Code of the District of Columbia

Subchapter II. Procurement Organization.


§ 2–352.01. Office of Contracting and Procurement; authority.

(a)(1) There is established as an independent agency the Office of Contracting and Procurement, which shall be administered by the Chief Procurement Officer. Except as otherwise provided in this chapter, OCP, through the CPO, shall have the exclusive authority to administer the provisions of this chapter.

(2) Repealed.

(3) Notwithstanding paragraph (1) of this subsection, until October 1, 2015, the following agencies, through their chief procurement officers, shall exercise the duties of the CPO for their respective agencies:

(A) The Department of Disability Services; and

(B) The Department of Behavioral Health, if a court order no longer requires the agency to be exempt from the CPO’s authority.

(4) The CPO may delegate contracting authority to employees of an agency, including OCP, or another instrumentality.

(5) Agencies and instrumentalities subject to this chapter shall determine their requirements for goods and services and administering awarded contracts.

(b) Notwithstanding subsection (a) of this section, the following agencies shall not be subject to the authority of the CPO, but shall conduct procurements in accordance with the provisions of this chapter:

(1) The Office of the Chief Financial Officer;

(1A) The Tax Revision Commission, pursuant to § 2-354.07;

(1B) The Office of the Attorney General;

(2) The University of the District of Columbia;

(3) The District of Columbia Housing Authority;

(4) The District of Columbia Public Library;

(5) The District of Columbia Public Schools;

(6) The Child and Family Services Agency, until such time as a court order no longer requires the agency to be exempt from the CPO’s authority;

(7) Repealed;

(8) The Public Service Commission;

(9) The Office of the People’s Counsel;

(10) The Criminal Justice Coordinating Council;

(11) The Department of General Services; and

(12) The Criminal Code Reform Commission.

(c) The Office of the Attorney General and the Inspector General may contract for the services of accountants, lawyers, and other experts when they determine and state in writing that good reason exists why the services should be procured independently of the Chief Procurement Officer.

(d) Except regarding agencies exempted in § 2-351.05(c) and subsection (b) of this section and roads, bridges, other transportation systems, and facilities and structures appurtenant to roads, bridges, and other transportation systems, the Department of General Services shall have procurement authority for:

(1) Construction and related services under subchapter VI of this chapter; and

(2) Facilities maintenance and operation services, real estate asset management services, utility contracts, and security services, as set forth in § 10-551.02(5).

(e) Except as otherwise provided in § 2-351.05(b), the CPO may review and monitor procurements, including for construction and related services under subchapter VI of this chapter, by any agency, instrumentality, employee, or official exempt under this chapter or authorized to procure independently of OCP.

(f) The CPO may conduct procurements and award contracts on behalf of any agency exempt under this chapter or authorized to procure independently of OCP, when requested by the agency to do so. In conducting procurements or awarding contracts, the CPO shall comply with the requirements of this chapter, except as provided in § 2-272.01(e).


(Apr. 8, 2011, D.C. Law 18-371, § 201, 58 DCR 1185; Sept. 14, 2011, D.C. Law 19-21, § 1032(d), 58 DCR 6226; Dec. 24, 2013, D.C. Law 20-61, § 7143(a), 60 DCR 12472; Mar. 14, 2014, D.C. Law 20-94, § 2(b), 61 DCR 963; Feb. 26, 2015, D.C. Law 20-155, § 6034(b), 61 DCR 9990; Oct. 22, 2015, D.C. Law 21-36, § 1034, 62 DCR 10905; Oct. 8, 2016, D.C. Law 21-158, § 3(c), 63 DCR 10752; Mar. 13, 2019, D.C. Law 22-249, § 2, 66 DCR 983; Sept. 11, 2019, D.C. Law 23-16, § 3002, 66 DCR 8621.)

Section References

This section is referenced in § 2-351.04, § 2-351.05, § 2-354.11, § 2-1594, § 4-1303.03, § 7-1131.04, § 7-3005.01, § 22-4235, and § 31-3171.04.

Effect of Amendments

D.C. Law 19-21, in subsec. (b), deleted “and” from the end of par. (9), substituted “; and” for a period the end of par. (10), and added par. (11).

The 2013 amendment by D.C. Law 20-61 added (b)(1A).

The 2014 amendment by D.C. Law 20-94 repealed (a)(2) and (b)(7); and substituted “Behavioral” for “Mental” in (a)(3)(B).

The 2015 amendment by D.C. Law 20-155 substituted “roads, bridges, other transportation systems, and facilities and structures appurtenant to roads, bridges, and other transportation systems” for “roads and bridges” in (d).

The 2015 amendment by D.C. Law 21-36 added (b)(1B).

Applicability

Section 4 of D.C. Law 22-249 provided that the amendments made to this section by D.C. Law 22-249 shall apply as of January 1, 2017.

Emergency Legislation

For temporary (90 days) amendment of this section, see § 2 of Office of Public-Private Partnerships Delegation of Authority Clarification Emergency Amendment Act of 2018 (D.C. Act 22-605, Jan. 24, 2019, 66 DCR 1589).

For temporary (90 days) amendment of this section, see § 2 of Office of Public-Private Partnerships Delegation of Authority Congressional Review Emergency Amendment Act of 2018 (D.C. Act 22-490, Oct. 25, 2018, 65 DCR 12062).

For temporary (90 days) amendment of this section, see § 2 of Office of Public-Private Partnerships Delegation of Authority Emergency Amendment Act of 2018 (D.C. Act 22-435, Aug. 2, 2018, 65 DCR 8347).

For temporary (90 days) amendment of this section, see § 3(c) 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 day) amendment of section, see § 1012(d) of Fiscal Year 2012 Budget Support Emergency Act of 2011 (D.C. Act 19-93, June 29, 2011, 58 DCR 5599).

For temporary (90 day) amendment of section, see § 2(b) of District of Columbia Retirement Board Procurement Exemption Emergency Amendment Act of 2011 (D.C. Act 19-144, August 9, 2011, 58 DCR 6821).

For temporary (90 days) amendment of this section, see § 3(a) of the Tax Revision Commission Report Extension and Procurement Streamlining Emergency Act of 2013 (D.C. Act 20-19, March 1, 2013, 60 DCR 3974, 20 DCSTAT 476).

For temporary (90 days) amendment of this section, see § 3(a) of the Tax Revision Commission Report Extension and Procurement Streamlining Congressional Review Emergency Act of 2013 (D.C. Act 20-67, May 15, 2013, 60 DCR 7232, 20 DCSTAT 1417).

For temporary (90 days) amendment of this section, see § 7143(a) of the Fiscal Year 2014 Budget Support Emergency Act of 2013 (D.C. Act 20-130, July 30, 2013, 60 DCR 11384, 20 DCSTAT 1827).

For temporary (90 days) amendment of this section, see § 7143(a) of the Fiscal Year 2014 Budget Support Congressional Review Emergency Act of 2013 (D.C. Act 20-204, October 17, 2013, 60 DCR 15341, 20 DCSTAT 2311).

For temporary (90 days) amendment of this section, see § 6044(b) 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(b) 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(b) 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).

For temporary (90 days) amendment of this section, see § 1034 of the Fiscal Year 2016 Budget Support Emergency Act of 2015 (D.C. Act 21-127, July 27, 2015, 62 DCR 10201).

Temporary Legislation

For temporary (225 days) amendment of this section, see § 2 of Office of Public-Private Partnerships Delegation of Authority Temporary Amendment Act of 2018 (D.C. Law 22-187, Nov. 27, 2018, 65 DCR 11410).

For temporary (225 days) amendment of this section, see § 3(a) of the Tax Revision Commission Report Extension and Procurement Streamlining Temporary Amendment Act of 2013 (D.C. Law 20-5, May 18, 2013, 60 DCR 4667, 20 DCSTAT 1272).

Short Title

Section 7141 of D.C. Law 20-61 provided that Subtitle N of Title VII of the act may be cited as the “Tax Revision Commission Extension and Procurement Streamlining Amendment Act of 2013”.

Editor's Notes

Applicability of D.C. Law 20-61: Section 11001 of D.C. Law 20-61 provided that, except as otherwise provided, the act shall apply as of October 1, 2013.


§ 2–352.02. Criteria for Council review of multiyear contracts and contracts in excess of $1 million.

(a)(1) Pursuant to § 1-204.51, before the award of a multiyear contract or a contract in excess of $1 million during a 12-month period, the Mayor or executive independent agency or instrumentality shall submit the proposed contract to the Council for review and approval in accordance with the criteria established in this section.

(2) For a contract modification to exercise an option period when the exercise of the option period does not result in a material change in the terms of the underlying contract, submission of the modification to exercise the option period shall constitute submission of the contract pursuant to this subsection.

(b)(1) A proposed multiyear contract shall be deemed disapproved by the Council unless, during the 45-calendar-day review period beginning on the 1st day (excluding Saturdays, Sundays, and holidays) following its receipt by the Office of the Secretary to the Council, the Council adopts a resolution to approve the proposed multiyear contract.

(2) A proposed contract in excess of $1 million during a 12-month period shall be deemed approved by the Council if one of the following occurs:

(A) During the 10-day period beginning on the 1st day (excluding Saturdays, Sundays, and holidays) following its receipt by the Office of the Secretary to the Council, no member of the Council introduces a resolution to approve or disapprove the proposed contract; or

(B) If a resolution has been introduced in accordance with subparagraph (A) of this paragraph, and the Council does not disapprove the contract during the 45-day review period beginning on the 1st day (excluding Saturdays, Sundays, and holidays) following its receipt by the Office of the Secretary to the Council.

(3)(A) Council approval of contracts submitted pursuant to paragraph (2) of this subsection shall expire 12 months after the award of the contract.

(B)(i) Council approval of a contract containing a provision that grants to the District the option of continuing or amending the contract beyond the 12-month period of Council approval shall not constitute Council approval of the exercise of the option contract.

(ii) To exercise an option that meets the criteria for Council review pursuant to this section, the Mayor shall submit the option contract to the Council pursuant to this section.

(iii) The exercise of an option that meets the criteria for Council review under this subsection without Council review of the option contract is a violation of this section and § 1-204.51.

(c) Proposed contracts submitted pursuant to this section may be submitted electronically and shall contain a summary, including the following:

(1) The proposed contractor, contract amount, unit and method of compensation, contract term, type of contract, and the source selection method;

(1A) For a contract containing option periods, the contract amount for the base period and for each option period and, if the contract amount for one or more of the option periods differs from the contract amount for the base period, an explanation of the reason or reasons for that difference;

(1B) If the contract definitizes a letter contract or replaces a contract awarded through an emergency procurement pursuant to § 2-354.05:

(A) The date, or dates, on which the letter contract or emergency awarded through an emergency procurement was executed;

(B) The number of times the letter contract or contract awarded through an emergency procurement has been extended; and

(C) The value of the goods and services provided to date under the letter contract or contract awarded through an emergency procurement, including under each extension of the letter contract or contract awarded through an emergency procurement.

(2) The goods or services to be provided, the methods of delivering goods or services, and any significant program changes reflected in the proposed contract;

(3)(A) The selection process, including the number of offerors, the evaluation criteria, and the evaluation results, including price, technical or quality, and past-performance components.

(B) If the contract was awarded on a sole-source basis, the date on which a competitive procurement for the goods or services to be provided under the contract was last conducted, the date of the resulting award, and a detailed explanation of why a competitive procurement is not feasible;

(3A) A description of any bid protest related to the award of the contract, including whether the protest was resolved through litigation, withdrawal of the protest by the protestor, or voluntary corrective action by the District. Each such description shall include the identity of the protestor, the grounds alleged in the protest, and any deficiencies identified by the District as a result of the protest;

(3B) Not Funded.

(4) The background and qualifications of the proposed contractor, including its organization, financial stability, personnel, and performance on past or current government or private-sector contracts with requirements similar to those of the proposed contract;

(4A) A summary of the subcontracting plan required under § 2-218.46, to include a certification by the District that the subcontracting plan meets the minimum requirements of § 2-218.01, and the dollar volume of the portion of the contract to be subcontracted, expressed both in total dollars and as a percentage of the total contract amount;

(5) Performance standards and expected outcomes of the proposed contract;

(5A) The amount and date of any expenditure of funds by the District pursuant to the contract before its submission to the Council for approval;

(6) A certification that the proposed contract is within the appropriated budget authority for the agency for the fiscal year and is consistent with the financial plan and budget adopted in accordance with §§ 47-392.01 and 47-392.02;

(7) A certification that the proposed contract is legally sufficient, including whether the proposed contractor has any currently pending legal claims against the District;

(8)(A) A certification that the Citywide Clean Hands Database indicates that the proposed contractor is current with its District taxes.

(B) If the Citywide Clean Hands Database indicates that the proposed contractor is not current with its District taxes:

(i) A certification that the contractor has worked out and is current with a payment schedule approved by the District; or

(ii) A certification that the contractor will be current with its District taxes after the District recovers any outstanding debt as provided under § 2-353.01(a)(9);

(8A) A certification from the proposed contractor that it is current with its federal taxes, or has worked out and is current with a payment schedule approved by the federal government.

(8B) Not Funded.

(9) The status of the proposed contractor as a certified local, small, or disadvantaged business enterprise, as defined in subchapter IX-A of Chapter 2 of this title [§ 2-218.01 et seq.];

(10) Other aspects of the proposed contract that the CPO considers significant;

(11) A statement indicating whether the proposed contractor is currently debarred from providing services or goods to the District or federal government, the dates of the debarment, and the reasons for debarment;

(11A) Any determination and findings issued in relation to the contract's formation, including any determination and findings made under § 2-352.05;

(12) Where the contract, and any amendments or modifications, if executed, will be made available online; and

(13) Where the original solicitation, and any amendments or modifications, will be made available online.

(c-1) A proposed change to the scope or amount of a contract, including the exercise of an option period, a modification, a change order, or any similar change that is submitted to the Council pursuant to this section and seeks from the Council retroactive approval of an action or authorization for payment, shall include the summary required under subsection (c) of this section and also shall include:

(1) The period of performance associated with the proposed change, including the date as of which the proposed change is to be made effective;

(2) The value of any work or services performed pursuant to a proposed change for which the Council has not provided approval, disaggregated by each proposed change if more than one proposed change has been aggregated for Council review;

(3) The aggregate dollar value of the proposed change as compared with the amount of the contract as awarded;

(4) The date on which the contracting officer was notified of the proposed change;

(5) The reason why the proposed change was sent to the Council for approval after it is intended to take effect;

(6) The reason for the proposed change; and

(7) The legal, regulatory, or contractual authority for the proposed change.

(8) Not Funded.

(c-2) Any proposed change submitted to the Council for its review in accordance with subsection (c-1) of this section shall be referred to the Inspector General who may examine the contract for possible corruption, mismanagement, waste, fraud, or abuse pursuant to § 1-301.115a(a-1)(2).

(c-3) The proposed exercise of an option period pursuant to subsection (a)(2) of this section may be submitted electronically and shall contain a summary, including the following:

(1) The proposed contractor, contract amount, contract term, and contract type;

(2) The identifying number of the underlying contract, including the identifiers assigned to the underlying contract by the Council for the base period of the contract and any subsequent option periods;

(3) A statement indicating that the contracting officer determined through the Citywide Clean Hands Database that the contractor is current with its District taxes or has worked out and is current with a payment schedule approved by the District, or that the contracting officer will offset any outstanding amount pursuant to § 2-353.01(a)(9); and

(4) A statement indicating that the proposed contract is within the appropriated budget authority for the fiscal year and is consistent with the financial plan and budget adopted in accordance with §§ 47-392.01 and 47-392.02.

(d) No proposed multiyear contract and no proposed contract in excess of $1 million for a 12-month period shall be awarded until after the Council has reviewed and approved the proposed contract as provided in this section.

(e) Notwithstanding subsection (a) of this section, review and approval by the Council of a definitive contract in excess of $1 million during a 12-month period shall constitute the Council review and approval, required by § 1-204.51(b), of the definitive contract and the merged letter contract contained therein; provided, that a copy of the underlying letter contract be transmitted to the Council with the definitive contract.

(f) Any employee or agency head who shall knowingly or willfully enter into a proposed multiyear contract or a proposed contract in excess of $1 million without prior Council review and approval in accordance with this section shall be subject to suspension, dismissal, or other disciplinary action under the procedures set forth in subchapter XVI-A of Chapter 6 of Title 1 [§ 1-616.51 et seq.].

(g)(1) No contractor who knowingly or willfully performs on a contract with the District in excess of $1 million for a 12-month period without prior Council approval shall be paid more than $1 million for the products or services provided.

(2) No contractor who knowingly or willfully performs on a multiyear contract with the District without prior Council approval of the multiyear contract shall be paid in more than one calendar year for the products or services provided.

(h) Review and approval by the Council of the annual capital program of federal highway aid projects shall constitute the Council review and approval required by § 1-204.51(d)(3) of individual federal-aid highway contracts that make up the annual program.


(Apr. 8, 2011, D.C. Law 18-371, § 202, 58 DCR 1185; Oct. 8, 2016, D.C. Law 21-158, § 3(d), 63 DCR 10752; Mar. 13, 2019, D.C. Law 22-250, § 8(a), 66 DCR 985.)

Prior Codifications

2001 Ed., § 2-301.05e.

Section References

This section is referenced in § 2-351.05, § 10-1202.08a, § 31-3171.04, and § 44-951.11.

Applicability

Section 10(b) of D.C. Law 22-250 required that the amendments made to this section by D.C. Law 22-250, (1) Apply as of November 4, 2020; and (2) Not apply to contracts, as defined in D.C. Official Code § 1-1161.01(10C)(A)(ii)), including those contracts' option periods or similar contract extensions or modifications, sought, entered into, or executed before November 4, 2020.

Emergency Legislation

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


§ 2–352.03. Office of Contracting and Procurement.

(a) The agency head of the Office of Contracting and Procurement shall be the Chief Procurement Officer.

(b) The CPO shall be appointed by the Mayor with the advice and consent of the Council pursuant to § 1-523.01.

(c) On April 8, 2011, the incumbent CPO shall continue to serve as the CPO. If the incumbent CPO is unable to serve as the CPO, until a new CPO is appointed by the Mayor pursuant to § 1-523.01, the highest ranking employee of OCP shall serve as acting CPO.

(d) The CPO shall have not less than 5 years of senior-level experience in procurement and shall have demonstrated, through knowledge and experience, the ability to administer a public procurement system of the size and complexity of the program established by this chapter.

(e) The CPO shall serve for one 5-year term and may be reappointed pursuant to subsection (b) of this section.

(f) The CPO shall not be removed from office before the expiration of the 5-year term except for cause, subject to the right of appeal as provided in subchapter VI of Chapter 6 of Title 1. [§ 1-606.01 et seq.].


(Apr. 8, 2011, D.C. Law 18-371, § 203, 58 DCR 1185.)


§ 2–352.04. Duties of the Chief Procurement Officer.

(a) The Chief Procurement Officer shall be the chief procurement official of the District.

(b) The CPO shall have the following authority and responsibility:

(1) To serve as the central procurement and contracting officer for the District;

(2) To identify gaps, omissions, or inconsistencies in procurement laws, rules, and policies, or in laws, rules and policies affecting procurement-related activities, and to recommend changes to laws, rules, and procedures;

(3) To provide overall leadership in the implementation of procurement rules, coordinate all procurement activities of the District government in accordance with the provisions of this chapter, and develop a system of unified and simplified procurement procedures and forms.

(4) To prepare and issue standard specifications for goods, services, and construction required by the District government;

(5) To establish a standardization program for goods and services when it is determined to be in the best interests of the District;

(6) To review, monitor, and audit the procurement activities of the District;

(7) To prepare, establish, and implement a periodic review process for the evaluation of contractors who provide goods or services to the District;

(8) To identify and assess trends and developments in the field of government contracting, including identifying best practices and innovation opportunities for the District;

(9) To operate and maintain an electronic procurement system;

(10) To sell, trade, or otherwise dispose of surplus goods belonging to the District government;

(11) To establish procedures for the inspection, testing, and acceptance of goods, services, and construction;

(12) To develop guidelines for the recruitment, training, career development, and performance evaluation of all procurement personnel;

(13) To staff OCP with procurement professionals, including attorneys, dedicated to the formation and administration of contracts on behalf of the entities covered by this chapter;

(14) To create and maintain a transparent Internet site, accessible to the public, providing information on solicitations, contracts, and related laws, rules, and policies;

(15) To promote to the purchase of environmentally preferable products and services; and

(16) To establish certification requirements for contracting personnel.


(Apr. 8, 2011, D.C. Law 18-371, § 204, 58 DCR 1185.)


§ 2–352.05. Privatization contracts.

(a) A privatization contract shall meet the following requirements:

(1) Except as provided in subsection (d) of this section, a privatization contract shall not cause the displacement of District government employees including by layoff, demotion, involuntary transfer to a new class, involuntary transfer to a new location requiring a change of residence, or time base reductions. For the purposes of this paragraph, the term "displacement" does not include changes in shifts or days off, nor does it include reassignment to other positions within the same class and general location.

(2) The privatization contract shall provide the District with an economic advantage, as demonstrated by the determination and findings issued pursuant to subsection (b) of this section.

(3) The economic advantage of the privatization contract shall not be outweighed by the public's interest in having a particular function performed directly by District employees, as demonstrated in the determination and findings issued pursuant to subsection (b) of this section.

(4) The privatization contract shall be awarded through a publicized, competitive procurement process pursuant to subchapter IV of this chapter.

(5) The privatization contract shall include specific provisions establishing the minimum qualifications for the employees of the contractor who will perform the work under the contract and an affirmation by the contractor that the contractor's hiring practices meet applicable District standards.

(b) Before issuing a solicitation for a privatization contract, the Mayor, instrumentality, or independent agency shall:

(1) Issue a draft determination and findings demonstrating that the cost of having the contracted-for service provided by a contractor will be at least 5% less than if the service were to be provided by employees of the District or its instrumentality or independent agency. The draft determination and findings shall include, at a minimum, the following:

(A) The estimated cost of having a contractor provide the service contrasted with the costs that would be directly associated with having employees of the District or its instrumentality or independent agency continue performance;

(B) Personal services costs attributable to having a contractor provide the service contrasted with the personal services costs that would result from having employees of the District or its instrumentality or independent agency continue performance, including salary and fringe benefits;

(C) Non-personal services costs attributable to having a contractor provide the service contrasted with the non-personal services costs that would result from having employees of the District or its instrumentality or independent agency continue performance, including rent, equipment, and utilities;

(D) Any additional costs that would be built into a privatization contract, including expected costs related to the administration, oversight, and supervision by District government personnel of a privatization contract;

(E) A description of the expected impact of a privatization contract on the quality of goods or services provided to or on behalf of the District government;

(F) The number of employees of the District or its instrumentality or independent agency that are necessary to perform the service proposed to be the subject of a privatization contract; and

(G) The number of employees of the District or its instrumentality or independent agency that would be displaced by the contract within the meaning of subsection (a)(1) of this section;

(2) Request an analysis by the Chief Financial Officer of whether the costs in the draft determination and findings can be substantiated;

(3) Share the draft determination and findings with employees who could be displaced within the meaning of subsection (a)(1) of this section as a result of the privatization contract and any labor unions or groups representing those employees to solicit their comments; and

(4) Issue a final determination and findings that incorporate the full analysis by the Chief Financial Officer, and a summary of comments provided pursuant to paragraph (3) of this subsection. Each final determination and findings shall be made publicly available online before any solicitation for a privatization contract based on the final determination and findings is issued.

(c)(1) If the Mayor, instrumentality, or independent agency issues a solicitation for a privatization contract that would displace employees of the District or its instrumentality or independent agency, those employees or a person or entity representing those employees may submit a bid or proposal to perform the services as a private entity; provided, that the employees agree to resign their employment with the District or its instrumentality or independent agency upon selection as the awardee of the contract after final approval of the contract.

(2) The Mayor, instrumentality, or independent agency shall consider any employee bid or proposal submitted pursuant to paragraph (1) of this subsection on the same basis as any other bid or proposal.

(3) [Not funded].

(4) A solicitation for a privatization contract shall include information describing how displaced employees of the District or its instrumentality or independent agency may exercise their right to compete for the contract pursuant to this subsection.

(d) A privatization contract that causes employees of the District or its instrumentality or independent agency to be displaced within the meaning of subsection (a)(1) of this section may be awarded; provided, that:

(1) The contractor shall offer to each displaced employee a right of first refusal to employment by the contractor, in a comparable available position for which the employee is qualified, for at least a 6-month period during which the employee shall not be discharged by the contractor without cause;

(2) Any District employee who is displaced as a result of a privatization contract and is hired by the contractor who was awarded the contract, shall be entitled to the benefits provided by the Service Contract Act of 1965, approved October 22, 1965 (79 Stat. 1034; 41 U.S.C. § 6701 et seq.);

(3) If the employee's performance during the 6-month transitional employment period described in paragraph (1) of this subsection is satisfactory, the contractor shall offer the employee continued employment under terms and conditions established by the contractor; and

(4) The Mayor, instrumentality, or the independent agency head shall make efforts to assist employees of the District or its instrumentality or independent agency who would be affected by the privatization contract and to promote employment opportunities for District residents with the contractor. These efforts shall include:

(A) Consulting with union representatives and employees of the District or its instrumentality or independent agency who would be affected by the privatization contract;

(B) Providing prior notification of at least 30 days of any adverse impact of a privatization contract to employees of the District or its instrumentality or independent agency who would be affected by the contract, including notification to a labor organization certified as the exclusive representative of employees affected by the contract;

(C) Providing alternative employment in the District government to displaced employees if there are unfilled positions for which those employees are qualified; and

(D) Encouraging the contractor to offer employment to qualified District residents before offering employment to qualified nonresidents.

(e)(1) Any privatization contract shall incorporate specific performance standards and targets including for productivity and cost savings to be achieved under the contract.

(2) The contractor shall submit reports, as required by the contract, to the District government contracting officer and the Chief Financial Officer on the contractor's compliance with the specific performance criteria.

(3) The contract may be canceled without prejudice to the District if the contractor fails to comply with the performance criteria set out in the contract.

(f) An agency or instrumentality shall not attempt to circumvent the requirements of this section by eliminating the provision of services by its own employees before procuring substantially the same services from a person who is not employed by that agency or instrumentality.

(g)(1) Each year the District of Columbia Auditor shall review a selection of privatization contracts, which shall be chosen by the Auditor based on the dollar value and scope of the contracts, their potential impact on the health and safety of District residents, their potential impact on economic development and employment opportunities in the District, and other factors deemed appropriate by the Auditor.

(2) The Auditor shall issue an annual report to the Mayor and the Council on the contracts reviewed pursuant to paragraph (1) of this subsection, analyzing for each contract whether it is achieving:

(A) The minimum 5% cost-savings requirement set forth in subsection (b)(1) of this section; and

(B) The performance standards and targets incorporated into the contracts as required under subsection (e) of this section.

(3) The Auditor may report that the cost and performance data for the selected contracts are inconclusive, but if the District has failed to collect, maintain, or provide cost or performance data, the Auditor reasonably may conclude that the cost savings or performance standards and targets are not being met.

(4) If the Auditor finds in the report issued pursuant to paragraph (2) of this subsection that a privatization contract has not met the cost savings or performance standards and targets, the Mayor or instrumentality or independent agency head shall review the merits of canceling the privatization contract and performing the work with District employees and shall report to the Council on the results of the review.

(h) The requirements of this section shall not apply to:

(1) A contract for a new function for which the Council has specifically mandated or authorized the performance of the work by independent contractors;

(2) Services that cannot be performed satisfactorily by District government employees, or are of such a highly specialized or technical nature that the necessary expert knowledge, experience, and ability, are not available through District employees, as determined by the Mayor;

(3) Contracts for staff augmentation services to be provided pursuant to a contract with a term of less than one year that does not contain options to extend the performance period;

(4) Contracts for services that are incidental to a contract for the purchase or lease of real or personal property such as contracts to maintain office equipment or computers that are leased or rented;

(5) Contracts that are necessary to protect against a conflict of interest or to insure independent and unbiased findings in cases in which there is a clear need for an unbiased and objective outside perspective, as determined by the Mayor;

(6) Contracts entered into pursuant to § 2-352.01(c);

(7) Contracts that will provide equipment, materials, facilities, or support services that could not be provided feasibly by the District in the location where the services are to be performed, as determined by the Mayor;

(8) Contracts to provide training for which appropriately qualified District employees are not available, as determined by the Mayor; and

(9) Contracts for services that are of such an urgent, temporary, or occasional nature that the delay incumbent in their formation under this section would frustrate their very purpose, as determined by the Mayor.

(i) The CPO shall promulgate rules, pursuant to § 2-361.06, with detailed procedures to implement the provisions of this section.

.


(Apr. 8, 2011, D.C. Law 18-371, § 205, 58 DCR 1185; Oct. 8, 2016, D.C. Law 21-158, § 3(e), 63 DCR 10752.)

Section References

This section is referenced in § 1-624.22, § 2-381.42, and § 44-1203.01.

Applicability

Section 7017 of Law 22-33 amended section 5 of D.C. Law 21-158, retaining the applicability restriction affecting this section, therefore the changes made to this section by D.C. Law 21-158 have not been implemented.

Applicability of D.C. Law 21-158: § 5 of D.C. Law 21-158 provided that the modification of section 205(c)(3) of this section by § 3(e) of D.C. Law 21-158 is subject to the inclusion of the law’s fiscal effect in an approved budget and financial plan. Therefore that amendment has not been implemented.

Emergency Legislation

For temporary (90 days) amendment of § 5 of D.C. Law 21-158, see § 7017 of Fiscal Year 2018 Budget Support Congressional Review Emergency Act of 2017 (D.C. Act 22-167, Oct. 24, 2017, 64 DCR 10802).

For temporary (90 days) amendment of § 5 of D.C. Law 21-158, see § 7017 of Fiscal Year 2018 Budget Support Emergency Act of 2017 (D.C. Act 22-104, July 20, 2017, 64 DCR 7032).

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


§ 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).


§ 2–352.06. Procurement training institute.

(a) The CPO shall establish and administer a procurement training institute to facilitate a system of training, continuing education, and certification for District contracting personnel. The procurement training institute may:

(1) Conduct or participate in procurement education and training programs for District employees and others, including persons not employed by the District;

(2) Conduct, develop, or collaborate with established training or certification programs for the express purpose of providing certifications of proficiency to all participants who successfully complete the designated programs;

(3) Conduct research into existing and new methods of procurement;

(4) Establish and maintain a District procurement library; and

(A) Establish a tiered core curriculum that sets forth the minimum procurement-related training courses to be completed by District procurement personnel.

(B) The tiered core curriculum shall be designed to develop procurement competency along with a uniform training approach for personnel ranging from entry level contract specialist to contracting officer.

(b) The CPO may charge a fee for training conducted by the procurement training institute in accordance with § 2-361.03.

(c) The CPO shall require that District contracting personnel be certified and that they maintain a reasonable number of hours of continuing education to maintain their certification.

(d) The CPO may allow attendance at a recognized institute to satisfy the certification requirement and the number of hours for continuing education.


(Apr. 8, 2011, D.C. Law 18-371, § 206, 58 DCR 1185.)

Section References

This section is referenced in § 2-361.03.

Cross References

As to applicability of §§ 2-352.06, 2-358.03, and 2-361.01, see § 2-362.03.

Emergency Legislation

For temporary (90 days) repeal of D.C. Law 18-371, § 1203, see § 7015 of the Fiscal Year 2014 Budget Support Emergency Act of 2013 (D.C. Act 20-130, July 30, 2013, 60 DCR 11384, 20 DCSTAT 1827).

For temporary (90 days) repeal of D.C. Law 18-371, § 1203, see § 7015 of the Fiscal Year 2014 Budget Support Congressional Review Emergency Act of 2013 (D.C. Act 20-204, October 17, 2013, 60 DCR 15341, 20 DCSTAT 2311).

Short Title

Section 7001 of D.C. Law 20-61 provided that Subtitle A of Title VII of the act may be cited as the “Subject to Appropriations Repealers Amendment Act of 2013”.

Editor's Notes

Section 1203 of D.C. Law 18-371 provided that this section shall apply upon the inclusion of its fiscal effect in an approved budget and financial plan.

Section 7015 of D.C. Law 20-61 repealed D.C. Law 18-371, § 1203.


§ 2–352.07. Ombudsman for contracting and procurement.

(a) There is established within the Office of Contracting and Procurement an Office of Ombudsman for Contracting and Procurement which shall be headed by an ombudsman with purview over contracts under the authority of the CPO.

(b) Each District agency with independent procurement authority pursuant to section 201 shall designate an Agency Ombudsman for Contracting and Procurement.

(c) Each ombudsman designated pursuant to this section shall:

(1) Serve as a vehicle for contractors and subcontractors performing work or providing services under a District contract to communicate their complaints and concerns regarding contracting, procurement, or a specific contract, through a single entity;

(2) Respond to complaints and concerns in a timely fashion with accurate and helpful information;

(3) Determine the validity of any complaint quickly and professionally;

(4) Generate options for a response by the agency or instrumentality and offer a recommendation from among the options;

(5) Except when the parties are involved in legal or administrative proceedings, attempt informally to facilitate a resolution of a dispute between the contracting officer, the prime contractor, and the subcontractor, as appropriate; and

(6) Identify systemic concerns and recommend to the CPO and the Council policy changes, and strategies to improve the contracting and procurement process.


(Apr. 8, 2011, D.C. Law 18-371, § 207; as added Oct. 8, 2016, D.C. Law 21-158, § 3(g), 63 DCR 10752.)

Applicability

Section 7017 of D.C. Law 22-33 repealed § 5 of D.C. Law 21-158. Therefore the changes made to this section by D.C. Law 21-158 have been implemented.

Applicability of D.C. Law 21-158: § 5 of D.C. Law 21-158 provided that the modification of section 207 of this section by § 3(g) of D.C. Law 21-158 is subject to the inclusion of the law’s fiscal effect in an approved budget and financial plan. Therefore that amendment has not been implemented.

Emergency Legislation

For temporary (90 days) amendment of § 5 of D.C. Law 21-158, see § 7017 of Fiscal Year 2018 Budget Support Congressional Review Emergency Act of 2017 (D.C. Act 22-167, Oct. 24, 2017, 64 DCR 10802).

For temporary (90 days) amendment of § 5 of D.C. Law 21-158, see § 7017 of Fiscal Year 2018 Budget Support Emergency Act of 2017 (D.C. Act 22-104, July 20, 2017, 64 DCR 7032).

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