Attachment_J.8 DCCourts Procuremen Guidelines.pdf

PROCUREMENT GUIDELINES

OF THE

DISTRICT OF COLUMBIA COURTS

APPROVED BY THE

JOINT COMMITTEE ON JUDICIAL

ADMINISTRATION

EFFECTIVE JUNE 24, 1996

AUGUST 13, 2003, AS AMENDED

MARCH 21, 2011, AS AMENDED

MARCH 31, 2017, AS AMENDED

Attachment J.8

D.C. Courts Procurement Guidelines 1

The Procurement Guidelines of the District of Columbia Courts (Courts) serves as the

Courts self binding guide for the acquisition of more than $250,000,000.00 worth of goods, supplies and services annually. Its clauses reflect best practices in the procurement profession. Although, it is not meant to be a mirror image of the Federal

Acquisition Regulation (FAR), like almost all state and local government procurement authority, the Courts Procurement Guidelines has its foundation built on the principles contained in the FAR. Thus, principles espoused in the FAR are the germination of many of the clauses in the Guidelines and the FAR is often used as a reference point for issues that are not directly addressed by our guidelines.

D.C. Courts Procurement Guidelines 2

TABLE OF CONTENTS PAGE

CHAPTER 1 - GENERAL PROCUREMENT PROVISIONS 01

100 PURPOSE AND APPLICATION 01

101 AUTHORITY AND RESPONSIBILITY OF THE CONTRACTING OFFICER 02

102 SOURCES OF SUPPLIES AND SERVICES 02

103 CONTRACT-CLAUSES 03

104 LOCAL, SMALL, AND DISADVANTAGED BUSINESS ENTERPRISE ACT 04

105 PUBLICIZING PROCUREMENT ACTIONS 04

106 SOLICITATIONS 05

107 SPECIFICATIONS, STATEMENTS OF WORK, AND PURCHASE

DESCRIPTIONS 08

108 COMPETITIVE SEALED BIDS 08

109 COMPETITIVE SEALED PROPOSALS 11

110 COST OR PRICING DATA 13

111 ANTI-COMPETITIVE PRACTICES AMONG OFFERORS 13

112 ETHICS IN PUBLIC CONTRACTING 15

113 GENERAL CONTRACTOR RESPONSIBILITY 15

114 NOVATION AGREEMENTS 17

115 FIXED ASSETS 18

CHAPTER 2 - BUSINESS PREFERENCES 19

200 UTILIZATION OF PREFERRED CONTRACTORS 19

CHAPTER 3 - SMALL PURCHASE AND OTHER SIMPLIFIED PURCHASE

PROCEDURES 20

300 USE OF SMALL PURCHASE PROCEDURES 20

301 NON-COMPETITIVE SMALL PURCHASES 21

302 COMPETITIVE SMALL PURCHASES 21

303 DETERMINATION OF REASONABLE PRICE AND AWARD 23

304 BLANKET PURCHASE AGREEMENTS 23

305 IMPREST FUNDS 25

306 PURCHASE ORDERS 26

307 UNPRICED PURCHASE ORDERS 26

308 MODIFICATION OF PURCHASE ORDERS 27

309 TERMINATION AND CANCELLATION OF PURCHASE ORDERS 27

310 GOVERNMENT-WIDE COMMERCIAL PURCHASE CARD 27

311 SPECIAL DOCUMENTATION REQUIREMENTS 28

312 FEDERAL SUPPLY SCHEDULES 28

CHAPTER 4 - SOLE SOURCE AND EMERGENCY PROCUREMENTS 30

400 GENERAL PROVISIONS 30

D.C. Courts Procurement Guidelines 3

401 SOLE SOURCE PROCUREMENT 30

402 SINGLE AVAILABLE SOURCE 31

403 PREFERRED CONTRACTOR MARKET PROCUREMENTS 32

404 SOLE SOURCE DETERMINATION AND FINDINGS 33

405 SOLE SOURCE PROCUREMENT PROCEDURES 33

406 EMERGENCY PROCUREMENTS 34

407 EMERGENCY PROCUREMENT DETERMINATION AND FINDINGS 35

408 EMERGENCY PROCUREMENT PROCEDURES 35

CHAPTER 5 – DELIVERY AND PERFORMANCE 37

500 GENERAL PROVISIONS 37

501 DELIVERY AND PERFORMANCE SCHEDULES 37

502 IMPLEMENTATION OF DELIVERY AND PERFORMANCE SCHEDULES 39

503 VARIATION IN QUANTITY: SUPPLY CONTRACTS 39

504 VARIATION IN QUANTITY: CONSTRUCTION CONTRACTS 40

505 SUSPENSION OF WORK 40

506 STOP WORK ORDERS 40

507 COURT DELAY OF WORK 41

CHAPTER 6 - TYPES OF CONTRACTS 42

600 GENERAL PROVISIONS 42

601 SELECTING CONTRACT TYPES 42

602 FIXED-PRICE CONTRACTS 43

603 FIXED-PRICE CONTRACTS WITH ECONOMIC PRICE ADJUSTMENTS 44

604 FIXED-PRICE CONTRACTS WITH PROSPECTIVE PRICE

REDETERMINATION 45

605 COST-REIMBURSEMENT CONTRACTS 46

606 DEFINITE-QUANTITY CONTRACTS 47

607 TERM CONTRACTS 47

608 ORDERING UNDER TERM CONTRACT 48

609 TIME-AND-MATERIALS CONTRACT 49

610 LABOR-HOUR CONTRACTS 46

611 LETTER CONTRACTS 50

612 NEGOTIATED SERVICES CONTRACTS 51

CHAPTER 7 - CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS 52

700 GENERAL PROVISIONS 52

701 SPECIFICATIONS 52

702 ESTIMATE OF CONSTRUCTION COSTS 53

703 NOTICE OF THE SCOPE OF CONSTRUCTION PROJECTS 53

704 LIQUIDATED DAMAGES IN CONSTRUCTION CONTRACTS 54

705 PRICING CONSTRUCTION CONTRACTS 54

706 CONCURRENT PERFORMANCE OF CONSTRUCTION CONTRACTS 55

707 CONSTRUCTION CONTRACTS WITH ARCHITECT-ENGINEER FIRMS 55

708 INSPECTION AND SITE EXAMINATION OF DATA 55

709 DISTRIBUTION OF PRE-SOLICITATION NOTICES 56

D.C. Courts Procurement Guidelines 4

710 COMPETITIVE SEALED BIDS FOR CONSTRUCTION 56

711 NOTICE OF INTENT TO AWARD 57

712 EVALUATION OF CONTRACTOR PERFORMANCE 57

713 PRE-CONSTRUCTION CONFERENCE 58

714 ARCHITECT-ENGINEER SERVICES 58

715 ARCHITECT-ENGINEER SELECTION 59

716 ARCHITECT-ENGINEER QUALIFICATIONS 59

717 COST ESTIMATE FOR ARCHITECT-ENGINEER CONTRACTS 60

718 NEGOTIATIONS OF ARCHITECT-ENGINEER CONTRACTS 60

719 RELEASE OF INFORMATION 61

720 LIABILITY FOR DESIGN ERRORS OR DEFICIENCIES 61

721 DESIGN WITH FUNDING LIMITATIONS 62

722 REDESIGN RESPONSIBILITY FOR DESIGN ERRORS OR DEFICIENCIES 62

723 ARCHITECT-ENGINEER PERFORMANCE EVALUATION 62

CHAPTER 8 - PROTESTS, DISPUTES AND CLAIMS 64

800 PROTESTS 64

801 APPEALS OF PROTESTS 65

802 FINAL DECISION ON PROTEST BY EXECUTIVE OFFICER 65

803 CONTRACT DISPUTES 66

804 CLAIMS AGAINST THE COURT 66

805 CLAIMS FILED WITH THE EXECUTIVE OFFICER 67

806 FINAL DECISION OF THE EXECUTIVE OFFICER 67

CHAPTER 9 - GREEN PURCHASING 69

900 GREEN PURCHASING 69

CHAPTER 10 - RESERVED 70

CHAPTER 11 - RESERVED 71

CHAPTER 12 - DEFINITIONS 72

D.C. Courts Procurement Guidelines 1

DISTRICT OF COLUMBIA COURT SYSTEM

CHAPTER 1 - GENERAL PROCUREMENT PROVISIONS

SECTIONS

100 Purpose and Application

101 Authority and Responsibility of the Contracting Officer

102 Sources of Supplies and Services

103 Contract-Clauses

104 Local, Small, and Disadvantaged Business Enterprise Act

105 Publicizing Procurement Actions

106 Solicitations

107 Specifications, Statements of Work, and Purchase Descriptions

108 Competitive Sealed Bids

109 Competitive Sealed Proposals

110 Cost or Pricing Data

111 Anti-Competitive Practices Among Offerors

112 Ethics in Public Contracting

100 PURPOSE AND APPLICATION

100.1 The District of Columbia Courts Procurement Guidelines (the "Guidelines"), adopted by the Joint Committee on Judicial Administration, establish guidelines relating to the procurement, management, and control of supplies, services, and construction, as applicable under the authority of D.C. Code Section 11-1701(b)(3). These guidelines are not intended to confer any rights upon those attempting to establish procurement contracts with the D.C. Courts except as the guidelines expressly provide.

100.2 The Executive Officer shall be responsible for the procurement of necessary equipment, supplies and services for the Courts, pursuant to D.C. Code Section 11-1742; subject to applicable law, consistent with the general policies and directives of the Joint Committee on Judicial Administration and consistent with D.C. Code Sections 11-1702 and 11-

1703; and subject to the supervision of the Chief Judges in their respective Courts, as provided in D.C. Code Title 11, Sections 1701, 1702 and 1703. These guidelines apply only to procurements solicited or entered into after the effective date of these guidelines, unless the parties agree to its application to a contract solicited or entered into prior to the effective date.

D.C. Courts Procurement Guidelines 2

101 AUTHORITY AND RESPONSIBILITY OF THE CONTRACTING OFFICER

101.1 The principal Contracting Officer for the District of Columbia Courts shall be the

Executive Officer of the D.C. Courts.

101.2 (a) The Executive Officer may designate additional contracting officers. All contracting officers shall be experienced with the government procurement of supplies, services and construction.

101.2 (b) No contracting officer may create or authorize an obligation in excess of the funds available, or in advance of appropriations (Anti-Deficiency Act, 31 U.S.C.1341), unless otherwise authorized by law (for example, multi-year contracts under D.C.

Code § 11-1742a). Before executing any contract, the Contracting Officer shall

(Revised March 31, 2017)

(1) obtain written assurance from the Budget and Finance Division that adequate funds available and (Revised March 31, 2017)

(2) obtain written assurance from the Office of the General Counsel of the legal sufficiency of (i) any contract with a value equal to or greater than one million dollars and (ii) any contract that does not provide that the provisions in Section

31 of the General Provisions for Use with Courts’ Supply & Services Contracts

(on the Unenforceability of Unauthorized Obligations) take precedence over any contractor documents or terms. (Revised March 31, 2017)

101.3 The Administrative Officer (designated by the Executive Officer) shall adopt operational procedures governing the internal functions of the offices which shall conform to these guidelines.

101.3(a) Contract Specialists shall be properly trained in the procurement guidelines and other related training as designated by the Contracting Officer. (New Section - March 21, 2011)

101.3(b) The Contracting Officer shall ensure that all court personnel involved in the procurement process are properly trained in critical areas of the procurement as determined by the Contracting Officer. (New Section - March 21, 2011)

101.4 Any delegation of authority by the Executive Officer shall be in writing, and shall include a clear, written statement on the limitations of the authority being delegated. The

Executive Officer is to file the delegations of authority with the Joint Committee on

Judicial Administration. Such delegations shall remain in effect unless modified or until revoked in writing.

101.5 In no instance shall a Contracting Officer be delegated any greater contracting authority than that possessed by the delegating officer. (revised March 31, 2017)

D.C. Courts Procurement Guidelines 3

101.6 Only a designated contracting officer is authorized to enter into, administer and terminate contracts. However, he/she may bind the Court only to the extent of the contracting authority set forth under subsection 101.4.

101.7 The name and official title of the Contracting Officer who signs the contract shall be typed, stamped or printed on the contract. (revised March 31, 2017)

101.8 The contracting officer shall ensure that the person signing for the contractor has the authority to bind the contractor.

102 SOURCES OF SUPPLIES AND SERVICES

102.1 The Court may satisfy requirements for supplies and services from or through the sources and publications listed below without solicitation:

(1) General Service Administration (GSA) Schedules;

(2) Existing District of Columbia or Federal contracts;

(3) District of Columbia supply schedules;

(4) Federal Prison Industries (UNICOR);

(5) D.C. Department of Corrections, Industries Division; or other District of

Columbia agencies; or

(6) Intergovernmental Agreements

(revised March 31,2017)

103 CONTRACT-CLAUSES

103.1 Many supplies or services are acquired subject to supplier license agreements. These are particularly common in information technology acquisitions, but they may apply to any supply or service. For example, computer software and services delivered through the internet (web services) are often subject to license agreements, referred to as End User

License Agreements (EULA), Terms of Services (TOS), or other similar legal instruments or agreements. Many of these agreements contain indemnification clauses or automatic renewal clauses that are inconsistent with Federal law and unenforceable, but which could create a violation of the Anti- Deficiency Act (31 U.S.C. §1341) if agreed to by the D.C. Courts. The following clause prevents such violations of the Anti-Deficiency Act, and automatically applies to any purchase, including those made with the purchase card:

Unenforceability of Unauthorized Obligations

D.C. Courts Procurement Guidelines 4

(a) Except as stated in paragraph (b) of this clause, when any supply or service acquired under this contract is subject to any End User License Agreement (EULA), Terms of Service (TOS), or similar legal instrument or agreement, that includes any clause:

(i) Requiring the Court to indemnify the Contractor or any person or entity for damages, costs, fees, or any other loss or liability; or

(ii) providing for renewal of the contract in a subsequent fiscal year without requiring affirmative action from the contracting officer

(unless pursuant to the Court’s multiyear contracting authority), that would create an Anti-Deficiency Act violation (31 U.S.C. § 1341), the following shall govern:

(1) Any such clause is unenforceable against the Court.

(2) Neither the Court nor any Court authorized end user shall be deemed to have agreed to such clause by virtue of it appearing in the EULA, TOS, or similar legal instrument or agreement. If the EULA, TOS, or similar legal instrument or agreement is invoked through an “I agree” click box or other comparable mechanism (e.g., “click-wrap” or “browse-wrap” agreements), execution does not bind the Court or any Court authorized end user to such clause.

(3) Any such clause is deemed to be stricken from the EULA, TOS, or similar legal instrument or agreement.

103.1 (b) Paragraph (a) of this clause does not apply to indemnification by the Court that is expressly authorized by statute and specifically authorized under applicable Court regulations and procedures. (Revised March 31, 2017).

104 LOCAL, SMALL, AND DISADVANTAGED BUSINESS ENTERPRISE ACT

104.1 Section 104.1 Procurements made under this section shall be in accordance with the requirements of the Small, Local and Disadvantaged Business Enterprise Development and Assistance Act of 2005, D.C. Official Code §2-18.01 et seq.(hereinafter the “Act”).

Pursuant to Chapter 2, Section 2001 of these guidelines. (Revised March 21, 2011)

105 PUBLICIZING PROCUREMENT ACTIONS

105.1 Procurement actions may be publicly advertised on the DC Courts web site, in a newspaper of general circulation, or in Commerce Business Daily. Other professional advertising sites may be used when it is considered appropriate. (Revised March 21, 2011)

105.2 The time between the issuance of the solicitation and the date set for bid opening or

D.C. Courts Procurement Guidelines 5 receipt of initial proposals shall not be less than fifteen (15) calendar days, with a thirty day period being preferred, except as provided by Section 105.3

105.3 The requirements of solicitation advertising shall not apply to any of the following:

(a) Sole source procurement (Section 401);

(b) Emergency procurement (Section 406); and

(c) Small purchases (Section 300).

(d) When a determination is made by the Contracting Officer.

106 SOLICITATIONS

106.1 Solicitations shall typically include a detailed statement of work or purchase description and specifications, clearly defined deliverables, instructions to bidders/offerors, standard contract clauses, terms and conditions and certification forms, as appropriate. Evaluation criteria shall be included in competitive sealed proposals. (Revised March 21, 2011)

106.2 A solicitation may include appropriate option clauses, approved by the Contracting Officer, if the resulting contract is intended to provide for the exercise of an option. Each solicitation containing an option provision shall state the basis of evaluation, either exclusive or inclusive of the option. Each solicitation shall state the period within which an option may be exercised and the period set in order to provide the contractor adequate lead time to ensure continuous production or services, and, when appropriate, shall inform bidders that the

Court may exercise the option at the time of award. (Revised March 21, 2011)

106.3 A solicitation with option clauses may require that an option must be offered at prices no higher than those for the initial requirements in either of the following circumstances:

(a) When the option quantities will not be evaluated for award purposes; or

(b) When future competition for the option is not practical.

106.4 A solicitation that requires the offering of an option at prices no higher than those for the initial requirement shall specify the following:

(a) That the Court will accept an offer containing an option price higher than the base price only if the acceptance does not prejudice any other offeror; and

(b) That option quantities for additional supplies will be limited to not more than fifty percent (50%) of the initial quantity of the same contract line item. However, in unusual circumstances, the contracting officer may approve a greater percentage or quantity.

D.C. Courts Procurement Guidelines 6

106.5 A solicitation or contract may express options for increased quantities of supplies or services in terms of the following:

(a) A percentage of specific line items;

(b) An increase in specific line items; or

(c) An additional numbered line item identified in the option.

106.6 After issuance of a solicitation, but before the date and time set for receipt of bids/proposals, changes may be made in the solicitation to reflect any of the following:

(a) Significant changes in quantity, specifications, or deliver schedules;

(b) The correction of defects or ambiguities;

(c) Any change in the closing/opening date for receipt of bid proposals; or

(d) any other appropriate purpose affecting the procurement.

106.7 In deciding which firms to notify of a change, the Contracting Officer shall consider the following: (revised March 31, 2017)

(a) If proposals are not yet due, the amendment shall be sent to all firms that have received a solicitation or posted on the DC Courts website;

(revised March 31, 2017)

(b) If the time for receipt of proposals has passed but proposals have not yet been evaluated, the amendment shall be sent only to the responding offerors; and

(c) If the competitive range has been established, the amendment shall be sent only to those offerors within the competitive range.

106.8 If a change is so substantial that it warrants complete revision, the original solicitation shall be canceled and, at the contracting officer's discretion, a new one may be issued.

The new solicitation shall have a new number and shall be issued to all firms originally solicited and to any firms added to the original list, and shall be advertised in accordance with the requirements of these guidelines.

106.9 Any amendments shall be distributed no later than three (3) business days prior to the bid opening or closing date to allow prospective bidders/offerors to consider the information in submitting their bid/offer.

106.10 Amendments to the solicitation shall be identified as such and shall require the bidder/offeror to acknowledge its receipt.

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106.11 Any request for modification to a solicitation made by a prospective bidder/offeror and received after the time and date set for opening of bids/offers shall be considered late and may not be responded to by the Contracting Officer. (revised March 31, 2017)

106.12 If the original time and date set in the solicitation for receipt of bids/offers does not permit preparation of the bid/offer does not permit preparation of the bid/offer, an increase in the time for submission of the bids/offers maybe allowed. The Contracting Officer may increase the time for submission of the bids/offers by U.S. Postal Service, electronic transmission, telegraph, or telephone. The extension of time shall be confirmed in a subsequent written amendment.

106.13 Prior to the opening of bids/proposals or after the opening but before the award, a solicitation may be canceled if is determined to be in the best interest of the Court.

106.14 When a solicitation is canceled, notice of cancellation shall be sent to all known prospective bidders/offerors to whom the solicitation has been furnished and posted on the Courts’ internet. (revised March 31, 2017)

106.15 Any response to a solicitation received at the place designated in the solicitation after the exact time and date set for receipt of such shall be considered "late" unless any of the following apply:

(a) It was sent by registered or certified mail not later than five (5) calendar days before the solicitation receipt date specified;

(b) It was sent by mail and it is determined that the late receipt was due solely to mishandling by the Court after receipt at the location specified;

(c) The bid/offer is the only solicitation received and it is received before the close of business on the bid opening date.

(d) Late submissions of proposals and bids from vendors will be considered if the receipt of the late bid or proposal is late due to the closure of the Court as a result of inclement weather or other causes. The bid/proposal must be received by the first day that the Court is reopened for business. (Revised March 21, 2011)

106.16 Solicitations shall include fingerprint based criminal background check requirements for contractors providing or being considered for the provision of services on behalf of the

District of Columbia Courts, if applicable in accordance with 28 U.S.C. § 534 and 42 U.S.C.

§ 5119a. (New Section - March 21, 2011)

106.17 Solicitations for contractors who work or will work directly with children shall also include requirements for Child Protection Registry checks, pursuant to

D.C. Code § 4-1302.03(a-1)(1). (New Section - March 21, 2011)

D.C. Courts Procurement Guidelines 8

106.18 After the opening bids or receipt of proposals, the Contracting Officer shall review the Systems for Award Management (SAM) and shall also review the SAM before awarding any contracts. The SAM website is: https://www.sam.gov.

106.19 The Courts may require continued performance of any services within the limits and at the rates specified in the contract. These rates may be adjusted only as a result of revisions to prevailing labor rates provided by the Secretary of Labor. The option provision may be exercised more than once, but the total extension of performance hereunder shall not exceed 6 months. The Contracting Officer may exercise the option by written notice to the

Contractor within the period specified in the Schedule. (revised March 31, 2017)

106.20 Solicitations may be cancelled and all bids/Offers rejected after receipt and before award when the Contracting Officer determines that any of the following apply:

(1) Inadequate or ambiguous specifications were cited in the solicitation;

(2) Specifications have been revised;

(3) The supplies or services being contracted for are no longer required;

(4) The solicitation did not provide for consideration of all factors of cost to the

Court, such as cost of transporting Court-furnished property to bidders’ plants;

(5) Bids/Offers received indicated that the needs of the Courts can be satisfied by a less expensive article differing from that for which the bids were solicited;

(6) All otherwise acceptable bids/offers received are at unreasonable prices, or only one bid/offer is received and the Contracting Officer cannot determine the reasonableness of the bid/offer price;

(7) The bids/offers were not independently arrived at in open competition, were collusive, or were submitted in bad faith;

(8) No responsive or responsible bid/offer has been received from a responsible bidder/offeror;

(9) A cost comparison shows that performance by the Court is more economical;

or

(10) For other reasons, cancellation is clearly in the public’s interest.

https://www.sam.gov/

D.C. Courts Procurement Guidelines 9

107 SPECIFICATIONS, STATEMENTS OF WORK, PURCHASE DESCRIPTIONS AND

BRAND NAME OR EQUAL PURCHASE DESCRIPTIONS (Revised March 21, 2011)

107.1 The requestor shall prepare and provide the Contracting Officer clearly stated specifications, detailed statements of work or purchase descriptions in a manner designed to promote competition to the maximum extent possible and shall include restrictive provisions or conditions only to the extent necessary to satisfy the minimum needs of the Court, or as required by law. (

Revised March 31, 2017)

107.1 (a) The Contracting Officer shall review and approve the requestors’ submitted specifications, detailed statements of work or purchase descriptions if they are designed to promote competition to the maximum extent possible and include restrictive provisions or conditions only to the extent possible and include restrictive provisions or conditions only to the extent necessary to satisfy the minimum needs of the Court, or as required by law.

107.2 Purchase descriptions shall reflect at least the minimum needs of the Court to meet those needs.

Specifications and purchase descriptions may be stated in terms of the following:

(a) Function, so that a variety of products or services may qualify;

(b) Performance, including specifications of the range of acceptable characteristics or the minimum acceptable standards;

(c) Design requirements; or

(d) Brand name or equal purchase description. (Revised March 31, 2017)

107.3 When authorized in accordance with this section, or when no applicable specification exists, a purchase description may be used. Each purchase description shall set forth the essential physical and functional characteristics of the materials or services required.

108 COMPETITIVE SEALED BIDS

108.1 Competitive sealed bidding (CSB) shall be the preferred procedure for the solicitation of bids for the procurement of supplies, services or construction when the following conditions exist:

(a) Award will be made based on conformance to the specifications and price or price-related factors, such as discounts, management, approach, schedule and transportation costs, F.O.B. Destination or F.O.B. Origin, or warranties. (Revised

March 21, 2011)

(b) It is not necessary to conduct discussions with the responding bidders about their bids; and

D.C. Courts Procurement Guidelines 10

(c) There is a reasonable expectation of receiving more than one sealed bid.

108.2 A pre-bid conference may be held to brief prospective bidders after a solicitation has been issued, but before bids are submitted. The conference shall be announced to all prospective offerors known to have received a solicitation.

108.3 Information provided at the pre-bid conference does not change the terms or amend the solicitation. (Revised March 21, 2011)

108.4 To be considered for award, a CSB shall be required to comply with all the provisions of the solicitation.

108.5 Bids shall be submitted so that they will be received in the office designated in the solicitation not later than the exact time set for receipt of bids. Bids/offers are mailed at the risk of the bidder and the preferred method of delivery is hand delivery.

108.6 A bidder may modify or withdraw its bid by submitting a written notice. The notice shall be received in the office designated in the solicitation before contract award.

108.7 All bids, bid withdrawals and bid modifications may be opened publicly in the presence of one or more persons in addition to the person opening the bids at the time, date and place indicated in the solicitation. The name of each bidder, the bid price and such other information as is deemed appropriate by the contracting officer shall be read aloud or otherwise made available. (revised March 31, 2017)

108.8 After the opening of bids, the Contracting Officer shall examine each bid for mistakes.

108.9 For purposes of this section, a minor informality or irregularity is one that is merely a matter of form and not of substance. It also relates to some immaterial defect in an offer which can be corrected or waived without being prejudicial to other bidders.

108.10 Minor informalities or irregularities in bids submitted to the Court may be waived if the waiver of the deficiency is in the best interest of the Court.

108.11 In cases of mistakes or in cases where there is reason to believe that a mistake may have been made, the Contracting Officer shall request a verification of the bid and the suspected mistake.

108.12 If the bidder alleges a mistake, the matter shall be processed before award in accordance with the following:

(a) If the bidder submits a written notice of the alleged mistake within five business days;

(b) The authority to permit corrections of bids is limited to bids that, as submitted, are responsive to the solicitation and shall not be used to permit correction of bids to make them responsive;

D.C. Courts Procurement Guidelines 11

(c) Corrections of an apparent clerical mistake may be permitted before award; and

(d) A bidder may be permitted to withdraw a low bid in either of the following circumstances:

(1) If a mistake is clearly evident on the face of the bid document but the intended bid is not similarly evident; or

(2) If the bidder submits evidence which clearly and convincingly demonstrate that a mistake was made.

108.13 When a bid is corrected or withdrawn, or the correction or withdrawal is denied, the contracting officer shall prepare a determination showing that the relief was granted or denied.

108.14 If a mistake in a bid is not discovered until after award, the mistake may be corrected by contract modification, if correcting the mistake would be favorable to the Court without changing the essential requirements of the specifications. (Revised March 21, 2011)

108.15 In addition to the cases contemplated in this section, or as otherwise authorized by law, if a mistake in a bid is not discovered until after award, one (1) of the following determinations shall be made:

(a) To reform a contract to delete the items involved in the mistake or to reform a contract to increase the price if the contract price, as corrected, does not exceed that of the next lowest acceptable bid under the original bid;

(b) That no changes shall be made in the contract as awarded; or

(c) To terminate a contract.

108.16 Determinations under this section shall be made only on the basis of clear and convincing evidence that a mistake was made by the contractor, and was so apparent as to have given the contracting officer notice of the probability of the mistake.

108.17 The Court shall include in the contract file a record of each determination made in accordance with this section, the facts involved, and the action taken.

109 COMPETITIVE SEALED PROPOSALS

109.1 If competitive sealed bidding is not appropriate, offers shall be solicited through the competitive sealed proposals (CSP) method.

109.2 A pre-proposal conference may be held to brief prospective offerors after a solicitation has been issued but before offerors are submitted. The conference shall be announced to

D.C. Courts Procurement Guidelines 12 all prospective offerors known to have received a solicitation.

109.3 Attendees shall be informed of the following:

(a) That remarks and explanations at the conference do not qualify or amend the terms of the solicitation; and

(b) That the solicitation and specification remain unchanged unless the solicitation is amended in writing.

109.4 All competitive sealed proposals (CSPs) shall be received by the exact time and date set in the solicitation.

109.5 To be considered for award, a CSP shall be required to comply with all the provisions of the solicitation. Each solicitation shall include all of the evaluation criteria and the evaluation factors, including the relative importance of each factor. The price will be evaluated to determine price reasonableness. A statement shall be included in the solicitation that the contracting officer may conduct written or oral discussions with all offerors who submit proposals within a competitive range but that initial proposals may be accepted without such discussions. (Revised March 21, 2011)

109.6 The evaluation of each CSP shall be based on the evaluation factors established in the solicitation. Numerical rating systems may be used by the Court, but are not required.

Factors not specified in the solicitation shall not be considered.

109.7 For purposes of this section, a minor informality or irregularity is one that is merely a matter of form and not of substance. It also relates to some immaterial defect in an offer which can be corrected or waived without being prejudicial to other offerors.

109.8 Minor informalities or irregularities in offers submitted to the Court may be waived if the waiver of the deficiency is in the best interests of the Court.

109.9 After the closing of proposal receipt, each shall be examined for mistakes.

109.10 In cases of mistakes or in cases where there is reason to believe that a mistake may have been made, a request shall be made from the Contracting Officer for a verification of the proposal and call attention to the suspected mistake. If the offeror alleges a mistake, the matter shall be processed before award under the following circumstances; (revised March 31, 2017)

(a) The authority to permit corrections of proposals is limited to proposals that, as submitted, are responsible to the CSP and shall not be used to permit correction of proposals to make them acceptable; (revised March 31, 2017)

(b) Corrections of an apparent clerical mistake may be permitted before award; or

(c) An offeror may be permitted to withdraw a proposal in either of the following

D.C. Courts Procurement Guidelines 13

(1) If a mistake is clearly evident on the face of the proposal document but the intended proposal is not similarly evident; or

(2) If the offeror submits evidence which clearly and convincingly demonstrates that a mistake was made.

109.11 When a proposal is corrected or withdrawn or the correction or withdrawal is denied, the

Contracting Officer shall prepare a determination showing that the relief was granted or denied.

109.12 When a mistake in a proposal is discovered after award, the mistake may be corrected by contract amendment if correcting the mistake would be favorable to the Court without changing the essential requirements of the specifications.

109.13 Determinations under this section shall be made only on the basis of clear and convincing evidence that a mistake was made by the contractor, and was so apparent as to have given the contracting officer notice of the probability of the mistake. The Court shall include in the contract file a record of each determination made in accordance with this section, the facts involved and the action taken.

109.14 The Court has the right to reject all proposals in whole or in part when it is determined that such action is in the best interest of the Court.

109.15 The competitive range shall be determined on the basis of price and other factors, in accordance with the evaluation criteria stated in the solicitation, and shall include all proposals that have a reasonable chance of being selected for award. If there is doubt as to whether a proposal is in the competitive range, the proposal shall be included.

109.16 Oral presentation or written clarification of technical information may be requested of the offeror.

109.17 Negotiations may be held with offerors determined to be in the competitive range.

109.18 If negotiations are not held, the following requirements shall be met:

(a) All offerors must have been notified of the possibility that an award might be made without negotiation; and

(b) The award must be made without further written or oral communications with any offeror.

109.19 Upon completion of negotiation, the contracting officer shall issue to all offerors within the competitive range a request for best and final offers.

109.20 After receipt of best and final offers, negotiations will only continue if in the best interests

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109.21 Any offer submitted as best and final offer shall be considered complete and not subject to additional negotiation.

110 COST OR PRICING DATA

110.1 Bidders/offerors may be required to submit and certify cost or pricing data before award of contract.

110.2 Certification and submission of actual cost or pricing data shall not be required when it is determined that prices are:

(a) Based on adequate price competition;

(b) Based on established catalog or market prices of commercial items sold in substantial quantities to the general public; or

(c) Set by law or regulation.

110.3 Price competition exists if two (2) or more responsible offerors make a responsive offer to a solicitation issued by the Court, and they compete independently for a contract to be awarded.

110.4 When cost or pricing data are required, each offeror submits a certificate that states that to the best of the contractor's knowledge and belief, the cost and/or pricing data are accurate, complete, and current as of a determined specified date.

111 ANTI-COMPETITIVE PRACTICES AMONG OFFERORS

111.1 For the purpose of this section, an anti-competitive practice is a practice among offerors or potential offerors that reduces or eliminates competition or restrains trade. An anti-competitive practice can result from an agreement or understanding among competitors to submit collusive offers.

111.2 The contracting officer shall be alert and sensitive to conditions of the market place and may conduct studies of past procurements such as, but not limited to, the following:

(a) A study of the history of a supply, service or construction item over a period of time sufficient to determine any significant patterns of changes;

(b) A review of similar Court contract awards over a period of time; or

(c) Consultation with outside sources of information, such as offerors who have competed for similar Court business in the past but who are no longer competing for such business.

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111.3 When collusion or other anti-competitive practices are suspected among any offerors, a notice of the relevant facts shall be transmitted to the Office of the General Counsel, District of Columbia Courts. (Revised March 21, 2011)

112 ETHICS IN PUBLIC CONTRACTING

112.1 To achieve the purpose of this section, all employees and persons doing business with the

Courts shall be required to observe the ethical standards prescribed herein. The

Contracting Officer shall make available and disseminate to every person doing business with the Court and to every Court employee with procurement responsibilities, the requirements of this section.

(Revised March 21, 2011)

112.1 (a) As determined by the Contracting Officer, each Court employee with direct procurement responsibilities shall acknowledge in writing compliance with the ethical guidelines of this section and other established Court procurement policies and guidelines. (New Section - March 21, 2011)

112.1 (b) Ethical training in public contracting shall be provided to all procurement personnel and other Court employees with procurement responsibilities on a yearly basis. (New

Section - March 21, 2011)

112.2 (a) It shall be a breach of ethical standards for any employee to participate directly or indirectly in a procurement when the employee knows that the employee or any member of the employee’s immediate family has a financial interest pertaining to the procurement. An employee must disclose to the designated contracting officer any outside employment with a company that is doing business with the Courts. When a

Court employee knows that he or she has an actual or potential conflict of interest, or when the Contracting Officer has determined that an actual or potential conflict of interest exists, such employee shall be disqualified from any involvement with that procurement. (Revised March 21, 2011)

112.2 (b) Unless a determination is made as provided herein, no officer or employee of the

Courts shall benefit, in part or in whole, personally, financially or otherwise, from any contract executed by the Contracting Officer. Any such contract shall be deemed void, and no payment shall be made by the Courts or any officer thereof.

The general provisions and procurement guidelines shall not be construed to extend to any contract to the extent a contract is made with a corporation for the corporation’s general benefit. A Court employee shall not be a party in a contract with the Courts and will not knowingly cause or allow a business concern or other organization owned or substantially owned or controlled by the employee to be a party to such a contract, unless a written determination has been made by the Courts that there is compelling reason for contracting with the employee, such as when the

Courts’ needs cannot reasonably otherwise be met. (New Section - March 21, 2011)

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112.3 It shall be a breach of ethical standards for any person to offer, give or agree to give any employee or former employee, or for any employee or former employee to solicit, demand, accept or agree to accept from another person, a gratuity or an offer of employment in connection with any decision, approval, disapproval, recommendation or preparation of any part of a procurement.

112.4 It shall be a breach of ethical standards for any payment, gratuity, or offer of employment to be made by or on behalf of a subcontractor under a contract to the prime contractor, or higher tier subcontractor, as an inducement for the award of a subcontract or order.

112.5 It shall be a breach of ethical standards for any employee, former employee or any other person knowingly to use confidential information for actual or anticipated personal gain.

No employee or officer of the Court shall serve on the board of directors or other governing body (whether or not compensated) of any contractor with whom the Court has a current contractual relationship if the individual's responsibilities with the Court entail the letting or management of the contract.

113 GENERAL CONTRACTOR RESPONSIBILITY

113.1 To be determined responsible, a prospective contractor must –

(a) Have adequate financial resources to perform the contract, or the ability to obtain them;

(b) Be able to comply with the required or proposed delivery or performance schedule, taking into consideration all existing commercial and governmental business commitments;

(c) Have a satisfactory performance record. A prospective contractor shall not be determined responsible or nonresponsible solely on the basis of a lack of relevant performance history;

(d) Have a satisfactory record of integrity and business ethics;

(e) Have the necessary organization, experience, accounting and operational controls, and technical skills or the ability to obtain them (including, as appropriate, such elements as production control procedures, property control systems, quality assurance measures, and safety programs applicable to materials to be produced or services to be performed by the prospective contractor and subcontractors;

(f) Have the necessary production, construction, and technical equipment and facilities, or the ability to obtain them; and

(g) Be otherwise qualified and eligible to receive an award under applicable laws and regulations.

(New Section - March 31, 2017)

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113.2 When it is necessary for a particular acquisition or class of acquisitions, the Contracting

Officer shall develop, with the assistance of appropriate specialists, special standards of responsibility. Special standards may be particularly desirable when experience has demonstrated that unusual expertise or specialized facilities are needed for adequate contract performance. The special standards shall be set forth in the solicitation (and so identified) and shall apply to all offerors. (revised March 31, 2017)

114 NOVATION AGREEMENTS

114.1 A request by a contractor to recognize a successor in interest shall be submitted in writing to the Contracting Officer. (revised March 31, 2017)

114.2 When a contractor asks the District of Columbia Courts to recognize a successor in interest, the contractor shall submit to the Contracting Officer three (3) signed copies of the proposed Novation Agreement and one (1) copy of each of the following:

(a) A list of all affected contracts and purchase orders remaining unsettled between the transferor and the District of Columbia Courts showing for each the contract number and type, the name and address of the District of Columbia Court’s contracting office, the total dollar value of each contract, as amended, and the remaining unpaid balance;

(b) The opinions of legal counsel for the transferor and transferee stating that the transfer was properly effected under applicable law and the effective date of the transfer;

(c) Evidence of the transferee’s capability to perform the contract(s);

(d) The consent of sureties on all affected contracts if bonds are required, or a statement from the transferor that no bond is required;

(e) Any other documents or evidence that the Contracting Officer deems appropriate.

114.3 The Contracting Officer shall determine whether it is in the best interests of the District of

Columbia Courts to recognize the proposed successor in interest. The Contracting

Officer’s decision shall include a determination of responsibility for the proposed successor.

114.4 When it is in the best interest of the District of Columbia Courts not to concur in the transfer of a contract to another company, the original contractor shall remain under contractual obligation to the District of Columbia Courts, and the contract may be terminated for reasons of default if the original contractor does not perform.

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114.5 If recognizing a successor in interest to a District of Columbia Courts contract is consistent with the best interest of the District of Columbia Courts, the responsible Contracting

Officer shall execute a Novation Agreement with the transferor and the transferee.

114.6 The Novation Agreement shall contain the following requirements:

(a) The transferee assumes all of the transferor’s obligations under the contract including those incurred in the past unless the Contracting Officer waives these obligations in writing after determining waiver to be in the best interest of the

District of Columbia Courts;

(b) That the transferor waives all rights under the contract against the District of

Columbia Courts, except as otherwise provided in the Novation Agreement;

(c) That the transferor guarantees performance of the contract by the transferee or provides a satisfactory performance bond; and

(d) That nothing in the agreement shall relieve the transferor or transferee from compliance with any applicable law or regulation.

114.7 The Office of General Counsel shall review a contractor’s proposed Novation Agreement to determine its legal sufficiency before execution by the Contracting Officer.

114.8 The Contracting Officer shall forward signed copies of the executed Novation Agreement to the transferor and transferee and retain a signed copy in the contract file.

115 FIXED ASSETS

115.1 Property and Equipment (P&E) with a cost equal to or in excess of Twenty-Five Thousand

Dollars ($25,000) and a useful life of five (5) years are considered Fixed Assets of the

Courts. (revised March 31, 2017)

115.2 Bulk purchased items with individual useful lives of at least two (2) years and an aggregate value of $100,000 or more are considered Fixed Assets. (revised March 31, 2017)

115.3 Effective FY 2014, the estimated useful life of assets such as office furniture, office equipment, telecommunications equipment and audio/visual equipment is five (5) years and the estimated useful life of information technology equipment is three (3) years.

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CHAPTER 2 - BUSINESS PREFERENCES

200 UTILIZATION OF PREFERRED CONTRACTORS

200.1 If the Courts elects to participate under the Department of Local and Small Business

Development’s Certified Business Enterprise Program, vendors who qualify for additional points on proposals or price reduction on bids specified in such laws and regulations applicable to contract procurement by the executive branch of the D.C. government shall be afforded such points or price reductions in contract procurement activity by the D.C.

Courts. (revised March 21, 2011).

200.2 The Contracting Officer shall review each proposed procurement to determine whether the procurement could be made in accordance with Section 200.1. (revised March 31, 2017)

200.3 Before a procurement is restricted to a preferred contractor, the contracting officer shall make the following determinations:

(a) That there is a reasonable expectation that bids or offers will be obtained from at least two (2) responsible certified preferred contractors; and

(b) That an award will be made at reasonable prices.

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CHAPTER 3 - SMALL PURCHASE AND OTHER SIMPLIFIED PURCHASE

PROCEDURES

300 Use of Small Purchase Procedures

301 Non-Competitive Small Purchases

302 Competitive Small Purchases.

303 Determination of Reasonable Price and Award

304 Blanket Purchase Agreements

305 Imprest Funds

306 Purchase Orders

307 Unpriced Purchase orders

308 Modification of Purchase Orders

309 Termination and Cancellation of Purchase Orders

310 Government-wide commercial purchase card (Revised August 13, 2003)

311 Special documentation requirements (Revised August 13, 2003)

300 USE OF SMALL PURCHASE PROCEDURES

300.1 The small purchase procedures set for in the guidelines may only be used for the procurement of supplies, services, and other items when the total amount of the procurement does not exceed “one hundred fifty thousand dollars ($150,000).” (revised March 31, 2017)

300.2 The contracting officer shall not use small purchase procedures when the requirement can be met by using a requirements contract, an indefinite quantity contract, a federal supply schedule or other required source of supply.

300.3 The contracting officer shall not split a procurement totaling more than the Court's small purchase limitation into several purchases that are less than the limit in order to permit the use of the small purchase procedures.

300.4 A procurement requirement shall not be parceled, split, divided or purchased over a period of time in order to avoid the dollar limitations for use of small purchase procedures.

300.5 The contracting officer shall use the small purchase procedure that is most suitable, efficient and economical based on the circumstances of each procurement.

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301 NON-COMPETITIVE SMALL PURCHASES

301.1 A procurement for a an amount of “three thousand five hundred dollars ($3,500.00)” or less is a micro-purchase and may be made without competitive quotations if the Contracting Officer or an individual delegated purchasing authority by the Contracting Officer considers the…