Code of the District of Columbia

§ 2–352.05a. Inherently governmental functions.

(a) The District shall not award a contract to provide any service that is an inherently governmental function.

(b) The District may enter into a contract for the performance of a function closely associated with an inherently governmental function only if the head of an agency benefited by the performance of the contract:

(1) Finds that appropriate District government employees cannot reasonably perform the function at issue;

(2) Ensures that appropriate District government employees supervise contractor performance of the contract and perform all inherently governmental functions associated with the contract; and

(3) Addresses any potential organizational conflicts of interest of the contractor in the performance of the functions closely associated with an inherently governmental function under the contract.

(c) An inherently governmental function involves, among other things, the interpretation and execution of the laws of the District to:

(1) Bind the District to take or not to take some action by contract, policy, regulation, authorization, order, or otherwise;

(2) Appoint, direct, or control officials or employees of the District;

(3) Exert ultimate control over the acquisition, use, or disposition of the property, real or personal, tangible or intangible, of the District, including the control, or disbursement of, appropriated and other District funds.

(4) With respect to contracts to procure goods or services for the District:

(A) Determine what supplies or services are to be acquired by the District, and at what prices; provided, that the Mayor or the Mayor's designee may give a contractor authority to acquire supplies for the District at prices within specified ranges and subject to other reasonable conditions considered appropriate;

(B) Participate as a voting member on any source-selection board, unless the contractor has:

(i) Been hired by the District for its specific technical expertise; and

(ii) No conflict of interest exists with regard to the contract or vendors under consideration by the source-selection board;

(C) Approve any contractual documents, to include documents defining requirements, incentive plans, and evaluation criteria;

(D) Award contracts;

(E) Administer contracts, including ordering changes in contract performance or contract quantities, taking action based on evaluations of contractor performance, and accepting or rejecting contractor products or services;

(F) Terminate contracts;

(G) Determine whether contract costs are reasonable, allocable, or allowable; and

(H) Evaluate a contractor's performance when the evaluation is to be used to determine whether payment should be made to the contractor and in what amount.

(d) The CPO shall issue rules pursuant to § 2-361.06, consistent with this section, containing guidance on further defining an inherently governmental function and a function closely related to an inherently governmental function and including categories of functions and specific functions meeting these definitions.

(e) The Mayor may waive compliance with any of the requirements of this section for any contract in effect upon October 8, 2016, and for any option period exercised under such contract, so long as the option period was provided for in the contract as of October 8, 2016.

(f) Notwithstanding subsection (e) of this section, the requirements of this section shall apply to any contract or option period in effect 5 years after October 8, 2016.

(Apr. 8, 2011, D.C. Law 18-371, § 205a; as added Oct. 8, 2016, D.C. Law 21-158, § 3(f), 63 DCR 10752.)

Emergency Legislation

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