804. DISADVANTAGED BUSINESS ENTERPRISE; ADDITIONAL REQUIREMENTS

804 SET-ASIDE AND PREFERENCE PROGRAM IMPLEMENTATION 804.1 The Commission shall establish and maintain centralized lists of certified LBEs, SBEs and DBEs for use by agencies: (a) In determining whether some or all of a particular procurement may be designated for award to SBEs; and (b) In assisting contractors to fulfill contract goals concerning LBE, SBE or DBE subcontracting. 804.2 The Commission's centralized list of SBEs, shall set forth the procurement categories as well as the names of the SBEs certified to perform as SBEs in each procurement category, as provided in section 3(2) of the act. 804.3 Upon request by an agency, the Commission shall, for each procurement category specified by the agency in its request: (a) Identify at least two (2) SBEs certified to perform procurements in that category pursuant to this title; and (b) Provide its recommendation regarding the feasibility of placing that procurement category in the SBE set-aside program, or establishing particular subcontracting goals in an open market solicitation. 804.4 An agency shall not remove a solicitation placed in the SBE set-aside program without the written approval of the Commission. There must be a showing: (a) That at least one attempt to solicit bids or proposals for the procurement in the SBE set-aside program has failed to produce a responsive bid or proposal; or (b) That there is no certified SBE that qualifies for the procurement. 804.5 If the Commission denies an agency's request to remove a solicitation from the set-aside market, an agency may seek reconsideration by the commission. 804.6 Any District agency asserting that any bid made by a certified SBE or SBE joint venture is excessive, shall indicate to the Commission, in writing, the reason for that assertion, including an analysis of the following factors: (a) Wage determinations; (b) Overhead; (c) Man-hours required for performance; (d) Use of brokers; and (e) Other pertinent data. 804.7 Each agency shall maintain for review by the Commission the following types of procurement records: (a) Small purchase sources; (b) Term contracts; (c) Blanket purchases orders; (d) Repetitive or recurring procurement; and (e) GSA Schedule procurement. 804.8 Where an entire solicitation has been placed in the SBE set-aside program, the solicitation shall: (a) Include the following language: This invitation for bid (or request for proposal) is designated for certified small business enterprise offerors only, under the provisions of "The Equal Opportunity for Local, Small and Disadvantaged Business Enterprises Emergency Act of 1992"; and (b) Require that responses include a copy of the SBEs' letter of certification or self-certification form. 804.9 If a solicitation contains LBE or DBE requirements, the prime contractor shall submit its subcontracting plan in the form of a notarized statement to the contracting officer. Once the plan has been approved, any changes in the plan shall be submitted to the contracting officer with a justification for the changes. Changes in the plan can only occur with the prior written approval of the contracting officer. 804.10 If a solicitation contains LBE or DBE requirements, it shall also contain a liquidated damages clause in the event that a prime contractor fails to make good faith efforts to comply with its plan. SOURCE: Final Rulemaking published at 39 DCR 9052 (December 4, 1992).