D.C. Mun. Regs. tit. 27, § 4808
Generally: If the DC OP3 selects a Preferred Bidder through either a solicited or unsolicited procurement process, the Owner Agency will negotiate with the preferred proposer to enter into a P3 agreement as the Owner Agency will be the designated public entity for all agreements.
Requirements for the Public-Private Partnership Agreement: Each P3 agreement must include the following elements:
fees to individuals and entities for the use of the P3 facility. Under the P3 Act, no new fees may be imposed nor may existing fees be amended unless authorized by a subsequent act of the Council;
and Owner Agency.
4808.3 Negotiation: After the issuance of a notification that a preferred bidder and a secondary bidder have been selected as described in §§ 4804.8 or 4807.15, the DC OP3 and Owner Agency will commence negotiations with the preferred proposer.4808.4 Engagement of Secondary Bidder: If negotiations with the preferred bidder fail to result in a P3 agreement after a reasonable period of time and good faith efforts by all parties as determined by the DC OP3 and Owner Agency, the DC OP3 and Owner Agency, in joint agreement, may terminate the negotiation with the P3 referred Bidder and choose to begin negotiations with the secondary bidder or to terminate the solicitation.4808.5 Facilities Plan Approval: The DC OP3 and the Owner Agency have the right to review and approve the private partner's plans for the development, operation, maintenance, and financing of the P3 project facility before entering into a P3 agreement. Those plans, once approved, will become part of the P3 agreement. A material change in any of these aspects of the facility during the term of the agreement will require approval by the DC OP3 and the Owner Agency.4808.6 Prohibition Regarding Non-Compete Provisions: The P3 agreement may not contain a non-compete provision that would prevent or inhibit any public entity from performing its government function.4808.7 Access and Right to Inspect: During the term of the P3 agreement, the DC OP3 and Owner Agency shall have the right to access and inspect the P3 project facility at any time upon reasonable notice.4808.8 External Funding: The DC OP3, with the Owner Agency, may apply for and accept funds from the District or federal government, as well as other sources of financial support to fund P3 projects or otherwise advance the cause of innovative project delivery in the District.4808.9 Projects of Regional Scope: The DC OP3 and the Owner Agency may enter into P3 agreements with other local and state government agencies that are regional in scope as long as that regional aspect of the project is expressed in the request for proposal submitted to the Council pursuant to § 4803.3.4808.10 Sovereign Immunity: In no way shall a P3 agreement or any element of a P3 agreement be construed as a waiver of the sovereign immunity of the District government, nor will a P3 agreement be viewed as a grant of sovereign immunity to any private entity.4808.11 Remedies: A provision may be included in a P3 agreement providing that, in
addition to any remedy available to the District, and any cure provisions within the agreement, in the event of a material default by the private partners, the District may elect to assume the responsibility and duties of the operator in the P3 project in partial or full capacity, and, in such instance, the District or a designated public entity shall succeed to all of the rights, titles, and interests in the P3 project.
The District Government may terminate, with cause, the P3 agreement and exercise any other rights and remedies that may be available to it under the law or in equity. If the District or a designated public entity elects to assume the responsibility and duties of a P3 project pursuant to this section, the District may develop or operate the P3 project, impose previously approved user fees, impose and collect lease payments and comply with any service contracts as if it were the operator.
The assumption of the operation of the P3 project shall not obligate the DC OP3 or the District government to pay any obligation of the operator from sources other than revenue from the project.
4808.12
Compliance with Federal and District Laws: Under a P3 agreement, the private sector partner will be required to comply with all applicable federal and District laws governing infrastructure projects. Some of these applicable laws include, but are not limited to, the following:
234; D.C. Official Code §§ 6-1451.01 et seq.);
(g) The Anacostia Waterfront Environmental Standards Act of 2008, effective March 26, 2008 (D.C. Law 17-138; D.C. Official Code §§ 2-1226.31 et seq.);
(h) The Davis-Bacon Act of 1931, approved March 3, 1931 (46 Stat. 494; 40 U.S.C. §§ 3141 et seq.);
(i) The Hotel Development Projects Labor Peace Agreement Act of 2002, effective April 2, 2003 (D.C. Law 14-266; D.C. Official Code § 32-851); and
(j) The District Anti-Deficiency Act of 2002, effective April 4, 2003 (D.C. Law 14-285; D.C. Official Code §§ 47-355.01 et seq.).
4808.13 Repayment of Fees Paid by the Original Unsolicited Proposer: If a P3 agreement is entered into with a proposer who is not the original unsolicited proposer, the DC OP3 may require, as a condition of entering into the P3 agreement, that the “winning” proposer repay the preliminary evaluation and comprehensive evaluation fees as well as any stipend authorized under § 4804.11 to the original unsolicited proposer. The District will not pay, or provide for the payment of, any additional proposal costs of the original unsolicited bidder.
4808.14 Monitoring of P3 Agreement Performance: The DC OP3 and Owner Agency will provide a performance monitoring plan for the agreement. The performance monitoring plan will provide detail on how the Owner Agency, with assistance from the DC OP3 as needed, will monitor the performance of the private entity for the full term of the agreement. This plan will include required skills and resources for monitoring, monitoring schedules, and performance schedules with possible performance-points systems.
SOURCE: Final Rulemaking published at 63 DCR 13119 (October 21, 2016); as amended by Final Rulemaking published at 65 DCR 6037 (June 1, 2018).