CHAPTER 573

FORMERLY

SENATE BILL NO. 481

AN ACT TO AMEND CHAPTER 69, TITLE 29, DELAWARE CODE, RELATING TO THE ESTABLISHMENT OF POLICIES AND PROCEDURES FOR CONTRACTING PROFESSIONAL SERVICES BY THE STATE, ITS AGENCIES, MUNICIPALITIES OR POLITICAL SUBDIVISIONS, SCHOOL BOARDS; DEFINING PROFESSIONAL SERVICES; ESTABLISHING COMPETITIVE SELECTION PROCEDURES AND COMPETITIVE NEGOTIATIONS FOR FIRMS OR INDIVIDUALS PROVIDING PROFESSIONAL SERVICES; ESTABLISHING TRUTH IN NEGOTIATION REQUIREMENTS FOR PROFESSIONAL SERVICE CONTRACTS AND SETTING PENALTIES THEREFOR; AND PROVIDING FOR STATE PROFESSIONAL ASSISTANCE TO MUNICIPALITIES AND POLITICAL SUBDIVISIONS IN THE SELECTION AND NEGOTIATION OF PROFESSIONAL SERVICE CONTRACTS.

WHEREAS, the legislature of Delaware declares it to be in the best interest of the public health, safety and welfare and of good fiscal management to seek the most qualified and competent individuals and firms at fair, competitive and reasonable compensation to provide professional services to the State, its agencies, municipalities or political subdivisions and school districts; and

WHEREAS, the legislature of Delaware desires to promote competition among firms interested in providing professional services to the State, its agencies, municipalities or political subdivisions and school districts; and

WHEREAS, the legislature of Delaware declares it is in the public interest to prohibit the payment of contingent fees or other considerations for obtaining State, municipal or other professional service contracts financed from public funds.

NOW, THEREFORE:

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

Section 1. Amend Chapter 69, Title 29, Delaware Code, by redesignating all of the present Chapter as Subchapter I and creating a new Subchapter to be designated as Subchapter II to read as follows:

SUBCHAPTER II. CONSULTANTS COMPETITIVE

NEGOTIATION ACT

§6930. Definitions

(1) For the purpose of this Act the term "professional services" shall mean those services within the scope of practice of architecture, professional engineering or registered land surveying as defined by the laws of the State of Delaware or those performed by any architect, professional engineer or registered land surveyor, in connection with this professional employment or practice.

(2) The term "agency" means the State, its departments, agencies, municipalities or political subdivisions and school districts.

(3) The term "firm" means any individual, firm, partnership, corporation, association or other legal entity permitted by law to practice architecture, engineering, or land surveying in the State of Delaware.

(4) The term "compensation" means the total amount paid by the agency for professional services.

(5) The term "agency official" is any elected or appointed officeholder, employee, consultant, person in the category of other personal service or any other person receiving compensation from the State, its agencies, municipalities, or political subdivisions and school board.

§6931. Public announcement and qualification procedures

(1) Each agency shall publicly announce in a uniform and consistent manner on each occasion when professional services are required to be purchased, except in cases of valid public emergencies so certified by the agency head. In addition, announcements shall be mailed on each occasion to each certified firm who has requested such notification. Such announcement shall include a general description of the project and shall indicate how interested consultants can apply for consideration.

(2) Each agency shall encourage firms engaged in the lawful practice of their profession, who desire to provide professional services to the agency, to submit annually a statement of qualifications and performance data.

(3) Any firm or individual desiring to provide professional services to the agency must first be certified by the agency as qualified pursuant to law and the regulations of the agency. The agency shall make a finding that the firm or individual to be employed is fully qualified to render the required service. Among the factors to be considered in making this finding are the capabilities, adequacy of personnel, past record and experience of the firm or individual.

(4) Each agency shall adopt administrative procedures for the evaluation of professional services to include, but not limited to, capabilities, adequacy of personnel, past record and experience and such other factors as may be determined by the agency to be applicable to its particular requirements.

(5) The public shall not be excluded from the proceedings under this Act.

§6932. Competitive selection

(1) The agency, for each proposed project, shall evaluate current statements of qualifications and performance data on file with the agency, together with those that may be submitted by other firms regarding the proposed project, and shall conduct discussion with, and may require public presentations by no less than three firms regarding their qualifications, approach to the project and ability to furnish the required service.

(2) The agency shall select no less than three firms in order of preference, deemed to be most highly qualified to perform the required services, after considering such factors as the ability of professional personnel, past performance, willingness to meet time and budget requirements, location, recent, current and projected work loads of the firms and the volume of work previously awarded to the firm by the agency, with the object of effecting an equitable distribution of contracts among qualified firms; providing, however, that such distribution does not violate the principal of selection of the most highly qualified firms.

§6933. Competitive negotiation

(1) The agency shall negotiate a contract with the most qualified firm for professional services at compensation which the agency determines is fair, competitive and reasonable. In making such determination the agency shall conduct a detailed analysis of the cost of the professional services required, in addition to considering their scope and complexity. For all lump-sum or cost-plus-a-fixed-fee professional service contracts over $50,000, the agency shall require the firm receiving the award to execute a truth-in-negotiation certificate stating that wage rates and other factual unit costs supporting the compensation are accurate, complete and current at the time of contracting. Any professional service contract under which such a certificate is required shall contain a provision that the original contract price and any additions thereto shall be adjusted to exclude any significant sums where the agency determines the contract price was increased due to inaccurate, incomplete or non-current wage rates and other factual unit costs. All such contract adjustments shall be made within one year following the end of the contract.

(0) Should the agency be unable to negotiate a satisfactory contract with the firm considered to be the most qualified, at a price the agency determines to be fair, competitive and reasonable, negotiations with that firm shall be formally terminated. The agency shall then undertake negotiations with the second most qualified firm. Failing accord with the second most qualified firm, the agency shall formally terminate negotiations. Failing accord with the third most qualified firm the agency shall then formally terminate negotiations and proceed to negotiate with additional pursuant to paragraph (3) of this section.

(1) Should the agency be unable to negotiate a satisfactory contract with any of the selected firms, the agency shall select additional firms in order of their competence and qualification and continue negotiations in accordance with this section until an agreement is reached.

§6934. Prohibition against contingent fees

(1) Each contract entered into by the agency for professional services shall contain a prohibition against contingent fees as follows: The architect, registered land surveyor or professional engineer swears that he has not employed or retained any company or person, other than a bona fide employee working solely for the architect, registered land surveyor or professional engineer, to solicit or secure this agreement, and that he has not paid or agreed to pay any person, company, corporation, individual or firm, other than a bona fide employee working solely for the architect, registered land surveyor or professional engineer any fee, commission, percentage, gift or any other consideration, contingent upon or resulting from the award or making of this agreement." For the breach or violation of this provision, the agency shall have the right to terminate the agreement without liability and, at its discretion, to deduct from the contract price, or otherwise recover, the full amount of such fee, commission, percentage, gift or consideration.

(0) Any individual, corporation, partnership, firm, or company, other than a bona fide employee working solely for an architect, professional engineer or registered land surveyor who offers, agrees, or contracts to solicit or secure agency contracts for professional services for any other individual, company, corporation, partnership or firm, and to be paid, or is paid, any fee, commission, percentage gift or any other consideration contingent upon or resulting from, the award or the making of a contract for professional services, shall be guilty of a misdemeanor and upon conviction punished pursuant to the provisions of §6936 of this Act.

(1) Any architect, professional engineer or registered land surveyor, or any group, association, company, corporation, firm, partnership thereof, who shall offer to pay, or pay, any fee, commission, percentage, gift or any other consideration contingent upon, or resulting from, the award or making of any agency contract for professional services, shall be guilty of a misdemeanor and upon conviction punished pursuant to the provisions of §6936 of this Act.

(2) Any agency official who offers to solicit or secure, or solicits or secures, a contract for professional services and to be paid, or is paid, any fee, commission, percentage, gift, or any other consideration, contingent upon the award or making of such a contract for professional services between the agency and any individual person, company, firm, partnership, or corporation shall be guilty of a misdemeanor and upon conviction punished pursuant to the provisions of §6936 of this Act.

§6935. State assistance to local agencies

On professional service contracts where the fee is over $25,000, the department of Administrative Services shall provide, upon request by a municipality, political subdivision or school board and upon reimbursement of the costs involved, assistance in selecting consultants and negotiating consultant contracts.

§6936. Penalty; jurisdiction

Any person who violates the provisions of this Act shall be punished by a fine of not less than $500 nor more than $1,000, or by imprisonment for not more than one month, or by both such fine and imprisonment; and upon a second or subsequent conviction thereof, he shall be punished by a fine of not less than $1,000 nor more than $2,000, or by imprisonment for not more than six months, or by both such fine and imprisonment. Superior Court shall have exclusive original jurisdiction over offenses under this Subchapter.

§6937. Administrative provisions

(1) Nothing in this Act shall affect the validity or effect of any contracts in existence at the effective date hereof.

(0) Subsections (1) and (2) of §6932 of this Act shall not apply to professional service contracts of $5,000 or less.

(1) If any section, subsection, paragraph, phrase, clause or word of this Act is held to be invalid, the remainder of the Act shall not be affected.

(2) Any laws, or parts of law in conflict with the provisions of this Act are hereby repealed.

Section 2. This Act shall take effect on July 1, 1974.

Approved July 29, 1974.