Summary of District of Columbia Laws
"Procurement Practices Act of 1995"
D.C. Code Ann. §§ 2-301.01 to 2-311.02
The Law: The Act applies to all contracts and intergovernmental and interagency agreements for the procurement or disposal of goods and services by executive agencies and employees subordinate to the Mayor. See D.C. Code Ann. §§ 2-301.04(c) and (d). The goal of the law is to ensure fairness, propriety, and efficiency when contracting with governmental entities and emphasizes competitive procurement to maximize value and quality. The Act requires that District government contracts be awarded by competitive sealed bidding, competitive sealed proposals, sole source contracts, or small purchase procedures. See D.C. Reg. 1420.
The Act provides standards for bid protests and allows the D.C. Contract Appeals Board (DCCAB) to adopt rules for protesting a solicitation or contract award. These rules are published in the D.C. Register under the date of April 21, 1989. The rules have been amended and can be found in chapters 1-3 of title 27 of the D.C. Municipal Regulations. Also see 36 D.C. Reg. 2684-2699 for the General Rules of the Contract Appeals Board, 36 D.C. Reg. 2700-2709 for Appeal Procedures, and 36 D.C. Reg. 2710-2718 for Protest Procedures.
Contracting Under the Act:
Methods of Contracting: There are generally five ways in which a D.C. government contract can be procured:
Competitive Sealed Bidding: This is the preferred type of contract in which contractors may submit bids to be opened publicly at a predetermined place and time in response to a public notice of an invitation for bids. See D.C. Code Ann. § 2-303.03. The Director of the Department of Administrative Services must explain and justify decisions to use another type of contract.
Competitive Sealed Proposals: Proposals may be solicited from qualified sources and will be evaluated upon established criteria in order for the government to achieve the most advantageous result.
Sole Source Procurement: This method allows awards to be made through non-competitive negotiations provided that certain specified conditions are met. For example, these conditions include that only one source exists, the contract is for the purchase of real property, or an emergency has been declared.
Small Purchases: These procedures may be used when the goods and services being bought are for less than $10,000.
Emergency Procurements: Finally, the District may stray from ordinary procurement processes if there is a threat to public health, safety, or welfare. However, they must make purchases using competitive procedures as maximally practicable given the circumstances.
Types of Contracts: Any type of contract can be used but each are subject to limitations under the Act. However, there is a preference for four types of contracts: (1) fixed price; (2) fixed-priced incentive; (3) cost plus incentive fee; (4) cost plus fixed fee or cost reimbursement. See D.C. Code Ann. §§ 2-303.10 and 2-303.11.
Contract Records and Recordkeeping: A contractor is required to submit cost or pricing data before entering into a contract awarded through methods (2) and (3) (see above), and before finalizing or modifying a contract. These records must certify that the data submitted is accurate, current, and complete. However, the cost and pricing data is not required where the negotiated price of the contract is based on established catalog or market prices of commercial items sold in substantial quantities to the general public or prices set by law or regulation. See D.C. Code Ann. § 2-303.8.
The contractor must maintain records pertaining to a contract for three years from the date of final payment under the contract. The Director must make these records available within three working days of a written request. The Director may inspect the plant or place of business of the contractor with an open contract or one that is about to be awarded a contract, and may audit the contractor's books and records pertaining to specific contracts in specified circumstances. See D.C. Code Ann. § 2-303.14.
Filing a Protest: To challenge the award of a contract, the protest should include the name, address, and telephone number of the protester; the identity of the contracting activity; the number of the solicitation; if awarded, the number of the contract; a clear and concise statement of the legal and factual grounds of the protest; and a statement of the form of relief requested. See The D.C. Practice Manual, Volume 1, Chapter 14: Government Contracts, 14-3. The deadline for filing is within 10 working days after the claimant knew or should have known of the facts and circumstances the protest is based upon. The DCCAB is required to acknowledge the protest from the claimant in writing and to notify the contracting agency within five days of receipt of the protest. For additional steps, consult the D.C. Code.
A party may also make another kind of "claim," defined by the D.C. Municipal Regulations as "a written demand or written assertion by the District or a contractor seeking, as a matter of right, the payment of money in sum certain, the adjustment or interpretation of the contract terms, or other relief arising under or relating to the contract." See D.C. Mun. Regs. tit. 27, § 3899.1. The regulations governing the informal dispute resolution process are found in the D.C. Mun. Regs. tit. 27, § 3800 et seq.
If a contractor is unable to resolve a dispute through informal discussions, he/she may file a written claim with the contracting officer by certified mail, return receipt requested, or hand-delivered to the officer. If the contractor is not satisfied with the decision of the Board, the claim may then be filed with the Director of the Department of Administrative Services.
Also Note: The D.C Financial Responsibility and Management Assistance Act of 1995, created the D.C. Financial Responsibility and Management Assistance Authority (DCFRMAA) to provide oversight of the District's finances and management. This agency has issued "Regulations Governing Submission by the Government of Proposed Leases and Contracts for Authority Review and Approval," requiring the DCFRMAA to review and approve most procurement awards prior to their execution.
There have also been several task forces created to review District procurement practices under the Procurement Practices Act which make recommendations to improve contracting with the goal of centralizing the procurement process to provide for efficiency, quality and accountability.
Reference: Other related procurement statutes can be found in chapters 11 and 11A of title 1 of the D.C. Code and the regulations for implementation of the Act can be found in title 27 of the D.C. Municipal Regulations. Also note the federal Walsh-Healy Public Contracts Act, 41 U.S.C. §§ 35-45.
When filing a protest, contact the Contract Appeals Board, 717 14th Street, N.W., Suite 430, Washington, D.C. 20005.
For more information about D.C. procurements, contact the D.C. Procurement Hotline at (202) 727-4040 for matters relating to supplies and services, or consult the D.C. Procurement Digest which also lists solicitations and awards. Solicitations can be made at (202) 727-0171.
Sources for other relevant issues:
Cancellation of Solicitation: See D.C. Code Ann. § 2-3030.7
Remedies for Contractor Violations: See D.C. Code Ann. § 2-303.18
Prohibitions in Contracting: See D.C. Code Ann. § 2-303.17
updated 2/18/08 RAB
links updated 6/9/08 rab
Page checked August 4th, 2010, FJL.