(a) The subcontracting requirements of § 2-218.46 may be waived only if there is insufficient market capacity for the goods or services that comprise the project and such lack of capacity leaves the contractor commercially incapable of achieving the subcontracting requirements at a project level. The subcontracting requirements of § 2-218.46 may only be waived in writing by the Director. An agency seeking waiver of the subcontracting requirements of § 2-218.46 shall submit to the Director a request for waiver, which shall include the following:

(1) The number of certified business enterprises, if any, qualified to perform the elements of work that comprise the project;

(2) A summary of the market research or outreach conducted to analyze the relevant market; and

(3) The consideration given to alternate methods for acquiring the work to be subcontracted in order to make the work more amenable to being performed by certified business enterprises.

(a-1) Before the Director approves an agency’s waiver request, the Director shall:

(1) Send an electronic notice to all certified business enterprises notifying them of the agency’s waiver request; and

(2) Post a copy of the agency’s waiver request on the Department’s website, or such other locations as the Department may establish, for 10 days to provide the public reasonable notice of the waiver request.

(b) If the Director approves an agency's request for waiver of the subcontracting requirements of § 2-218.46 and grants such a waiver, the Director's determination shall set forth the information outlined in subsection (a) of this section.

(Oct. 20, 2005, D.C. Law 16-33, § 2351, 52 DCR 7503; Mar. 2, 2007, D.C. Law 16-191, § 5(o)(2), 53 DCR 6794; Sept. 18, 2007, D.C. Law 17-20, § 2062(f), 54 DCR 7052; July 18, 2008, D.C. Law 17-207, § 2(m), 55 DCR 6107; June 10, 2014, D.C. Law 20-108, § 2(cc), 61 DCR 3892; Mar. 11, 2015, D.C. Law 20-234, § 2(c), 62 DCR 458.)

This section is referenced in § 2-218.46 and § 2-218.50.

D.C. Law 16-191 validated a previously made technical correction.

D.C. Law 17-20 repealed subsec. (c); and, in subsec. (d)(2), substituted “Director” for “Commission”. Prior to repeal, subsec. (c) read as follows: “(c) The Commission may find that a waiver of the subcontracting requirements of §§ 2-218.46 and 2-218.50 for a particular contract are justified in order to achieve the purposes of this subchapter.”

D.C. Law 17-207, in subsec. (e), substituted “certified” for “small, local, or disadvantaged”.

The 2014 amendment by D.C. Law 20-108 rewrote the section.

The 2015 amendment by D.C. Law 20-234 added (a-1); and deleted the last sentence in (b), which read “A copy of the Director’s determination shall be posted to the Department’s website or such other locations as the Department may establish for 5 days such that the public shall have reasonable access to the determination before the Director grants any waiver.”

For temporary (90 days) amendment of this section, see § 3 of Department of Health Care Finance Independent Procurement Authority Emergency Amendment Act of 2017 (D.C. Act 22-204, Dec. 13, 2017, 64 DCR 12559).

For temporary (90 days) requirement that the Department of Small and Local Business Development award a grant for a study to evaluate the circumstances under which insufficient market capacity of certified business enterprises results in a waiver of subcontracting requirements under this section, see § 2122 of Fiscal Year 2018 Budget Support Congressional Review Emergency Act of 2017 (D.C. Act 22-167, Oct. 24, 2017, 64 DCR 10802).

For temporary (90 days) requirement that the Department of Small and Local Business Development award a grant for a study to evaluate the circumstances under which insufficient market capacity of certified business enterprises results in a waiver of subcontracting requirements under this section, see § 2122 of Fiscal Year 2018 Budget Support Emergency Act of 2017 (D.C. Act 22-104, July 20, 2017, 64 DCR 7032).

For temporary (90 day) addition, see § 2351 of Fiscal Year 2006 Budget Support Emergency Act of 2005 (D.C. Act 16-168, July 26, 2005, 52 DCR 7667).

For temporary (90 day) amendment of section, see § 2062(f) of Fiscal Year 2008 Budget Support Emergency Act of 2007 (D.C. Act 17-74, July 25, 2007, 54 DCR 7549).

For temporary (90 day) amendment of section, see § 2(l) of Department of Small and Local Business Development Subcontracting Clarification, Benefit Expansion, and Grant-making Authority Emergency Amendment Act of 2007 (D.C. Act 17-156, October 18, 2007, 54 DCR 10919).

For temporary (90 day) amendment of section, see § 2(l) of Department of Small and Local Business Development Subcontracting Clarification, Benefit Expansion, and Grant-making Authority Congressional Review Emergency Amendment Act of 2008 (D.C. Act 17-251, January 23, 2008, 55 DCR 1259).

For temporary (90 days) repeal of D.C. Law 20-108, § 4(c), see § 7005 of the Fiscal Year 2015 Budget Support Emergency Act of 2014 (D.C. Act 20-377, July 14, 2014, 61 DCR 7598, 20 STAT 3696).

For temporary (90 days) repeal of D.C. Law 20-108, § 4(c), see § 7005 of the Fiscal Year 2015 Budget Support Congressional Review Emergency Act of 2014 (D.C. Act 20-449, October 10, 2014, 61 DCR 10915, 20 STAT 4188).

For temporary (90 days) repeal of D.C. Law 20-108, § 4(c), see § 7005 of the Fiscal Year 2015 Budget Support Second Congressional Review Emergency Act of 2014 (D.C. Act 20-566, January 9, 2015, 62 DCR 884, 21 STAT 541).

For temporary (225 days) amendment of this section, see § 3 of Department of Health Care Finance Independent Procurement Authority Temporary Amendment Act of 2017 (D.C. Law 22-63, Feb. 17, 2018, 65 DCR 11).

For temporary (225 day) amendment of section, see § 2(l) of the Department of Small and Local Business Development Subcontracting Clarification, Benefit Expansion, and Grant-making Authority Temporary Amendment Act of 2007 (D.C. Law 17-96, January 29, 2008, law notification 55 DCR 3403).

For temporary (225 days) amendment of this section, see § 2 of the Small and Certified Business Enterprise Development and Assistance Waiver Certification Temporary Amendment Act of 2014 (D.C. Law 20-156, February 26, 2015, 61 DCR 10155).

For a requirement that the Department of Small and Local Business Development award a grant for a study to evaluate the circumstances under which insufficient market capacity of certified business enterprises results in a waiver of subcontracting requirements under this section, see section 2122 of D.C. Law 22-33.

Applicability of D.C. Law 20-108: Section 4(a) of D.C. Law 20-108 provided that applications pending as of June 10, 2014, shall not be subject to the provisions of the act.

Section 4(b) of D.C. Law 20-108 provided that, except as provided in § 2-218.46(f), contracts existing or pending as of June 10, 2014, shall not be affected by the provisions of the act.

Section 4(c) of D.C. Law 20-108 provided that the act shall apply upon the inclusion of its fiscal effect in an approved budget and financial plan, as certified by the Chief Financial Officer to the Budget Director of the Council in a certification published by the Council in the District of Columbia Register.

Section 4(c) of D.C. Law 20-108 was repealed by D.C. Law 20-155, § 7005.

Section 3 of D.C. Law 20-234 repealed temporary D.C. Law 20-156, § 2.