§ 2–352.02. Criteria for Council review of multiyear contracts and contracts in excess of $1 million.

(a)(1) Pursuant to § 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.

(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, the names of the contractor's principals, contract amount, unit and method of compensation, contract term, type of contract, and the source selection method;

(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 § 2-354.05:

(A) The date, or dates, on which the letter contract or emergency 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.

(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)(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;

(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;

(3B) A description of any other contracts the proposed contractor is currently seeking or holds with the District;

(4) The background and qualifications of the proposed contractor, including its organization, financial stability, personnel, and performance on past or current government or private-sector contracts with requirements similar to those of the proposed contract;

(4A) A summary of the subcontracting plan required under § 2-218.46, to include a certification by the District that the subcontracting plan meets the minimum requirements of § 2-218.01, 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;

(5) Performance standards and expected outcomes of the proposed contract;

(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;

(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) 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 § 2-353.01(a)(9);

(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.

(8B)(A) A certification that the proposed contractor has not been determined to be in violation of § 1-1163.34a; and

(B) A certification from the proposed contractor that it currently is not and will not be in violation of § 1-1163.34a;

(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 [§ 2-218.01 et seq.];

(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;

(11A) Any determination and findings issued in relation to the contract's formation, including any determination and findings made under § 2-352.05;

(12) Where the contract, and any amendments or modifications, if executed, will be made available online; and

(13) Where the original solicitation, and any amendments or modifications, will be made available online.

(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;

(7) The legal, regulatory, or contractual authority for the proposed change; and

(8)(A) A certification that the proposed contractor has been determined not to be in violation of § 1-1163.34a; and

(B) A certification from the proposed contractor that it currently is not and will not be in violation of § 1-1163.34a.

(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 § 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 § 2-353.01(a)(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 §§ 47-392.01 and 47-392.02.

(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; provided, that a copy of the underlying letter contract be transmitted to the Council with the definitive contract.

(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 [§ 1-616.51 et seq.].

(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; Oct. 8, 2016, D.C. Law 21-158, § 3(d), 63 DCR 10752; Mar. 13, 2019, D.C. Law 22-250, § 8(a), 66 DCR 985.)

Prior Codifications

2001 Ed., § 2-301.05e.

Section References

This section is referenced in § 2-351.05, § 10-1202.08a, § 31-3171.04, and § 44-951.11.

Applicability

Section 2 of D.C. Law 24-328 provided the amendments made to this section by D.C. Law 22-250 shall not apply to: (1) Any inaugural or transition committee organized in 2022; and (2) Contracts, as defined in § 1-1161.01(10C)(A)(ii), including those contracts' option periods or similar contract extensions or modifications, sought, entered into, or executed before November 9, 2022.

Section 2 of D.C. Act 25-33 provided the amendments made to this section by D.C. Law 22-250 shall not apply to: (1) Any inaugural or transition committee organized in 2022; and (2) Contracts, as defined in § 1-1161.01(10C)(A)(ii), including those contracts' option periods or similar contract extensions or modifications, sought, entered into, or executed before November 9, 2022.

Section 2 of D.C. Act 24-676 provided the amendments made to this section by D.C. Law 22-250 shall not apply to: (1) Any inaugural or transition committee organized in 2022; and (2) Contracts, as defined in § 1-1161.01(10C)(A)(ii), including those contracts' option periods or similar contract extensions or modifications, sought, entered into, or executed before November 9, 2022.

Section 10(b) of D.C. Law 22-250 required that the amendments made to this section by D.C. Law 22-250, (1) Apply as of November 4, 2020; and (2) Not apply to contracts, as defined in D.C. Official Code § 1-1161.01(10C)(A)(ii)), including those contracts' option periods or similar contract extensions or modifications, sought, entered into, or executed before November 4, 2020.

Emergency Legislation

For temporary (90 days) amendment of this section, see § 3(d) of Procurement Integrity, Transparency, and Accountability Emergency Amendment Act of 2016 (D.C. Act 21-504, Oct. 13, 2016, 63 DCR 12942).

Editor's Notes

Section 7183 of D.C. Law 24-45 provided that the amendments made to this section by D.C. Law 22-250 shall not apply to contracts, as defined in § 1-1161.01(10C)(A)(ii), including those contracts' option periods or similar contract extensions or modifications, sought, entered into, or executed before November 9, 2022.

Section 7183 of D.C. Act 24-159 provided that the amendments made to this section by D.C. Law 22-250 shall not apply to contracts, as defined in § 1-1161.01(10C)(A)(ii), including those contracts' option periods or similar contract extensions or modifications, sought, entered into, or executed before November 9, 2022.