(a) This chapter shall be liberally construed and applied to promote its underlying purposes and policies.
(b) In enacting this chapter, the Council supports the following statutory purposes:
(1) To simplify, clarify, and modernize the law governing the procurement of goods, services, and construction items by the District government;
(2) To foster effective and equitably broad-based competition in the District by supporting the free enterprise system and the certified business enterprise program as set forth in subchapter IX-A of Chapter 2 of this title, and its implementing rules;
(3) To obtain full and open competition by providing that contractors are given adequate opportunities to bid;
(4) To ensure the fair and equitable treatment of all persons who deal with the procurement system of the District government;
(5) To increase public confidence in the procedures followed in public procurement;
(6) To promote efficiency and eliminate duplication in the District government procurement organization and operation to reduce costs;
(7) To provide increased economy in procurement activities and maximize, to the fullest extent practicable, the purchasing power of the District government;
(8) To permit the continued development of procurement laws, policies, and practices;
(9) To provide for timely, effective, and efficient service to District agencies and individuals doing business with the District government;
(10) To promote the development of uniform procurement procedures District government-wide;
(11) To improve the understanding of procurement laws and policies within the District government by organizations and individuals doing business with the District government; and
(12) To promote, to the maximum extent feasible, the purchase of environmentally preferable products and services.
(Apr. 8, 2011, D.C. Law 18-371, § 101, 58 DCR 1185.)
HISTORICAL AND STATUTORY NOTES
Prior Codifications
2001 Ed., § 2-301.01.
Legislative History of Laws
Law 18-371, the "Procurement Practices Reform Act of 2010", was introduced in Council and assigned Bill No. 18-610, which was referred to the Committee on Government Operations and the Environment. The Bill was adopted on first and second readings on November 23, 2010, and December 7, 2010, respectively. Signed by the Mayor on February 3, 2011, it was assigned Act No. 18-723 and transmitted to both Houses of Congress for its review. D.C. Law 18-371 became effective on April 8, 2011.
Unless superseded by the particular provisions of this chapter, the principles of law and equity, including subtitle I of Title 28 of the District of Columbia Official Code, and laws relative to capacity to contract, agency, fraud, misrepresentation, duress, coercion, mistake, or bankruptcy, shall supplement the provisions of this chapter.
(Apr. 8, 2011, D.C. Law 18-371, § 102, 58 DCR 1185.)
HISTORICAL AND STATUTORY NOTES
Prior Codifications
2001 Ed., § 2-301.02.
Legislative History of Laws
For history of Law 18-371, see notes under § 2-351.01.
Every contract or duty within this chapter imposes an obligation of good faith in its performance or enforcement. For purposes of this chapter, the term "good faith" means honesty in fact in the conduct or transaction concerned and the observance of reasonable commercial standards of fair dealing.
(Apr. 8, 2011, D.C. Law 18-371, § 103, 58 DCR 1185.)
HISTORICAL AND STATUTORY NOTES
Prior Codifications
2001 Ed., § 2-351.03.
Legislative History of Laws
For history of Law 18-371, see notes under § 2-351.01.
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.
(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, including any public structure, public building, or other public improvements of any kind to real property. The term "construction" shall not include the routine operation, routine repair, or routine maintenance of an existing public infrastructure facility, including structures, buildings, or real property.
(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.
(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.
(38) "Invitation for Bids" means all documents, including documents attached or incorporated by reference, used for soliciting bids pursuant to § 2-354.02.
(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.
(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.
(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.)
HISTORICAL AND STATUTORY NOTES
Legislative History of Laws
For history of Law 18-371, see notes under § 2-351.01.
(a) Except as provided in this section, this chapter shall apply to all subordinate agencies, instrumentalities, and employees of the District government, independent agencies, boards, and commissions.
(b) Only §§ 2-351.02, 2-351.03, 2-351.04, and subchapters III, IV, V, VII, IX, X, XI, and XII of this chapter shall apply to the Council. The duties of the CPO shall be exercised by the Council for the purposes of the application of those sections and subchapters to the Council. Notwithstanding § 2-352.01, the Mayor or the CPO shall not have the authority to monitor, review, or establish standards, procedures, regulations, or rules for contracts or procurements of the Council, unless authorized by the Council.
(c) This chapter shall not apply to:
(1) The acquisition, disposition, or transfer of a real property asset or interest in a real property asset by lease, purchase, sale, or other method;
(2) A transaction pursuant to the subchapter I of Chapter 11 of Title 10;
(3) The District of Columbia Housing Finance Agency;
(4) The District of Columbia courts;
(5) The District Public Defender Service;
(6) The District of Columbia Advisory Neighborhood Commissions;
(7) The District of Columbia Water and Sewer Authority;
(8) Repealed.
(9) The Washington Convention and Sports Authority;
(10) The District of Columbia Auditor;
(11) The Not-for-Profit Hospital Corporation;
(12) A contract or agreement receiving or making grants or loans or for federal financial assistance;
(13) The procurement of services for the design, development, and construction of a facility on real property that has been disposed of pursuant to the authority in § 10-801; provided, that the construction of the facility is required by the Land Disposition Agreement, or similar agreement, governing the disposition of the real property;
(14) The District of Columbia Retirement Board; and
(15) The procurement of services for the demolition of an existing facility and the design, development, and construction of a facility comprised of a fire station and office space for the Fire and Emergency Medical Services Department on real property located at Butternut Street and Georgia Avenue, N.W., at the Walter Reed Army Medical Center.
(Apr. 8, 2011, D.C. Law 18-371, § 105, 58 DCR 1185; Sept. 14, 2011, D.C. Law 19-21, § 1032(c), 58 DCR 6226; Dec. 2, 2011, D.C. Law 19-50, § 2, 58 DCR 8947; Sept. 26, 2012, D.C. Law 19-171, § 15(a), 59 DCR 6190.)
HISTORICAL AND STATUTORY NOTES
Effect of Amendments
D.C. Law 19-21 repealed subsec. (c)(8), which had read as follows:
"(8) The Office of Public Education Facilities Modernization;"
D.C. Law 19-50, in subsec. (c), deleted "and" from the end of par. (11 ), substituted "; and" for a period the end of par. (12 ), and added pars. ( 13) to (15).
D.C. Law 19-171, in subsec. (c)(13), validated a previously made technical correction.
Emergency Act Amendments
For temporary (90 day) amendment of section, see § 1012(c) 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 of Building 18 Procurement Authority Emergency Amendment Act of 2011 (D.C. Act 19-127, August 1, 2011, 58 DCR 6770).
For temporary (90 day) amendment of section, see § 2(a) of District of Columbia Retirement Board Procurement Exemption Emergency Amendment Act of 2011 (D.C. Act 19-144, August 9, 2011, 58 DCR 6821).
Legislative History of Laws
For history of Law 18-371, see notes under § 2-351.01.
For history of Law 19-21, see notes under § 2-308.15.
Law 19-50, the "Disposed Real Property Procurement Clarification Amendment Act of 2011", was introduced in Council and assigned Bill No. 19-294, which was referred to the Committee on Government Operations and the Environment. The Bill was adopted on first and second readings on July 12, 2011, and September 20, 2011, respectively. Signed by the Mayor on October 11, 2011, it was assigned Act No. 19-180 and transmitted to both Houses of Congress for its review. D.C. Law 19-50 became effective on December 2, 2011.
For history of Law 19-171, see notes under § 2-218.13.
