District of Columbia

Key Agency(ies): The central authority for most Executive agency procurements in DC is the Office of Contracting and Procurement headed by the Chief Procurement Officer. The OCP has exclusive authority to conduct and oversee procurement for District agencies, except where otherwise exempted by law.

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Key Statute: The primary statute governing District procurement is the “Procurement Practices Reform Act of 2010,” codified at Title 2, Chapter 3A of the D.C. Official Code (D.C. Code) § 2-351.01 et seq.

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Key Regulations: DC’s procurement regulations are published in Title 27 of the District of Columbia Municipal Regulations (D.C. Mun. Regs.).

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Procurement Types/Highlights: Under D.C. Code § 2–354.02, Competitive Sealed Bidding is the traditional formal bid method for contracts over $100,000 where award is based on lowest price from a responsive, responsible bidder. The PPRA mandates that contracts exceeding $100,000 be awarded by competitive sealed budding unless the Chief Procurement Officer determines that another method is more suitable.

Competitive Sealed Proposals are used when factors other than price are important or when the contracting agency wishes to conduct negotiations. The CPO may authorize a competitive sealed proposals process if sealed bidding is not practicable or not in the District’s best interest. Under an RFP, proposals are evaluated on price and other factors, and the District may negotiate and seek best and final offers.

Small Purchases: Under D.C. Code § 2–354.07, contracts not exceeding $100,000 may be awarded through a streamlined purchase process established by the CPO. Purchases under $10,000 may be made noncompetitively.

Bid Protests:

Regs Governing Bid Protests:

• Bid protests in D.C. are heard by the District of Columbia Contract Appeals Board (CAB), and are governed under D.C. Code § 2-360.08.

Timeliness Rules:

• Protests concerning terms of a solicitation must be filed before bid opening or before the closing date for initial proposals.
• For protests of an award decision, protests must be filed within 10 business days after the basis of protest is known or should have been known.

Protest Process:

• C. protests provide for an automatic stay of contract award or performance in most cases. The District may override the automatic stay if the CPO issues a written determination explaining that urgent and compelling circumstances significantly affecting the District’s interests will not permit waiting for the protest decision.
• Once a protest is filed, the CAB must issue a decision within 60 days, and they may hold hearings and accept written briefs and an agency report on the protest issues.
• If the Board sustains a protest, it may declare the contract award improper and recommend corrective action. The award may also award a prevailing protester reasonable bid or proposal preparation costs and costs of pursuing the protest (excluding attorney’s fees).
• However, if the Board deems a protest frivolous, the protester may be required to pay the District’s attorneys fees incurred in defending the protest.
• The CAB’s decision on a protest is the final administrative action available for protesters.

Claims: D.C. contracts claims procedures are governed by D.C. Code § 2–360.04. All contractor claims arising out of a District contract must first be submitted in writing to the contracting officer (CO) for a decision. Within 120 days after receiving a claim the CO must issue a written decision. If a contractor is unsatisfied with the CO’s decision on the claim, the contractor may appeal to the Contract Appeals Board. The contractor has 90 days from receipt of the decision to file an appeal. Appeals at CAB are reviewed de novo, and the Board may conduct hearings and review evidence.

Suspension & Debarment: D.C.’s suspension and debarment powers are governed by D.C. Code § 2-359.07. The Chief Procurement Officer has the authority to suspend or debar contractors. Before a suspension or debarment is imposed, the contractor is entitled to notice and an opportunity to be heard. Causes for debarment include criminal convictions or civil judgments for offenses related to obtaining or performing contracts, violation of antitrust laws, violation of the District’s False Claims Act, and other serious breaches of contract. Debarment may be imposed for a term of up to five years.

After the CPO issues a suspension or debarment decision, a contractor may file an appeal with the Contract Appeals Board within 60 days of receiving the decision. The suspension or debarment is not automatically stayed while an appeal at CAB is pending.

Under D.C. law, if a contractor is debarred twice, the second debarment results in a permanent ban from District contracting, with the opportunity to apply for reinstatement after 10 years.

Interesting/Distinctions: The Procurement Practices Reform Act of 2010 provides for the purchase of environmentally preferable products and services (EPPS) by requiring the District to issue an environmental certification demonstrating, to the maximum extent practicable, the purchase of an EPPS for contracts exceeding $100,000.  D.C. Code § 2-351.04(30); § 2-361.01.  District government procurement staff must in turn ensure that EPPS requirements are accounted for in the contract package. D.C. Code § 2-361.01(c)(1).  The District may decide not to utilize a recommended EPPS specification if doing so will cause “undue financial burden, reduce performance in a meaningful way, or if pursuing the EPPS option limits availability in the marketplace.” (link)

The Office of Contracting and Procurement has set out sustainable specifications for 18 broad product categories and 100 discrete products, ranging from adhesives and automobiles to landscaping services and snow and ice products.  Applicable contractors are subject to reporting requirements and must submit to the contract administrator an EPPS report annually or as requested to indicate that the product or service supplied to the District complies with EPPS criteria.