CHAPTER 306

FORMERLY

HOUSE BILL NO. 930

AS AMENDED BY HOUSE AMENDMENT NO. 2

AN ACT TO AMEND CHAPTER 69, TITLE 29 OF THE DELAWARE CODE BY ADDING DEFINITIONS OF GOVERNMENTAL UNIT, PUBLIC WORKS CONTRACT, PUBLIC FUNDS, PUBLIC BUILDING AND SUBCONTRACTOR, AND BY ADDING REQUIREMENTS FOR ADVERTISING, PREPARATION AND SUBMISSION OF BID INVITATIONS AND AWARDING OF CONTRACTS AND LISTING OF SUBCONTRACTORS.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Two-thirds of all members elected to each House thereof concurring therein):

Section 1. Amend Chapter 69, Title 29 of the Delaware Code by striking §6901 in its entirety and inserting in lieu thereof the new §6901 as follows:

"§6901. Definitions.

As used in this Chapter:

(1) 'Agency' means any board, department, bureau, commission employee or officer of the State or of any County in the State, and any public school district and its Board.

(1) 'Materiel' means materials, equipment, tools, supplies or any other personal property but does not include electric, gas, water, telephone or similar utilities.

(1) Public works contract' means any contract for the construction, reconstruction, alteration or repair of any public building, road, street, highway or other public improvement, the cost of which will be paid with public funds.

(2) 'Subcontractor' means any person, partnership, firm, corporation, or other business association which enters into a contract directly with a contractor to perform actual construction labor on the site, or to perform actual construction labor and provide materiel in connection with such labor on the site. Labor performed in the delivery and unloading of materiel at the project site is not to be construed to mean actual construction labor under the terms of this Chapter.

(3) 'Public Funds' means funds of the State of Delaware, of any County in the State, or of any public school district, or of any agency within the State of Delaware and also funds of or from the United States Government or of or from any department or representative body thereof; and the cost of a 'public works contract' is paid 'with public funds' within the meaning of this Chapter when it is paid in part or in whole either (i) by funds of the State of Delaware or of or from any County in the State or any public school district or agency within the State of Delaware or (ii) by funds of or from the United States Government, or of or from any department or representative body thereof.

(4) 'Public building' means any edifice, structure or building which is, or is to be, constructed, reconstructed, altered or repaired pursuant to a 'public works contract'.

The word 'building' is a noun and the word 'Public' is an adjective, and the phrase is thus nounal. It does not mean the act or process itself of constructing, reconstructing, altering or repairing.

(7) 'Securities' shall include certified checks, cashier's checks, treasurer's checks and other negotiable or transferrable instruments evidencing a debt to the State or an agency of the State."

Section 2. Amend Chapter 69, Title 29 of the Delaware Code by striking subsection (b) of 56904 in its entirety and substituting in lieu thereof a new subsection (b) with paragraphs 1, 2 and 3, as follows:

"(b) 1. When an agency proposes to enter into a public works contract for any work to be done and the probable cost of such contract exceeds Ten Thousand Dollars ($10,000), the agency shall cause suitable plans and specifications for such work to be prepared for it by registered and licensed architects and/or engineers who shall sign such plans and specifications and affix their seals thereto, provided, however, that in eases where the work to be covered by the public works contract is to be performed in accordance with identical plans and specifications similarly signed and sealed pursuant to which previous public works contracts have been awarded under this Chapter 69, then such identical plans and specifications may be utilized without new or updated signatures and seals of the registered and licensed architects and/or engineers; provided, further, that any architect and/or engineer who signed and sealed the orginal of such identical plans will have no liability arising from the use of his plans other than the use contemplated by the contract pursuant to which the original of such plans was created, signed and sealed, unless such architect and/or engineer reviews and approves such different use. The agency shall publish such plans and specifications as part of the proposed public works contract and prescribe such other terms and conditions as it deems necessary. The description of work and/or materiel, and the plans and specifications, shall not use a brand or trade name, except as an indication of the type or quality of materiel, and in all such limited cases shall contain the words 'or approved equal.

2. In the case of any public works contract for the construction, reconstruction, alteration or repair of any public building (not a road, street or highway) of the State, of any County in the State, of any public school district, or of any political subdivision of the State, there shall be a meeting of all prospective bidders and of the agency called by the agency upon reasonable notice and at a place and time stated in such notice which meeting shall be at least fifteen (15) days before the date for the submission of bids; at the meeting all the participants, including the agency, shall attempt to agree upon a listing of all subcontrator categories to be included in the bids for performing the work as required by Section 6911 of this Chapter, and any such agreed listing shall be final and binding upon all bidders and upon the agency. If all of the participants do not agree on such a listing at the meeting then the agency itself at least ten (10) days before the due date for the submission of bids shall determine the subcontractor categories to be included in the listing. The listing, whether agreed to by all of the participants at the meeting or determined by the agency itself in the absence of the unanimous agreement of the participants at the meeting, shall be published by the agency at least ten (10) days before the due date for the submission of bids by mailing and listing to all of the participants at the meeting. The listing as so published shall be final and binding upon all bidders and the agency and it shall be filled out completely in full without any abbreviations."

Section 3. Amend Chapter 69, Title 29 of the Delaware Code, by striking all of §6911 except subsections (3) and (4) thereof and by substituting in lieu of such stricken portions of §6911 new portions of 56911 as follows:

"§6911. Contractors for Public Buildings; Listing Subcontractors; Bidder as Subcontractor; Substitution of Subcontractors; Penalties

Any public works contract, the probable cost of which exceeds Ten Thousand Dollars ($10,000), for the construction, reconstruction, alteration or repair of any public building (not a road, street or highway) of the State or of any County or of any public school district or of any political subdivision of the State, shall be subject to the following provisions:"

(I) Such contract shall he awarded only to a bidder whose bid is accompanied by a statement containing for each subcontractor category set forth in the 'listing' as provided in §6904(b) of this Chapter, the name and address (City or Town and State only - Street Number and P. 0. Box addresses not required) of the subcontractor whose services he intends to use in performing the work or in performing the work and providing the materiel, for such subcontractor category. No bidder for such a contract shall list himself in any accompanying statement as the subcontractor of any part of the public building unless the bidder, in addition to being licensed as a contractor of the State, shall also be recognized in the industry not only as a prime contractor but also as a subcontractor or contractor in and for any such part or parts of such work so listed in such accompanying statement.

(2) Neither the State nor County nor public school district nor any political subdivision of the State, nor any agency of any of them, shall accept any bid for such a contract or award any such contract to any bidder, as the prime contractor, if the bidder has listed himself as the subcontractor for any subcontractor category set forth on the listing' as provided in §6904(b) of this Chapter, unless it has been established to the satisfaction of the awarding agency that the bidder has customarily performed the specialty work of such subcontractor category by artisans regularly employed by the bidder in his organization, that the bidder is dilly licensed by the State to engage in such specialty work, if the State requires such licenses, and that the bidder is recognized in the industry as a bona fide subcontractor or contractor in such specialty work and subcontractor category. Illustrative only (and not intended to be exhaustive) of typical subcontractor categories involving their own respective types of specialty work, are plumbing, electrical wiring, heating, roofing, insulating, weather stripping, masonry, bricklaying and plastering. The decision of the awarding agency as to whether a bidder who lists himself as the subcontractor for a subcontractor category set forth in the 'listing' as provided in §6904(b) for such subcontractor category, shall be final and binding upon all bidders, and no action of any nature shall lie against any awarding agency because of its decision in this regard."

Section 4. The provisions of this Act are severable and if any provision or provisions of this Act, or the application of this Act or any of its provisions, to any person or circumstance is held invalid or unconstitutional, the remaining and other provisions of this Act or the application of this Act or any of its provisions to other persons or to other circumstances, shall not be affected thereby and shall not thereby be held or construed to be invalid or unconstitutional.

Approved July 1, 1980.