3205 ADVANCE PAYMENTS

3205.1 The contracting officer shall not authorize the use of advance payments unless the following criteria are met:

1. (a) There is a need for contract financing;
2. (b) Private financing is unavailable or insufficient;
3. (c) Use of progress payments would be insufficient to meet the contractor's financing needs;
4. (d) The contractor can give adequate security;
5. (e) The contractor is otherwise qualified as a responsible, certified minority business enterprise;
6. (f) The use of advance payments would be in the best interests of the District; and
7. (g) The District of Columbia Local Business Opportunity Commission has recommended the use of advance payments.
8. (h) Notwithstanding subparagraphs (a) through (g) above, the contracting officer may authorize advance payments to a responsible contractor who is a provider of Medicaid managed healthcare programs. The contractor may be paid a prospective monthly capitation rate for each Medicaid managed care program enrollee that is enrolled with the contractor.
9. (i) Notwithstanding subparagraphs (a) through (g) above, the contracting officer may authorize advance tuition payments to a responsible contractor who is a provider of special education services. The contractor may be paid tuition in advance of a school semester or session for each student enrolled with the contractor whose tuition has been approved for payment by the Chancellor of the District of Columbia Public Schools, or his or her designee;
10. (j) Notwithstanding subparagraphs (a) through (g) above, the contracting officer may authorize advance tuition payments to a responsible contractor who is a provider of education services or programs for Metropolitan Police Department ('MPD') employees when such tuition payments are authorized by District of Columbia law or regulations. The contractor may be paid in advance of a school semester or session for each MPD employee enrolled with the contractor whose tuition has been approved for payment by the MPD Chief, or his or her designee, pursuant to District of Columbia law or regulations;
11. (k) Notwithstanding subparagraphs (a) through (g) above, the contracting officer may authorize advance payments to a responsible contractor who provides court transcripts, depositions, expert witness testimony, or other litigation or transactional-related legal services to the Attorney General upon the Attorney General's determination that such advance payments are necessary and appropriate to enable the Attorney General to properly represent the District of Columbia;
12. (l) Notwithstanding subparagraphs (a) through (g) above, the contracting officer may authorize advance payments to a responsible contractor who is a provider of training seminars or programs directly related to the duties of the applicable agency, office or department employees. The contractor may be paid in advance of a training seminar

or program for each employee enrolled in a training seminar or program whose tuition or fee has been approved in writing by the applicable agency, office or department director; and

(m) Notwithstanding subparagraphs (a) through (g) above, the contracting officer may authorize advance payments to a responsible contractor who is a provider of food and/or beverages for the agency, office or department employees attending a training seminar or program authorized by the applicable agency, office or department director, or his or her designee, and upon a determination in writing by the applicable agency, office or department director that provision of food and beverages is necessary and appropriate in order for the employees to obtain the full benefit of the training that is directly related to the employees' duties.

3205.2 Before authorizing advance payments, the contracting officer shall obtain the approval of the head of the procuring agency. The request for approval shall be in the form of a written determination and findings which sets forth the contracting officer's findings on each of the criteria set forth in §3205.1 and includes a copy of the DSLDB recommendation.

3205.3 If the request for advance payments is approved, the contracting officer shall ensure that the contractor gives adequate security and that the advance payments do not exceed the unpaid contract price.

3205.4 A contracting officer shall not authorize advance payments to a contractor that is also receiving a bond reduction under the same contract without the prior written approval of the Director based on a determination that the financial risk to the District would not be unreasonable and that the use of both bond reductions and advance payments would be in the best interests of the District.

3205.5 If a contractor requesting advance payments is also receiving advance payments under another District contract, the contracting officer shall include this information in the determination and findings, and shall consider the additional financial risk to the District when making his or her recommendation.

3205.6 When advance payments are made under a contract, the contracting officer shall closely monitor the performance of the contractor and the contractor's financial condition. A contractor receiving advance payments shall be subject to audit at any time, as determined by the contracting officer.

3205.7 The contracting officer may suspend or terminate advance payments if the contractor fails to account adequately for the use of advance funds or fails to use the funds to meet obligations related to the contract, including the following:

(a) Failure to pay wages due to contract personnel;

(b) Failure to escrow withholding and payroll taxes and make required periodic tax deposits; or

(c) Any other failure to meet any other financial obligation under the contract for which advance payments are intended.

3205.8 Advance payments shall be made into a special account established at a District of Columbia banking institution approved by the Director, in accordance with procedures established by the Director and approved by the Deputy Mayor for Finance. A separate account shall be established for each contract.

SOURCE: Final Rulemaking published at 35 DCR 1626 (February 26, 1988); as amended by Emergency Rulemaking at 48 DCR 3585 (April 20, 2001)[EXPIRED]; as amended by Final Rulemaking published at 48 DCR 8042 (August 24, 2001); as amended by Final Rulemaking

published at 48 DCR 5562 (June 15, 2001); as amended by Emergency Rulemaking at 48 DCR 8457 (September 7, 2001)[EXPIRED]; as amended by Final Rulemaking published at 49 DCR 7918 (August 16, 2002).