(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) Notwithstanding paragraph (1) of this subsection, until October 1, 2013, the Police and Firefighter's Retirement and Relief Board, through its chief procurement officers, shall exercise the duties of the CPO.
(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 Mental 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;
(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) The District of Columbia Retirement Board;
(8) The Public Service Commission;
(9) The Office of the People's Counsel;
(10) The Criminal Justice Coordinating Council; and
(11) The Department of General Services.
(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 2-352.01(b) and roads and bridges, the Department of Real Estate Services shall have procurement authority for construction and related services under subchapter VI of this chapter.
(e) Except as otherwise provided in § 2-351.05(b), the CPO may review and monitor procurements 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.
(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.)
HISTORICAL AND STATUTORY NOTES
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).
Emergency Act Amendments
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).
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.
(a) Pursuant to § 1-204.51, prior to 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.
(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, and type of contract;
(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) The selection process, including the number of offerors, the evaluation criteria, and the evaluation results, including price and technical components;
(4) The background and qualifications of the proposed contractor, including its organization, financial stability, personnel, and prior performance on contracts with the District government;
(5) Performance standards and expected outcomes of the proposed contract;
(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 certification that the proposed contractor is current with its District and federal taxes or has worked out and is current with a payment schedule approved by the District or federal government;
(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;
(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; and
(12) Where the contract, if executed, will be made available online.
(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.
(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.
(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.)
HISTORICAL AND STATUTORY NOTES
Prior Codifications
2001 Ed., § 2-301.05e.
Legislative History of Laws
For history of Law 18-371, see notes under § 2-351.01.
(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.
(Apr. 8, 2011, D.C. Law 18-371, § 203, 58 DCR 1185.)
HISTORICAL AND STATUTORY NOTES
Legislative History of Laws
For history of Law 18-371, see notes under § 2-351.01.
(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.)
HISTORICAL AND STATUTORY NOTES
Legislative History of Laws
For history of Law 18-371, see notes under § 2-351.01.
(a) Before issuing a solicitation for a privatization contract pursuant to this section, the District government agency on whose behalf the solicitation will be issued shall prepare an estimate of the fully allocated cost associated with providing the relevant goods or services using District government employees. The agency shall transmit this estimate to the contract specialist responsible for the solicitation, who shall retain the estimate as part of the official contract file.
(b) A solicitation for a proposed privatization contract issued pursuant to this section shall include information describing how current District government employees may exercise the right to bid on the contracts.
(c) Before awarding a privatization contract, and prior to modifying a contract, the Mayor, instrumentality, or independent agency head shall transmit to the Council a determination and findings that:
(1) Compares the current fully allocated cost of providing the services using District government employees, departments, or agencies, using the estimate described in subsection (a) of this section, to the fully allocated costs associated with contracting for the service;
(2) Demonstrates that the privatization contract will provide savings of at least 5% over the duration of the contract in terms of total cost or the unit cost of providing the goods or services;
(3) Describes the expected impact of the privatization contract on the quality of goods or services provided to or on behalf of the District government, including performance targets and requirements for the contractor; and
(4) Includes a written confirmation of review by officials, including the Chief Financial Officer, the Attorney General for the District of Columbia, and the CPO.
(d) A privatization contract, or any contracting policies and procedures relating to these contracts, to provide goods and services to or on behalf of the District government, including a contract resulting from a process of managed competition, shall provide that:
(1) The Mayor, instrumentality, or independent agency head shall complete the determination and findings described in subsection (c) of this section and transmit the determination and findings to the Council prior to the award of the contract;
(2) A contractor who is awarded a contract that displaces District government employees shall offer to the 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 without cause;
(3) Any District employee who is displaced as a result of a privatization contract, and is hired by the contractor who was awarded the privatization 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. § 351 et seq.);
(4) If the employee's performance during the 6-month transitional employment period described in paragraph (2) of this subsection is satisfactory, the contractor shall offer the employee continued employment under terms and conditions established by the contractor;
(5) The privatization contract shall incorporate specific performance criteria and 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; and
(6) The privatization contract may be canceled if the contractor fails to comply with the performance criteria set out in the contract.
(e) If a privatization contract is awarded, the Mayor, instrumentality, or the independent agency head shall make efforts to assist affected District government employees and to promote employment opportunities for District residents with the contractor. These efforts shall include:
(1) Consulting with union representatives and District government employees who would be affected by the privatization contract;
(2) Providing prior notification of at least 30 days of any adverse impact of a privatization contract to District government employees who would be affected by the contract, including notification to a labor organization certified as the exclusive representative of employees affected by the contract;
(3) Providing alternative employment in the District government to displaced District government employees if there are unfilled positions for which those employees are qualified; and
(4) Encouraging the contractor to offer employment to qualified District residents before offering employment to qualified nonresidents.
(f) An agency shall not attempt to circumvent the requirements of this section by eliminating the provision of goods or services by the agency before procuring substantially the same goods or services from a person who is not part of the District government.
(Apr. 8, 2011, D.C. Law 18-371, § 205, 58 DCR 1185.)
HISTORICAL AND STATUTORY NOTES
Legislative History of Laws
For history of Law 18-371, see notes under § 2-351.01.
(Apr. 8, 2011, D.C. Law 18-371, § 206, 58 DCR 1185.)
HISTORICAL AND STATUTORY NOTES
Legislative History of Laws
For history of Law 18-371, see notes under § 2-351.01.
Miscellaneous Notes
Section 1203 of D.C. Law 18-371 provides that this section shall apply upon the inclusion of its fiscal effect in an approved budget and financial plan.
The Budget Director of the Council of the District of Columbia has determined, as of February 15, 2012, that the fiscal effect of section 206 Law 18-371 has not been included in an approved budget and financial plan. Therefore, the provisions of this section, enacted by Law 18-371, are not in effect.
