CHAPTER 564

FORMERLY

HOUSE BILL NO. 340

AN ACT TO AMEND CHAPTER 69, TITLE 29 OF THE DELAWARE CODE RELATING TO THE PROCUREMENT OF MATERIEL AND THE AWARD OF CONTRACTS FOR PUBLIC WORKS BY STATE AGENCIES RESPECTING THE PREVENTION OF ENVIRONMENTAL POLLUTION IN THE PERFORMANCE OF PUBLIC CONTRACTS AND THE PROTECTION OF CONTRACTORS FROM THE RISK OF ADDITIONAL CONSTRUCTION COSTS DUE TO ANTI-POLLUTION, CONSERVATION OR ENVIRONMENTAL PROTECTION REQUIREMENTS ENACTED AFTER THE SUBMISSION OF BIDS.

Be it enacted by the General Assembly of the State of Delaware:

Section 1. Amend Chapter 69, Title 29 of the Delaware Code, by adding to Section 6905 new subsections (d) and (e) to read as follows:

(d) When an agency solicits written competitive quotations or advertises for formal sealed bids for furnishing materiel or performing work, the description of the materiel and the plans and specifications for the work issued and advertised by the agency shall set forth those provisions of Federal, State and local statutes, ordinances, rules and regulations respecting anti-pollution, conservation, and environmental protection which affect the project or projects for which such solicitations or bids are sought.

(e) If the successful bidder must undertake anti-pollution, conservation or environmental protection measures not specified in the agency's solicitation or advertisement for bids, including measures required by the enactment of new or the amendment of existing statutes, ordinances, rules or regulations occurring after the submission of the successful bid or quotation, the awarding agency shall issue a change order setting forth the additional measures that must be undertaken, which shall not invalidate the contract. The cost of such a change order to the awarding agency shall be determined in accordance with the provisions of the contract for change orders or force accounts or, if no such provision is set forth in the contract, then the cost to the awarding agency shall be the contractor's costs for wages, labor costs other than wages, wage taxes, materials, equipment rentals, insurance and subcontracts attributable to the additional activity plus a reasonable sum for overhead and profit; provided, however, that such additional costs to undertake measures not specified in the invitation for proposal shall not be approved unless written authorization is given the successful bidder prior to his undertaking such additional activity.

Section 2. Amend Chapter 69, Title 29 of the Delaware Code, by striking in its entirety subsection (a) of Section 6909 and substituting in lieu thereof and therefor a new subsection (a) to read as follows:

(a) Within 20 days after the award of the contract, the successful bidder shall promptly execute a formal contract to be approved as to its form, terms and conditions by the agency and also the bond required by Section 6910 of this title; provided, however, that all such contracts shall make provisions for all Federal and State anti-pollution, conservation and environmental protection statutes, ordinances, rules and regulations which will be involved in the execution of the contract, and provided further that for materiel purchased in accordance with Section 6904 (b) of this title, and for work contracted for in accordance with Section 6904 (c) of this title, the agency, or a representative delegated by the agency, in accordance with regulations prescribed by the agency, may waive the requirement for the execution of a formal contract. The cost for any anti-pollution, conservation or environmental protection control activity that is not specified in the contract or otherwise provided for but becomes necessary or is deemed desirable by the awarding agency after the contract has been awarded, shall be paid for in accordance with Section 6905 (e) of this title.

Section 3. This Act shall become effective thirty days after signature by the Governor but shall not apply to any contract awarded pursuant to an invitation for bids issued on or before the date it takes effect, or to any persons or bonds in respect of any such contract.

Approved July 29, 1974.