D.C. Act 21-504. Procurement Integrity, Transparency, and Accountability Emergency Amendment Act of 2016.
AN ACT
To amend, on an emergency basis, the District of Columbia Government Quick Payment Act of 1984 to require a change order clause in contracts, and to establish a minimum interest penalty and faster review of claims by contracting officers; to amend the Procurement Practices Reform Act of 2010 to clarify the authority of the Chief Procurement Officer to review contracts of all agencies, allow procurement of facilities maintenance services for certain District-owned buildings, require additional transparency in Council contract summaries, amend requirements for the solicitation and award of privatization contracts, establish restrictions on the performance of inherently governmental functions by contractors, establish an Agency Ombudsman for Contracting and Procurement at District agencies, allow the District to reduce payments to vendors to recoup minor delinquent tax amounts, prohibit certain contacts during source selection, establish contractor past performance as an evaluation criteria during source selection, require a government cost estimate for construction projects, modify surety requirements for construction contracts and non-construction service contracts, clarify the scope of the Contract Appeals Board's review of procurements with regard to business judgment, modify requirements for posting contract information on the Internet, and clarify the rulemaking authority of the Chief Procurement Officer and the Department of General Services; and to amend the Department of General Services Establishment Act of 2011 to clarify the authority of the Department of General Services with regard to the representative program.
BE IT ENACTED BY THE COUNCIL OF THE DISTRICT OF COLUMBIA, That this act may be cited as the "Procurement Integrity, Transparency, and Accountability Emergency Amendment Act of 2016".
Sec. 2. The District of Columbia Government Quick Payment Act of 1984, effective March 15, 1985 (D.C. Law 5-164; D.C. Official Code § 2-221.01 et seq.), is amended as follows:
(a) Section 3(d) (D.C. Official Code § 2-221.02(d)) is amended by adding a new paragraph (4) to read as follows:
"(4) A change order clause that:
"(A) Prohibits the District or a prime contractor from requiring a prime contractor or a subcontractor to undertake any work that is determined to be beyond the original scope of the prime contractor's or a subcontractor's contract or subcontract, including work under a District-issued change order, when the additional work increases the contract price beyond the not-to-exceed price or negotiated maximum price of the underlying contract, unless the contracting officer:
"(i) Agrees with the prime contractor and, if applicable, the subcontractor on a price for the additional work;
"(ii) Obtains a certification from the Chief Financial Officer that there are sufficient funds to compensate the prime contractor and, if applicable, the subcontractor for the additional work;
"(iii) Has made a written, binding commitment with the prime contractor to pay for the additional work within 30 days after the prime contractor submits a proper invoice for the additional work to the contracting officer; and
"(iv) Gives written notice of the funding certification from the Chief Financial Officer to the prime contractor;
"(B) Requires a prime contractor to include in its subcontracts a clause that requires the prime contractor to:
"(i) Within 5 business days of receipt of the notice required under subparagraph (A)(iv) of this paragraph, provide the subcontractor with notice of the approved amount to be paid to the subcontractor based on the portion of the additional work to be completed by the subcontractor;
"(ii) Pay the subcontractor any undisputed amount to which the subcontractor is entitled for any additional work within 10 days of receipt of payment for the additional work from the District; and
"(iii) If the prime contractor withholds payment from a subcontractor, notify the subcontractor in writing and state the reason why payment is being withheld and provide a copy of the notice to the contracting officer; and
"(C) Prohibits the District, a prime contractor, or a subcontractor from declaring another party to the contract to be in default or assessing, claiming, or pursuing damages for delays in the completion of the construction due to the inability of the parties to agree on a price for the additional work.".
(b) Section 4(b) (D.C. Official Code § 2-221.03(b)) is amended by striking the phrase "shall pay an interest penalty" and inserting the phrase "shall pay an interest penalty of at least 1.5%" in its place.
(c) Section 5(a)(2) (D.C. Official Code § 2-221.04(a)(2)) is amended by striking the phrase "60 days" and inserting the phrase "30 days" in its place.
Sec. 3. The Procurement Practices Reform Act of 2010, effective April 8, 2011 (D.C. Law 18-371; D.C. Official Code § 2-351.01 et seq.), is amended as follows:
(a) Section 104 (D.C. Official Code § 2-351.04) is amended as follows:
(1) A new paragraph (34A) is added to read as follows:
"(34A) "Function closely associated with an inherently governmental function" means a function that is not an inherently governmental function, but is similar to an inherently governmental function because of the nature of the function, the manner in which the contractor performs the function, or the manner in which the government administers the contractor's performance of the function, as determined by application of the criteria set forth under section 205a.".
(2) A new paragraph (37B) is added to read as follows:
"(37B) "Inherently governmental function" means a function that is so intimately related to the public interest as to require performance by District government employees, as determined by application of the criteria set forth under section 205a.".
(3) A new paragraph (38A) is added to read as follows:
"(38A) "Labor organization" shall have the same meaning as provided in section 102(15) of the Human Rights Act of 1977, effective December 13, 1977 (D.C. Law 2-38; D.C. Official Code § 2-1401.02(15)).".
(4) A new paragraph (53A) is added to read as follows:
"(53A) "Restricted period" means the period of time commencing with the earliest written notice, advertisement, or solicitation of a request for proposal, invitation for bids, or any other method of soliciting a response from offerors or bidders intended to result in a contract with the District, and ending with either the execution of the final contract and its approval by the District or submission of the contract to the Council for its review when such submission is required pursuant to section 451 of the District of Columbia Home Rule Act, approved December 24, 1973 (87 Stat. 803; D.C. Official Code § 1-204.51).".
(b) Section 105(c)(13) (D.C. Official Code § 2-351.05(c)(13)) is amended to read as follows:
"(13) The procurement of services for the design, development, construction, and maintenance of a facility on real property that has been disposed of pursuant to District law or on District-owned real property adjacent to a disposed-of property; provided, that the construction of the facility be required by a Land Disposition Agreement, or similar agreement, governing the disposition of the real property;".
(c) Section 201 (D.C. Official Code § 2-352.01) is amended as follows:
(1) Subsection (d) is amended to read as follows:
"(d) Except regarding agencies exempted in section 105(c) and 201(b) and roads, bridges, other transportation systems, and facilities and structures appurtenant to roads, bridges, and other transportation systems, the Department of General Services shall have procurement authority for:
"(1) Construction and related services under Title VI of this act; and
"(2) Facilities maintenance and operation services, real estate asset management services, utility contracts, and security services, as set forth in section 1023(5) of the Department of General Services Establishment Act of 2011, effective September 14, 2011 (D.C. Law 19-21; D.C. Official Code § 10-551.02(5)).".
(2) Subsection (e) is amended to read as follows:
"(e) Except as otherwise provided in section 105(b), the CPO may review and monitor procurements, including for construction and related services under Title VI of this act, by any agency, instrumentality, employee, or official exempt under this act or authorized to procure independently of OCP.".
(d) Section 202 (D.C. Official Code § 2-352.02) is amended as follows:
(1) Subsection (a) is amended to read as follows:
"(a)(1) Pursuant to section 451 of the District of Columbia Home Rule Act, approved December 24, 1973 (87 Stat. 803; D.C Official Code § 1-204.51), before 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.
"(2) For a contract modification to exercise an option period when the exercise of the option period does not result in a material change in the terms of the underlying contract, submission of the modification to exercise the option period shall constitute submission of the contract pursuant to this subsection.".
(2) Subsection (c) is amended as follows:
(A) Paragraph (1) is amended by striking the phrase "and type of contract;" and inserting the phrase "type of contract, and the source selection method;" in its place.
(B) New paragraphs (1A) and (1B) are added to read as follows:
"(1A) For a contract containing option periods, the contract amount for the base period and for each option period and, if the contract amount for one or more of the option periods differs from the contract amount for the base period, an explanation of the reason or reasons for that difference;
"(1B) If the contract definitizes a letter contract or replaces a contract awarded through an emergency procurement pursuant to section 405:
"(A) The date, or dates, on which the letter contract or contract awarded through an emergency procurement was executed;
"(B) The number of times the letter contract or contract awarded through an emergency procurement has been extended; and
"(C) The value of the goods and services provided to date under the letter contract or contract awarded through an emergency procurement, including under each extension of the letter contract or contract awarded through an emergency procurement.".
(C) Paragraph (3) is amended to read as follows:
"(3)(A) The selection process, including the number of offerors, the evaluation criteria, and the evaluation results, including price, technical or quality, and past-performance components.
"(B) If the contract was awarded on a sole-source basis, the date on which a competitive procurement for the goods or services to be provided under the contract was last conducted, the date of the resulting award, and a detailed explanation of why a competitive procurement is not feasible;".
(D) A new paragraph (3A) is added to read as follows:
"(3A) A description of any bid protest related to the award of the contract, including whether the protest was resolved through litigation, withdrawal of the protest by the protestor, or voluntary corrective action by the District. Each such description shall include the identity of the protestor, the grounds alleged in the protest, and any deficiencies identified by the District as a result of the protest;".
(E) Paragraph (4) is amended by striking the phrase "prior performance on contracts with the District government;" and inserting the phrase "performance on past or current government or private-sector contracts with requirements similar to those of the proposed contract;" in its place.
(F) A new paragraph (4A) is added to read as follows:
"(4A) A summary of the subcontracting plan required under section 2346 of the Small, Local, and Disadvantaged Business Enterprise Development and Assistance Act of 2005, effective October 20, 2005 (D.C. Law 16-33; D.C. Official Code § 2-218.46), to include a certification by the District that the subcontracting plan meets the minimum requirements of the Small, Local, and Disadvantaged Business Enterprise Development and Assistance Act of 2005, effective October 20, 2005 (D.C. Law 16-33; D.C. Official Code § 2-218.01 et seq.), and the dollar volume of the portion of the contract to be subcontracted, expressed both in total dollars and as a percentage of the total contract amount;".
(G) A new paragraph (5A) is added to read as follows:
"(5A) The amount and date of any expenditure of funds by the District pursuant to the contract before its submission to the Council for approval;".
(H) Paragraph (8) is amended to read as follows:
"(8)(A) A certification that the Citywide Clean Hands Database indicates that the proposed contractor is current with its District taxes.
"(B) If the Citywide Clean Hands Database indicates that the proposed contractor is not current with its District taxes:
"(i) A certification that the contractor has worked out and is current with a payment schedule approved by the District; or
"(ii) A certification that the contractor will be current with its District taxes after the District recovers any outstanding debt as provided under section 301(9);".
(I) A new paragraph (8A) is added to read as follows:
"(8A) A certification from the proposed contractor that it is current with its federal taxes, or has worked out and is current with a payment schedule approved by the federal government.".
(J) Paragraph (11) is amended by striking the phrase "debarment; and" and inserting the phrase "debarment;" in its place.
(K) A new paragraph (11A) is added to read as follows:
"(11A) Any determination and findings issued in relation to the contract's formation, including any determination and findings made under section 205;".
(L) Paragraph (12) is amended to read as follows:
"(12) Where the contract, and any amendments or modifications, if executed, will be made available online; and".
(M) A new paragraph (13) is added to read as follows:
"(13) Where the original solicitation, and any amendments or modifications, will be made available online.".
(3) New subsections (c-1), (c-2), and (c-3) are added to read as follows:
"(c-1) A proposed change to the scope or amount of a contract, including the exercise of an option period, a modification, a change order, or any similar change that is submitted to the Council pursuant to this section and seeks from the Council retroactive approval of an action or authorization for payment, shall include the summary required under subsection (c) of this section and also shall include:
"(1) The period of performance associated with the proposed change, including the date as of which the proposed change is to be made effective;
"(2) The value of any work or services performed pursuant to a proposed change for which the Council has not provided approval, disaggregated by each proposed change if more than one proposed change has been aggregated for Council review;
"(3) The aggregate dollar value of the proposed change as compared with the amount of the contract as awarded;
"(4) The date on which the contracting officer was notified of the proposed change;
"(5) The reason why the proposed change was sent to the Council for approval after it is intended to take effect;
"(6) The reason for the proposed change; and
"(7) The legal, regulatory, or contractual authority for the proposed change.
"(c-2) Any proposed change submitted to the Council for its review in accordance with subsection (c-1) of this section shall be referred to the Inspector General who may examine the contract for possible corruption, mismanagement, waste, fraud, or abuse pursuant to section 208(a-1)(2) of the District of Columbia Procurement Practices Act of 1985, effective February 21, 1986 (D.C. Law 6-85; D.C. Official Code § 1-301.115a(a-1)(2)).
"(c-3) The proposed exercise of an option period pursuant to subsection (a)(2) of this section may be submitted electronically and shall contain a summary, including the following:
"(1) The proposed contractor, contract amount, contract term, and contract type;
"(2) The identifying number of the underlying contract, including the identifiers assigned to the underlying contract by the Council for the base period of the contract and any subsequent option periods;
"(3) A statement indicating that the contracting officer determined through the Citywide Clean Hands Database that the contractor is current with its District taxes or has worked out and is current with a payment schedule approved by the District, or that the contracting officer will offset any outstanding amount pursuant to section 301(9); and
"(4) A statement indicating that the proposed contract is within the appropriated budget authority for the fiscal year and is consistent with the financial plan and budget adopted in accordance with D.C. Official Code §§ 47-392.01 and 47-392.02.".
(4) Subsection (e) is amended by striking the phrase "contained therein." and inserting the phrase "contained therein; provided, that a copy of the underlying letter contract be transmitted to the Council with the definitive contract." in its place.
(e) Section 205 (D.C. Official Code § 2-352.05) is amended to read as follows:
"Sec. 205. Privatization contracts.
"(a) A privatization contract shall meet the following requirements:
"(1) Except as provided in subsection (d) of this section, a privatization contract shall not cause the displacement of District government employees including by layoff, demotion, involuntary transfer to a new class, involuntary transfer to a new location requiring a change of residence, or time base reductions. For the purposes of this paragraph, the term "displacement" does not include changes in shifts or days off, nor does it include reassignment to other positions within the same class and general location.
"(2) The privatization contract shall provide the District with an economic advantage, as demonstrated by the determination and findings issued pursuant to subsection (b) of this section.
"(3) The economic advantage of the privatization contract shall not be outweighed by the public's interest in having a particular function performed directly by District employees, as demonstrated in the determination and findings issued pursuant to subsection (b) of this section.
"(4) The privatization contract shall be awarded through a publicized, competitive procurement process pursuant to Title IV of this act.
"(5) The privatization contract shall include specific provisions establishing the minimum qualifications for the employees of the contractor who will perform the work under the contract and an affirmation by the contractor that the contractor's hiring practices meet applicable District standards.
"(b) Before issuing a solicitation for a privatization contract, the Mayor, instrumentality, or independent agency shall:
"(1) Issue a draft determination and findings demonstrating that the cost of having the contracted-for service provided by a contractor will be at least 5% less than if the service were to be provided by employees of the District or its instrumentality or independent agency. The draft determination and findings shall include, at a minimum, the following:
"(A) The estimated cost of having a contractor provide the service contrasted with the costs that would be directly associated with having employees of the District or its instrumentality or independent agency continue performance;
"(B) Personal services costs attributable to having a contractor provide the service contrasted with the personal services costs that would result from having employees of the District or its instrumentality or independent agency continue performance, including salary and fringe benefits;
"(C) Non-personal services costs attributable to having a contractor provide the service contrasted with the non-personal services costs that would result from having employees of the District or its instrumentality or independent agency continue performance, including rent, equipment, and utilities;
"(D) Any additional costs that would be built into a privatization contract, including expected costs related to the administration, oversight, and supervision by District government personnel of a privatization contract;
"(E) A description of the expected impact of a privatization contract on the quality of goods or services provided to or on behalf of the District government;
"(F) The number of employees of the District or its instrumentality or independent agency that are necessary to perform the service proposed to be the subject of a privatization contract; and
"(G) The number of employees of the District or its instrumentality or independent agency that would be displaced by the contract within the meaning of subsection (a)(1) of this section;
"(2) Request an analysis by the Chief Financial Officer of whether the costs in the draft determination and findings can be substantiated;
"(3) Share the draft determination and findings with employees who could be displaced within the meaning of subsection (a)(1) of this section as a result of the privatization contract and any labor unions or groups representing those employees to solicit their comments; and
"(4) Issue a final determination and findings that incorporate the full analysis by the Chief Financial Officer, and a summary of comments provided pursuant to paragraph (3) of this subsection. Each final determination and findings shall be made publicly available online before any solicitation for a privatization contract based on the final determination and findings is issued.
"(c)(1) If the Mayor, instrumentality, or independent agency issues a solicitation for a privatization contract that would displace employees of the District or its instrumentality or independent agency, those employees or a person or entity representing those employees may submit a bid or proposal to perform the services as a private entity; provided, that the employees agree to resign their employment with the District or its instrumentality or independent agency upon selection as the awardee of the contract after final approval of the contract.
"(2) The Mayor, instrumentality, or independent agency shall consider any employee bid or proposal submitted pursuant to paragraph (1) of this subsection on the same basis as any other bid or proposal.
"(3) Reserved.
"(4) A solicitation for a privatization contract shall include information describing how displaced employees of the District or its instrumentality or independent agency may exercise their right to compete for the contract pursuant to this subsection.
"(d) A privatization contract that causes employees of the District or its instrumentality or independent agency to be displaced within the meaning of subsection (a)(1) of this section may be awarded; provided, that:
"(1) The contractor shall offer to each 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 by the contractor without cause;
"(2) Any District employee who is displaced as a result of a privatization contract and is hired by the contractor who was awarded the 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. § 6701 et seq.);
"(3) If the employee's performance during the 6-month transitional employment period described in paragraph (1) of this subsection is satisfactory, the contractor shall offer the employee continued employment under terms and conditions established by the contractor; and
"(4) The Mayor, instrumentality, or the independent agency head shall make efforts to assist employees of the District or its instrumentality or independent agency who would be affected by the privatization contract and to promote employment opportunities for District residents with the contractor. These efforts shall include:
"(A) Consulting with union representatives and employees of the District or its instrumentality or independent agency who would be affected by the privatization contract;
"(B) Providing prior notification of at least 30 days of any adverse impact of a privatization contract to employees of the District or its instrumentality or independent agency who would be affected by the contract, including notification to a labor organization certified as the exclusive representative of employees affected by the contract;
"(C) Providing alternative employment in the District government to displaced employees if there are unfilled positions for which those employees are qualified; and
"(D) Encouraging the contractor to offer employment to qualified District residents before offering employment to qualified nonresidents.
"(e)(1) Any privatization contract shall incorporate specific performance standards and targets including for productivity and cost savings to be achieved under the contract.
"(2) 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.
"(3) The contract may be canceled without prejudice to the District if the contractor fails to comply with the performance criteria set out in the contract.
"(f) An agency or instrumentality shall not attempt to circumvent the requirements of this section by eliminating the provision of services by its own employees before procuring substantially the same services from a person who is not employed by that agency or instrumentality.
"(g)(1) Each year the District of Columbia Auditor shall review a selection of privatization contracts, which shall be chosen by the Auditor based on the dollar value and scope of the contracts, their potential impact on the health and safety of District residents, their potential impact on economic development and employment opportunities in the District, and other factors deemed appropriate by the Auditor.
"(2) The Auditor shall issue an annual report to the Mayor and the Council on the contracts reviewed pursuant to paragraph (1) of this subsection, analyzing for each contract whether it is achieving:
"(A) The minimum 5% cost-savings requirement set forth in subsection (b)(1) of this section; and
"(B) The performance standards and targets incorporated into the contracts as required under subsection (e) of this section.
"(3) The Auditor may report that the cost and performance data for the selected contracts are inconclusive, but if the District has failed to collect, maintain, or provide cost or performance data, the Auditor reasonably may conclude that the cost savings or performance standards and targets are not being met.
"(4) If the Auditor finds in the report issued pursuant to paragraph (2) of this subsection that a privatization contract has not met the cost savings or performance standards and targets, the Mayor or instrumentality or independent agency head shall review the merits of canceling the privatization contract and performing the work with District employees and shall report to the Council on the results of the review.
"(h) The requirements of this section shall not apply to:
"(1) A contract for a new function for which the Council has specifically mandated or authorized the performance of the work by independent contractors;
"(2) Services that cannot be performed satisfactorily by District government employees, or are of such a highly specialized or technical nature that the necessary expert knowledge, experience, and ability, are not available through District employees, as determined by the Mayor;
"(3) Contracts for staff augmentation services to be provided pursuant to a contract with a term of less than one year that does not contain options to extend the performance period;
"(4) Contracts for services that are incidental to a contract for the purchase or lease of real or personal property such as contracts to maintain office equipment or computers that are leased or rented;
"(5) Contracts that are necessary to protect against a conflict of interest or to insure independent and unbiased findings in cases in which there is a clear need for an unbiased and objective outside perspective, as determined by the Mayor;
"(6) Contracts entered into pursuant to section 201(c);
"(7) Contracts that will provide equipment, materials, facilities, or support services that could not be provided feasibly by the District in the location where the services are to be performed, as determined by the Mayor;
"(8) Contracts to provide training for which appropriately qualified District employees are not available, as determined by the Mayor; and
"(9) Contracts for services that are of such an urgent, temporary, or occasional nature that the delay incumbent in their formation under this section would frustrate their very purpose, as determined by the Mayor.
"(i) The CPO shall promulgate rules, pursuant to section 1106, with detailed procedures to implement the provisions of this section.".
(f) A new section 205a is added to read as follows:
"Sec. 205a. Inherently governmental functions.
"(a) The District shall not award a contract to provide any service that is an inherently governmental function.
"(b) The District may enter into a contract for the performance of a function closely associated with an inherently governmental function only if the head of an agency benefited by the performance of the contract:
"(1) Finds that appropriate District government employees cannot reasonably perform the function at issue;
"(2) Ensures that appropriate District government employees supervise contractor performance of the contract and perform all inherently governmental functions associated with the contract; and
"(3) Addresses any potential organizational conflicts of interest of the contractor in the performance of the functions closely associated with an inherently governmental function under the contract.
"(c) An inherently governmental function involves, among other things, the interpretation and execution of the laws of the District to:
"(1) Bind the District to take or not to take some action by contract, policy, regulation, authorization, order, or otherwise;
"(2) Appoint, direct, or control officials or employees of the District;
"(3) Exert ultimate control over the acquisition, use, or disposition of the property, real or personal, tangible or intangible, of the District, including the control, or disbursement of, appropriated and other District funds.
"(4) With respect to contracts to procure goods or services for the District:
"(A) Determine what supplies or services are to be acquired by the District, and at what prices; provided, that the Mayor or the Mayor's designee may give a contractor authority to acquire supplies for the District at prices within specified ranges and subject to other reasonable conditions considered appropriate;
"(B) Participate as a voting member on any source-selection board, unless the contractor has:
"(i) Been hired by the District for its specific technical expertise; and
"(ii) No conflict of interest exists with regard to the contract or vendors under consideration by the source-selection board;
"(C) Approve any contractual documents, to include documents defining requirements, incentive plans, and evaluation criteria;
"(D) Award contracts;
"(E) Administer contracts, including ordering changes in contract performance or contract quantities, taking action based on evaluations of contractor performance, and accepting or rejecting contractor products or services;
"(F) Terminate contracts;
"(G) Determine whether contract costs are reasonable, allocable, or allowable; and
"(H) Evaluate a contractor's performance when the evaluation is to be used to determine whether payment should be made to the contractor and in what amount.
"(d) The CPO shall issue rules pursuant to section 1106, consistent with this section, containing guidance on further defining an inherently governmental function and a function closely related to an inherently governmental function and including categories of functions and specific functions meeting these definitions.
"(e) The Mayor may waive compliance with any of the requirements of this section for any contract in effect upon the effective date of the Procurement Integrity, Transparency, and Accountability Emergency Amendment Act of 2016, passed on emergency basis on September 20, 2016 (Enrolled version of Bill 21-870)("Emergency Procurement Act"), and for any option period exercised under such contract, so long as the option period was provided for in the contract as of the effective date of the Emergency Procurement Act.
"(f) Notwithstanding subsection (e) of this section, the requirements of this section shall apply to any contract or option period in effect 5 years after the effective date of the Procurement Integrity, Transparency, and Accountability Amendment Act of 2016, enacted on August 18, 2016 (D.C. Act 21-846; 63 DCR 10752).".
(g) A new section 207 is added to read as follows:
"Sec. 207. Ombudsman for contracting and procurement.
"(a) Reserved.
"(b) Each District agency with independent procurement authority pursuant to section 201 shall designate an Agency Ombudsman for Contracting and Procurement.
"(c) Each ombudsman designated pursuant to this section shall:
"(1) Serve as a vehicle for contractors and subcontractors performing work or providing services under a District contract to communicate their complaints and concerns regarding contracting, procurement, or a specific contract, through a single entity;
"(2) Respond to complaints and concerns in a timely fashion with accurate and helpful information;
"(3) Determine the validity of any complaint quickly and professionally;
"(4) Generate options for a response by the agency or instrumentality and offer a recommendation from among the options;
"(5) Except when the parties are involved in legal or administrative proceedings, attempt informally to facilitate a resolution of a dispute between the contracting officer, the prime contractor, and the subcontractor, as appropriate; and
"(6) Identify systemic concerns and recommend to the CPO and the Council policy changes, and strategies to improve the contracting and procurement process.".
(h) Section 301 (D.C. Official Code § 2-353.01) is amended as follows:
(1) The lead-in language is designated as subsection (a).
(2) Paragraph (9) is amended by striking the phrase "delinquent status" and inserting the phrase "delinquent status of more than the greater of $1,000 or 1% of the contract value, up to $25,000" in its place.
(3) A new subsection (b) is added to read as follows:
"(b) If the District awards a contract to a prospective contractor that has an outstanding debt with the District in a delinquent status that is in an amount less than the amount required to disqualify the prospective contractor pursuant to subsection (a)(9) of this section, the District shall recoup the outstanding debt by offsetting it against any payment due to the contractor under the contract.".
(i) Section 401(b) (D.C. Official Code § 2-354.01(b)) is repealed.
(j) A new section 401a is added to read as follows:
"Sec. 401a. Prohibited contacts during source selection.
"(a) Except for members of a technical advisory group, no District employee or official shall contact any contracting officer or contracting staff in an attempt to influence source selection outside of the processes established in Title IV of this act.
"(b) Before the commencement of a restricted period, the CPO, or the lead contracting official of an agency with procurement authority independent of the CPO, shall designate a person or persons to be the designated contact for offerors or bidders on a given contract during the restricted period.
"(c)(1) During the restricted period, no bidder or offeror shall contact any District employee or official with respect to source selection, except as provided for under subsection (d) of this section.
"(2) For the purposes of this section, the term "contact" means any oral, written, or electronic communication.
"(d)(1) During the restricted period, an offeror or bidder may make permissible contact with respect to source selection.
"(2) For the purposes of this section, the term "permissible contact" means that the offeror or bidder shall contact only the individual designated under subsection (b) of this section for a given contract; provided, that the following contacts are exempted from this subsection and do not need to be directed to the individual designated under subsection (b) of this section:
"(A) The submission of written proposals in response to any method for soliciting a response from offerors or bidders intended to result in a contract;
"(B) The submission of written questions through a process set forth in a solicitation, request for proposals, invitation for bids, or any other method of soliciting a response from offerors or bidders intended to result in a contract, so long as the written questions and responses are to be disseminated to all offerors or bidders who have expressed an interest in the proposed contract;
"(C) Participation in any demonstration, conference, or other means of exchanging information in a setting open to all potential bidders or offerors through a process set forth in a solicitation, request for proposals, invitation for bids, or any other method of soliciting a response from offerors or bidders intended to result in a contract;
"(D) Negotiation with the highest-ranking offeror or bidder regarding the terms of the proposed contract; and
"(E) Contacts by offerors or bidders with the Contract Appeals Board or any other tribunal or court of competent jurisdiction in connection with a protest, appeal, or dispute before that tribunal or court.
"(e) A bid or offer associated with a violation of this section shall be rejected, unless the CPO determines that it is in the best interest of the District not to reject the bid or offer.
"(f) For the purposes of this section, the term "bidder" or "offeror" shall include any employee, agent, consultant, or person acting on behalf of a bidder or offeror.
"(g) Nothing in this section shall be construed to prevent any contact or communications by any offeror, bidder, or District employee or official with respect to allegations of improper conduct to the Office of the Attorney General, the Office of the Inspector General, the Office of the District of Columbia Auditor, the CPO, the Council of the District of Columbia, or the Contract Appeals Board or any other tribunal or court of competent jurisdiction.".
(k) Section 403 (D.C. Official Code § 2-354.03) is amended as follows:
(1) Subsection (d) is amended to read as follows:
"(d) Each RFP shall include a statement of work or other description of the District's specific needs, which shall be used as a basis for the evaluation of proposals.".
(2) A new subsection (d-2) is added to read as follows:
"(d-2)(1) Each RFP shall set forth each evaluation factor and indicate the relative importance of each evaluation factor. At a minimum, the following shall be included as evaluation factors:
"(A) Price or cost to the District government;
"(B) The quality of the product or service as addressed by one or more non-cost evaluation factors; and
"(C) Past performance of the offeror.
"(2) The general approach for evaluating past-performance information shall be described in the RFP, but at a minimum shall include an evaluation of the offeror's performance under past or current government or private-sector contracts with requirements similar to those of the proposed contract.
"(3) In the case of an offeror without a record of relevant past performance or for whom information on past performance is not available, the offeror may not be evaluated favorably or unfavorably on past performance.
"(4) Notwithstanding any provision of this subsection, any review of past performance shall be evaluated in a manner consistent with the criteria specified in the solicitation and the criteria shall be applied consistently across all offerors.".
(l) A new section 605 is added to read as follows:
"Sec. 605. Estimate of construction costs.
"(a) An estimate of costs shall be prepared by the contracting officer for each proposed contract, contract modification, or change order to be issued in connection with a construction project and anticipated to exceed $100,000.
"(b) The estimate shall be prepared in detail, as though the District were competing for the contract, and shall not be based solely on the estimates or actual costs of similar construction projects.
"(c) The estimate shall be made available to the contracting officer for use in preparation of the contract solicitation and in the determination of price reasonableness in awarding a contract.
"(d) Access to materials gathered or created for the estimate, and the overall amount of the estimate, shall be limited to District personnel or agents of the District whose official duties require knowledge regarding the estimate. These materials and the overall amount of the estimate shall not be disclosed, except as otherwise permitted by law.
"(e) Within 90 days of the effective date of the Procurement Integrity, Transparency, and Accountability Emergency Amendment Act of 2016, passed on emergency basis on September 20, 2016 (Enrolled version of Bill 21-870), the Mayor, pursuant to Title I of the District of Columbia Administrative Procedure Act, approved October 21, 1968 (82 Stat. 1204; D.C. Official Code § 2-501 et seq.), shall issue rules to implement the provisions of this section.".
(m) Section 702(b) (D.C. Official Code § 2-357.02(b)) is amended to read as follows:
"(b) The CPO may:
"(1) Reduce the amount of performance and payment bonds for construction contracts to 50% of the amounts established in subsection (a) of this section;
"(2) Substitute for a bond required by subsection (a) of this section, a letter of credit in an amount equal to at least 10% of the portion of the contract price that does not include the cost of operation, maintenance, and finance, in cases in which the contractor:
"(A) Is a nonprofit corporation, as defined in D.C. Official Code § 29-401.02(6), or an entity controlled, directly or indirectly, by a nonprofit corporation;
"(B) Had a net worth of at least $1 million in the preceding fiscal year;
"(C) Is a licensed general contractor; and
"(D) Has done business as a construction contractor for at least 5 years.".
(n) A new section 702a is added to read as follows:
"Sec. 702a. Security in non-construction service contracts.
"The CPO shall issue rules pursuant to section 1106 to require performance bonds, payment bonds, letters of credit, or other forms of security for non-construction service contract prime contractors in cases in which such security may be effective in furthering the District's interests or such security may assist subcontractors doing business under a prime contract to receive payment for goods or services.".
(o) Section 1008 (D.C. Official Code § 2-360.08) is amended as follows:
(1) Subsection (d) is amended by striking the phrase "proceeding shall be de novo and the".
(2) A new subsection (d-1) is added to read as follows:
"(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.".
(p) Section 1104 (D.C. Official Code § 2-361.04) is amended to read follows:
"Sec. 1104. Transparency in contracting.
"(a) The CPO shall establish and maintain on the Internet a website containing publicly available information regarding District procurement.
"(b) The website established pursuant to subsection (a) of this section shall contain, at a minimum, the following:
"(1) Information regarding the statutes and rules that govern procurement for all District agencies, including those exempt from the authority of the CPO.
"(2) Links to the contract solicitation websites of OCP and all District agencies exempt from the authority of the CPO.
"(3) A database containing information regarding each contract executed by the District for an amount equal to or greater than $100,000, including each such contract made by a District agency exempt from the authority of the CPO pursuant to section 105. For each contract contained in the database, the database shall include a unique identifier and, at a minimum, the following:
"(A) A copy of the executed contract;
"(B) All determinations and findings related to the contract;
"(C) All contract modifications, change orders, or amendments associated with the contract;
"(D) All solicitation documents for the contract, including all requests for proposals and invitations for bids, and any amendments of such documents; and
"(E) The contract summary documents for the contract that are submitted to the Council for its review.
"(4) Placeholders identifying any portions of the items set forth in paragraph (3) of this subsection withheld as confidential by the CPO pursuant to section 417.
"(5) A list of each contract executed by the District for an amount less than $100,000, which shall include, for each contract, the vendor name, a description of the goods or services purchased, and the dollar amount of the contract.
"(6)(A) A list of each payment made by the District to a prime contractor, including the date and the dollar amount of the payment. The list shall be updated not less than once each week.
"(B) Payments not administered through the Procurement Automated Support System shall be exempt from the requirement of subparagraph (A) of this paragraph.
"(c) Agencies not subject to the authority of the CPO shall transmit the information required by this section to the CPO for posting on the Internet.".
(q) Section 1105 (D.C. Official Code § 2-361.05) is amended as follows:
(1) A new subsection (a-1) is added to read as follows:
"(a-1) At a minimum, each agency acquisition plan shall contain anticipated procurement needs of the coming fiscal year with specific information on the following:
"(1) Program-level needs;
"(2) Anticipated multiyear procurements;
"(3) Anticipated exercises of option periods of existing contracts;
"(4) Expected major changes in ongoing or planned procurements;
"(5) The guiding principles, overarching goals, and objectives of the agency's acquisitions of work, goods, and services; and
"(6) Goals and plans for utilization of strategic sourcing.".
(2) Subsection (b) is amended to read as follows:
"(b) Each agency shall submit to the Council a summary of planned contracts for the upcoming fiscal year no later than the date of submission of the Mayor's proposed budget to the Council. Each summary, at a minimum, shall list each planned contract and the source of funding for each contract by program code in the budget.".
(r) Section 1106(a) (D.C. Official Code § 2-361.06(a)) is amended as follows:
(1) Paragraph (1) is amended by striking the phrase "act, except Title VI." and inserting the phrase "act." in its place.
(2) Paragraph (2) is amended to read as follows:
"(2) Notwithstanding paragraph (1) of this subsection, the Department of General Services, pursuant to Title I of the District of Columbia Administrative Procedure Act, approved October 21, 1968 (82 Stat. 1204; D.C. Official Code § 2-501 et seq.), shall issue rules to implement the provisions of Title VI of this act for contracts within the authority of the Department of General Services.".
Sec. 4. Section 1028(c) of the Department of General Services Establishment Act of 2011, effective September 14, 2011 (D.C. Law 19-21; D.C. Official Code § 10-551.07(c)), is amended to read as follows:
"(c) The representative shall perform an analysis of all aspects of the proposed contract or real-estate transaction, including the costs and benefits, and shall negotiate on behalf of the District; provided, that the representative shall not bind the District or direct District government employees and the terms of the contract shall be approved by the Director and, if applicable, the Council.".
Sec. 5. Fiscal impact statement.
The Council adopts the fiscal impact statement of the Budget Director as the fiscal impact statement required by section 4a of the General Legislative Procedures Act of 1975, approved October 16, 2006 (120 Stat. 2038; D.C. Official Code § 1-301.47a).
Sec. 6. Effective date.
This act shall take effect following approval by the Mayor (or in the event of veto by the Mayor, action by the Council to override the veto), and shall remain in effect for no longer than 90 days, as provided for emergency acts of the Council of the District of Columbia in section 412(a) of the District of Columbia Home Rule Act, approved December 24, 1973 (87 Stat. 788; D.C. Official Code § 1-204.12(a)).
