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District of Columbia Official Code 2001 Edition. |
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Division I. Government of District. |
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Title 2. Government Administration. |
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Chapter 2. Contracts. |
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Subchapter IX-A. Small, Local, and Disadvantaged Business Enterprise Development and Assistance. |
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Part D. Programs for Certified Business Enterprises. |
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Subpart 3. Certification.
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(a) No business enterprise shall be permitted to participate in a program established under this part unless the business enterprise:
(1) Has demonstrated its capability to perform and been issued a certificate of registration under the provisions of this subchapter; or
(2) Has been issued a provisional certification under regulations issued pursuant to this subchapter.
(b)(1) An enterprise seeking to be certified as a local, small, or disadvantaged business enterprise, as a resident-owned business, or as a local business enterprise with its principal office located in an enterprise zone shall file with the Department a written application on such form as may be prescribed by the Department.
(2) The application shall include, at a minimum, the following documents and information:
(A) A certification of the correctness of the information provided;
(B) Written evidence that the applicant is:
(i) A bona fide local business enterprise;
(ii) A bona fide disadvantaged business enterprise;
(iii) A bona fide small business enterprise;
(iv) A bona fide local business enterprise located in an enterprise zone;
(v) A bona fide resident-owned business; or
(vi) A bona fide longtime resident business.
(C) Evidence of ability and character;
(D) Evidence of financial position, which may be the applicant's most recent financial statement. For the purposes of this subparagraph, the term "recent" means produced from current data no more than 90 days prior to the application date;
(E) Any other information the Commission or Department may require; and
(F) Federal income taxes, both corporate and personal, as well as District taxes, both corporate and personal.
(c) The Department shall issue the applicant a certificate of registration if:
(1) The information provided in the application or additional filings is satisfactory to the Department;
(2) The business enterprise meets the standards of this subchapter; and
(3) The applicant fulfills other requirements as may be established by the Commission or the Department.
(d) A certificate of registration shall expire 2 years from the date of approval of the application. A business enterprise that is registered with the Department may voluntarily relinquish its registration as a certified business enterprise at any time prior to the expiration of the 2-year term.
(e) The Department shall give first priority in reviewing applications submitted pursuant to subsection (b) of this section to any business enterprises that has received a provisional certification pursuant to § 2- 218.62.
(Oct. 20, 2005, D.C. Law 16-33, § 2361, 52 DCR 7503; Mar. 2, 2007, D.C. Law 16-192, § 2132(i), 53 DCR 6899; Sept. 18, 2007, D.C. Law 17-20, § 2062(g), 54 DCR 7052; July 18, 2008, D.C. Law 17-207, § 2(p), 55 DCR 6107; Apr. 20, 2010, D.C. Law 18-141, § 2(n), 57 DCR 1485; Sept. 26, 2012, D.C. Law 19-171, § 13(c), 59 DCR 6190.)
HISTORICAL AND STATUTORY NOTES
Effect of Amendments
D.C. Law 16-192 added subsec. (e).
D.C. Law 17-20 rewrote subsec. (b)(1); and, in the introductory language and par. (1) of subsec. (c) and in subsec. (e), substituted "Department" for "Commission". Prior to amendment, subsec. (b)(1) read as follows:
"(1) An enterprise seeking to be certified as a local, small, or disadvantaged business enterprise, as a resident-owned business, as a resident business, or as a local business enterprise with its principal office located in an enterprise zone shall file with the Commission a written application on such form or forms as may be prescribed by the Commission or the Department."
D.C. Law 17-207, in subsec. (b), inserted "longtime" preceding "resident business".
D.C. Law 18-141, in subsec. (a)(1), substituted "Has demonstrated its capability to perform and been" for "Has been"; in subsec. (b)(2), deleted "and" from the end of par. (D); substituted "; and" for a period at the end of par. (E), and added par. (F); and, in subsec. (d), added the second sentence.
D.C. Law 19-171 validated a previously made technical correction in subsec. (b)(2)(E).
Temporary Amendments of Section
For temporary (225 day) amendment of section, see § 2(o) of the Department of Small and Local Business Development Subcontracting Clarification, Benefit Expansion, and Grant-making Authority Temporary Amendment Act of 2007 (D.C. Law 17-96, January 29, 2008, law notification 55 DCR 3403).
Emergency Act Amendments
For temporary (90 day) addition, see § 2361 of Fiscal Year 2006 Budget Support Emergency Act of 2005 (D.C. Act 16-168, July 26, 2005, 52 DCR 7667).
For temporary (90 day) amendment of section, see § 2132(i) of Fiscal Year 2007 Budget Support Emergency Act of 2006 (D.C. Act 16-477, August 8, 2006, 53 DCR 7068).
For temporary (90 day) amendment of section, see § 2132(i) of Fiscal Year 2007 Budget Support Congressional Review Emergency Act of 2006 (D.C. Act 16-499, October 23, 2006, 53 DCR 8845).
For temporary (90 day) amendment of section, see § 2132(i) of Fiscal Year 2007 Budget Support Congressional Review Emergency Act of 2007 (D.C. Act 17-1, January 16, 2007, 54 DCR 1165).
For temporary (90 day) amendment of section, see § 2062(g) of Fiscal Year 2008 Budget Support Emergency Act of 2007 (D.C. Act 17-74, July 25, 2007, 54 DCR 7549).
For temporary (90 day) amendment of section, see § 2(o) of Department of Small and Local Business Development Subcontracting Clarification, Benefit Expansion, and Grant-making Authority Emergency Amendment Act of 2007 (D.C. Act 17-156, October 18, 2007, 54 DCR 10919).
For temporary (90 day) amendment of section, see § 2(o) of Department of Small and Local Business Development Subcontracting Clarification, Benefit Expansion, and Grant-making Authority Congressional Review Emergency Amendment Act of 2008 (D.C. Act 17-251, January 23, 2008, 55 DCR 1259).
Legislative History of Laws
For Law 16-33, see notes following § 2-218.01.
For Law 16-192, see notes following § 2-218.31.
For Law 17-20, see notes following § 2-215.24.
For Law 17-207, see notes following § 2-218.02.
For Law 18-141, see notes following § 2-218.02.
For history of Law 19-171, see notes under § 2-218.13.
(a) The Department may authorize a business enterprise to participate in a program established under this part without receiving a certificate of registration under § 2-218.61; provided, that such authorization shall be granted only when:
(1) A business enterprise is applying for certification in order to bid on a contract or procurement for which responses are due within the next 45 days;
(2) The business enterprise has submitted a majority of the information required under § 2-218.61; and
(3) The Department reasonably believes that it will certify the business enterprise after the business enterprise has submitted all of the information required under this subchapter or regulations promulgated pursuant to this subchapter.
(b) An authorization granted under this section shall not last for more than 90 days.
(c) The Department shall make authorizations under subsection (a) of this section pursuant to rules promulgated pursuant to this subchapter.
(d) A business enterprise may not self-certify or self-authorize to participate in a program established under § 2-218.43 through 2-218.49.
(Oct. 20, 2005, D.C. Law 16-33, § 2362, 52 DCR 7503; Mar. 2, 2007, D.C. Law 16-192, § 2132(j), 53 DCR 6899; Sept. 18, 2007, D.C. Law 17-20, § 2062(h), 54 DCR 7052.)
HISTORICAL AND STATUTORY NOTES
Effect of Amendments
D.C. Law 16-192, in subsec. (b), substituted "90" for "120".
D.C. Law 17-20, in subsec. (a)(3), substituted "it will" for "the Commission will".
Emergency Act Amendments
For temporary (90 day) addition, see § 2362 of Fiscal Year 2006 Budget Support Emergency Act of 2005 (D.C. Act 16-168, July 26, 2005, 52 DCR 7667).
For temporary (90 day) amendment of section, see § 2132(j) of Fiscal Year 2007 Budget Support Emergency Act of 2006 (D.C. Act 16-477, August 8, 2006, 53 DCR 7068).
For temporary (90 day) amendment of section, see § 2132(j) of Fiscal Year 2007 Budget Support Congressional Review Emergency Act of 2006 (D.C. Act 16-499, October 23, 2006, 53 DCR 8845).
For temporary (90 day) amendment of section, see § 2132(j) of Fiscal Year 2007 Budget Support Congressional Review Emergency Act of 2007 (D.C. Act 17-1, January 16, 2007, 54 DCR 1165).
For temporary (90 day) amendment of section, see § 2062(h) of Fiscal Year 2008 Budget Support Emergency Act of 2007 (D.C. Act 17-74, July 25, 2007, 54 DCR 7549).
Legislative History of Laws
For Law 16-33, see notes following § 2-218.01.
For Law 16-192, see notes following § 2-218.31.
For Law 17-20, see notes following § 2-215.24.
(a) After reasonable notice to a person or a business, and a reasonable opportunity to be heard, the Commission may revoke or suspend the certificate of registration of a business enterprise that:
(1) Fraudulently obtained or held, or attempted to obtain or hold, certification;
(1A) Willfully obstructed or impeded, or attempted to obstruct or impede, a city official or employee investigating the qualifications of a business entity that has requested certification;
(1B) In any certified business enterprise matter administered under this subchapter:
(A) Fraudulently obtained, attempted to obtain, or aided another person in fraudulently obtaining or attempting to obtain, public moneys to which the person is not entitled under this subsection;
(B) Willfully falsified, concealed, or covered up a material fact by any scheme or device;
(C) Made a false or fraudulent statement or representation; or
(D) Used a false writing or document that the person knows to contain a false or fraudulent statement or entry.
(1C) Aided another person in performing an act prohibited under paragraphs (1), (1A), or (1B) of this subsection.
(2) Furnished substantially inaccurate or incomplete ownership or financial information;
(3) Failed to report changes that affect its eligibility for certification, including relocation of its principal office or change in ownership or control;
(4) Acted with gross negligence, incompetence, financial irresponsibility, or misconduct in the practice of a trade or profession;
(5) Willfully violated any provision of this subchapter or rules adopted pursuant to this subchapter;
(6) Misrepresented its capability to the Department and failed to perform satisfactorily in the performance of a contract;
(7) No longer qualifies as a local business enterprise; or
(8) Any other cause the Commission determines to be sufficiently serious and compelling to affect responsibility as a District government contractor, including revocation, suspension, or debarment by another governmental entity for any cause listed in rules and regulations.
(a-1)(1) After reasonable notice to a person or business and reasonable opportunity to be heard by the Commission, the Commission shall revoke the certificate of registration of the business enterprise that has willfully failed to cooperate in an audit or investigation conducted by:
(A) The District of Columbia Auditor pursuant to § 1-204.55; or
(B) The Chairman of the Council or the chairperson of the Council committee that conducts an investigation pursuant to § 1-204.13.
(2) The revocation shall be for a period of 2 years, unless the Department receives written notification, from the Commission, that determines within the 2-year period that the affected business has cooperated in the audit or investigation referred to in paragraph (1) of this subsection and has come into full compliance for re-certification.
(b)(1)(A) Any person may file with the Commission through the Department a complaint alleging a violation of this subchapter against an applicant for registration or a business enterprise registered pursuant to this subchapter. The complaint shall be in writing, sworn to by the complainant, and notarized.
(B) The Department shall establish a fraud hotline for reporting violations of this section.
(2) The Commission, without a hearing, may dismiss a complaint which it determines to be frivolous or otherwise without merit. If the Commission dismisses a complaint, the Commission shall prepare a report documenting the following:
(A) A statement detailing the complaint, including the name, address, and telephone number of the person filing the complaint;
(B) The name of the applicant for registration or business enterprise alleged to be in violation of this subchapter;
(C) The facts and legal authority considered in rendering the determination; and
(D) Any other information considered in rendering the determination.
(3) The Commission shall maintain a record listing all complaints, which shall contain the following information:
(A) The name of the applicant or business enterprise alleged to be in violation of this subchapter;
(B) The date the complaint was made to the Department; and
(C) A description of the complaint.
(4) If the Commission does not determine that a complaint is frivolous or otherwise without merit, it shall hold a hearing on the complaint within 3 months of the filing of the complaint. The Commission shall determine the time and place of the hearing. The Commission shall cause to be issued and served on the person or business enterprise alleged to have committed the violation, hereafter called the "respondent", a written notice of the hearing together with a copy of the complaint at least 30 days prior to the scheduled hearing. Notice shall be served by registered or certified mail, return receipt requested, or by personal service. At the hearing, the respondent shall have the right to appear personally or by a representative and to cross-examine witnesses and to present evidence and witnesses.
(5) If, after the conclusion of the hearing, the Commission determines that the respondent has violated the provisions of this subchapter or regulations issued pursuant to this subchapter, the Commission shall issue, and cause to be served on the respondent, a decision and order, accompanied by findings of fact and conclusions of law, revoking or suspending the respondent's registration, or taking any other action it considers appropriate.
(6) The Commission shall have the authority to issue subpoenas requiring the attendance of witnesses and to compel the production of records, papers, and other documents.
(c) In addition to the procedures and penalties provided in subsection (b) of this section, the Attorney General for the District of Columbia may bring a civil action in the Superior Court of the District of Columbia against a business enterprise and the directors, officers, or principals of a business enterprise that is reasonably believed to have obtained certification by fraud or deceit or to have willfully furnished substantially inaccurate or incomplete ownership information to the Department or to the Commission. A business enterprise or individual found guilty under this subsection shall be subject to a civil penalty of not more than $100,000.
(d) The Commission may at any time reissue a certificate of registration to any firm or joint venture whose certificate has been revoked; provided, that a majority of at least 4 members of the Commission vote in favor of reissuance. The Commission may consider whether the firm or joint venture should be required to submit satisfactory proof that conditions within the company that led to the violation have been corrected.
(d-1) Repealed.
(e) Any contract awarded to a business enterprise based on the use of a provisional certification issued pursuant to § 2-218.62 shall be voidable by the District if the final disposition of an application for a certificate of registration is denied pursuant to § 2-218.61.
(f) The Department may downgrade the certification of registration of a business enterprise that ceases to meet the requirements of a particular category of certification; provided, that this subsection shall not apply where a business enterprise ceases to qualify as a local business enterprise.
(Oct. 20, 2005, D.C. Law 16-33, § 2363, 52 DCR 7503; Mar. 2, 2007, D.C. Law 16-192, § 2132(k), 53 DCR 6899; Sept. 18, 2007, D.C. Law 17-20, § 2062(i), 54 DCR 7052; Apr. 20, 2010, D.C. Law 18-141, § 2(o), 57 DCR 1485; May 27, 2010, D.C. Law 18-159, § 2(e), 57 DCR 3006.)
HISTORICAL AND STATUTORY NOTES
Effect of Amendments
D.C. Law 16-192 added subsec. (e).
D.C. Law 17-20, in subsec. (c), substituted "to the Department or to the Commission" for "to the Commission"; and, in subsec. (e), deleted "by the commission" following "denied".
D.C. Law 18-141 rewrote the section, which had read as follows:
"(a) The Commission may revoke or suspend the certificate of registration of a business enterprise that:
"(1) Engaged in fraud or deceit in obtaining the registration;
"(2) Furnished substantially inaccurate or incomplete ownership or financial information;
"(3) Failed to report changes that affect its eligibility for certification;
"(4) Acted with gross negligence, incompetence, financial irresponsibility, or misconduct in the practice of a trade or profession; or
"(5) Willfully violated any provision of this subchapter or rules adopted pursuant to this subchapter.
"(b)(1) Any person may file with the Commission a complaint alleging a violation of this subchapter against an applicant for registration or a business enterprise registered pursuant to this subchapter. The complaint shall be in writing and sworn to by the complainant.
"(2) The Commission may request that the Department investigate the facts and merits of the complaint.
"(3) The Commission may, without a hearing, dismiss a complaint which it determines to be frivolous or otherwise without merit.
"(4) If the Commission does not determine that a complaint is frivolous or otherwise without merit, it shall hold a hearing on the complaint within 3 months of the filing of the complaint. The Commission shall determine the time and place of the hearing. The Commission shall cause to be issued and served on the person or business enterprise alleged to have committed the violation, hereafter called the "respondent", a written notice of the hearing together with a copy of the complaint at least 30 days prior to the scheduled hearing. Notice shall be served by registered or certified mail, return receipt requested, or by personal service. At the hearing, the respondent shall have the right to appear personally or by a representative and to cross-examine witnesses and to present evidence and witnesses.
"(5) If, after the conclusion of the hearing, the Commission determines that the respondent has violated the provisions of this subchapter or regulations issued pursuant to this subchapter, the Commission shall issue, and cause to be served on the respondent, a decision and order, accompanied by findings of fact and conclusions of law, revoking or suspending the respondent's registration, or taking any other action it deems appropriate.
"(6) The Commission shall have the authority to issue subpoenas requiring the attendance of witnesses and to compel the production of records, papers, and other documents.
"(c) In addition to the procedures and penalties provided in subsection (b) of this section, the Attorney General for the District of Columbia may bring a civil action in the Superior Court of the District of Columbia against a business enterprise and the directors, officers, or principals of a business enterprise that is reasonably believed to have obtained certification by fraud or deceit or to have willfully furnished substantially inaccurate or incomplete ownership information to the Department or to the Commission. A business enterprise or individual found guilty under this subsection shall be subject to a civil penalty of not more than $100,000.
"(d) The Commission may at any time reissue a certificate of registration to any firm or joint venture whose certificate has been revoked; provided, that a majority of at least 4 members of the Commission vote in favor of reissuance. The Commission may consider whether the firm or joint venture should be required to submit satisfactory proof that conditions within the company that led to the violation have been corrected.
"(e) Any contract awarded to a business enterprise based on the use of a provisional certification issued pursuant to § 2-218.62 shall be voidable by the District if the final disposition of an application for a certificate of registration is denied pursuant to § 2-218.61."
D.C. Law 18-159, in subsec. (a-1)(1), substituted "business enterprise" for "person or business enterprise"; in subsec. (b)(1)(A), substituted "the Commission through the Department" for "the Department"; in subsec. (b)(2), substituted "Commission" for "Department" and "Commission" for "Director"; in subsec. (b)(3), substituted "Commission" for "Director"; added subsecs. (b)(4), (5), and (6); and repealed subsec. (d-1), which had read as follows:
"(d-1) The Department may at any time reissue a certificate of registration to any firm or joint venture whose certificate has been revoked. The Department may consider whether the firm or joint venture should be required to submit satisfactory proof that conditions within the company that led to the violation have been corrected."
Emergency Act Amendments
For temporary (90 day) addition, see § 2363 of Fiscal Year 2006 Budget Support Emergency Act of 2005 (D.C. Act 16-168, July 26, 2005, 52 DCR 7667).
For temporary (90 day) amendment of section, see § 2132(k) of Fiscal Year 2007 Budget Support Emergency Act of 2006 (D.C. Act 16-477, August 8, 2006, 53 DCR 7068).
For temporary (90 day) amendment of section, see § 2132(k) of Fiscal Year 2007 Budget Support Congressional Review Emergency Act of 2006 (D.C. Act 16-499, October 23, 2006, 53 DCR 8845).
For temporary (90 day) amendment of section, see § 2132(k) of Fiscal Year 2007 Budget Support Congressional Review Emergency Act of 2007 (D.C. Act 17-1, January 16, 2007, 54 DCR 1165).
For temporary (90 day) amendment of section, see § 2062(i) of Fiscal Year 2008 Budget Support Emergency Act of 2007 (D.C. Act 17-74, July 25, 2007, 54 DCR 7549).
Legislative History of Laws
For Law 16-33, see notes following § 2-218.01.
For Law 16-192, see notes following § 2-218.31.
For Law 17-20, see notes following § 2-215.24.
For Law 18-141, see notes following § 2-218.02.
For Law 18-159, see notes following § 2-218.46.
(a)(1) Except as otherwise provided by law, a contractor or business enterprise may not:
(A) Identify a certified business enterprise in a bid or proposal unless it:
(i) Has obtained authorization from the certified business enterprise to identify the certified business enterprise in its bid or proposal;
(ii) Has notified the certified business enterprise before execution of the contract of its inclusion in the bid or proposal; and
(iii) Uses the certified business enterprise in the performance of the contract; or
(B) Pay the certified business enterprise solely for the use of its name in the bid or proposal.
(2) A person who violates any provision of this subsection is guilty of a felony and, upon conviction, subject to a fine not to exceed $15,000, imprisonment not to exceed 5 years, or both.
(b)(1) A person may not make false statements about whether an entity has business enterprise certification.
(2) A person who violates this subsection is guilty of a misdemeanor and, upon conviction, subject to a fine not to exceed $5,000, imprisonment not to exceed one year, or both.
(Oct. 20, 2005, D.C. Law 16-33, § 2364, as added Apr. 20, 2010, D.C. Law 18-141, § 2(p), 57 DCR 1485; May 27, 2010, D.C. Law 18-159, § 2(f), 57 DCR 3006.)
HISTORICAL AND STATUTORY NOTES
Effect of Amendments
D.C. Law 18-159 rewrote subsec. (a)(1)(A)(i); and, in subsec. (a)(2), substituted "imprisonment not to exceed 5 years," for "imprisonment,". Prior to amendment, subsec. (a)(1)(A)(i) read as follows:
"(i) Has requested, received, or otherwise obtained authorization from the certified business enterprise to identify the certified business enterprise in its bid or proposal;".
Legislative History of Laws
For Law 18-141, see notes following § 2-218.02.
For Law 18-159, see notes following § 2-218.46.
The District of Columbia Auditor may conduct random audits of certification files to determine whether the Department followed the requirements set forth in § 2-218.61. The District of Columbia Auditor shall submit findings and recommendations to the Department and the Council.
(Oct. 20, 2005, D.C. Law 16-33, § 2365, as added Apr. 20, 2010, D.C. Law 18-141, § 2(p), 57 DCR 1485.)
HISTORICAL AND STATUTORY NOTES
Legislative History of Laws
For Law 18-141, see notes following § 2-218.02.
