D.C. Mun. Regs. tit. 7, r. 7-1601

Current through Register Vol. 71, No. 36, September 6, 2024

Rule 7-1601 - COMPLIANCE WITH THE BOARD'S PROCUREMENT RULES; PROHIBITION ON CONTINGENCY FEES

1601.1

Except as otherwise set forth in these Rules, determinations and decisions made in accordance with these Rules shall be final and any contract entered into in violation of these Rules is void.

1601.2

Notwithstanding the provisions of §1601.1, a contract shall not be void if a determination is made that good faith has been shown by all parties and the violation of these Rules is de minimis. A determination of good faith may be made by any of the following:

(a) The Executive Director;

(b) The Contract Appeals Board; or

(c) A court of competent jurisdiction.

1601.3

A determination of good faith made pursuant to §1601.2 shall be in writing and available for review by written request by the contractor. A determination of good faith shall fully describe the contract, the status of performance, the reason why the contract has been rendered void, and the grounds for the determination.

1601.4

Board employees involved in the procurement process shall conduct business impartially and in a manner above reproach, with preferential treatment for none. Board employees shall strictly avoid any conflict of interest or the appearance of a conflict of interest in the procurement process.

1601.5

Any attempt by a Board employee to realize personal gain by conduct inconsistent with the proper discharge of his or her duties is a breach of ethical standards. Any attempt by a Board member to realize personal gain through the exercise of his or her duties, or to influence any Board employee to violate the standards of ethical conduct set forth in these Rules, is a breach of ethical standards.

1601.6

Any attempt by a non-employee to influence any Board employee or Board member to breach the standards of ethical conduct set forth in these Rules is a breach of ethical standards. Any effort made by or on behalf of a non-employee, including an offeror or contractor, to influence a Board employee or Board member to breach the ethical standards set forth in these Rules is prohibited and may be referred to appropriate authorities for civil enforcement or criminal prosecution.

1601.7

No Board employee or Board member shall participate in or attempt to influence any procurement when the Board employee or Board member knows or has reason to know:

(a) The Board employee or Board member, or any relative of a Board employee or Board member, has a financial interest in the procurement;

(b) A business or organization in which the Board employee or Board member, or any relative of Board employee or Board member has a financial interest in the procurement; or

(c) The Board member or Board employee or any relative of a Board member or employee has an agreement or arrangement for prospective employment with a business or organization involved with the procurement.

1601.8

To receive a contract from the Board, a contractor must be responsible. To be considered responsible, a contractor must:

(a) Have or provide evidence that it can obtain the financial, technical, and organizational skills and resources, as well as the facilities and equipment, necessary to perform under the contract in accordance with its terms;

(b) Have a satisfactory performance record;

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

(d) Not be suspended, debarred, or otherwise ineligible to receive contracts from the District or Federal Government;

(e) Meet any other qualification criteria that may be imposed by applicable law or regulation;

(f) Have the necessary licenses, permits, and certifications to perform the contract; and

(g) Provide adequate evidence of insurance coverage as required by the contract or award.

1601.9

In evaluating contractor responsibility, the Board may request information directly from the contractor and may also consider information available from other sources. The Board may also perform a pre-award survey which may include interviews with contractor or subcontractor personnel and site visits to the contractor or subcontractor facilities.

1601.10

For all contracts or agreements with a dollar value greater than one hundred thousand dollars ($100,000), a bidder or offeror shall complete and submit with its bid or offer a responsibility questionnaire and certification developed by the Board. During the term of the contract, the contractor shall be responsible for updating its responses to the responsibility questionnaire:

(a) within thirty (30) calendar days of a change in a response; and

(b) prior to the exercise of any option year contract.

1601.11

The Board intends to avoid even the appearance of conflicts of interest or impropriety in connection with its procurement activities. As a result, even if a prospective bidder or offeror is determined to be responsible, the Board reserves the exclusive right to take measures it deems appropriate to avoid a conflict of interest, or the appearance thereof, or for other ethical considerations.

1601.12

If the Board determines that there is a conflict of interest, the Board may:

(a) Disqualify a contractor at any point during procurement;

(b) Rescind an award or terminate a contract; or

(c) Take other appropriate corrective measures, such as canceling a pending solicitation and initiating a new procurement, subject to the written approval of the Executive Director.

1601.13

Ethical considerations giving rise to disqualification or other corrective measure extend beyond any violation which may be prescribed in the ethics and conflict of interest rules of the District or of any bidder or offeror. The Board may properly take corrective measures whenever necessary or prudent to avoid the appearance of impropriety or otherwise eliminate doubts about the integrity and fairness of procurement. Examples of instances in which the Board may consider other appropriate corrective measures include, but are not limited to, instances in which:

(a) A Board employee or Board member involved in a procurement has a relationship with a bidder or offeror that does not violate the District's ethics and conflict of interest rules, but nonetheless raises questions about the integrity of the procurement;

(b) A bidder or offeror hires a former Board employee or Board member who was privy to non-public information about the procurement and involves that individual in its proposal preparation efforts;

(c) There is clear evidence suggesting collusive bidding or similar anticompetitive practices by the bidder or offeror; or

(d) There is clear evidence of organizational conflicts of interest which may cause a contractor to be unable to render impartial and objective assistance or advice or to have an unfair advantage over its competitors.

1601.14

Prohibition Against Contingent Fees. Each Board solicitation shall contain language substantially similar to § 416(b) of PPRA, approved by the Board's General Counsel, giving notice to bidders and offerors of the prohibition against contingent fee arrangements.

1601.15

Except as determined to be permissible after applying the factors provided in § 416(b) of the PPRA, no contract shall be awarded to a bidder or offeror that has arranged to pay a contingent fee or other consideration for soliciting or obtaining the contract.

1601.16

If a Board employee or Board member has reason to believe that a bidder, offeror, or contractor is or has been involved in a prohibited contingent fee arrangement the Board employee or Board member shall report the findings in writing to the Board's General Counsel and include any evidence or documentation of the alleged prohibited contingent fee arrangement.

(a) If the Board's General Counsel determines that a prohibited contingent fee has been paid or that a contractor has entered into an arrangement to pay a prohibited contingent fee under an existing contract, the General Counsel may recommend, and the Executive Director shall have the right, to terminate an existing contract or take any other remedial action in the best interest of the Board.

(b) The Board shall provide a written determination to any bidder or offeror whose eligibility to receive an award or to continue performance is impacted by the existence of a prohibited contingent fee arrangement.

1601.17

The Board may take action against any Board employee, Board member, or third-party who violates any provision of these Rules. Any Board employee or Board member who violates these Rules may be subject to remedial action, up to and including termination of employment or removal from the Board of Trustees.

D.C. Mun. Regs. tit. 7, r. 7-1601

Notice of Final Rulemaking published at 57 DCR 12594, 12595 (December 31, 2010); amended by Final Rulemaking published at 68 DCR 63 (1/7/2022)

Authority: The District of Columbia Retirement Board (the Board), pursuant to the authority set forth in section 121(i) of the District of Columbia Retirement Reform Act of 1979 ( Pub. L. 96-122, 93 Stat. 866 (Nov. 17, 1979) (codified at D.C. Official Code § 1-711(i) (2001)) (the Reform Act).