
129.3 If the Office determines it is in its best interest to accept the assignment of a contract or procurement, the Office shall have the authority to modify the contract or procurement so as to conform with the best practices and procedures employed by the Office on its own procurements.
129.4 Assignment of contracts or procurements to the Office shall not confer on the Office any authority not otherwise granted to it by law or regulation. Acceptance of an assignment by the Office shall be predicated on the Office’s statutory authority to conduct the work contemplated by the assigned contract or procurement.
129.5 Assignment of a contract or procurement shall not operate to transfer funds to support the assigned contract or procurement. Funds shall be transferred pursuant to an intra-District memorandum of understanding, reprogramming, or other appropriate process.
130 DISPUTES
130.1 Each contract entered into by the Office shall include a disputes clause which sets forth the procedures by which disputes shall be resolved.
130.2 The disputes clause may, if the Contracting Officer determines it to be in the best interest of the Office, provide for the resolution of disputes through binding arbitration within the District of Columbia.
130.3 Any judicial review of any dispute shall be in the Superior Court of the District of Columbia pursuant to D.C. Official Code § 11-921.
131 PROTESTS
131.1 All protests to the award of a contract by the Office shall be resolved in accordance with this section.
131.2 A protest shall be submitted to the Contracting Officer in writing.
131.3 A protest shall include:
(a) The name of the protestor;
(b) The name of the protestor’s counsel or other representative;
(c) A detailed description of the basis for the protest; and
(d) A description of the relief requested.
131.4 The Contracting Officer shall promptly issue a decision with regard to a protest.
131.5 If the Contracting Officer is someone other than the Director, the protestor may appeal the Contracting Officer’s decision to the Director.
131.6 An appeal of the Contracting Officer’s decision shall be submitted to the Director within three (3) business day after the protestor receives the Contracting Officer’s decision.
131.7 The decision of the Director shall be the Office’s final decision with regard to the protest.
131.8 Protests must comply with the following requirements:
(a) A protest must be filed within the timeframes established in this subsection in order to be considered by the Office.
(b) A protest that is not filed within these timelines will not be considered by the Office, and the protestor shall be deemed to have waived the right to protest.
(c) A protest that is based on the language or requirements of a solicitation or is otherwise based on facts which are apparent on the face of the solicitation shall be filed at least five (5) business days before the date proposals are due.
(d) A protest that is not based on the language or requirements of a solicitation or otherwise based on facts which are apparent on the face of a solicitation must be submitted within five (5) business days after the protestor knows or should have known of the facts that serve as the basis for the protest.
132 APPLICABLE LAWS
132.1 The Office shall comply with the requirements related to multiyear contracts and contracts in excess of one million dollars ($1,000,000) as set forth in section 451 of the District of Columbia Home Rule Act, approved December 24, 1973 (87 Stat. 788; D.C. Official Code § 1-204.51); the law regarding Council review of multiyear contracts and contracts in excess of one million dollars ($1,000,000) as set forth in section 105a of the District of Columbia Procurement Practice Act of 1985, effective March 8, 1991 (D.C. Law 8-257; D.C. Official Code § 2-301.05a); the First Source Employment Agreement of 1984, effective June 29, 1984 (D.C. Law 5-93; D.C. Official Code § 2-219.01 et seq.); and the Small, Local, and Disadvantaged Business Enterprise Development and Assistance Act of 2005, effective October 20, 2005 (D.C. Law 16-33; D.C. Official Code § 2-218.01 et seq.).
Persons desiring to comment on these proposed rules should submit comments in writing to Allen Y. Lew, Director, Office of Public Education Facilities Modernization, 2400 East Capitol Street, SE, Washington, DC 20003 no later than thirty (30) days after the date of publication of this notice in the D.C. Register. Copies of these proposed rules may be obtained between 8:30 a.m. and 5:00 p.m. at the address stated above.
