D.C. Mun. Regs. r. 27-827

Current through Register Vol. 71, No. 24, June 14, 2024

Rule 27-827 - GOVERNMENT-ASSISTED PROJECT CERTIFIED BUSINESS ENTERPRISE SUBCONTRACTING

827.1

Pursuant to Section 2346(a)(3) of the Act (D.C. Official Code § 2-218.46(a)(3)), a small business enterprise ("SBE"), local business enterprise ("LBE"), or disadvantaged business enterprise ("DBE") shall not be required to comply with the requirements set forth in Section 2346(a)(1) and (2) of the Act (D.C. Official Code § 2-218.46(a)(1) and (2)).

827.2

Pursuant to Section 2346(d)(3) of the Act (D.C. Official Code § 2-218.46(d)(3)), the subcontracting plan required by Section 2346(d)(2) of the Act shall, to the extent consistent with Section 2346(d-1), be provided before the District accepts the submission of the bid or proposal for all government-assisted projects as defined in Section 2302(9A)(A) of the Act (D.C. Official Code § 2-218.02(9A)(A)).

827.3

When determining enforcement and penalties following a beneficiary's breach of a subcontracting plan under Section 2348 of the Act (D.C. Official Code § 2218.48), the Department shall consider:

(a) Whether the beneficiary notified the Department prior to the breach;

(b) The beneficiary's efforts at replacing the CBE subcontractor with another subcontractor certified by the Department in the same categories;

(c) Changes in the business operation or certification of the CBE subcontractor; and

(d) Changes in economic conditions from the time the subcontracting plan was developed.

827.4

(a) An agency seeking a waiver of the subcontracting requirements of Section 2346 of the Act (D.C. Official Code § 2-218.46) under Section 2351 of the Act (D.C. Official Code § 2-218.51), for government-assisted projects described in Section 2302(9A)(A) of the Act (D.C. Official Code § 2-218.02(9A)(A)), including contracts executed by an agency on behalf of the District, shall submit a waiver request to the Department no less than twenty (20) days prior to issuance of a solicitation or the exercise of an

(b) If a bid or proposal requires a small business enterprise ("SBE") subcontracting plan, and no SBE subcontracting plans are submitted, that bid or proposal shall, pursuant to Section 2346(d)(1) of the Act (D.C. Official Code § 2-218.46(d)(1)), be deemed nonresponsive and be rejected. However, an agency may seek a waiver of the subcontracting requirements, and if a waiver is approved, the solicitation shall be revised and reissued or extended to allow for new responses to be submitted by the public in accordance with that waiver.

827.5

(a) Pursuant to Section 2341(c) of the Act (D.C. Official Code § 2-218.41(c)), the following types of contracts for government-assisted projects identified in Section 2302(9A)(A) of the Act (D.C. Official Code § 2-218.02(9A)(A)), are not required to seek a waiver and will be exempted from the 35% SBE subcontracting requirement of Section 2346 of the Act (D.C. Official Code § 2-218.46):

(1) Direct travel purchases, including airline tickets, train tickets, metro tickets, bus tickets, taxi fares, and accommodation costs while on travel;

(2) Human Care Agreements that require consumer/client choice without any input, manipulation, or selection by the awarding agency. The exemption excludes those instances where the awarding agency selects the entities that are able to participate in the pool from which the consumer/client chooses;

(3) Contracts in which the District is a tenant and pays costs to a landlord for use of private property, which may include paying for rent or lease, taxes, parking, paying the costs of existing building service contracts, paying operating costs, or paying information technology and other costs;

(4) Contracts for proprietary goods and services procured by an agency from a documented patent/copyright/license holder; and

(5) Contracts for projects with federal restrictions on how the funds may be expended, as documented by the agency and confirmed by the Department.

(b) An agency seeking specific exemptions pursuant to this Subsection shall submit to the Department a determination and finding, or similar justification memo, in a manner prescribed by the Department. Any determination and finding or justification memo received by the Department shall be posted on the Department's website.

D.C. Mun. Regs. r. 27-827

Final Rulemaking published at 39 DCR 9052 (December 4, 1992); as amended by Final Rulemaking published at 56 DCR 8439 (October 23, 2009), incorporating by reference text of Proposed Rulemaking published at 56 DCR 5622, 5642 (July 10, 2009); amended by Final Rulemaking published at 70 DCR 10970 (8/11/2023)

Authority: Section 2372 of the Small, Local, and Disadvantaged Business Enterprise Development and Assistance Act of 2005 (Act), effective October 20, 2005 (D.C. Law 16-33; D.C. Official Code § 2-218.72 )(2009 Supp.) and Mayor's Order 2009-58, dated April 15, 2009.