Code of the District of Columbia

§ 2–351.04. Definitions.

For the purposes of this chapter, the term:

(1) “Affiliate” means any business in which:

(A) A suspended or debarred person is an officer or has a substantial financial interest and any business that has a substantial direct or indirect ownership interest in the suspended or debarred business; or

(B) A suspended or debarred business has a substantial direct or indirect ownership interest.

(2) “Agency” means any agency, employee, or instrumentality of the District government.

(2A) “Alternative technical concept” means a proposed change to an agency-supplied base design configuration, project scope, design criterion, or construction criterion that the agency determines is equal to or better than a requirement in a request for proposals.

(3) “Architectural and engineering services” means:

(A) Professional services of an architectural or engineering nature:

(i) Which are required to be performed or approved by a person licensed, registered, or certified to provide the services as described in this paragraph; or

(ii) Performed by contract that are associated with research, planning, development, design, construction, alteration, or repair of real property.

(B) Other professional services of an architectural or engineering nature, or incidental services, which members of the architectural and engineering professions (and individuals in their employ) may logically or justifiably perform, including studies, investigations, surveying, mapping, tests, evaluations, consultations, comprehensive planning, program management, conceptual designs, plans and specifications, value engineering, construction phase services, soils engineering, drawing reviews, preparation of operating and maintenance manuals, and other related services.

(4) “Bid bond” means a form of security assuring that the bidder will not withdraw a bid within the period specified for acceptance and will execute a written contract within the time specified in the bid.

(5) “Bid price” means the dollar value of a price offering submitted in response to an Invitation for Bids.

(6) “Bidder” means any person who submits a price offering in response to an Invitation for Bids.

(7) “Bond” means a written instrument executed by a contractor (principal) and a second party (surety) to assure fulfillment of the contractor’s obligations to a third party (obligee or the District). If the principal’s obligations are not met, the bond assures payment, to the extent stipulated, of any loss sustained by the obligee.

(8) “Business” means any corporation, partnership, individual, sole proprietorship, joint stock company, joint venture, or any other legal entity through which business is conducted.

(9) “Change order” means a written order signed by the contracting officer, directing the contractor to make changes which the changes clause of the contract authorizes the contracting officer to order without the consent of the contractor.

(10) “Chief Financial Officer” or “CFO” means the Chief Financial Officer of the District of Columbia.

(11) “Chief Procurement Officer” or “CPO” means the director of the Office of Contracting and Procurement established by § 2-352.01.

(12) “Competitive sealed proposals” means a process which includes the submission of written technical and price proposals from one or more offerors and a written evaluation of each proposal in accordance with evaluation criteria which consider price, quality of the items, performance, and other relevant factors.

(13) “Construction” means the process of building, altering, repairing, improving, or demolishing any public infrastructure facility. The term “construction” does not include the routine operation, routine repair, or routine maintenance of an existing public infrastructure facility.

(14) “Construction management at-risk” means a project delivery method in which the purchasing agency awards a construction management services contract for a project to a single firm, based on qualifications, and under which contract the construction manager shall deliver the project within the GMP.

(15) “Contract modification” means any written alteration in the specifications, delivery point, rate of delivery, contract period, price, quantity, or other contract provisions of any existing contract, whether accomplished by unilateral action in accordance with a contract provision, or by mutual action of the parties to the contract.

(16) “Contracting officer” means the Mayor, the CPO, or the CPO’s designee vested with the authority to execute contracts on behalf of the District or otherwise bind the District in compliance with the provisions of this chapter.

(17) “Contractor” means a person that enters into a contract with the District.

(18) “Cooperative purchasing” means a procurement conducted by the District government with, or on behalf of, any government or public entity, including a state, county, or municipal jurisdiction or the Federal government.

(19) “Cost-plus incentive fee contract” means a type of contract that specifies a target cost, a target fee, minimum and maximum fees, and a fee adjustment formula.

(20) “Cost-reimbursement contract” means a contract under which the District reimburses the contractor for those contract costs, within a stated ceiling, which are recognized as allowable and allocated in accordance with cost principles, and a fee, if any.

(21) “Default Environmental Preference Standard” shall mean materials, supplies, services, or commodities that:

(A) Are available through the most current version of the GSA Environmental Specialty Category; or

(B) Meet or exceed applicable performance standards or requirements of:

(i) The Federal Energy Management Program;

(ii) The Electronic Products Environmental Assessment Tool Bronze rating;

(iii) The U.S. Department of Energy’s ENERGY STAR program;

(iv) The U.S. Environmental Protection Agency’s Comprehensive Procurement Guidelines; or

(v) Verification of a project under the Leadership in Energy and Environmental Design green building rating systems designed by the United States Green Building Council.

(22) “Definitive contract” means the contract executed pursuant to the letter contract commitment.

(23) “Design-bid-build” means a project delivery method in which the purchasing agency sequentially awards separate contracts, the 1st for architectural and engineering services to design the project and the 2nd for construction of the project according to the design.

(24) “Design-build” means a project delivery method in which the purchasing agency enters into a single contract for design and construction of an infrastructure facility.

(25) “Design-build-finance-operate-maintain” means a project delivery method in which:

(A) The purchasing agency enters into a single contract for design, construction, finance, maintenance, and operation of an infrastructure facility over a contractually defined period; and

(B) No District funds are appropriated to pay for any part of the services provided by the contractor during the contract period.

(26) “Design-build-operate-maintain” means a project delivery method in which:

(A) The purchasing agency enters into a single contract for design, construction, maintenance, and operation of an infrastructure facility over a contractually defined period; and

(B) All or a portion of the funds required to pay for the services provided by the contractor during the contract period are:

(i) Either appropriated by the District prior to award of the contract; or

(ii) Generated by the District through fare, toll, or user charges.

(27)(A) “Design requirements” means the written description of the infrastructure facility or service to be procured under this chapter, including:

(i) Required features, functions, characteristics, qualities, and properties that are required by the District;

(ii) The anticipated schedule, including start, duration, and completion; and

(iii) Estimated budgets (as applicable to the specific procurement) for design, construction, operation and maintenance.

(B) The written description may, but need not, include drawings and other documents illustrating the scale and relationship of the features, functions, and characteristics of the infrastructure facility or service.

(28) “Determinations and findings” means a form of written approval and detailed explanation as a prerequisite to taking certain contract actions, including the rationale for the method of procurement, the selection of contract type, contractor selection, and the basis for contract price.

(29) “District of Columbia Supply Schedule” or “DCSS” means the District of Columbia’s multiple award schedule or other procurement program under which contracts may be awarded to certified business enterprises, as defined in § 2-218.02(1B), providing goods, services, or construction to District government agencies.

(30) “Environmentally Preferable Product or Service” or “EPPS” means a good or service that is less harmful to human health and the environment when compared with competing goods or services that serve the same purpose. The factors to be compared include raw materials acquisition, production, manufacturing, packaging, distribution, reuse, operation, maintenance, or disposal of the product.

(31) “Evaluated bid price” means the dollar amount of a bid after bid price adjustments are made under objective measurable criteria, set forth in the Invitation for Bid, which affect the economy and effectiveness in the operation or use of the product, including the reliability, maintainability, useful life, and residual value.

(32) “Fixed-price contract” means a contract where the price is not subject to any adjustment on the basis of the contractor’s cost experience in the performance of the contract.

(33) “Fixed-price incentive contract” means a contract that:

(A) Provides for adjusting profit; and

(B) Subject to a ceiling, establishes the final contract price by a formula based on the relationship of final negotiated price to total target cost.

(34) “Fully allocated cost” means the total direct and indirect costs of providing a good, service, or function. The term “fully allocated cost” includes:

(A) Direct personal services costs, including wages, salaries, and fringe benefits;

(B) Non-personal services costs including materials, goods, equipment, maintenance and repairs, utilities, insurance, travel, and capital and equipment depreciation cost; and

(C) General and administrative overhead.

(34A) "Function closely associated with an inherently governmental function" means a function that is not an inherently governmental function, but is similar to an inherently governmental function because of the nature of the function, the manner in which the contractor performs the function, or the manner in which the government administers the contractor's performance of the function, as determined by application of the criteria set forth under § 2-352.05a.

(35) “Goods” means all personal property, tangible or intangible.

(36) “Guaranteed Maximum Price” or “GMP” means an amount beyond which the District government is not obligated to compensate a contractor.

(37) “Human care agreement” means a written agreement for the procurement of education, special education, health, human, or social services, pursuant to § 2-354.06, to be provided directly to individuals who have disabilities or are disadvantaged, displaced, elderly, indigent, mentally ill, physically ill, unemployed, or minors in the custody of the District.

(37A) “Public infrastructure facility” includes any public structure, public building, any element of the Integrated Premium Transit System, as that term is defined in §  50-921.04(b)(2), and other public improvements of any kind to real property.

(37B) "Inherently governmental function" means a function that is so intimately related to the public interest as to require performance by District government employees, as determined by application of the criteria set forth under § 2-352.05a.

(38) “Invitation for Bids” means all documents, including documents attached or incorporated by reference, used for soliciting bids pursuant to § 2-354.02.

(38A) "Labor organization" shall have the same meaning as provided in § 2-1401.02(15).

(39) “Letter contract” means a written preliminary contractual instrument that authorizes the contractor to begin immediately manufacturing or delivering goods or performing services prior to the execution of a definitive contract.

(40) “Machine-readable and searchable” means electronic text that is stored as strings of characters and that can be displayed in a variety of formats.

(41) “Negotiation” means discussions to determine the terms and conditions of a contract or procurement.

(42) “OCP” means the Office of Contracting and Procurement established by § 2-352.01.

(43) “Offeror” means any person who submits a technical and price proposal in response to a Request For Proposals or a response to a Request For Qualifications.

(44) “Operations and maintenance” means a project delivery method whereby the purchasing agency enters into a single contract for the routine operation, routine repair, and routine maintenance of an infrastructure facility.

(45) “Payment bond” means a bond to assure payment to all persons supplying labor or material in the performance of the work provided in the contract.

(46) “Performance bond” means a bond to secure performance and fulfillment of the contractor’s obligations under the contract.

(47) “Privatization contract” means a contract by which the District government enters into an agreement with a person who is not part of the District government to provide a good or service to or on behalf of the District government that is being provided by a District government agency or instrumentality.

(48) “Procurement” means buying, purchasing, renting, leasing, or otherwise acquiring any goods, services, or construction.

(49) “Proposal development” means documents, drawings, and other design-related documents that are sufficient to fix and describe the size and character of an infrastructure facility as to architectural, structural, mechanical, and electrical systems, materials, and other elements as may be appropriate to the applicable project delivery method.

(50) “Public notice” means the distribution or dissemination of information to interested parties using methods that are reasonably available. Methods may include publication in newspapers, electronic or paper mailing lists, and websites designated by the District; provided, that competitive sealed bids pursuant to § 2-354.02 and competitive sealed proposals pursuant to § 2-354.03 for any solicitation in excess of $250,000 shall include publication in a newspaper of general circulation and in trade publications considered to be appropriate by the CPO to give adequate public notice.

(51) “Purchase Card Program” means the credit card program under which agencies are authorized to make purchases for goods or services.

(52) “Request for Proposals” or “RFP” means all documents, whether attached or incorporated by reference, used for soliciting proposals pursuant to § 2-354.03.

(53) “Request for Qualifications” or “RFQ” means a written document inviting prospective contractors to submit a statement of their qualifications to provide certain goods or services.

(53A) "Restricted period" means the period of time commencing with the earliest written notice, advertisement, or solicitation of a request for proposal, invitation for bids, or any other method of soliciting a response from offerors or bidders intended to result in a contract with the District, and ending with either the execution of the final contract and its approval by the District or submission of the contract to the Council for its review when such submission is required pursuant to § 1-204.51.

(54) “Reverse auction” means an online procurement method whereby pre-qualified suppliers compete with one another to provide a good or service, typically commodities, to a buyer or group of buyers.

(55) “Responsible” or “responsibility” means that a prospective contractor has been determined, under § 2-353.02, to have the necessary capacity to perform in accordance with the terms and conditions of the contract.

(56) “Responsive bidder or offeror” means a person who has submitted a bid or offer which conforms in all material respects to the solicitation.

(57) “Sanitize” means the process of removing data from a media source before the item is reused in an environment that does not provide an acceptable level of protection for the data.

(58) “Services” means the furnishing of labor, time, or effort by a contractor not involving the delivery of a specific end product other than reports which are merely incidental to the required performance. The term “services” shall not include the furnishing of time, labor, or effort pursuant to employment agreements or collective bargaining agreements.

(59) “Sole source” means that a single source in a competitive marketplace can fulfill the specifications of a contract.

(60) “Source selection” means the process of soliciting a bidder or offeror for the awarding of a contract and the subsequent evaluative process, based on established award criteria, delineated in the solicitation document.

(61) “Special education services” means the services defined in 34 C.F.R. § 300.24.

(62) “Specification” means any description of physical or functional characteristics or of the nature of a good, service, or construction item. The term “specification” includes a description of any requirement for inspecting, testing, or preparing a good, service, or construction item for delivery.

(63) “Statement of qualifications” means a written document, submitted to OCP by a prospective contractor wishing to obtain a District government contract, which sets forth the prospective contractor’s qualifications as requested by the CPO.

(64) “Surety” means a business legally liable for the debt, default, or failure of a principal to satisfy a contractual obligation.

(65) “Surplus goods” means any goods no longer having any use to the District. The term “surplus goods” includes obsolete goods, scrap materials, and nonexpendable goods that have completed their useful life cycle.

(66) “Surplus Property Fund” means the District of Columbia Surplus Property Sales Revolving Fund established by § 2-358.04 [repealed].

(67) “Term contract” means a contract established for a period of time for bulk purchase of goods commonly used by the District.

(68) “Voucher” means a written authorization to a human care agreement service provider to provide the services authorized in the agreement to an individual identified in the agreement.

(69) “Written” or “in writing” means the product of any method of forming characters on paper, other materials, or viewable screens, which can be read, retrieved, and reproduced, including information that is electronically transmitted and stored, other electronic media, and digital files.


(Apr. 8, 2011, D.C. Law 18-371, § 104, 58 DCR 1185; Feb. 26, 2015, D.C. Law 20-155, § 6034(a), 61 DCR 9990; Oct. 8, 2016, D.C. Law 21-158, § 3(a), 63 DCR 10752.)

Section References

This section is referenced in § 2-351.05 and § 7-1831.03.

Effect of Amendments

The 2015 amendment by D.C. Law 20-155 added (2A) and (37A); and rewrote (13).

Emergency Legislation

For temporary (90 days) amendment of this section, see § 3(a) of Procurement Integrity, Transparency, and Accountability Emergency Amendment Act of 2016 (D.C. Act 21-504, Oct. 13, 2016, 63 DCR 12942).

For temporary (90 days) amendment of this section, see § 6044(a) of the Fiscal Year 2015 Budget Support Emergency Act of 2014 (D.C. Act 20-377, July 14, 2014, 61 DCR 7598, 20 STAT 3696).

For temporary (90 days) amendment of this section, see § 6034(a) of the Fiscal Year 2015 Budget Support Congressional Review Emergency Act of 2014 (D.C. Act 20-449, October 10, 2014, 61 DCR 10915, 20 STAT 4188).

For temporary (90 days) amendment of this section, see § 6034(a) of the Fiscal Year 2015 Budget Support Second Congressional Review Emergency Act of 2014 (D.C. Act 20-566, January 9, 2015, 62 DCR 884, 21 STAT 541).