§ 2–360.01. Creation of Contract Appeals Board.
(a)(1) There is established in the executive branch of the District government a Contract Appeals Board (“Board”) to be composed of a chairperson and 2 other members.
(2) The members shall be appointed as administrative judges in the Career Service and shall not be removed except for cause.
(3) The chairperson and members of the Board shall be appointed by the Mayor with the advice and consent of the Council, and shall serve full-time.
(b) The Board shall adopt operational procedures, not inconsistent with this chapter, necessary to execute the Board’s functions. The chairperson’s authority may be delegated to the Board’s members and employees, but only members of the Board may hear appeals and issue decisions on the appeals. The attendance of at least 2 members of the Board shall constitute a quorum.
(c)(1) The Office of the Attorney General may provide for the Board those goods, materials, and administrative services that the chairperson requests, on a basis, reimbursable or otherwise, agreed upon between the Office of the Attorney General and the chairperson.
(2) All costs of hearings before the Board, including witness fees and costs of transcripts, shall be borne by the agency from which the appeal originated through direct billing.
(3) The Board shall use any fees received pursuant to § 2-360.03 at the discretion of the Chairperson to improve the Board’s services and programs, including the option to provide incentive awards to Board personnel consistent with subchapter XIX of Chapter 6 of Title 1 [§ 1-619.01 et seq.].
2001 Ed., § 2-309.01.
This section is referenced in § 1-523.01.
§ 2–360.02. Terms and qualifications of members.
(a)(1) The term of office of the chairperson and other full-time members of the Board shall be 4 years, except that in making the initial appointment, the Mayor shall appoint one members for a term of one year, one member for a term of 2 years, and the chairperson for a term of 3 years. The terms of the chairperson and members first appointed shall begin on the date that a majority of the first members are sworn in, which shall become the anniversary date for all subsequent appointments. Thereafter, their successors shall be appointed for terms of 4 years, or for the balance of any unexpired term, but members may continue to serve beyond their terms until their successors take office.
(2) The Mayor shall endeavor to nominate persons for appointment to the Board at least 30 days before the expiration of a member’s term.
(3) Members may be reappointed for succeeding terms.
(4) If there is no chairperson, or if the chairperson is absent or unable to serve, the member senior in length of service shall be acting chairperson.
(b) The chairperson and members of the Board shall be attorneys licensed to practice law in the District who shall have no less than 5 years experience in public contract law. All members of the Board shall have experience in the areas of procurement and contract law.
(c) Notwithstanding the provisions of this section, current members of the Contract Appeals Board, appointed pursuant to the District of Columbia Procurement Practices Act of 1985, effective February 21, 1986 (D.C. Law 6-85; 32 DCR 7396) [§ 2-301.01 et seq.], serving on April 8, 2011, shall be considered qualified and may continue to serve as members of the Board.
2001 Ed., § 2-309.02.
§ 2–360.03. Jurisdiction of Board.
(a) The Board shall be the exclusive hearing tribunal for, and shall review and determine de novo:
(1) Any protest of a solicitation or award of a contract addressed to the Board by any actual or prospective bidder, offeror, or the contractor who is aggrieved in connection with the solicitation or award of a contract;
(2) Any appeal by a contractor from a final decision by the contracting officer on a claim by a contractor, when the claim arises under or relates to a contract; and
(3) Any claim by the District against a contractor, when such claim arises under or relates to a contract.
(b) Jurisdiction of the Board shall be consistent with the coverage of this chapter as set forth in § 2-351.05, except that the Board may enter into fee-for-service agreements with agencies, departments, boards, commissions, and instrumentalities of the District or other public entities that are not subject to the Board’s jurisdiction. The agreements shall provide for the Board to resolve contract disputes, including appeals and protests of those agencies, departments, boards, commissions, and instrumentalities. With agreements of the parties, the Board may provide alternate dispute resolution services.
2001 Ed., § 2-309.03.
This section is referenced in § 2-360.01.
§ 2–360.04. Contractor’s right of appeal to Board.
(a) Except as provided in § 2-359.08, within 90 days after the date of receipt of a decision of the contracting officer, the contractor may appeal the decision to the Board by filing a complaint.
(b) The Board shall provide, to the fullest extent practicable, informal, expeditious, and inexpensive resolution of disputes, shall issue a decision in writing, or take other appropriate action on each appeal submitted, and shall mail or otherwise furnish a copy of the decision to the contractor and the Mayor. All decisions which constitute a final adjudication of appeal on the merits shall be published in the District of Columbia Register.
(c)(1) The rules of the Board shall include a procedure for the accelerated disposition of any appeal from a decision of the contracting officer if the amount in dispute is $50,000 or less.
(2) The procedure shall be applicable at the sole election of the contractor.
(3) Appeals under the accelerated procedure shall be resolved within 180 days from the date the contractor elects to utilize the procedure.
(d)(1) The rules of the Board shall include a small claims procedure for the expedited disposition of any appeal from a decision of the contracting officer if the amount in dispute is $10,000 or less. The procedure shall be applicable at the sole election of the contractor.
(2) The small claims procedure shall provide for simplified rules of procedure to facilitate the decision of any appeal. The appeals may be decided by a single member of the Board with any concurrences required by rule.
(3) Appeals under the small claims procedure shall be resolved, whenever possible, within 90 days from the date on which the contractor files an appeal.
(4) A decision against the District government or the contractor reached under the small claims procedure shall be final and conclusive and shall not be set aside except in cases of fraud.
(5) Administrative determinations and final decisions under the small claims procedure shall have no value as precedent for future cases under this subchapter.
2001 Ed., § 2-309.04.
This section is referenced in § 2-359.06.
§ 2–360.05. Appeal of Board decisions.
(a) A contractor may appeal a Board decision to the District of Columbia Court of Appeals within 120 days after the date of receipt of a copy of the decision.
(b) If the CPO determines that an appeal should be taken, the CPO, with the prior approval of the Office of the Attorney General, may appeal the Board’s decision to the District of Columbia Court of Appeals for judicial review within 120 days from the date of the receipt of the Board’s decision.
2001 Ed., § 2-309.05.
This section is referenced in § 2-360.07.
§ 2–360.06. Oaths, discovery, and subpoena power.
(a) A member of the Board may administer oaths to witnesses, authorize depositions and discovery proceedings, and require by subpoena the attendance of witnesses and production of books and papers for the taking of testimony or evidence by deposition or in the hearing of an appeal by the Board.
(b) If any witness, having been personally served with a subpoena, shall neglect or refuse to obey the subpoena issued, on written application, the Board may report the fact of the neglect or refusal to a judge of the Superior Court for the District of Columbia who may compel obedience to the subpoena.
2001 Ed., § 2-309.06.
§ 2–360.07. Actions in court; judicial review of Board decisions.
In the event of an appeal by a contractor or the CPO from a decision of the Board pursuant to § 2-360.05, notwithstanding any contract provision, rule, or rule of law to the contrary, the decision of the Board on questions of fact shall be final and conclusive and shall not be set aside unless the decision is fraudulent, arbitrary, capricious, or so grossly erroneous as to necessarily imply bad faith, or if the decision is not supported by substantial evidence.
2001 Ed., § 2-309.07.
§ 2–360.08. Protest procedures.
(a) This section shall apply to a protest of a solicitation or award of a contract addressed to the Board by any actual or prospective bidder, offeror, or contractor who is aggrieved in connection with the solicitation or award of a contract.
(b)(1) A protest based upon alleged improprieties in a solicitation which are apparent prior to bid opening or the time set for receipt of initial proposals shall be filed prior to bid opening or the time set for receipt of initial proposals. In procurements where proposals are requested, alleged improprieties which do not exist in the initial solicitation, but which are subsequently incorporated into the solicitation, shall be protested not later than the next closing time for receipt of proposals following the incorporation.
(2) In cases other than those covered in paragraph (1) of this subsection, protests shall be filed not later than 10 business days after the basis of protest is known or should have been known, whichever is earlier.
(c)(1) Within one business day of receipt of the protest, the Board shall notify the contracting officer that the protest has been filed. Except as provided in this section, no contract shall be awarded in any procurement after the contracting officer has received the notice and while the protest is pending. If an award has already been made but the contracting officer receives notice within 11 business days after the date of award, the contracting officer shall immediately direct the awardee to cease performance under the contract and to suspend any related activities that may result in additional obligations being incurred by the District under the contract. Except as provided in this section, performance and related activities suspended pursuant to this section shall not be resumed while the protest is pending.
(2) Performance under a protested procurement may proceed, or award may be made, while a protest is pending only if the CPO makes a written determination, supported by substantial evidence, that urgent and compelling circumstances that significantly affect interests of the District will not permit waiting for the decision of the Board concerning the protest. A copy of the determination shall be provided within one business day of issuance to both the Board and the protester.
(d) On any direct protest pursuant to subsection (a) of this section, the Board shall decide whether the solicitation or award was in accordance with the applicable law, rules, and terms and conditions of the solicitation. The decision of the Board shall be issued within 60 business days from the date on which the protest is filed. Any prior determinations by administrative officials shall not be final or conclusive. If the Board determines that a contract is void pursuant to § 2-359.02, the Board shall direct that the contract be cancelled and cause a determination to be made pursuant to § 2-359.02.
(d-1) An agency's determination of its minimum needs and its determination of the best method of accommodating those minimum needs are business judgments primarily within the agency's discretion. The Board may not sustain a protest on the basis of either determination unless a protester demonstrates by clear and convincing evidence that the determination lacked a reasonable basis.
(e) A determination of an issue of fact by the Board under subsection (d) of this section shall be final and conclusive unless arbitrary, capricious, fraudulent, or clearly erroneous.
(f)(1) In addition to other relief, the Board may order, when a protest is sustained, that the contract awarded under the solicitation be terminated for the convenience of the District; provided, that the Board shall not direct the award of a contract to a particular person. A determination in this regard shall be based on considerations such as:
(A) Best interests of the District government;
(B) Seriousness of the procurement deficiency;
(C) Existence of prejudice to other bidders;
(D) Maintaining the integrity of the procurement system;
(E) Good faith of District government officials and other parties;
(F) Extent of contract performance; or
(G) Impact of termination on the agency’s activities and mission.
(2) The Board may, when requested, award reasonable bid or proposal preparation costs and costs of pursuing the protest, not including legal fees, if it finds that the District government’s actions toward the protester or claimant were arbitrary or capricious.
(g)(1) The Board may dismiss, at any stage of the proceedings, any protest, or portion of a protest, it considers frivolous.
(2) In addition, the Board may require the protester to pay reasonable attorneys’ fees, for time counsel spent representing the agency in defending the frivolous protest or its frivolous part. If the entire protest is dismissed on frivolous grounds, it may also assess the protester additional damages for each day the contract was suspended equal to the amount of liquidated damages specified in the contract for late completion of the contract.
(3) The Board shall not determine damages if liquidated damages are not specified.
(4) In addition, counsel for the protester may be suspended or barred from practicing before the Board.
(h) The Board shall adopt rules for exercising its authority under this section.
2001 Ed., § 2-309.08.