CHAPTER 133

FORMERLY

SENATE BILL NO. 204

AS AMENDED BY SENATE AMENDMENT NO. 5

AN ACT TO AMEND CHAPTER 69, TITLE 29 OF THE DELAWARE CODE RELATING TO STATE PROCUREMENT.

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

Section 1. This legislation shall be known as “The Quality Construction Improvement Act of 1999.”

Section 2. Amend § 6902, Title 29, Delaware Code by renumbering current § 6902(10) through (18) as § 6902(11) through (19) and insert the following as new § 6902(10):

“(10) ‘Labor supply ratio’ means the number of skilled crafts persons per unskilled workers employed on a public works project. Any person who has completed a federal apprenticeship program, an apprenticeship program approved by the Delaware Department of Labor pursuant to Chapter 2 of Title 19 of the Delaware Code or has otherwise documented 8 years of experience in a particular craft, shall be deemed a skilled crafts person for the purposes of this definition.”

Section 3. Amend § 6962(c), Title 29, Delaware Code by deleting it in its entirety and substituting in lieu thereof the following:

“(c) Bidder prequalification requirements. – (1) An agency may require any potential contractor proposing to bid on a public works contract to complete a questionnaire containing any or all of the following information for the purposes of pre-qualification:

a. The most recent audited financial statement and/or financial statement review, as provided by a Certified Public Accountant, containing a complete statement of that proposing contractor’s financial ability and standing to complete the work specified in the invitation to bid;

b. The proposing contractor’s experience on other public works or private projects, including but not limited to, the size, complexity and scope of the firm’s prior projects;

c. The supply of labor available to the proposing contractor to complete the project, including but not limited to, the labor supply ratio as defined by § 6902(10);

d. Performance reviews of the proposing contractor on previously awarded public works or private construction projects within the last 10 years;

e. Civil judgments and/or criminal history of the proposing contractor’s principals;

f. Any debarment or suspension by any government agency;

g. Any revocation or suspension of a license; or

h. Any bankruptcy filings or proceedings.

(2) Based upon the proposing contractor’s answers to the pre-qualification questionnaire, the agency may deny pre-qualification for any one of the following specified reasons:

a. Insufficient financial ability to perform the contract;

b. Inadequate experience to undertake the project;

c. Documented failure to perform on prior public or private construction contracts, including but not limited to, final adjudication or admission of violations of prevailing wage laws in Delaware or any other state;

d. Prior judgments for breach of contract that indicate the proposing contractor may not be capable of performing the work or completing the project;

e. Criminal convictions for fraud, misrepresentation or theft relating to contract procurement;

f. Inadequate labor supply available to complete the project in a timely manner;

g. Previous debarment or suspension of the contractor by any government agency that indicate the proposing contractor may not be capable of performing the work or completing the project;

h. Previous revocation or suspension of a license that indicate the proposing contractor may not be capable of performing the work or completing the project;

i. Previous bankruptcy proceedings that indicate the proposing contractor may not be capable of performing the work or completing the project; or

j. Failure to provide pre-qualification information.

(3) Denial of pre-qualification shall be in writing and shall be sent to the contractor within five (5) working days of such decision. The agency may refuse to provide any contractor disqualified under this section the plans and specifications for the project. An agency receiving a bid from a contractor disqualified under this section shall not consider such bid.

(4) Any contractor disqualified pursuant to subsections (c)(1)(2) and (3) of this section may review such decision with the Agency Head. No action in law or equity shall lie against any agency or its employees if the contractor does not first review the decision with the Agency Head. To the extent the contractor brings an action challenging a decision pursuant to subsections (c)(1)(2) and (3) after such review by the Agency Head, the Court shall afford great weight to the decision of the Agency Head and shall not overturn such decision unless the contractor proves by clear and convincing evidence that such decision was arbitrary and capricious.”

Section 4. Amend § 6962(d)(5) a., Title 29, Delaware Code by inserting an additional paragraph at the conclusion thereof after the words “under the contract except for amount retained.” as follows:

“The agency may at the beginning of each public works contract establish a time schedule for the completion of the project. If the project is delayed beyond the completion date due to the contractor’s failure to meet his or her responsibilities, the agency may forfeit all or part of retainage at its discretion.”

Section 5. Amend § 6962(d)(13), Title 29, Delaware Code by deleting § 6962(13)a. in its entirety and substituting in lieu thereof the following:

“a. The contracting agency shall award any public works contract within thirty (30) days of the bid opening to the lowest responsive and responsible bidder, unless the agency elects to award on the basis of best value, in which case the election to award on the basis of best value shall be stated in the invitation to bid. Any public school district and its board shall award public works contracts in accordance with this section’s requirements except it shall award the contract within sixty (60) days of the bid opening.

Each bid on any public works contract must be deemed responsive by the agency to be considered for award. A responsive bid shall conform in all material respects to the requirements and criteria set forth in the contract plans and specifications.

An agency shall determine that each bidder on any public works contract is responsible before awarding the contract. Factors to be considered in determining the responsibility of a bidder include:

1. The bidder’s financial, physical, personnel or other resources including subcontracts;

2. The bidder’s record of performance on past public or private construction projects, including, but not limited to, defaults and/or final adjudication or admission of violations of prevailing wage laws in Delaware or any other state;

3. The bidder’s written safety plan;

4. Whether the bidder is qualified legally to contract with the State;

5. Whether the bidder supplied all necessary information concerning its responsibility; and,

6. Any other specific criteria for a particular procurement, which an agency may establish; provided however, that, the criteria shall be set forth in the invitation to bid and is otherwise in conformity with State and/or federal law.

If an agency determines that a bidder is nonresponsive and/or nonresponsible, the determination shall be in writing and set forth the basis for the determination. A copy of the determination shall be sent to the affected bidder within five (5) working days of said determination. The final determination shall be made part of the procurement file.

If the agency elects to award on the basis of best value, the agency must determine that the successful bidder is responsive and responsible, as defined in this subsection. The determination of best value shall be based upon objective criteria that have been communicated to the bidders in the invitation to bid. The following objective criteria shall be assigned a weight consistent with the following:

1) Price – must be at least seventy percent (70%) but no more than ninety percent (90%); and

2) Schedule – must be at least ten percent (10%) but no more than thirty percent (30%); and

A weighted average stated in the invitation to bid shall be applied to each criterion according to its importance to each project. The agency shall rank the bidder according to the established criteria and award to the highest ranked bidder.”

Section 6. Amend § 6962, Title 29, Delaware Code by inserting as new § 6962(14) the following:

“(14) Suspension and Debarment. -- Any contractor who fails to perform a public works contract or complete a public works project within the time schedule established by the agency in the invitation to bid, may be subject to suspension or debarment for one or more of the following reasons: 1) failure to supply the adequate labor supply ratio for the project; 2) inadequate financial resources; or, 3) poor performance on the project.

Upon such failure for any of the above stated reasons, the agency that contracted for the public works project may petition the Secretary of the Department of Administrative Services for suspension or debarment of the contractor. The agency shall send a copy of the petition to the contractor within three (3) working days of filing with the Secretary. If the Secretary concludes that the petition has merit, the Secretary shall schedule and hold a hearing to determine whether to suspend the contractor, debar the contractor or deny the petition. The agency shall have the burden of proving, by a preponderance of the evidence, that the contractor failed to perform or complete the public works project within the time schedule established by the agency and failed to do so for one or more of the following reasons: 1) failure to supply the adequate labor supply ratio for the project; 2) inadequate financial resources; or, 3) poor performance on the project. Upon a finding in favor of the agency, the Secretary may suspend a contractor from bidding on any project funded, in whole or in part, with public funds for up to 1 year for a first offense, up to 3 years for a second offense and permanently debar the contractor for a third offense. The Secretary shall issue a written decision and shall send a copy to the contractor and the agency. Such decision may be appealed to the Superior Court within thirty (30) days for a review on the record.

Approved July 02,1999