CHAPTER 601

FORMERLY

SENATE SUBSTITUTE NO. 2

TO

SENATE BILL NO. 223

AS AMENDED BY SENATE AMENDMENT NOS. 1 AND 4

AN ACT TO AMEND TITLE 29 OF THE DELAWARE CODE RELATING TO PUBLIC PROCUREMENT OF GOODS. MATERIALS AND SERVICES AND THE DEPARTMENT OF ADMINISTRATIVE SERVICES.

BE IT ENACTED BY FI1E GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. This Act shall be referred to as "The State Procurement Act."

Section 2. Amend § 6901, Title 29, Delaware Code by deleting it in its entirety and inserting in lieu thereof the following:

"Subchaper I. General Provisions. "§ 6901. Purpose.

The purpose of this Act is to:

(a) Create a more efficient procurement process to better enable the State to obtain the highest quality goods, materials and services at the best possible price, thereby maximizing the purchasing value of public monies; and

(b) Create a single forum in which the procurement needs of state agencies and the technical and legal requirements of the Division of Purchasing are addressed simultaneously so as to increase mutual understanding, respect, trust, and fair and equitable treatment for all persons who deal with the state procurement process."

Section 3. Amend §6902, Title 29, Delaware Code by redesignating it as new "§ 6906" and inserting as new § 6902 the following:

"§ 6902. Definitions. As used in this Act:

(a) 'Agency' means every board, department, bureau, commission, person or group of persons or other authority which directly receives monies under any budget appropriation act or supplemental appropriation act and which was created and now exists or hereafter is created to:

(1) execute, supervise, control and/or administer governmental functions under the laws of this State; and/or

(1) to perform such governmental functions under the laws of this State, or to perform such other duties as may be prescribed; and/or

(2) to collect and/or use any taxes, fees, licenses, permits or other receipts for service or otherwise for the performance of any function or related to or supported in whole or in part by the laws of this State; and/or

(3) to administer any laws providing for the collection of taxes, fees, permits, licenses or other forms of receipts from any sources whatsoever for the use of the State or any Agency of the State.

(4) Agency shall include Delaware Technical and Community College and the Delaware State University but shall not include agencies receiving only grants-in-aid appropriations from the State and no other appropriations, as described herein, the University of Delaware, volunteer fire departments, and the Delaware Transit Corporation. Nothing in this Subsection shall be deemed to exempt any entity that is otherwise required to comply with § 6960 of this Title.

(b) 'Agency Head' means the top official in an Agency whether elected, appointed or otherwise. The Agency Head may delegate duties under this Act to a designee within the Agency.

(c) 'Agency Official' means any 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.

(d) `Compensation' means the total amount paid by an Agency for professional services, including reimbursed expenses, unless otherwise stated in the contract.

(e) `Contractor' means any person, partnership, firm, corporation, non-profit agency or other business association who has a contract with an Agency.

(f) `Covered Agency' means any Agency except School Districts, Delaware Technical & Community College, the Delaware State University, the Legislative Branch of State government.

(g) `Department' means the Department of Administrative Services, except as provided in § 6960 of this Title, in which case it shall mean the Department of Labor.

(h) `Division' means the Division of Purchasing in the Department of Administrative Services.

(i) 'Firm' means a person, organization, partnership, limited partnership, corporation, association, non-profit agency or other business association.

(j) `Local government unit' means any municipality incorporated in this State under the authority of the General Assembly and any of the three counties.

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

(1) `Professional services' means services which generally require specialized education, training or knowledge and involve intellectual skills. Examples of professional services include but are not limited to engineering, environmental engineering, environmental monitoring, land surveying, landscape architecture, geology, architectural, archaeologists, architectural historians, historians, educational consultants, management, medical, teaching, planning, computer information management, financial, accounting, auditing, construction management, and arbitration services. Professional services subject to the provisions of § 2507 of Title 29 of the Delaware Code or which require compliance with Delaware Supreme Court Rule 52 or a substantially similar rule of another state shall not be included in this definition and shall not be subject to the provisions of this Act.

(m) `Public building' means any edifice or building which is, or is to be, constructed, reconstructed, altered or repaired pursuant to a public works contract. It does not mean the act or process itself of constructing, reconstructing, altering or repairing.

(m) 'Public funds' means funds of the State, of any Agency within the State, of any public school district, of or from the United States government or of or from any department or representative body thereof

(n) 'Public Works Contract' means construction, reconstruction, demolition, alteration and repair work and maintenance work paid for in whole or in part with public funds.

(o) `Secretary' means for the purposes of this Act, the Secretary of the Department of Administrative Services, except as provided by § 6960 of this Title, in which case it shall mean the Secretary of the Department of Labor.

(q) 'User Group' means one or more Agency representatives who provides technical advice to the Division of Purchasing concerning the requirements of certain Materiel and non-professional services contracts.

(r) 'Volunteer Fire Department' means a volunteer fire department recognized as such by the State Fire Prevention Commission."

Section 4. Amend § 6903, § 6904, § 6905, Title 29, Delaware Code by deleting said sections in their entirety and inserting in lieu thereof the following:

§ 6903. Violations and Penalties.

(a) Any person, who, with intent to avoid compliance with this Act, willfully fragments or subdivides any contract for the purchase of materiel, non-professional services, public works or professional services, shall be subject to the penalties listed in this Section.

(b) Agency employees and representatives shall neither seek nor accept for themselves or others any gifts, favors, entertainment or privileges from any vendor or supplier who does or seeks to do business with any Agency.

(c) Each contract entered into by an Agency for professional services shall contain a prohibition against contingency fees as follows:

(1) The firm offering professional services swears that it has not employed or retained any company or person, working primarily for the firm offering professional services, to solicit or secure this agreement, by improperly influencing the Agency or any of it employees in any professional service procurement process; and

(2) The firm offering the professional service 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; and

(3) For the 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.

(d) Any Agency official who offers to solicit or secure, or solicits or secures, any Agency or central contract and, is paid any fee, commission, percentage, gift or any other consideration, shall be subject to the penalties listed in this Section.

(e) Any individual or firm who offers, agrees, or contracts to improperly influence any Agency or its employees in the procurement of any Agency or central contract and, who is paid or is to be paid a fee, commission, percentage, gift or any other consideration contingent upon or resulting from the award or the making of an Agency or central contract, shall be subject to the penalties listed in this Section.

(f) Any individual or firm offering materiel and/or services which shall offer to pay, or is paid, any fee, commission, percentage, gift or any other consideration contingent upon, or resulting from, the award or making of any Agency or central contract shall be subject to the penalties listed in this Section.

(g) Except for § 6960 of this Title for which the penalties and remedies enumerated in that Section shall apply, any individual or firm which commits a violation of this Act, as listed in this Section, shall be punished by a fine of not less than $1,000 and not more than $2,000, or by imprisonment for not more than 6 months, or both, and upon a second or subsequent conviction thereof, shall be punished by a fine of not less than $2,000 and not more than $5,000, or by imprisonment for not more than 1 year, or both. The Superior Court for the State shall have exclusive original jurisdiction over offenses listed in this Section.

(h) The remedies and penalties provided for in this Section are not exclusive and shall be in addition to any other procedures, rights or remedies which exist with respect to any other provisions

of law including but not limited to State and/or federal criminal prosecutions, or common law or statutory actions brought by private parties and/or the provisions and penalties defined in Chapter 58 of this Title.

§ 6904. Exceptions.

(a) If any provision of this Act conflicts or is inconsistent with any statute, rule or regulation of the federal government applicable to a project or activity, the cost of which is to be paid or reimbursed in whole or in part by the federal government, and due to such conflict or inconsistency the availability of federal funds may be jeopardized, such provision shall not apply to such project or activity. if any provisions of this Chapter conflict or are inconsistent with Chapter 40, Title 31 of the Delaware Code, the provisions of Chapter 40, Title 31 of the Delaware Code shall prevail and govern.

(b) This Act shall not apply to any purchase of materiel from the federal government.

(c) This Act shall not apply to contracts for the transportation of school children. All proposed contracts for the transportation of school children shall be submitted to the State Board of Education by the Transportation Unit for its approval. The approval of the State Board of Education shall be by majority vote of the duly appointed members of such Board, and a failure of such majority vote, shall cause the rejection of the proposed contract with a corresponding return to the Transportation Unit of the Department of Public Instruction of such rejected contract and a request for a substituted contract to be submitted.

(d) This Act shall not apply to any purchase of library materials such as books, periodicals, subscriptions, and software by libraries of any Agency, nor shall this Act apply to the purchase of services by libraries of any Agency pursuant to Chapter 66 of this Title.

(e) If no State contract exists for a certain good or service, Covered Agencies may procure that certain good or service under another Agency's Contract so long as the arrangement is agreeable to all parties. Agencies, other than Covered Agencies, may also procure such goods or services under another Agency's contract when the arrangement is agreeable to all parties.

(0 Where, because of changed situations, unforeseen conditions, strikes, or acts of God, a change order is determined to be necessary and is requested by the Agency, and not specified in the Agency's solicitation or advertisement for bids and in the contract as awarded, the awarding Agency may issue a change order setting forth the change, addition or extra work required to be undertaken by the contractor on a public works contract, which shall not:

(1) Be subject to the competitive bidding requirements of this Act; or

(2) Invalidate the contract, provided that such change is within the scope of the contract as set forth in the standard specifications, special provisions or similar publication of the Agency.

(g) All material required by any Agency shall be purchased, except where hereinafter provided, and all work of a non-professional nature, except as hereinafter provided, which is not to be performed by employees of the Agency shall be performed under a contract entered into pursuant to this Subchapter and after competitive bidding as provided for in this Section except that an Agency may purchase Material or contract for work to be performed without competitive bidding in the following instances:

(1) When the purchased material will be used by the Delaware Industries for the Blind within the Department of Health and Social Services as raw material for goods and services, which the Program manufactures and provides for resale or the purchased material, will be used by the Business Enterprise Program of the Division for the Visually Impaired as supplies to operate the vending stands in the Program;

(2) When material or services are on the procurement list published by the commission for the purchase of products and services of the blind and other severely disabled individuals, those Materiel or services shall be purchased in accordance with the procedure described in § 9605 of Chapter 96 of Title 16;

(3) Where the purchased material or work which is the subject of the contract is necessary to enable the Department of Natural Resources and Environmental Control to engage in the preservation of the beaches of the Atlantic Ocean and Delaware Bay shoreline of Delaware in accordance with the Beach Preservation Act, Chapter 68 of Title 7. Notwithstanding the foregoing, any such purchase must be approved by the Budget Commission prior to the commencement of any purchase of material or work.

(h) This Act shall not apply to purchases of historical artifacts or art for the purpose of public display.

(i) A contract may be awarded without competition if the Agency Head, prior to the procurement, determines in writing that there is only one source for the required contract. Sole source procurement shall not be used unless there is sufficient evidence that there is only one source for the required contract and no other type of goods or service will satisfy the requirements of the Agency. The Agency shall examine cost or pricing data prior to an award under this Subsection. Sole source procurement shall be avoided, except when no reasonable alternative sources exist. A written determination by the Agency for the sole source procurement shall be included in the Agency's contract file.

(h) This Act shall not apply to any purchase of educational materials and supplies by postsecondary educational institutions participating in and benefiting from special educational discount and cooperative programs.

(j) This Act shall not apply to the Wilmington Housing Authority in the procurement of goods and/or services when such goods and/or services are provided by primarily Wilmington Housing Authority resident-owned businesses.

(I) This act shall not apply to the Office of the Commissioner of Elections or the several Departments of Elections in the purchase of material or work which is the subject of the contract and which is necessary to enable the Department of Elections to conduct a primary, general, special election or voter registration pursuant to Title 15.

§ 6905. Failure to Comply with Contract; New Award; Supervision.

If any firm entering into a contract under the authority of this Act neglects or refuses to perform or fails to comply with the terms thereof, the Agency which signed the contract may terminate the contract and proceed to award a new contract in accordance with this Act or may require the surety on the performance bond to complete the contract in accordance with the terms of the performance bond."

Section 5. Amend § 6907, § 6908, § 6909, § 6910, § 6911, Title 29 of the Delaware Code by deleting said sections in their entirety and inserting in lieu thereof the following:

§ 6907. Emergency Procedures and Critical Need for Professional Services.

(a) An Agency Head may waive any or all provisions of this Act to meet the critical needs of the Agency as required by emergencies or other conditions where it is determined to be in the best interest of the Agency. The Agency Head may determine an emergency condition exists by reason of extraordinary conditions or contingencies that could not reasonably be foreseen and guarded against. An emergency condition creates an immediate and serious need for materiel and/or non-professional services that cannot be met through normal procurement methods for the protection of public health, safety, or property.

(1) Any procurement pursuant to this Subsection shall be limited to those materials and/or non-professional services necessary to satisfy the emergency.

(2) Any public works project contracted pursuant to this Subsection shall be subject to the provisions of § 6960 of this Title.

(3) Any public works project contracted pursuant to this Subsection shall be subject to the provisions of § 6962(d)(4)b. of this Title.

(4) A copy of each emergency determination processed under this procedure shall be kept on file by the Agency.

(b) In addition to the waiver provisions provided for in subsection (a), an Agency Head may waive any or all provisions of Subchapter V of this Title, to meet a critical need of the Agency as required by an emergency or other condition where it is determined to be in the best interest of the Agency. The Agency Head may determine a critical need exists by reason of conditions or contingencies that could not reasonably be foreseen and guarded against. A critical need creates a need for professional services that cannot be met through normal procurement methods.

(1) Any procurement pursuant to this Subsection shall be limited to those professional services necessary to satisfy the critical need.

(1) A copy of each critical need determination processed under this procedure shall be kept on file by the Agency.

§ 6908. Division Powers and Duties.

(a) In addition to the powers and duties prescribed by other Sections in this Code, the Division shall:

(1) Review and recommend improvements to the State's procurement process;

(2) Function as the contracting agent in central or joint contracting for State Agencies provided that, at a minimum, all contracts are awarded in conformance with the requirements of this Act. The Division is required to meet or exceed the requirements of the Agencies;

(3) Function as a resource for State Agencies by providing, on request, procurement information and or assistance;

(4) Serve as a clearinghouse for procurement information for materiel and services for both Agencies and vendors;

(5) Promulgate rules and regulations to effect this Act. Such rules and regulations shall be promulgated according to the Administrative Procedures Act in Chapter 101 of this Title and shall be approved by the Contracting and Purchasing Advisory Council; and

(1) Assume such other powers, duties and functions as the Secretary of the Department may assign which are not otherwise inconsistent with the laws of this State.

(b) The Department shall not charge any Agency any fee for central contracting services. The Secretary of the Department may charge any Agency of this State, local government unit or volunteer fire departments within the State, for which the Department makes purchases, supplies, contractual services or to which it distributes materiel, a reasonable service charge. The Department shall deposit such charges into a special account to be used to effectuate the purposes of the Department.

§ 6909. Special Requirements for Contracts Involving Environmental Statutes.

All contracts covered under this Act shall make provisions for all federal and State antipollution, conservation and environmental statutes, rules and regulations, and county ordinances which will be involved in the execution of the contract.

Subchapter II. Central Contracting.

§ 6910. Applicability.

This Subchapter shall apply to all covered Agencies as defined in § 6902(f) of this Act. § 6911. Authority and Responsibilities.

(a) The Division shall act as the exclusive contracting agent for all purchases of materiel and non-professional services not subject to the small purchasing procedures made by contracting agencies and as outlined in this Subchapter and made by two or more Covered Agencies except as provided for in Subsection (d) of this Subchapter.

(b) The Division shall have the following responsibilities for central contracts:

(1) assembling the bid specification package;

(2) conducting the advertising, bidding and awarding of each contract;

(3) resolving disagreements between vendors and Agencies; and

(1) assuring that vendors and products meet the requirements of awarded contracts.

(c) Each Agency that participates in a central contract shall have the following responsibilities for the materiel or service purchased under that contract:

(1) Providing and approving commodity specifications;

(2) Participating in User Groups by requiring that appropriate Covered Agency staff attend User Group meetings, as described in § 6912 of this Act; and

(1) Providing information concerning contract effectiveness to the Division.

(d) Covered Agencies shall exclusively use central contracts. A Covered Agency Head may exempt the Agency from a central contract only when all of the following conditions are met by the Covered Agency Head:

(1) Demonstration that participation in a central contract would negatively impact the operations of the Covered Agency. However, operations as used in this Subsection shall not include the fiscal impact to the Covered Agency;

(1) Demonstration that the Covered Agency has attempted to negotiate the specifications with the Division prior to the Covered Agency Head exempting the materiel or service; and

(2) Demonstration that the exemption is an exception to the Covered Agency's use of a central contract rather than a common practice.

Any exemption issued by an Agency Head under this Subsection shall not be a blanket exemption but shall only apply to an individual central contract.

(e) The Director of the Division may waive the requirement that a Covered Agency use a State contract in the event the Director deems such a waiver is in the best interest of the State."

Section 6. Amend existing § 6912, Title 29, Delaware Code by redesignating it as new "§ 6960" and by inserting as new § 6912 the following:

"§ 6912. Covered Agency User Groups.

(a) The Division shall establish, convene and chair User Groups for the purchase of a materiel or service, or group of materiel and/or services, by a central contract or contracts. Convention of a User Group may include, but is not limited to, a formal meeting, electronic mail among User Group members, and/or a teleconference among User Group members. The method by which the User Group convenes shall be agreed to by all User Group members.

(b) The Division shall provide reasonable opportunity for each Covered Agency to participate in a User Group if that Covered Agency anticipates the purchasing of materiel or service(s) or a group of materiel and/or services under a specific central contract to be written and bid. A Covered Agency not participating in a User Group shall not be grounds for an exception to the use of that central contract. A User Group shall perform at least the following functions for the materiel or service or group of materiel and/or services to be purchased by a central contract:

(1) Make recommendations on the contents of the contract;

(2) Rate vendors, materials and/or services;

(3) Rate the effectiveness of the contract; and

(4) Qualify a materiel and/or service."

Section 7. Amend §§ 6913 through 6922 and §§ 6930 through 6937, Title 29, Delaware Code by deleting said sections in their entirety and inserting in lieu thereof the following:

"§ 6913. Contracting and Purchasing Advisory Council.

(a) There is established a Contracting and Purchasing Advisory Council to consist of all Covered Agency Heads and one additional member representing all Public School Districts. The Director of the Division shall be a non-voting member of the Council.

(b) The Secretary of the Department shall be the Council Chair.

(c) The purpose of the Council is to advise as to the effectiveness of and make recommendations for changes to the States procurement laws, policies, and practices to the Secretary of the Department and the Director of the Division.

(d) The Council shall be responsible for:

(1) Recommending procurement policy and administrative procedures to the Secretary. The Secretary shall elicit the Council's comments before issuing policy statements, policy changes, administrative procedures, or administrative changes regarding this Act;

(1) Reporting annually to the Governor by December 31st of each year concerning the effectiveness of the State's procurement processes. This report shall include recommended changes to the State's procurement laws as may be necessary to improve the State's overall effectiveness;

(2) Reviewing vendor concerns regarding the overall procurement process and recommending appropriate action relating to these concerns; and

(3) Setting the dollar amount thresholds required in this Act. When setting these dollar amount thresholds, the Council shall take into consideration operational issues and inflation. Nothing in this Subsection shall effect the amounts set in § 6960 of this Title.

(e) A Contracting and Purchasing Committee shall also be established. The Division Director shall appoint representatives to the Committee, with the approval of the Council. The

Division Director shall chair the Committee. The Committee shall staff the Council, monitor the
effectiveness of the State's procurement process, recommend changes to the procurement process,

policies, and procedures, and any other duties deemed necessary by the Council.

§ 6914. Delegation of Centralized Contracting Authority.

The Division may delegate its centralized contracting authority for specific materials and/or services or groups of materials and/or services to another Covered Agency with the Covered Agency's concurrence.

§ 6915. Exceptions.

(a) In a contract for professional services, public works or non-professional services, where the contract includes items that are a part of a central purchasing contract, those items shall not be subject to the purchasing requirements of this title.

(b) If a service or a materiel is a component part of a specific project that is part of another contract, then the requirements of this Subchapter shall not apply.

(c) This Section is not intended to allow Agencies to avoid the use of central purchasing contracts by contracting with a vendor under the auspices of procuring a good or service when the sole or partial purpose of such a contract is to procure, from that vendor, another good or service that is on a central purchasing contract.

Subchapter III. Materiel & Non-Professional Services. § 6922. Small Purchase Procedure.

(a) Applicability.

Any State contract for which an Agency is a party for materiel or non-professional services, whose annual probable cost is less than the threshold amount(s) set by the Contracting and Purchasing Advisory Council pursuant to § 6913 of this Act, may be made under small purchase procedures established by the Secretary.

(a) Procedure.

The Secretary with the approval of the Contracting and Purchasing Advisory Council shall provide for a simplified administrative process for obtaining competitive prices for small purchases. This procedure shall be in writing and distributed to all agencies.

§ 6923. Competitive Sealed Bidding.

(a) Applicability.

Any State contract for which an Agency is a party for materiel or non-professional services, whose annual probable cost is greater than the threshold amount(s) set by the Contracting and Purchasing Advisory Council pursuant to § 6913 of this Act, shall be made only through the use of competitive sealed bids.

(b) Advertising Requirements.

(1) If the probable cost of the materiel or non-professional service is estimated to annually exceed the threshold amount(s) set by the Contracting and Purchasing Advisory Council pursuant to § 6913 of this Act, the procurement shall be made only after public advertising and the receipt of sealed bids as provided for in this Subchapter. The advertisement for such bids shall be published at least once a week for 2 consecutive weeks in a newspaper published or circulated in each county of the State.

(2) The advertisement for bids shall State the name of the procuring Agency, indicate with reasonable accuracy the character, quantity and location of the work, or the character and quantity of materiel, the time and place for the opening of bids and where the specifications or descriptions may be obtained. The advertisement shall also state that the Agency may extend the time and place for opening of bids from that described in the advertisement, on not less than 2 calendar days' notice, by certified delivery, facsimile machine or other electronic means to those bidders who obtained copies of the specifications or descriptions.

(c) Bid Openings.

(1) Bids shall be opened publicly at the time and place designated in the invitation to bid. The main purpose of the bid opening is to reveal the name(s) of the bidder(s), not to serve as a forum for determining the low bidder(s). The disclosure of additional information, including prices, shall be at the discretion of the procuring Agency until such time that the responsiveness of tem each bid has been determined.

(2) The contract shall be awarded within 30 calendar days of the bid opening to the lowest responsive and responsible bidder whose bid conforms in all material respects to the requirements and criteria set forth in the invitation to bid, except that in the case of a public school district and its board or designee or the Department of Public Instruction, the contract shall be awarded within 60 days thereafter.

(3) The bids, bid summaries, and bid tabulations shall not be open for public inspection until after a contract has been awarded. Bids shall be unconditionally accepted without alteration. Bids shall be evaluated based on the requirements set forth in the invitation to bid. No criteria may be used in bid evaluations that are not set forth in the invitation to bid. After bid opening, no corrections in bid prices or other provisions of bids prejudicial to the interests of this State or fair competition shall be permitted.

(d) Vendor Eligibility.

(1) A firm may be required to have a valid State of Delaware business license prior to the execution of an Agency contract.

(1) Vendors are responsible for reviewing all public advertisements which announce the invitation to bid for an Agency contract.

(2) To supplement the contract public notice, the Agency may compile and maintain a prospective vendors list. Inclusion of the name of a person shall not indicate whether the firm is responsible concerning a particular procurement or otherwise capable of successfully performing a contract.

(3) Firms desiring to be included on the prospective vendors list shall notify the Agency. Upon notification, the Agency shall mail or otherwise provide the firm with a vendor registration form. The firm shall complete the vendor registration form and return it to the Agency A vendor registration list shall not be used as a means to restrict competition.

(4) No cause of action shall accrue from any good faith effort to contact and distribute invitations to bid, amendments to invitations to bid as well as all correspondence utilizing the Agency's vendor eligibility list.

(5) Firms that fail to respond to solicitations for two consecutive procurement contracts for a particular item may be removed from the applicable vendors list. The Agency shall send notice of such a removal by mail or facsimile to the firm. Firms may be reinstated upon request.

(e) Invitation to Bid.

(1) The Agency shall make available invitations to bid at least 14 days before the time and date of the bid opening unless a shorter time is deemed necessary for a particular procurement as determined in writing by the Agency.

(2) The invitation to bid shall include the following:

a. Instructions and information concerning the bid submission requirements, including the time, date, and place set for bid opening, and any other special information;

a. The description, specifications, evaluation criteria, delivery or
performance schedule, and inspection and acceptance requirements for the contract;

b. The contract terms and conditions, including, but not limited to, warranty and bonding or other security requirements, as applicable.

(3) If the invitation to bid incorporates documents by reference the invitation to bid shall specify where such documents may be obtained or reviewed.

(4) An invitation to bid may require the submission of bid samples, descriptive literature, technical data and may require inspection or testing of a product before award.

(5) A copy of the invitation to bid shall be made available for public inspection at

the Agency.

(f) Pre-bid Conferences.

An Agency may conduct a pre-bid conference within a reasonable time but not less than seven days before a bid opening to explain the requirements of an invitation to bid. An Agency may require mandatory attendance by bidders at such pre-bid conferences to qualify as a responsible and responsive bidder. Statements made at the pre-bid conference shall not be considered amendments to the invitation to bid unless a written amendment is issued pursuant to § 6923(g).

(g) Amendments to Invitations to Bid.

(1) An amendment to an invitation to bid shall be issued to:

a. Make changes in the invitation to bids;

b. Correct defects or ambiguities in the invitation to bid; and/or,

c. Change the date, place, or time of the bid opening.

(2) Amendments to invitations to bid shall be so identified and shall be sent to all firms to whom the Agency distributed an invitation to bid.

(3) The Agency shall obtain verification of bidder receipt of all amendments

issued.

(h) Withdrawal of Bids.

(1) A bidder may withdraw its bid at any time before bid opening if the withdrawal is received in writing before the bid opening at the location designated in the invitation for bids for receipt of bids. A bidder or its authorized representative may withdraw its bid in person if, before the bid opening, the identity of the person requesting withdrawal is established and that person signs a receipt for the bid.

(2) All documents concerning a withdrawal of a bid shall be retained in the appropriate procurement file.

(1) After a bid opening, a firm may request in writing that its respective bid be withdrawn. Such a request may be allowed only upon the approval of the Agency. If withdrawal of a bid after bid opening is permitted or denied, the Agency shall prepare a written determination showing that the request was permitted or denied along with the reasons for such determination.

(i) Late Bids and Late Modifications.

(1) A bid or withdrawal of a bid is late if it is received at the location designated in the invitation to bid for receipt of bids after the time and date set for bid opening.

(1) Bidders submitting bids or withdrawals of bids that are late shall be notified as soon as practicable and the bid shall be returned unopened.

(2) Documentation concerning a late bid or late withdrawal of a bid shall be retained in the appropriate procurement file.

(j) Receipt, Opening, and Recording of Bids.

(1) Except as provided in § 6923(j)(2), each bid shall be time stamped upon receipt and stored by the Agency unopened in a secure place until the time and date set for bid opening.

(2) An envelope that is not marked as a bid or does not identify the bidder or solicitation may be opened solely for the purpose of identification. Record shall be made on the envelope of the reason for opening it, the date and time it was opened, the solicitation to which the bid responded and the signature of the person who opened the envelope. The envelope shall be resealed and retained in the procurement file.

(3) Bids shall be opened publicly and in the presence of one or more witnesses at the time, date, and location designated in the invitation. Bid information shall be disclosed at the

public opening pursuant to § 6923(c)(1). The bid information made available at the public opening shall be recorded on a bid abstract. The name of the required witness shall also be recorded. The bid abstract shall be available for public inspection.

(4) Bids shall not be available for public inspection before contract award pursuant to § 6923(c)(3). After contract award, the bids shall be available for public inspection, except to the extent that withholding of information is permitted by Title 29 of the Delaware Code, Chapter 100, or otherwise permitted or required by law. If the bidder designates a portion of its bid as confidential, it shall isolate and identify in writing the confidential portions. The bidder shall include with this designation a Statement that explains and supports the firm's claim that the bid items identified as confidential contain trade secrets or other proprietary data.

(k) Bid Evaluation and Award.

(1) The contract shall be awarded to the lowest responsible and responsive bidder whose bid meets the requirements and evaluation criteria set forth in the invitation to bid. If the invitation to bid so provides, award may be made by individual line item, by group of line items, by County, zone or any other way designated by the Agency, or for the aggregate total of all line items, otherwise award shall be made in lump sum. A formal contract shall be executed with the successful bidder within 20 days after the award of the contract.

(2) A contract may be awarded to a firm other than the lowest responsible and responsive bidder if, in the opinion of the Agency, the interests of the State shall be better served by awarding the contract to some other bidder provided the Agency Head makes a written determination of the reason or reasons for granting the contract to a firm other than the lowest responsible and responsive bidder.

(3) A product acceptability evaluation may be conducted to determine whether a bidder's product meets the bid specifications. Any bidder's offer that does not meet the bid specifications shall be rejected as non-responsive.

(4) Bids shall be evaluated to determine which bidder offers the lowest cost to the Agency in accordance with the evaluation criteria set forth in the invitation to bid. Only objectively measurable criteria that are set forth in the invitation to bid shall be applied in determining the lowest bidder. Examples of such criteria include, but are not limited to, transportation cost, energy cost, ownership cost and other identifiable costs. Evaluation factors need not be precise predictors of actual future costs, but to the extent possible the evaluation factors shall be reasonable estimates based upon information the Agency has available concerning future use. Prior unsatisfactory performance on a State contract by a bidder may be included in the evaluation criteria to determine if a bidder is responsible.

(5) A contract may not be awarded to a bidder submitting a higher quality item than that designated in the invitation for bids unless the bidder is also the lowest bidder as determined under this Section. The Agency may seek clarification of a bid, but negotiations are not permitted with any bidder.

(6) If 2 or more responsible firms bid an equal amount and such amount is the lowest bid, the Agency may award the contract to any 1 of them or reject all bids consistent with the provisions of this Section.

(7) A record showing the basis for determining the successful bidder shall be retained in the Agency procurement file.

(8) A written notice of award shall be sent to the successful bidder. For procurement greater than the threshold amount(s) set by the Contracting and Purchasing Advisory Council pursuant to § 6913 of this Act, each unsuccessful bidder shall be notified of the award. Notice of award shall be made available to the public.

(I) Only One Bid Received.

a. The price submitted is fair and reasonable and other prospective bidders had reasonable opportunity to respond; or

a. There is not adequate time for re-solicitation.

(2) If only one responsive bid is received and the bid is rejected, the

Agency may:

a. Solicit new bids; or

b. Cancel the proposed procurement.

(m) Cancellation of Invitation To Bid.

An invitation to bid or other solicitation may be canceled or any or all bids may be rejected in whole or in part prior to the opening of bids as may be specified in the solicitation if it is in the best interest of the State. The reasons for the cancellation or rejection shall be made part of the procurement file.

(1) If an invitation to bid or other solicitation is canceled prior to the opening of bids, a notice of cancellation shall be sent to all bidders.

(2) Any bids that have been received shall be returned unopened to the bidders.

(n) Rejection of Individual Bids.

A bid may be rejected if:

(2) The bidder's record of performance and integrity;

(3) Whether the bidder is qualified legally to contract with the State; and

(1) The bidder is determined to be non-responsive pursuant to § 6923(o); or

(2) The bid is non-responsive or non-responsible in accordance vvith § 6923(k); or

(3) It is otherwise not advantageous to the State.

Bidders whose bids are rejected under this Section shall be notified in writing about the

rejection. Record of the rejection shall be made part of the procurement file.

(o) Responsiveness of Bidders.

An Agency shall detennine that a bidder is responsive before awarding a contract to that

bidder. Factors to be considered in determining if a bidder is responsible include:

(1) The bidder's financial, physical, personnel or other resources, including

subcontracts;

(4) Whether the bidder supplied all necessary information concerning its responsiveness.

The Agency may establish specific responsibility criteria for a particular procurement. Specific responsibility criteria shall be set forth in the solicitation. If an Agency determines that a

bidder is non-responsive and/or non-responsible, the determination shall be in writing and set forth

the basis for the determination. A copy of the determination shall be promptly sent to the affected

bidder. The final determination shall be made part of the procurement file.

§ 6924. Competitive Sealed Proposal - Request for Proposal Procedure. (a) Applicability.

When the Agency Head makes a determination that the use of competitive sealed bidding is either not practical or not in the best interest of the State, a contract may be entered into through competitive sealed proposals. The determination to use competitive sealed proposals may be made if it is necessary to:

(1) Use a contract other than a fixed-price type;

(2) Conduct oral or written discussions with offerors concerning technical and price aspects of their proposals;

(3) Afford offerors an opportunity to revise their proposals;

(4) Compare the different price, quality, and contractual factors of the proposals submitted;

(5) Award a contract in which price is not the determining factor; or

(6) The Agency is unable to draft specifications in sufficient detail to be applicable to competitive sealed bidding.

(b) Advertising Requirements.

(1) Proposals shall be solicited through a request for proposal which shall be issued and shall include the location where proposals are to be received and the date and time the proposals are to be opened.

(2) Adequate public notice of the request for proposals shall be given in the same manner as provided in § 6923(b).

(3) Proposals shall be opened publicly at the time and place designated in the request for proposals. The name of each offeror, and such other relevant information as is specified in the request for proposals shall be read publicly and recorded in accordance with the request for proposal promulgated by the Agency. All other information contained in the proposals shall be confidential so as to avoid disclosure of contents prejudicial to competing offerors during the process of negotiation.

(4) The request for proposals shall state the relative importance of price and other evaluation factors.

(5) Offerors intending to submit proposals may be afforded an opportunity for discussion for the purpose of clarification to assure full understanding of, and responsiveness to, the solicitation requirements. Negotiations may be conducted with responsible offerors who submit proposals found to be reasonably likely to be selected for award. Offerors shall be accorded fair treatment with respect to any opportunity for discussion and amending proposals, and such amendments may be permitted after submissions and before award for the purpose of obtaining best and final offers. In conducting discussions, there shall be no disclosure of any information derived from proposals submitted by competing offerors.

(6) The award shall be made in writing to the responsible offeror whose proposal is determined to be the most advantageous to the State taking into consideration the evaluation factors set forth in the request for proposals. No other factors or criteria may be used in the evaluation. [The award of a contract for goods and/or services may be made upon criteria which do not include price. The contract file shall contain the basis on which the award is made.]

(c) Request For Proposals.

(1) A request for proposals shall set forth those factors listed in § 6923(e) that are applicable and shall also state:

a. The type of materiel or services required and a description of the work

involved;

b. The type of contract to be used;

c. That offerors may designate as trade secrets or proprietary data portions

of the proposals;

d. That discussions may be conducted with offerors who submit proposals determined to be likely to be selected for award;

e. The minimum information that the proposal must contain; and

f. The closing date and time for receipt of proposals.

(2) A request for proposals shall be issued at least 14 calendar days before the

closing date and time for receipt of proposals unless a shorter time is determined necessary in writing by the Agency.

(3) Notice of the request for proposals shall be issued in accordance with § 6923(b).

(4) Vendor lists compiled and maintained in accordance with § 6923(d) may serve as a method for soliciting competitive sealed proposals.

(5) Amendments to requests for proposals shall be made in accordance with §

6923(g).

(d) Pre-proposal Conferences.

Pre-proposal conferences may be convened in accordance with § 6923(f).

(e) Late Proposals or Late Withdrawals.

(1) A proposal received after the closing date and time for receipt of proposals is late and shall not be considered. A best and final offer received after the closing date and time for receipt of best and final offers is late and shall not be considered.

(2) No offeror shall be permitted to make a modification to its original proposal after the date and time for the receipt of proposals and before negotiations start pursuant to § 6924(g).

(3) A modification of a proposal resulting from an amendment issued after the closing date and time for receipt of proposals or a modification of a proposal resulting from discussions during negotiations shall be considered if received by the closing date and time set forth in the amendment or by the closing date and time for submission of best and final offers, whichever is applicable. If the modifications described in this subsection are received after the respective date and time described in this subsection, the modifications are late and shall not be considered by the Agency.

(f) Evaluation of Proposals.

(1) Each Agency shall establish written administrative procedures for the evaluation of the proposals.

(1) For the purpose of conducting negotiations, the Agency shall determine, in accordance with § 6924(g), that proposals are either likely to be selected for award or unacceptable. A determination that a proposal is unacceptable shall be in writing, state the basis of the determination and be retained in the procurement file. If the Agency determines that an offeror's proposal is unacceptable, the Agency shall notify that offeror of the determination and that the offeror shall not be afforded an opportunity to modify its offer.

(g) Negotiations with Individual Offerors.

All agencies shall have a right to negotiate with individual offerors after their proposals are opened. The Agency shall establish a committee, procedures and schedules for conductingnegotiations. Disclosure of one offeror's price to another and any information derived from competing proposals is prohibited.

(h) Best and Final Offers.

If negotiations are conducted pursuant to § 6924(g), the Agency shall issue a written request for best and final offers. The request shall set forth the date, time, and place for the submission of best and final offers. The request for best and final offers shall inform offerors that, if they do not submit a notice of withdrawal or a best and final offer, their immediate previous offer will be construed as their best and final offer. Best and final offers shall be requested only once, unless the Agency makes a written determination that it is advantageous to the State to conduct further negotiations or change the States requirements.

(i) Mistakes in Proposals.

Prior to the time and date set for receipt of best and final offers, any offeror with whom negotiations have been held may withdraw the offer or correct any mistake by modifying the offer.

(j) Contract Award.

(1) The contract shall be awarded within 90 days of the closing date and time advertised in the request for proposals. The Agency shall award a contract to the offeror whose proposal is determined in writing to be most advantageous to the State based on the factors set forth in the request for proposals. The determination shall explain the basis of award.

(1) The Agency shall notify each unsuccessful offeror in writing of the award.

(2) After contract award, the proposals shall be open for public inspection in accordance with § 6923(j)(4).

(3) A formal contract shall be executed with the successful firm within 20 days after the award of the contract.

(k) Cancellation of Requests for Proposals.

A request for proposals or other solicitation may be canceled in whole or in part prior to the opening of proposals as may be specified in the solicitation if it is in the best interest of the State. The reasons for the cancellation shall be made part of the procurement file.

If a solicitation is canceled prior to the opening of proposals, a notice of cancellation shall be sent to all offerors, and any proposals that have been received shall be returned unopened to the offerors.

(I) Rejection of Individual Proposals.

A proposal or quotation may be rejected for one or more of the following reasons:

(1) The person responding to the solicitation is determined to be non-responsive or non-responsible pursuant to § 6924(m);

(2) It is unacceptable;

(3) The proposed price is unreasonable; or

(4) It is otherwise not advantageous to the State.

Offerors whose proposals are rejected under this Section shall be notified in writing about the rejection. Record of the rejection shall be made part of the procurement file. The reasons for the rejection shall be stated in the determination.

(m) Responsibility of Offerors.

An Agency shall determine that an offeror is responsible before awarding a contract to that offeror. Factors to be considered in determining if an offeror is responsible include:

(1) The offeror's financial, physical, personnel or other resources, including subcontracts;

(2) The offeror's record of performance and integrity;

(3) Whether the offeror is qualified legally to contract with the State;

(2) Whether the offeror supplied all necessary information concerning its responsibility; and

(4) Any other specific criteria for a particular procurement which an Agency may establish provided that the criteria shall be set forth in the solicitation and is otherwise in conformity with state and/or federal law.

If an Agency determines that an offeror is non-responsive and/or non-responsible the determination shall be in writing and set forth the basis for the determination. A copy of the determination shall be promptly sent to the affected offeror. The final determination shall be made part of the procurement file.

§ 6925. Sole Source Procurement.

(a) A contract may be awarded for materiel or non-professional services without competition if the Agency Head, prior to the procurement, determines in writing that there is only one source for the required materiel or non-professional service. Sole source procurement shall not be used unless there is sufficient evidence that there is only one source for the required material or service and that no other type of material or service will satisfy the requirements of the Agency. The Agency shall examine cost or pricing data prior to an award under this Section. Sole source procurement shall be avoided, except when no reasonable alternative sources exist. A written determination by the Agency stating the basis for the sole source procurement shall be included in the Agency contract file. Textbooks and related instructional materials are sole source purchases.

(a) An Agency seeking a sole source procurement shall prepare written documentation citing the existence of a sole source condition. The document shall include the specific efforts made 11 to determine the availability of any other source and an explanation of the procurement need. The Agency may, for confirmation, submit this documentation to the Division for review and comment prior to the intended date of award.

(b) The Agency shall negotiate with the single supplier, to the extent practicable, a contract advantageous to the Agency. The Agency shall enter into a formal contract stating the terms and conditions of the procurement.

§ 6926. Multiple Source Contracting.

An Agency may award a contract for a particular materiel or non-professional service to 2 or more firms if the Agency Head makes a determination that such an award is in the best interest of the State. If such a determination is made, the advertisement shall include a notification of the right of the Agency to make such an award and the criteria upon which such an award shall be based.

§ 6927. Bid and Contract Security. (a) Bid Bonds.

For the purchase of materiel and non-professional services, in accordance with § 6923, the Agency or a representative delegated by the Agency may, at their discretion, require that bids be accompanied by:

(1) A deposit of either a good and sufficient bond to the State for the benefit of the Agency involved: such bonds shall be issued with a corporate surety authorized to do business in this State and the form of the bond and the surety shall be approved by the Agency; or

(2) A security of the bidder assigned to the Agency for a sum equal to at least 10% of the bid.

The bid bond or bid security need not be for a specific sum but may be stated to be for a sum equal to 10% of the bid to which it relates. A bid bond or bid security may be stated as a certain stated sum provided that the sum is equal to or greater than 10% of the bid.

Bid or performance bonds shall not be used as a substitute for a determination of bidder responsibility. If a bid is withdrawn at any time before bid opening, any bid security shall be returned to the bidder.

(b) Loss of Bid Bond as Damages.

In the event of any successful bidder refusing or neglecting to execute a formal contract and bond within 20 days of awarding the contract, the bid bond or security deposited by the successful bidder shall be taken and become the absolute property of the State for the benefit of the Agency as liquidated damages. Such damages shall neither constitute a forfeiture nor a penalty and shall be deposited with the Secretary of Finance. Such monies pertaining to Department of Transportation contracts shall be deposited in the Transportation Trust Fund. The contracting Agency may award the contract to the next lowest responsible bidder or re-advertise for new bids.

(c) Return of Bid Bond.

Upon the execution of a formal contract and performance bond, the bid bond shall be returned to the successful bidder.

(d) Performance Bonds.

Simultaneous with the execution of the formal contract where required by § 6923(k)(1) and § 6924(j)(1), the procuring Agency may require the successful bidder to execute a good and sufficient bond to the State for the benefit of the Agency. Such performance bonds shall:

(1) Be with a corporate surety authorized to do business in this State; and

(2) Be in a sum equal to 100 percent of the contract award, except as otherwise provided in this subsection.

Contracts for the purchase of materiel with a value less than the threshold amount(s) established by the Contracting and Purchasing Advisory Council may reduce or waive this bond requirement from the successful bidder. Such reduction or waiver shall be stated in the bid specifications.

(e) Contents of Performance Bonds.

The bond shall be conditioned upon the faithful compliance and performance by the successful bidder of each and every term and condition of the contract and the proposal, plans, and specifications thereof. Each term and condition shall be met at the time and in the manner prescribed by the contract, and the specifications, including the payment in full, to every person furnishing materiel or performing labor in the performance of the contract, of all sums of money due him for such labor and materiel. The bond shall also contain the successful bidder's guarantee to indemnify and save harmless the State and the Agency from all costs, damages and expenses growing out of or by reason of the successful bidder's failure to comply and perform the work and complete the contract in accordance with the contract.

(f) Invoking a Performance Bond.

deposited with the Secretary of Finance for the credit of the Agency. Such monies pertaining to Department of Transportation contracts shall be deposited in the Transportation Trust Fund. Every person furnishing materiel or performing labor under the contract for which the successful bidder is liable may maintain an action on the bond for his own use in the name of the State or the contracting county in any court of competent jurisdiction for the recovery of such sum or sums as may be due such person from the successful bidder, but if the bond so provides, no suit shall be commenced after the expiration of 1 year following the date on which the successful bidder ceased work on the contract otherwise suits may be commenced at any time within 3 years following the date the last work was done on the contract. No person or surety, in any action brought under this Section, or on the bond required in this Section, shall assert as a defense to such action the claim that the bond given pursuant to this Section contained a limitation or restriction not provided for by this Section.

(g) Other Security for Contracts Under Threshold Amount(s).

Contracts for the purchase of materiel and non-professional services valued less than the threshold amount(s) set by the Contracting and Purchasing Advisory Council may contain a waiver of the bond requirement provided that the successful vendor post with the State an irrevocable letter of credit or other suitable or readily collectible financial security for the project. Such letter of credit or other security shall be issued for a term commencing simultaneously with the execution of the formal contract and terminating no later than 3 years, subsequent to the date of delivery of such materiel or non-professional service or to the extent of the warranty period, whichever is greater. In no event shall such security expire without the express written approval of the State. Such waiver as described in this paragraph shall be Stated in the bid specifications.

(h) Waivers from Performance Bonds.

On a contract for the purchase of a materiel or non-professional service, the State may, at its discretion, reduce or waive the bond or other form of security. Such waiver shall be Stated in the bid specifications.

(i) In the case of bids submitted to Agencies other than any county of this state and other than any public school district, wherever security is required under this Section, the vendor shall also supply with its bid its taxpayer identification number (i.e., federal employer identification number or social security number) or a Delaware business license number and, should the vendor be awarded a contract, such vendor shall provide to the Agency the taxpayer identification or Delaware business license numbers of such subcontractors. Such numbers shall be provided on the later of the date on which such subcontractor is required to be identified or the time the contract is executed. The Agency shall report to the Division of Revenue each vendor selected for award within fifteen (15) days of execution of the contract and each subcontractor within fifteen (15) days of such contractor having been identified to the Agency or on the date of execution of the contract, whichever, is later, unless the Director of the Division of Revenue has notified the Agency of criteria according to which, in the Director's discretion, reporting is not required, and the contract meets such criteria.

§ 6928. Failure to Comply With Contract.

If any firm entering into a contract under the authority of this Act neglects or refuses to perform it or fails to comply with the terms thereof, the Agency may terminate the contract and proceed to award a new contract in accordance with this Act or the Agency may require the surety on the performance bond to complete the contract in accordance with the terms of the performance bond. Nothing herein shall preclude the Agency from pursuing additional remedies as otherwise provided by law.

§ 6929. Contract Insurance and Contract Liability.

In addition to bond requirements as stated in Section § 6927, each successful bidder shall

purchase adequate insurance for the performance of the contract and, by submission of a bid, agrees

to indemnify and save harmless and to defend all legal or equitable actions brought against the State, any Agency, officer and/or employee of the State, for and from all claims of liability which is or may be the result of the successful bidder's actions during the performance of the contract. The

purchase or non-purchase of such insurance or the involvement of the successful bidder in any legal or equitable defense of any action brought against the successful bidder based upon work performed pursuant to the contract, will not waive any defense which the State, its Agencies, and their respective officers, employees, and agents might otherwise have against such claims, specifically including the defense of sovereign immunity, where applicable, and by the terms of this Section, the State, and all agencies, officers and employees thereof shall not be financially responsible for the consequences of work performed, pursuant to said contract.

§ 6930. Right to Audit Records.

An Agency shall have the right to audit the books and records of a contractor or any subcontractor under any contract or subcontract to the extent that the books and records relate to the performance of the contract or subcontract. The books and records shall be maintained by the contractor for a period of 3 years from the date of final payment under the prime contract and by the subcontractor for a period of 3 years from the date of final payment under the subcontract.

§ 6931. Procurement of Information and Telecommunications Systems.

All information regarding the procurement of information and telecommunication technology, as prescribed by the Executive Director of the Office of Information Systems, shall be submitted to the Office of Information Systems no later than 90 days from the receipt of such materiel. The acquisition of computer information systems shall be governed by 29 Del. C. Chapter 63.

§ 6932. Maximum Practicable Competition.

Descriptions or specifications shall not use a brand or trade name except as an indication of the type and quality of materiel and in all such cases shall contain the words 'or approved equal'. All specifications shall seek to promote overall economy for the purposes intended and encourage competition in satisfying the Agency's needs and shall not be unduly restrictive.

§ 6933. Authorization for Cooperative Purchasing.

The Division may, with written approval of the Secretary, participate in, sponsor, conduct or administer a cooperative purchasing agreement for the procurement of materiel or nonprofessional services with one or more public procurement units either within the State or with another State in accordance with an agreement entered into between the participants.

§ 6934. Purchase of Used Materiel or Equipment.

Any Agency may purchase used equipment or other materiel by negotiated purchase, rather than by competitive bidding, as provided in this Act, if it is demonstrated to the satisfaction of the Agency Head that the negotiated price is reasonable for the intended use.

§ 6935. Purchases Using Federal Contracts.

The Secretary may enter into negotiations with various manufacturers or distributors and award contracts which will enable agencies and local governments to purchase materiel at prices approved by the General Services Administration of the United States government or its successor.

§ 6936. Special Requirements for Financial Contracts.

No contract shall be awarded which includes the transportation, handling or storage of monies, including lawful currency and coin, negotiable and nonnegotiable securities, stocks, bonds, coupons and things of unusual value unless the successful bidder shall have at the time of the award of the contract, a valid license as required by Chapter 32, Title 5 of the Delaware Code. At the time of the submission of its bid, the bidder shall provide evidence of possession of such license or evidence that application for such license was made with the State Banking Commissioner and all fees required by such Chapter 32 of Title 5 had been paid."

"Subchapter IV. Public Works Contracting. § 6960. Prevailing Wage Requirements."

Section 8. Amend newly designated § 6960, Title 29, Delaware Code by deleting the

caption of said section and replacing it with the following:

Section 9. Amend Chapter 69, Title 29 of the Delaware Code by inserting after newly designated § 6960 the following:

"§ 6961. Small Public Works Contract Procedures.

(a) Applicability.

Any State contract for which an Agency i's a party and for which the probable cost is less than or equal to the threshold amount(s) set by the Contracting and Purchasing Advisory Council pursuant to § 6913 of this Act for small public works contracts shall be subject to the provisions of this Section.

(a) Procedure.

All contracts entered into pursuant to this Section shall follow the procedures as prescribed by the Secretary pursuant to § 6922 of this Act.

(b) Bid and Performance Bonds as authorized in § 6962 may be made a requirement by the Agency for contracts made pursuant to this Section.

§ 6962. Large Public Works Contract Procedures.

(a) Applicability.

Any State contract for which an Agency is a party and for which the probable cost is greater than the amount set by the Contracting and Purchasing Advisory Council pursuant to § 6913 of this Act for small public works contracts shall be subject to the provisions of this Section.

(b) Advertising Requirements.

Each Agency shall publicly announce, not less than once a week for 2 consecutive weeks in

a newspaper published or circulated in each county of the State, each public works contract. Any

Agency may also maintain a register of prospective bidders which may be used to provide direct

notification of contracts to be bid. This register shall not be used in a manner which will limit the competitiveness of the bidding process described in this Subchapter. No Agency shall be subject to a cause of action or be otherwise liable for any errors or omissions in administering a bid registry. The public announcement shall also state the nature of the contract under the following conditions:

(1) If the Agency requires all bidders to be registered or pre-qualified in order to
receive bidding documents for the proposed contract, the announcement shall state in general terms the character and location of the work and bid and performance bond requirements. If the Agency requires pre-qualification of subcontractors in its invitation to bid, no contractor shall list a subcontractor in its subcontractor listing who has not already been pre-qualified by the Agency.

(2) If the Agency does not require bidder registration or prequalification for the proposed contract, the announcement shall state with reasonable accuracy the character, quantity, location of the work as well as bid and performance bond requirements. The public announcement shall also state that the Agency may extend the time and place for the opening of bids from that described in the announcement. Such extention shall not take place unless at least 2 calendar days notice, by certified delivery, facsimile transmission or by other verifiable electronic means is sent to those bidders who obtained copies of the plans and specifications or contract descriptions.

(c) Bidder Prequalification Requirements

(1) An Agency may require any firm proposing to bid on a contract to answer a questionnaire and file a financial statement containing a complete statement of that firm's financial ability and experience in performing such work.

(2) If the Agency is not satisfied with the sufficiency of the answers to the questionnaire or the financial statement, the Agency may refuse to furnish to the firm the plans and specifications for the work and that firm's bid may be disregarded.

(3) No action of any nature shall lie against any Agency or its employees because of actions prescribed in (c)(1) and (c)(2) of this Section.

(d) Bid Specifications and Plans Requirements.

(1) Preparation of Plans and Specifications and Approvals.

The contracting Agency shall cause suitable plans and specifications to be prepared for all contracts pursuant to this Section. All plans and specifications shall be prepared by registered and licensed architects and/or engineers who shall sign the plans and specifications and affix their seals thereto. This requirement may be waived if:

a. 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 Subchapter. Any architect and/or engineer who signed and sealed the original of such identical plan(s) will have no liability arising from the use of those plans other than the use contemplated by the contract pursuant to which the original copies of such plans was created, unless such architect and/or engineer reviews and approves such different use; or

b. The project does not require architectural and engineering services and the Agency Head waives in writing the use of such services.

(2) Agency Assistance.

An Agency may retain, in accordance with Subchapter V. of this Chapter, the professional services of a general contractor or other qualified firm to assist in cost estimation, economic design analysis and construction.

(3) Prohibition of Brand Specification.

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.'

(4) Special Provisions

a. Anti-pollution, Conservation, or Environmental Measures not covered by Contract Specifications.

i. The description of the materiel and the plans and specifications for

the work issued 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.

i. If the successful bidder must undertake anti-pollution,conservation or environmental protection work not specified in the Agency's plans and

specifications or descriptions of materiel, 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, as provided for in § 6963 of this Subchapter, setting forth the additional measures that must be undertaken. Cost

The cost of such a change order to the awarding Agency shall be determined in accordance with the contract for change orders or force accounts. If no such provision is set forth in the contract, then the cost to the awarding Agency shall be the contractor's the costs for wages, labor costs other than wages, wage taxes, materiel, equipment rentals, insurance wit and subcontracts attributable to the additional activity plus a reasonable sum for overhead and profit.

iv. Authorization

Written authorization by the Agency is to be given to the successful bidder prior to his undertaking such additional activity. Costs incurred by the successful bidder for additional work performed without prior approval shall not be approved for payment by the Agency.

b. Preference for Delaware Labor.

In the construction of all public works for the State or any political subdivision thereof, or by firms contracting with the State or any political subdivision thereof, preference in employment of laborers, workmen or mechanics shall be given to bona fide legal citizens of the State who have established citizenship by residence of at least 90 days in the State. Each public works contract for the construction of public works for the State or any political subdivision thereof shall contain a stipulation that any person, company, or corporation who violates this Section shall pay a penalty to the Secretary of Finance equal to the amount of compensation paid to any person in violation of this Section.

(5) Retainages and Substitution of Securities.

a. Authority to Withhold Contract Retainage.

Agencies may retain a portion of the payments to be made to a contractor for work performed pursuant to a public works contract. The percentage of the value of work performed which may be retained shall be established for each particular contract in the contract bidding documents and shall be incorporated into the contract. The percentage retained shall be 5 percent of the value of the work completed by the contractor under the contract. Upon completion of the work under the contract, the Agency may release 60% of the amount then retained. The balance of the amount retained will be held until all reports required of the contractor are received and final payment is authorized by the Agency.

The Agency, may, at is option, retain temporarily or permanently a small amount and may cause the ,contractor to be paid temporarily or permanently, from time to time, such portion of the amount retained as it deems equitable. The contractor shall be paid for all work that is due to him under the contract except for the amount retained.

b. Procedures Requirement.

Agencies shall establish standard procedures and regulations for the administration of contract retainages prior to entering into contracts which require retainages. All Agency procedures shall provide for contract retainage and substitution of securities for retainage.

c. Substitution of Securities.

i. The contractor under a public works contract, with the approval of the Agency, may deposit securities as authorized by this Section in substitution for monies being withheld from him as retainage. Securities allowable for substitution of retainage shall be: United States Treasury Bonds, United States Treasury Notes, United States Treasury Certificates of Indebtedness or United States Treasury Bills; Bonds or notes of the State; Bonds of any political subdivision of the State; or Certificates of Deposit from State or national banks located in this State; or any letter of credit or other security approved by the Agency.

ii. The contractor shall have the right to withdraw and take all or portions of the monies being retained from him under the contract by depositing securities in substitution for such monies. The contractor may do so only in accordance with the Agency's standard procedures and mechanisms. Such substitution shall be approved by the Agency only if the aggregate market value of the securities are at least as great as the contract retainages being withdrawn.

iii. A contractor may substitute cash for and receive back, all or part of the securities on deposit from the contractor. The cash must at least have the same value as the market value of the securities received back from the Agency.

iv. The contractor shall be entitled to receive, in all events, all interest and income earned on the securities deposited by him in substitution for contract retainage. If the securities deposited are in the form of coupon bonds, the Agency or the escrow agent designated by it and holding the deposited securities, shall deliver each coupon to the contractor as it matures.

v. All securities shall be released, delivered and paid over to the contractor at such time as cash monies being retained from him would have been released, delivered and paid over to the contractor under the public works contract if there had been no substitution for the cash monies.

vi. All costs of depositing and maintaining securities as provided for in this Section, shall be borne by the contractor.

vii. No Agency shall have any duty to invest monies being retained by it from a contractor under a public works contract in any interest bearing account or to establish any procedures or mechanisms for any such investment.

iii. Notwithstanding any other provisions of this Section, any contracting Agency may deny the contractor on any public works contract permission to substitute securities for monies being held as retainages. This action shall be taken only for good cause and when the Agency deems it to be in the best interest of the contracting Agency. Written notice shall be given to the contractor and a hearing shall be held by the Agency showing cause for such denial if requested in writing by the contractor. Denial of such substitution shall be for a stated period of time, not to exceed a period of 3 years, and shall continue until the end of the stated time period, or until the contractor has successfully completed all outstanding public works contracts without forfeiting any part of the retainage held by the Agency whichever occurs first.

(6) Partial Payments.

Any public works contract executed by any Agency may provide for partial payments with respect to materials placed along or upon the sites or stored at secured locations, which are suitable for use in the performance of the contract. When approved by the Agency, partial payments may include the values of tested and acceptable materials of a nonperishable or non-contaminative nature which have been produced or furnished for incorporation as a permanent part of work yet to be completed, provided acceptable provisions have been made for storage. Any allowance made for materials on hand will not exceed the delivered cost of the materials as verified by invoices furnished by the contractor, nor will it exceed the contract bid price for the material complete in place.

(7) Equality of Employment Opportunity on Public Works.

a. As a condition of the awarding of any contract for public works financed in whole or in part by State appropriation, such contracts shall include the following provisions:

`During the performance of this contract, the contractor agrees as follows:

i. The contractor will not discriminate against any employee or applicant for employment because of race, creed, color, sex or national origin. The contractor will take positive steps to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, sex or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places available to employees and applicants for employment notices to be provided by the contracting Agency setting forth this nondiscrimination clause.

ii. The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, creed, color, sex or national origin.'

b. The Secretary of the Department of Labor shall be responsible for the administration of this provision and shall adopt such rules and regulations and issue such orders as deemed necessary to achieve the purposes thereof, provided that no requirement established hereby shall be in conflict with § 6904 of this Title.

(8) Bid Bonding Requirements.

a. All bids shall be accompanied by a deposit of either a good and sufficient bond to the Agency for the benefit of the Agency, with corporate surety authorized to do business in this State, the form of the bond and the surety to be approved by the Agency, or a security of the bidder assigned to the Agency, for a sum equal to at least 10% of the bid. The bid bond need not be for a specific sum but may be stated to be for a sum equal to 10% of the bid to which it relates and not to exceed a certain stated sum, if said sum is equal to at least 10% of the bid.

b. Upon the execution of a formal contract and performance bond, the bid bond or security shall be returned to the successful bidder. The security of the unsuccessful bidders shall be returned to them immediately upon the awarding of the contract or the rejection of all bids, but in no event later than 30 days after the opening of bids with the exception of School Districts and the Department of Public Instruction which shall be no more than 60 days.

c. Loss of Bid Bond as Damages.

In the event of any successful bidder refusing or neglecting to execute a formal contract and bond within 20 days of the awarding of the contract, the bid bond or security deposited by the successful bidder shall be taken and become the absolute property of the State for the benefit of the Agency as liquidated damages. Such damages shall neither constitute a forfeiture nor a penalty and shall be deposited with the Secretary of Finance. Such monies pertaining to Department of Transportation contracts shall be deposited in the Transportation Trust Fund. The contracting Agency may award the contract to the next lowest responsible bidder or re-advertise for new bids.

d. In the case of bids submitted to Agencies other than any county of this state and other than any public school district, wherever security is required under this Section, the vendor shall also supply with its bid its taxpayer identification number (i.e., federal employer identification number or social security number) or a Delaware business license number and, should the vendor be awarded a contract, such vendor shall provide to the Agency the taxpayer identification or Delaware business license numbers of such subcontractors. Such numbers shall be provided on the later of the date on which such subcontractor is required to be identified or the time the contract is executed. The Agency shall report to the Division of Revenue each vendor selected for award within fifteen (15) days of execution of the contract and each subcontractor within fifteen (15) days of such contractor having been identified to the Agency or on the date of execution of the contract, whichever, is later, unless the Director of the Division of Revenue has notified the Agency of criteria according to which, in the Director's discretion, reporting is not required, and the contract meets such criteria.

(9) Performance Bonding Requirements.

a. Simultaneous with the execution of the formal contract, the successful bidder shall also execute a good and sufficient bond to the contracting Agency for the benefit of the Agency, with corporate surety authorized to do business in this State, in a sum equal to 100 percent of the contract price.

b. The bond shall be conditioned upon the faithful compliance and performance by the successful bidder of each and every term and condition of the contract and the proposal and plans and specifications thereof, at the time and in the manner prescribed by the contract and the plans and specifications, including the payment in full, to every firm furnishing such labor or materiel. The bond shall also contain the successful bidder's guarantee to indemnify and save harmless the Agency from all costs, damages and expenses growing out of or by reason of the successful bidder's failure to comply and perform the work and complete the contract in accordance with the contract.

c. The Agency may, when it considers that the interests of the Agency so require, cause judgment to be confessed upon the bond. All sums received through confession of judgment shall be paid for the credit of the Agency to the Secretary of Finance-or to the Chief Financial Officer of the Agency if it is not a State Agency.

d. Every firm furnishing materiel or performing labor under the contract for which the successful bidder is liable may maintain an action on the bond for its own use in the name of the Agency in any court of competent jurisdiction for the recovery of such sum or sums as may be due such firm from the successful bidder, but if the bond so provides, no suit shall be commenced after the expiration of 1 year following the date on which the successful bidder ceased work on the contract. Otherwise, suits may be commenced at any time within 3 years following the date the last work was done on the contract.

e. No firm or surety, in any action brought under this Section, or on the bond required by this Section, shall assert as a defense to such action the claim that the bond given' pursuant to this Section contained a limitation or restriction not provided for by this Section.

f. In the event of defaults of its contracts the money collected on the( performance bonds shall be utilized by the contracting Agency for the projects for which thd performance bonds were issued. All performance bond proceeds received shall be deposited with the Secretary of Finance for the credit of the Agency. Such monies pertaining to Department Transportation contracts shall be deposited in the Transportation Trust Fund.

g. In addition to the bond, letter of credit or other financial security postal by the successful bidder in conjunction with the execution of the formal contract, each successful bidder, regardless of the type of the security posted or waived, as the case may be, must purchas0 adequate insurance for the performance of the contract and, by submission of a bid, does agree tc indemnify and save harmless and to defend all legal or equitable actions brought against du Agency or officer or employee of the Agency, for and from all claims of liability which is or mal be the result of the successful bidder's actions, during the performance of the contract. The purchasi or non-purchase of such insurance or the involvement of the successful bidder in any legal o equitable defense of any action brought against the successful bidder based upon work perforate, pursuant to the contract, shall not waive any defense which the Agency and its officers an employees might otherwise have to such claims, specifically including the defense of sovereig immunity, where applicable, and by the terms of this Section, the Agency and its officers an employees shall not be financially responsible for the consequences of work performed, pursuant t said contract.

c. Contracts may contain a waiver of the bond requirement, provide( however, that the successful bidder post with the contracting Agency an irrevocable letter of cred or other suitable or readily collectible financial security for the project. Such security shall subject to the terms and conditions of the contracting Agency.

(10) Public Buildings, Special Requirements.

a. Pre-bid Meeting Requirement.

In the case of any public works contract for the construction, reconstructic alteration or repair of any public building (not a road, street or highway) the Agency shall call meeting of all prospective bidders upon reasonable notice and at a place and time stated in t notice. The meeting shall be at least 15 days before the date for the submission of bids.

At the meeting, all the participants including the Agency, shall attempt agree upon a listing of all subcontractor categories to be included in the bids for performing work as required by (10)13. of this Section, and any such agreed listing shall be final and bindi 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 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 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. If the agency required prequalification of subcontractors pursuant to this section in its invitation to bid, no contractor shall list a subcontractor in its subcontractor listing required by this subsection who has not already been prequalified by the agency.

b. Subcontracting Requirements.

All contracts for the construction, reconstruction, alteration or repair of any public building (not a road, street or highway) shall be subject to the following provisions:

i. Such contract shall be 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 (10)a. of this Section, the name and address (city or town and State only — street number and P.O. Box addresses not required) of the subcontractor whose services the bidder intends to use in performing the work and providing the materiel for such subcontractor category.

ii. The contracting Agency shall neither accept any bid nor award any contract to any bidder, which as the prime contractor, has listed itself as the subcontractor for any subcontractor category on the listing as provided in (10)a. of this Section, unless:

(i.) 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's firm;

(ii.) That the bidder is duly 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.

The typical subcontractor categories involving specialty work includes by way of illustration and not limited to, 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 itself as the subcontractor for a subcontractor category set forth in the listing as provided in (10)a. of this Section shall be final and binding upon all bidders, and no action of any nature shall lie against any awarding Agency or its employees or officers because of its decision in this regard.

iii. After such a contract has been awarded, the successful bidder shall not substitute another subcontractor for any subcontractor whose name was set forth in the Statement which accompanied his bid without the written consent of the awarding Agency. No Agency shall consent to any substitution of subcontractors unless the Agency is satisfied that the subcontractor whose name is on the bidders accompanying statement:

(i.) Is unqualified to perform the work required;

(ii.) Has failed to execute a timely reasonable subcontract;

Has defaulted in the performance on the portion of the work

covered by the subcontract; or

(iv.) Is no longer engaged in such business.

(iv.) All such contracts shall contain a provision for a penalty against the successful bidder for its failure to utilize any or all the subcontractors in the successful bidder's accompanying statement in the performance of the work on the public building contemplated by the contract. The penalty amount shall be set by the Agency. The Agency will also determine if the amount is to be deducted from payments to the bidder for contract performance or if the amount is to be paid directly to the Agency by the bidder. Any penalty amount assessed against the contractor may be remitted or refunded, in whole or in part, by the Agency awarding the contract only if it is established to the satisfaction of the Agency that the subcontractor in question has defaulted or is no longer engaged in such business. No claim for the remission or refund of any penalty shall be granted under this Section unless an application is filed within one year after the liability of the successful bidder accrues. All penalty amounts assessed and not refunded or remitted to the contractor shall be reverted to the State, municipality or other Agency as the case may be.

v. If awarded not to a general contractor but to a prime contractor which contracts directly with Agency awarding and/or administering the contract, such contract may include a provision in its contract specifications that the successful bidder perform a fixed percentage of the work of said public works contract up to 50% of the total contract bid. Factors to be considered by the Agency awarding the contract in setting the required percentage of aihount of work the successful bidder must perform may include the degree of difficulty involved in the Agency's administration of the work covered under the terms of the public works contract; the degree of specialty work contemplated in the contract including, but not limited to, the amount of plumbing, electrical wiring, heating, roofing, insulation, weather-stripping, masonry, bricklaying or plastering work under the contract; and the time period required in which to complete the public works project. The terms of the contract shall so specify reasons for the stated percentage in its general terms and conditions. The decision of the Agency setting the required percentage shall not be set aside by any court of competent jurisdiction as long as there is a rational basis for setting the required fixed percentage to be performed by the contractor. If the successful bidder fails to perform pursuant to the terms of this provision, the Agency awarding and/or administering the contract may invoke the provisions of § 6964 of this Title.

vi. No construction manager contract for public school projects may be signed unless approved by the Secretary.

(11) Other Contracting requirements.

a. Asbestos Abatement.

The selection of any contractor to perform asbestos abatement for State-funded projects shall be approved by the Department of Administrative Services pursuant to Chapter 78, Title 16 of the Delaware Code.

b. Standards of Construction; Protection of Physically Handicapped.

All contracts shall conform with the standards established by the Delaware Architectural Accessibility Board as authorized by Chapter 73, Title 29 of the Delaware Code unless otherwise exempted by the Board.

(12) Public Bid Opening Requirements.

a. Bids shall be opened publicly and the contractor and total bid price or the contractor, base bid, and alternate price should be read aloud at the time and place designated in the plans and specifications.

b. Bids shall be unconditionally accepted without alteration. After the bid opening, no corrections in bid prices or other provisions of bids prejudicial to the interests of the State or fair competition shall be permitted.

(13) Bid Evaluation, Contract Award and Execution Procedure.

a. The contracting Agency shall award any public works contract within 30 days of the bid opening to the lowest responsible and responsive bidder whose bid conforms in all material respects to the requirements and criteria set forth in the contract plans and specifications. Any public school district and its board shall award public works contracts in accordance with this paragraph's requirements except it shall award the contract within 60 days of the bid opening. A contract may be awarded to a bidder other than the lowest responsible and responsive bidder if, in the opinion of the contracting Agency, the interest of the Agency shall be better served by awarding the contract to another bidder. Such award shall be made only if the contracting Agency makes a written determination of the of the award describing the reason(s) why such award better serves the interest of the Agency. Reason(s) for making such award may include but are not limited to unsatisfactory performance on any previously awarded contract by the bidder being rejected.

b. The successful bidder shall execute a formal contract within 20 days after the award of the contract. The contract shall be in a form, with terms and conditions approved by the contracting Agency. The successful bidder shall also provide a bond as required in § 6962(d)(8) of this Subchapter within 20 days after the award of the contract.

c. If the successful bidder refuses or neglects to execute a formal contract and bond as required in this Subchapter, the bidder's bid bond or security deposit shall be taken and become the absolute property of the Agency for the benefit of the Agency as liquidated damages, and not as a forfeiture or as a penalty. Such mollies shall be deposited with the Secretary of Finance or the Chief Financial Officer of the Agency if the Agency is not a State Agency.

d. If 2 or more responsible and responsive bidders shall bid an equal amount and such amount shall be the lowest bid, the contracting Agency may award the contract to any 1 of them or may reject all bids.

e. A contracting Agency may reject all bids on any contract prior to the award of the contract for any reason it believes to be in the best interest of the Agency.

§ 6963. Emergency Procedures and Contract Change Orders.

(a) All of the provisions of this Subchapter may be waived pursuant to § 6907 of this Act.

(b) The awarding Agency may issue a change order to the public works contract setting forth any change, addition or extra work required to be undertaken by the contractor. Such changes may be necessitated by changed situations, unforeseen conditions, strikes and acts of God. Change orders shall be issued for all changes or extra work determined to be necessary and requested by the Agency, but not specified in the contract or its plans and specifications. The change order shall not:

(1) Be subject to the competitive bidding requirements of this Subchapter; or

(2) Invalidate the contract, provided that such change is within the scope of the contract as set forth in the standard specifications, special provisions or similar publication of the Agency.

§ 6964. Contract Performance.

If any firm entering into a public works contract neglects or refuses to perform or fails to comply with its terms, the Agency may terminate the contract and proceed to award a new contract in accordance with this Subchapter or may require the surety on the performance bond to complete the contract in accordance with the terms of the performance bond.

§ 6965. Sole Source Procurement.

(a) A contract may be awarded for a Public Works project without competition if the Agency Head, prior to the procurement, determines in writing that there is only one source for the required Public Works project. Sole source procurement shall not be used unless there is sufficient evidence that there is only one source for the required Public Works project and that no other type of Public Works project will satisfy the requirements of the Agency. The Agency shall examine cost or pricing data prior to an award under this Section. Sole source procurement shall be avoided, except when no reasonable alternative sources exist. A written determination by the Agency on the basis for the sole source procurement shall be included in the contract file.

(b) An Agency seeking a sole source procurement shall prepare written documentation citing the existence of a sole source condition. The document shall include the specific efforts made

to determine the availability of any other source and an explanation of the procurement need. The Agency may, for confirmation, submit this documentation to the Division for review and comment prior to the intended date of award.

(c) The Agency shall negotiate with the single supplier, to the extent practicable, a contract advantageous to the Agency. The Agency shall enter into a formal contract stating the terms and conditions of the procurement.

§ 6966. Multiple Source Contracting.

An Agency may award a contract for a particular public works project to 2 or more firms if the Agency Head makes a determination that such an award is in the best interests of the State. If such a determination is made, the advertisement shall include a notification of the right of the Agency to make such an award and the criteria upon which such an award will be based.

Subchapter V. Professional Services.

§ 6980. Small Professional Services Procurement Process.

Any State contract for which an Agency is a party with probable fees, including reimbursable expenses and amendments, less than the threshold amount(s) established by the Contracting and Purchasing Advisory Council pursuant to § 6913 of this Act for the completed job will be subject to the provisions of § 6983(e) and § 6985, but shall be excluded from all other portions of this Subchapter. Agencies may alternately, at their discretion, procure services which include materiel other than professional services in accordance with § 6924 of this Act.

§ 6981. Large Professional Service Procurement Process.

Any State contract for which an Agency is a party with probable fees, including reimbursable expenses and amendments, greater than the threshold amount(s) established by the Contracting and Purchasing Advisory Council pursuant to § 6913 of this Act for the completed job will be subject to the provisions of this Subchapter. Agencies may alternately, at their discretion, procure services which include materiel other than professional services in accordance with § 6924 of this Act.

(a) Each Agency shall publicly announce, not less than once a week for 2 consecutive weeks in a newspaper published or circulated in each County of the State, when professional services are required except:

(1) In case of critical needs so certified pursuant to § 6907 of this Title; or

(2) Where professional services are determined by the Agency to be necessary during the course of completion of a previously awarded contract; and

a. The Agency determines that it would be in the best interest of the State to procure such additional or supplemental professional services from a firm already under contract for which the supplemental and additional professional services are required; and

b. Such additional or supplemental professional services are within the scope of the contract.

(b) Such announcement shall include:

(1) The project identification;

(2) General description and scope of the project;

(3) Location;

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

(5) Criteria for selection of professionals including any special criteria required for any particular project;

(3) 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 may negotiate with the remaining firms by order of ranking. At any point in the negotiations process the Agency may, at its discretion, terminate negotiations with any or all firms.

(3) After accomplishing the evaluation and conducting discussions and negotiations, the Agency shall select 1 applicant and prepare a public notice within 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. If the Agency has elected to select multiple firms, the Agency shall continue the selection process by negotiating with the next firm on the preference list. This process shall be continued until the required number of vendors have been selected.

(4) It shall be the responsibility of the Professional Services firm to be current with any professional registration or certification as required by law.

(b) For all professional services not described in Subsection (a) herein, Agencies shall use the selection process described in paragraphs (1) - (5) in this Subsection (b).

(1) Based upon the criteria established pursuant to 6981(d) of this Title, the Agency shall determine all applicants that meet the minimum qualifications to perform the required services.

(2) The Agency shall then interview at least one of the qualified firms. The Agency may negotiate with one firm without terminating negotiations with another firm and may negotiate with one or more firms during the same period. At any point in the negotiation process, the Agency may, at its discretion, terminate negotiations with any or all firms.

(3) The Agency may require the firm with whom the Agency is negotiating 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. All professional service contracts shall provide that the original contract price and any additions thereto shall be adjusted to exclude 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.

§ 6983. State Assistance to Local Governmental Units.

The Department of Administrative Services shall provide assistance in selecting professional services firms and negotiating professional service contracts upon the request by an Agency, municipality, or political subdivision. The Department shall be reimbursed by the municipality or political subdivision for all costs involved.

§ 6984. Administrative Provisions.

In the case of any contract entered into by an Agency other than any county of this State and other than a public school district, and which is not excluded under §§ 6980 and/or 6981 of this Subchapter, no contract shall be executed unless and until the firm has provided the Agency with its taxpayer identification number (i.e., federal employer identification number or social security number) or its Delaware business license number and, within fifteen (15) days of the time identification of any subcontractor shall be required or at the time the contract is executed, whichever is later, the number of such subcontractor. The Agency shall report to the Division of Revenue each firm and subcontractor selected for an award within fifteen (15) days of identification of such firm or subcontractor under this Subsection unless the Director of the Division of Revenue notifies the Agency of criteria according to which, in the Director's discretion, reporting is not required, and the contract meets such criteria.

§ 6985. Sole Source Procurement.

(a) A contract may be awarded for Professional Service without competition if the Agency Head, prior to the procurement, determines in writing that there is only one source for the required professional service. Sole source procurement shall not be used unless there is sufficient evidence that there is only one source for the required professional service and that no other type of professional service will satisfy the requirements of the Agency. The Agency shall examine cost or pricing data prior to an award under this Section. Sole source procurement shall be avoided, except when no reasonable alternative sources exist. A written determination by the Agency on the basis for the sole source procurement shall be included in the contract file.

(b) An Agency seeking a sole source procurement shall prepare written documentation citing the existence of a sole source condition. The document shall include the specific efforts made to determine the availability of any other source and an explanation of the procurement need. The Agency may, for confirmation, submit this documentation to the Division for review and comment prior to the intended date of award.

(c) The Agency shall negotiate with the single supplier, to the extent practicable, a contract advantageous to the Agency. The Agency shall enter into a formal contract stating the terms and conditions of the procurement.

§ 6986. Multiple Source Contracting.

An Agency may award a contract for a particular professional service to 2 or more firms if the Agency Head makes a determination that such an award is in the best interests of the State. If such a determination is made, the advertisement shall include a notification of the right of the Agency to make such an award and the criteria upon which such an award will be based."

Section 10. Amend § 8806(b), (c), (d), and (e), Title 29 of the Delaware Code by deleting said subsections in their entirety.

Section 11. Amend § 6352(a)(6), Title 29 of the Delaware Code, by deleting the words "approval or disapproval" and substituting in lieu thereof the word "review", and by deleting § 6352(b), Title 29 of the Delaware Code, in its entirety.

Section 12. Any dollar amounts established under previous Title 29, Chapter 69 or Chapter 88 of the Delaware Code shall remain in effect until the Purchasing Advisory Council sustains or changes such dollar amounts as provided for under the provisions of this bill.

Section 13. If any provision of this Act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to that end the provisions of this Act are declared to be severable.

Section 14. This Act shall be effective as of September 16, 1996. Approved August 7, 1996