CHAPTER 589

SENATE BILL NO. 680

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 qualified and competent individuals and firms at fair, and reasonable compensation to provide professional services to the State, its agencies, municipalities, political subdivisions and school districts; and

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

WHEREAS, the legislature of Delaware declares it is it the public interest to prohibit the payment of contingent fee.

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 striking Subchapter II thereof in its entirety and substituting in lieu thereof a new Subchapter to read as follows:

"SUBCHAPTER II. PROFESSIONAL SERVICES NEGOTIATION ACT

§6930. Definitions.

(a) 'Professional Services' shall mean those services within the scope of practice of architecture, professional engineering, professional land surveying, landscape architecture, and geology as defined and authorized by the laws of the State of Delaware or those services performed by persons engaged in the above mentioned professions in connection with their professional employment or practice.

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

(a) 'Firm' means a person, firm, partnership, corporation, association or other legal entity permitted by law to offer professional services.

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

(e) The term 'agency official' is an 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, political subdivisions, or school boards.

§6931. Public announcement and qualifications procedures.

(a) Each agency shall publicly announce not less than once a week for two consecutive weeks in a statewide news publication on each occasion when professional services are required, except in cases of valid public emergencies so certified by the agency head. Such announcement shall include:

(1) The project identification;

(2) General description and scope of the project;

(3) Location;

(4) Deadline for submissions of brief letters of interest;

(5) (5) Criteria for selection of professionals including any special criteria required for any particular project, and shall indicate how interested professionals can apply for consideration.

(6) Additional advertising shall be at the discretion of the agency.

(b) 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.

(c) Each agency shall establish written administrative procedures for the evaluation of applicants. These administrative procedures must be adopted and made available to the public by each agency before publicly announcing an occasion when professional services are required. The following criteria should be utilized in ranking the applicants under consideration: (1) Experience and reputation; (2) Expertise (for the particular project under consideration): (3) Capacity to meet requirements (size, financial condition, etc.); (4) Location (geographical); (5) Demonstrated ability; (6) Familiarity with public work, its requirements and system; (7) Distribution of work to individuals and firms (economic considerations, and to broaden the base from which selections are to be made); (8) Other criteria may be required in special cases. Because of the diversity of professional services required on a variety of projects, each project must be given individual attention, and a weighted average should be applied to criteria according to its importance to each project.

§6932. Selection.

(a) For each proposed project, the agency shall evaluate current 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 discussions with firms regarding their qualifications, approach to the project and ability to furnish the required service. Professional Service Compensation shall not be considered in these discussions.

() Based upon the criteria established pursuant to Section 6931 (c) and any specific criteria for the project and discussions, the agency shall rank in order of preference the applicants deemed to be qualified to perform the required services.

(a) Beginning with the qualified firm designated first on the preference list, the agency shall negotiate for professional services at compensation which the agency determines is fair and reasonable. In making such determination the agency shall conduct an analysis of the cost of the

professional services required, in addition to considering their scope and complexity. For all lump sum multiple of direct personnel expense or cost-plus-a-fixed-fee professional service contracts the agency shall require the firm receiving the award to execute a truth-in-negotiation certificate stating the 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.

(d) Should the agency be unable to negotiate a satisfactory contract with the qualified firm designated to be first on the preference list, at a price the agency determines to be fair and reasonable, negotiations with that firm shall be formally terminated. The agency shall then undertake negotiations with the second qualified firm on the preference list. Failing accord with the second qualified firm, negotiations shall be formally terminated. The agency wil! negotiate with the remaining firms on the list.

() After accomplishing the evaluation and conductiong discussions and negotiations, the agency shall select one applicant and prepare a Public Notice within ten (10) days after awarding the contract stating the firm selected. This notice will appear in a statewide news publication or by letter to all applicants.

§6933. Reports.

At the end of each fiscal year each agency shall prepare a report stating project number, name of firm selected and amount paid for professional services for each contract. All state agencies including school districts will file a copy of this report with the Secretary of Administrative Services. All other political subdivisions and incorporated towns will file this report in the principal office of the agency. This report will be available to the public.

§6934. Prohibition Against Contingent Fees.

(a) Each Contract entered into by the agency for professional services shall contain a prohibition against contingent fees as follows: The firm offering professional services swears that he/it has not employed or retained any company or person, other than a bona fide employee working primarily for the firm offering professional services to solicit or secure this agreement, and that he/it has not paid or agreed to pay any person, company, corporation, individual or firm, other than a bona fide employee working primarily for the firm offering professional services, any fee, commission, percentage, gift or any other consideration, contingent upon or resulting from the award or making of this agreement. For the breach of 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.

(b) Any individual, corporation, partnership, firm or company other than a bona fide employee working primarily for the firm offering professional services, 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 upon conviction be punished pursuant to §6936 of this Title.

(c) Any firm offering professional services or any group, association, company, corporation, firm or 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 upon conviction be punished pursuant to §6936 of this Title.

(d) 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 upon conviction, punished pursuant to the provisions of §6936 of this Act.

§6935. State Assistance to Local Agencies.

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 professional services firms and negotiating professional serviced contracts.

§6936. Penalty; Jurisdiction.

Any person who violates the provisions of this Act 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 both; and upon a second or subsequent conviction thereof, he shall be punished by a fine of not less than $2,000 nor more than $5,000, or by imprisonment for not more than one year, or both. The Superior Court for the State of Delaware shall have exclusive original jurisdiction over offenses under this Subchapter.

§6937. Administrative Provisions.

(a) Nothing in this Act shall affect contracts in existence at the effective date hereof.

(b) Any professional service contract of $5,000 or less for the completed job will be excluded from all portions of this Act with the exception of Section 6933 and Subsection (d) of Section 6934 and 6936 in its entirety.

(c) Any intentional fragmentation of a project award or second party award to make it eligible to comply with Subsections (b) and (c) of §6937 shall be prohibited.

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

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

Approved July 21, 1976