Bill Summary – FastDemocracy

MURIEL BOWSER
     MAYOR
The Honorable Phil Mendelson
Chairman
Council of the District of Columbia
John A. Wilson Building
1350 Pennsylvania Avenue NW, Suite 504
Washington, DC 20004
Dear Chairman Mendelson:
Pursuant to section 451 of the District of Columbia Home Rule Act (D.C. Official Code § 1-204.51)
and section 202 of the Procurement Practices Reform Act of 2010 (D.C. Official Code § 2-352.02),
enclosed for consideration and approval by the Council of the District of Columbia is proposed
Modification No. 1 to Contract No. DCAM-22-CS-RFP-0018 with MCN Build, Inc., to increase the
not-to-exceed amount by $38,090,528, from $9,790,832 to $47,881,360. The increase in the not-to-
exceed amount is an early release of funds for an additional initial phase of the modernization of the
Browne Education Campus.
Under the additional initial phase of the project, MCN Build, Inc. will provide a soft demolition of
the existing 1930s and 1950s buildings, the demolition of the 1970s building, site demolition, partial
masonry replacement for the existing building, material procurement for long lead items, and
procurement and installation of permanent trailers for the Browne Swing Space, while the District
and MCN Build, Inc. finalize the full scope and guaranteed maximum price for the project.
If you have any questions regarding this contract, please contact Delano Hunter, Acting Director,
DGS, or have your staff contract George G. Lewis, DGS’ Chief of Contracts and Procurement, at
(202) 727-2800.
I look forward to the Council’s favorable consideration of this contract modification.
Sincerely,
Muriel Bowser
                          GOVERNMENT OF THE DISTRICT OF COLUMBIA
                             DEPARTMENT OF GENERAL SERVICES
Pursuant to section 202(c) of the Procurement Practices Reform Act of 2010, as amended, D.C.
Official Code § 2-352.02(c), the following contract summary is provided:
                             COUNCIL CONTRACT SUMMARY
                                      (Standard)
         Modification No. 1 to Design-Build Agreement for Browne Education Campus
(A)   Contract Number:                        DCAM-22-CS-RFP-0018 (the “Contract”)
      Proposed Contractor:                    MCN Build, Inc. (the “Contractor”)
      Proposed Increased Amount               $38,090,528.00
      Via Modification No. 1:
      Total Contract                          $47,881,360.00
      Not-to-Exceed (“NTE") Amount:
      Unit and Method of Compensation:        Progress payments on a monthly basis
      Term of Contract:                       January 13, 2023 (date of execution of the Letter
                                              Contract by the Department) through December 9,
                                              2024 (“Part 1 Substantial Completion Date”) and
                                              July 15, 2025 (“Part 2 Substantial Completion Date”)
                                              (collectively, the “Substantial Completion Dates”);
                                              with an Administrative Term of March 15, 2027
      Type of Contract:                       Cost Plus Fixed Fee with a Guaranteed Maximum
                                              Price (“GMP”)
      Source Selection Method:                Competitive Request for Proposals
                                             1
(B)   For a contract containing option periods, the contract amount for the base period and for
      each option period. If the contract amount for one or more of the option periods differs from
      the amount for the base period, provide an explanation of the reason for the difference:
      N/A
(C)   The goods or services to be provided, the methods of delivering goods or services, and any
      significant program changes reflected in the proposed modification:
      The Department of General Services (the “Department”) engaged MCN Build, Inc. (the
      “Contractor”) to provide design-build services for the modernization of the Browne Education
      Campus (the “Project”). The Project is divided into two phases: (i) the Design and Preconstruction
      Phase and (ii) the Construction Phase, which includes early work on the superstructure and
      framing, exterior façade, shop drawing coordination, long lead equipment for MEP systems, and
      other long lead building materials such as doors, frames, and windows as part of the Project.
      The underlying Contract was deemed approved by the Council on June 5, 2023, as CA25-0227
      with a Not-to-Exceed (“NTE”) amount of $9,790,832.00.
      The Department now seeks Council approval to execute proposed Modification No. 1. If approved,
      Modification No. 1 will increase the Contract’s NTE amount by $38,090,528.00, from
      $9,790,832.00 to $47,881,360.00. Modification No. 1 will increase the NTE amount to fund a
      second early start agreement and authorize the Contractor to provide the soft demolition of the
      existing 1930s and 1950s buildings, the demolition of the 1970s building, site demolition, partial
      masonry replacement for the existing building, material procurement for long lead items, and the
      procurement and installation of permanent trailers for the Browne Swing Space, as well as the
      design-build fee and cost of general conditions. The Department and the Contractor will finalize
      the GMP at a later date. As the proposed modification would increase the Contract value by more
      than $1 million, Council approval is required for this contract action.
(D)   The selection process, including the number of offerors, the evaluation criteria, and the
      evaluation results, including price, technical or quality, and past performance components:
      The underlying Contract was competitively bid and previously submitted to and approved by the
      Council (CA25-0227) on June 5, 2023.
(E)   A description of any bid protest related to the award of the Contract, including whether the
      protest was resolved through litigation, withdrawal of the protest by the protestor, or
      voluntary corrective action by the District. Include the identity of the protestor, the grounds
      alleged in the protest, and any deficiencies identified by the District as a result of the protest:
      The award of the Contract was not protested.
(F)   The background and qualifications of the proposed contractor, including its organization,
      financial stability, personnel, and performance on past or current government or private
      sector contracts with requirements similar to those of the proposed contract modification:
                                                   2
      The Contractor has extensive specialized experience managing K-12 school building renovations,
      including those designated as historic, in urban settings. The strength of their team’s experience
      which uniquely qualifies them for the Project is demonstrated in the following six elementary,
      middle, and high school construction projects that were completed by the Contractor:
      1. Bard High School Early College Project.
      2. MacFarland Middle School Project.
      3. C.W. Harris Elementary School Project.
      4. Jefferson Middle School Project.
      5. Murch Elementary School Project.
      6. Banneker Academic High School.
      The Contractor possesses the financial stability to successfully perform the Project and has
      provided a staffing plan for the Project which has been reviewed and approved by the Department.
      The Contractor has been determined responsible in accordance with 27 DCMR 4706.1.
(G)   A summary of the subcontracting plan required under section 2346 of the Small, Local, and
      Disadvantaged Business Enterprise Development and Assistance Act of 2005, as amended,
      D.C. Official Code § 2-218.01 et seq. (“Act”), including a certification that the subcontracting
      plan meets the minimum requirements of the Act and the dollar volume of the portion of the
      Contract to be subcontracted, expressed both in total dollars and as a percentage of the total
      Contract amount:
      The Contractor is a certified business enterprise in accordance with the Act (CBE Number:
      LR17456042025). Pursuant to D.C. Code § 2-218.46 (d-1), the Contractor shall submit a detailed
      subcontracting plan to DSLBD that meets the requirements of D.C. Code § 2-218.46(d), before
      entering into a guaranteed maximum price.
(H)   Performance standards and the expected outcome of the proposed contract modification:
      The Contractor is required to provide all design, preconstruction, and construction services, and
      other services necessary to substantially complete the Project no later than December 9, 2024, for
      Part 1 and July 15, 2025, for Part 2. In general, the Contractor must perform the requirements
      contained in the Contract and meet or exceed the performance standards therein. The Contractor
      is subject to liquidated damages of $500 per day of delay for failure to timely achieve substantial
      completion of the Project. The Contract also provides a disincentive fee of $25,000 for the
      replacement of key personnel without the Department’s prior approval and not as a penalty, to
      reimburse the Department for its administrative costs arising from the Contractor’s failure to
      provide the key personnel.
(I)   The amount and date of any expenditure of funds by the District pursuant to the Contract
      prior to its submission to the Council for approval:
      N/A
                                                   3
(J)   A certification that the proposed contract modification is within the appropriated budget
      authority for the agency for the fiscal year and is consistent with the financial plan and
      budget adopted in accordance with D.C. Official Code §§ 47-392.01 and 47-392.02:
      The Office of the Chief Financial Officer has certified that the proposed Contract’s NTE amount
      is consistent with the Department’s budget and that adequate funds are available in the
      Department’s budget in accordance with §§47-392.01 and 47-392.02. The applicable Fiscal
      Sufficiency certification accompanies this Council Package.
(K)   A certification that the proposed modification is legally sufficient, including whether the
      proposed contractor has any pending legal claims against the District:
      Proposed Modification No. 1 has been deemed legally sufficient by the Department’s Office of
      the General Counsel and the Contractor does not appear to have any currently pending legal claims
      against the District.
(L)   A certification that the Citywide Clean Hands database indicates that the proposed
      contractor is current with its District taxes. If the Citywide Clean Hands Database indicates
      that the proposed contractor is not current with its District taxes, either: (1) a certification
      that the contractor has worked out and is current with a payment schedule approved by the
      District; or (2) a certification that the contractor will be current with its District taxes after
      the District recovers any outstanding debt as provided under D.C. Official Code § 2-
      353.01(b):
      The Citywide Clean Hands database indicates that the Contractor is in compliance with the
      Government of the District of Columbia tax laws and regulations. The applicable Clean Hands
      certification for the Contractor accompanies this Council Package.
(M)   A certification from the proposed contractor that it is current with its federal taxes, or has
      worked out and is current with a payment schedule approved by the federal government:
      The Contractor has certified that it is current with its federal taxes.
(N)   The status of the proposed contractor as a certified local, small, or disadvantaged business
      enterprise as defined in the Small, Local, and Disadvantaged Business Enterprise
      Development and Assistance Act of 2005, as amended; D.C. Official Code § 2-218.01 et seq.:
      According to the DSLBD’s website, the Contractor is a certified Local, and Resident Owned
      Business Enterprise. The Contractor’s CBE Number is LR17456042025.
(O)   Other aspects of the proposed contract that the Chief Procurement Officer considers
      significant:
      N/A
                                                     4
(P)   A statement indicating whether the proposed contractor is currently debarred from
      providing services or goods to the District or federal government, the dates of the debarment,
      and the reasons for debarment:
      The Contractor is not debarred from providing services to the Government of the District of
      Columbia or the Federal Government according to the Office of Contracts & Procurement’s
      Excluded Parties List and the Federal Government’s Excluded Parties List.
(Q)   Any determination and findings issues relating to the Contract’s formation, including any
      determination and findings made under D.C. Official Code § 2-352.05 (privatization
      contracts):
      N/A
(R)   Where the Contract, and any amendments or modifications, if executed, will be made
      available online:
      Contract award information is available on the Department’s website. Copies of contract
      documents will be made available upon request.
(S)   Where the original solicitation, and any amendments or modifications, will be made
      available online:
      The original solicitation and any amendments have been posted on the Department’s website.
(T)   A notation identifying: (i) whether the Contractor is a covered contractor, as that term is
      defined in D.C. Official Code § 1-1161.01; and (ii) to which prohibited recipients, as that
      term is defined in D.C. Official Code § 1-1161.01(45D), the Contractor is prohibited from
      making campaign contributions and during what prohibited period, as that term is defined
      in § 1-1161.01(45C).
      Based upon a certification from the Contractor, the Contractor has not been determined to be in
      violation of D.C. Official Code § 1-1163.34a.
                                                 5
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                        GOVERNMENT OF THE DISTRICT OF COLUMBIA
                           DEPARTMENT OF GENERAL SERVICES
Memorandum
TO:           Delano Hunter
              Acting Director, Department of General Services
              George G. Lewis
              Associate Director, Contracts and Procurement Division
FROM:         Kristen Walp
              Senior Assistant General Counsel
SUBJECT:      Legal Sufficiency Review
              Modification No. 1 to Design-Build Agreement for Browne Education Campus
              Contract Number:      DCAM-22-CS-RFP-0018
              Contractor:           MCN Build, Inc.
DATE:       June 16, 2023
_____________________________________________________________________________
1.     Description of Proposed Contract
The Department of General Services (“DGS” or the “Department”) seeks approval of the above-
referenced proposed Modification No. 1 to the Design-Build Agreement for Browne Education
Campus (DCAM-22-CS-RFP-0018) (the “Contract”) between the Department and MCN Build,
Inc. (the “Contractor”). If approved, Modification No. 1 will increase the initial not-to-exceed
(“NTE”) amount of the Contract by $38,090,528.00, from $9,790,832.00 to $47,881,360.00, and
will allow the Contractor to continue to provide design-build services for Browne Education
Campus, located at 850 26th Street NE, Washington, DC 20002 (the “Project”).
The Letter Contract was executed by the Department on January 13, 2023, and the Contract was
executed by the Department on June 13, 2023. The proposed Modification No. 1 is a second early
release of funds to complete the preliminary scope of work until the Guaranteed Maximum Price
(“GMP”) is issued, including several long lead items. As the proposed Modification No. 1 amount
exceeds $1 million, Council approval is required for this action.
                                                                                     Page 1 of 2
Legal Sufficiency Review
Modification No. 1 to the Design-Build Agreement for Browne Education Campus
Contract Number: DCAM-22-CS-RFP-0018
2.     Process
The Department received Council approval (CA25-0227) for the Contract on June 5, 2023, and
executed the Contract on June 13, 2023. The Department now seeks the Council’s approval of
proposed Modification No. 1. If approved, Modification No. 1 will increase the Contract’s NTE
amount by $38,090,528.00 from $9,790,832.00 to $47,881,360.00. Modification No. 1 will
authorize the release of necessary Project funding for the soft demolition of the existing 1930s and
1950s buildings, the demolition of the 1970s building, site demolition, partial masonry replacement
for the existing building, material procurement for long lead items, and the procurement and
installation of permanent trailers for the Browne Swing Space, as well as the design-build fee and
cost of general conditions. The Department and the Contractor will finalize the GMP at a later date.
As the proposed modification would increase the Contract value by more than $1 million, Council
approval is required for this contract action.
3.     Legal Review
Congress amended §451 of the District of Columbia Home Rule Act by requiring that no contract
involving the expenditure of funds in excess of $1 million in a 12-month period be made “unless
the Mayor submits the contract to Council for its approval and the Council approves the contract.”
District of Columbia Financial Responsibility and Management Assistance Act of 1995 §304(a),
109 Stat. 151 Pub. L. 104-8 (April 17, 1995) (codified at D.C. Official Code §1-204.51(b) (2001).
The contract award amount is in excess of $1 million and is subject to the §451 requirement of the
District of Columbia Home Rule Act. Thus, Council review and approval of the proposed
Modification No. 1 is required under the District of Columbia Home Rule Act.
This office was asked to review the proposed Modi