314 REMEDIES

314.1 If the Board determines, in sustaining a protest, that the solicitation, proposed award, or award does not comply with the applicable law, regulations, or terms and conditions of the solicitation, the Board may order the contracting agency to do one or more of the following:

1. (a) Terminate the contract for the convenience of the District government;
2. (b) Refrain from exercising any options under the contract;
3. (c) Recompete the contract;
4. (d) Issue a new solicitation;
5. (e) Award a contract consistent with the law and regulations; or
6. (f) Take such other action, except enjoining a contract award, as the Board may direct.

If the Board determines that a contract is void pursuant to D.C. Official Code § 2-359.02, the Board shall direct that the contract be canceled consistent with the requirements of D.C. Official Code § 2-359.02(c).

314.2 In determining the appropriate remedy, the Board shall consider the circumstances surrounding the procurement, including, but not limited to, the following factors:

1. (a) Best interest of the District government;
2. (b) Seriousness of the procurement deficiency or violation;
3. (c) Existence of prejudice to other bidders or offerors;
4. (d) Maintaining the integrity of the procurement system; and
5. (e) Good faith of District government officials and other parties.

314.3 In determining whether to terminate a contract, the Board shall consider the following additional factors:

1. (a) Extent of contract performance;
2. (b) Impact of termination on the contracting agency's activities and mission;

(c) Costs to the government from termination; and

(d) Urgent need for the procurement.

314.4 If the Board finds that the District government actions were arbitrary and capricious, the Board may, when requested, award the protester's reasonable bid or proposal preparation costs and costs of pursuing the protest, but not legal fees.

314.5 A motion for bid or proposal preparation costs and costs of pursuing the protest shall be submitted by the protester within twenty (20) days of receipt of the Board's decision.

314.6 The motion shall be accompanied by sufficient documentation supporting the requested costs and an appropriate proposed order for the Board.

314.7 The contracting agency may, within fifteen (15) days after its receipt of the protester's motion, file a written response to the motion.

314.8 At the request of the protester or the District government or on its own initiative, the Board may conduct a hearing on the motion before issuing a ruling.

SOURCE: Final Rulemaking published at 49 DCR 2078 (March 8, 2002); as amended by Final Rulemaking published at 67 DCR 1734 (February 21, 2020).