TITLE 29

State Government

Budget, Fiscal, Procurement and Contracting Regulations

CHAPTER 69. STATE PROCUREMENT

Subchapter III. Materiel and Nonprofessional Services


(a) Applicability. — Any state contract for which an agency is a party for materiel or nonprofessional 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 title, may be made under small purchase procedures established by the Director.

(b) Procedure. — The Director, with the approval of the Contracting and Purchasing Advisory Council, shall provide for a simplified administrative process for obtaining competitive prices for small purchases. The procedure shall incorporate the procedures identified as lifecycle costing analysis as specified in §§ 6902 and 6909A(b) of this title. This procedure shall be in writing and distributed to all agencies.

70 Del. Laws, c. 601, § 7; 74 Del. Laws, c. 419, § 5; 75 Del. Laws, c. 88, § 16(5).;

(a) Applicability. — Any state contract except for lodging and interstate and international travel and for which an agency is a party for materiel or nonprofessional services, whose annual probable cost is greater than the threshold amount or amounts set by the Contracting and Purchasing Advisory Council pursuant to § 6913 of this title, shall be made only through the use of competitive sealed bids.

(b) Advertising requirements.

(1) If the probable cost of the material or nonprofessional services estimated to annually exceed the threshold amount or amounts set by the Contracting and Purchasing Advisory Council pursuant to § 6913 of this title, 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. Public advertising shall require electronic publication accessible to the public in a manner prescribed pursuant to § 6902(10) of this title for 2 consecutive weeks.

(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 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 Education, 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 receipt of a fully executed contract. 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.

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

(3) 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.

(4) 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.

(5) 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.

(6) Firms that fail to respond to solicitations for 2 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;

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

c. 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 and 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 7 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 subsection (g) of this section.

(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.

(3) 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.

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

(3) 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 subsection (j)(2) of this section, 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 1 or more witnesses at the time, date and location designated in the invitation. Bid information shall be disclosed at the public opening pursuant to subsection (c)(1) of this section. 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 receipt of a fully executed contract pursuant to subsection (c)(3) of this section. After contract award, the bids shall be available for public inspection, except to the extent that withholding of information is permitted by Chapter 100 of this title 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 nonresponsive.

(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 title, each unsuccessful bidder shall be notified of the award. Notice of award shall be made available to the public.

(l) Only 1 bid received.

(1) If only 1 responsive bid is received to an invitation for bids, an award may be made to the single bidder if the agency determines that:

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

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

(2) If only 1 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:

(1) The bidder is determined to be nonresponsive pursuant to subsection (o) of this section; or

(2) The bid is nonresponsive or nonresponsible in accordance with subsection (k) of this section; 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 determine 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;

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

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

(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 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 promptly sent to the affected bidder. The final determination shall be made part of the procurement file.

(p) Electronic bid submission.

(1) When the Office determines that an electronic bid submission is advantageous, the Office may use electronic bidding to obtain bids for the purchase of goods and nonprofessional services.

(2) The solicitation shall designate that the procurement method will be an electronic bid submission, an opening date and time, a closing date and time, and an electronic mail account to which the bidding response must be sent.

(3) The closing date and time shall be fixed. The Office's representative and a witness shall open the e-mail account immediately after the closing date and time; record the vendors which submitted bids, the date and time submitted, the bids, and associated prices; and prepare a bid tabulation of all responsive vendors for review.

(q) Reverse auction.

(1) When the Office determines that a reverse auction is advantageous, the Office may use the reverse auction bidding method to obtain bids for the purchase of goods and nonprofessional services.

(2) The solicitation must designate both an opening date and time and a closing date and time. The closing date and time need not be a fixed point in time, but may remain dependent on a variable or variables specified in the solicitation. At the opening date and time, the Office must begin accepting real-time, on-line bids. The solicitation must remain open until the closing date and time, as may be determined by a variable or variables specified in the solicitation.

(3) The Office may require bidders to register before the opening date and time and, as part of that registration, to agree to any terms, conditions or other requirements of the solicitation.

(4)a. Following receipt of the first bid after the opening date and time, all bid prices must be posted electronically to the Internet and updated on a real-time basis. At any time before the closing date and time, a bidder may lower the price of its bid, as long as its bid price is less than the then-current bid. A bidder's lowest bid price supercedes the bidder's prior higher bid price. Bid prices may not be increased any time after the opening date and time. All bids are binding and may not be withdrawn unless the bid price entered by the bidder is entered incorrectly. If a price entered by the bidder is in error, the bidder must correct the bid within the time period and manner specified in the solicitation.

b. After the Office closes the bid, the bidder may request, in writing via an electronic mail message to the Office as specified in the solicitation, that its respective bid be withdrawn. Such a request may be allowed only upon the approval of the Office. If withdrawal of a bid after the Office closes the bid is permitted or denied, the Office shall prepare a written determination showing that the request was permitted or denied along with the reasons for such determination.

c. If the lowest responsive bid is withdrawn after the closing date and time, the Office may cancel the solicitation or reopen on-line real time bidding to all preexisting bidders by giving notice to all preexisting bidders of both the new opening date and time and the new closing date and time. Notice that electronic bidding will be reopened must be given as specified in the solicitation.

(5) Receipt and safeguarding of bids. Other than price, any information provided to the Office by a bidder must be safeguarded as required by § 6923(j)(4) of this title.

70 Del. Laws, c. 601, § 7; 71 Del. Laws, c. 4, §§ 6, 7; 71 Del. Laws, c. 378, § 113; 73 Del. Laws, c. 416, §§ 4, 5; 75 Del. Laws, c. 88, § 16(5); 75 Del. Laws, c. 89, § 157; 78 Del. Laws, c. 288, § 2.;

(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) of this title.

(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) of this title 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) of this title.

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

(5) Amendments to requests for proposals shall be made in accordance with § 6923(g) of this title.

(d) Pre-proposal conferences. — Pre-proposal conferences may be convened in accordance with § 6923(f) of this title.

(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 subsection (g) of this section.

(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.

(2) For the purpose of conducting negotiations, the agency shall determine, in accordance with subsection (g) of this section, 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 conducting negotiations. Disclosure of 1 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 subsection (g) of this section, 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 State's 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.

(2) The agency shall notify each unsuccessful offeror in writing of the award.

(3) After receipt of a fully executed contract, the proposals shall be open for public inspection in accordance with § 6923(j)(4) of this title.

(4) 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.

(l) Rejection of individual proposals. — A proposal or quotation may be rejected for 1 or more of the following reasons:

(1) The person responding to the solicitation is determined to be nonresponsive or nonresponsible pursuant to subsection (m) of this section;

(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;

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

(5) 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 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 promptly sent to the affected offeror. The final determination shall be made part of the procurement file.

70 Del. Laws, c. 601, § 7; 71 Del. Laws, c. 4, § 8.;

(a) A contract may be awarded for materiel or nonprofessional services without competition if the agency head, prior to the procurement, determines in writing that there is only 1 source for the required materiel or nonprofessional service. Sole source procurement shall not be used unless there is sufficient evidence that there is only 1 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, which shall include lifecycle costing analysis as specified in §§ 6902 and 6909A(b) of this title if the sole source offers more than 1 type or variety of equipment, 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.

(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 Section 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.

70 Del. Laws, c. 601, § 7; 74 Del. Laws, c. 419, § 6; 75 Del. Laws, c. 88, § 22.;

An agency may award a contract for a particular materiel or nonprofessional 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.

70 Del. Laws, c. 601, § 7.;

(a) Bid bonds. — For the purchase of materiel and nonprofessional services, in accordance with § 6923 of this title, 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, the surety shall be approved by the agency, and the bond form used shall be the standard form included as part of the bid documents issued by the Office of Management and Budget for this purpose; 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) of this title, 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;

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

(3) Be in the standard form issued by the Office of Management and Budget for this purpose and shall be included in the projects' bid documents.

Contracts for the purchase of material 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 the person 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. — The agency may, when it considers that the interests of the State so require, cause judgment to be confessed upon the bond. All sums received through confession of judgment shall be 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 the person's 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 nonprofessional 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 nonprofessional 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 nonprofessional 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 15 days of execution of the contract and each subcontractor within 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.

70 Del. Laws, c. 601, § 7; 70 Del. Laws, c. 186, § 1; 73 Del. Laws, c. 428, §§ 1, 2; 75 Del. Laws, c. 88, § 16(5).;

If any firm entering into a contract under the authority of this chapter 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 chapter 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.

70 Del. Laws, c. 601, § 7.;

In addition to bond requirements as stated in § 6927 of this title, 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 nonpurchase 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.

70 Del. Laws, c. 601, § 7.;

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.

70 Del. Laws, c. 601, § 7.;

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 Chapter 63 of this title.

70 Del. Laws, c. 601, § 7.;

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.

70 Del. Laws, c. 601, § 7.;

(a) The section may, with written approval of the Director, participate in, sponsor, conduct or administer a cooperative or joint purchasing agreement for the procurement of materiel or nonprofessional services with 1 or more public procurement units either within the State or within another state in accordance with an agreement entered into between the participants.

(b) The section may grant temporary approval to another agency to participate in, sponsor, conduct or administer a cooperative or joint purchasing agreement for the procurement of materiel or nonprofessional services with the written approval of the Director.

70 Del. Laws, c. 601, § 7; 75 Del. Laws, c. 88, §§ 16(5), 22; 77 Del. Laws, c. 327, § 29; 78 Del. Laws, c. 290, § 24(c).;

Any agency may purchase used equipment or other materiel by negotiated purchase, rather than by competitive bidding, as provided in this chapter, if it is demonstrated to the satisfaction of the agency head that the negotiated price is reasonable for the intended use. The contracting agency shall use lifecycle costing analysis as specified in §§ 6902 and 6909A(b) of this title prior to demonstrating to the agency head that the negotiated price is reasonable for the intended use.

70 Del. Laws, c. 601, § 7; 74 Del. Laws, c. 419, § 7.;

The Director 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.

70 Del. Laws, c. 601, § 7; 75 Del. Laws, c. 88, § 16(5).;

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 of Title 5. 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.

70 Del. Laws, c. 601, § 7.;

(a) The State shall have as a goal the maximum feasible purchase of recycled content products and reusable or recyclable products, and the maximum feasible percentage of postconsumer recycled content in its purchases. For any item that is being purchased by the State and for which the U.S. Environmental Protection Agency has developed a Comprehensive Procurement Guideline as required by § 6002 of the Resource Conservation and Recovery Act (RCRA), as amended (42 U.S.C. § 6962), it shall be a goal of the State to purchase that item with a recycled content that meets or exceeds the EPA guideline standards.

(b) Prior to initiating a request for procurement of any product, an agency shall review its existing specifications for such product to determine whether recycled content products or reusable or recyclable products are directly or indirectly excluded. The agency must eliminate any such exclusion from its specifications, unless it can demonstrate in writing to the satisfaction of the agency head that the exclusion is either:

(1) Operationally necessary;

(2) Legally mandated; or

(3) Necessary to avoid excessive cost. — Excessive cost shall be defined as when the recycled product cost is greater than 5% of the equivalent virgin product cost. Such costs shall include lifecycle costing analysis as defined by §§ 6902 and 6909A(b) of this title.

(c) When requesting any purchase of a product for which the U.S. EPA has established a Comprehensive Procurement Guideline, an agency is required to buy the specified product unless the agency can demonstrate in writing to the satisfaction of the agency head that a product meeting the standards either:

(1) Is not available competitively;

(2) Is not available within a reasonable time frame;

(3) Does not meet appropriate performance standards; or

(4) Is available only at an excessive cost as defined in paragraph (b)(3) of this section.

(d) There is established an interagency work group comprised of 1 representative from the Office of Management and Budget, the Department of Natural Resources and Environmental Control, the Delaware Economic Development Office, the Department of Transportation and the Department of Health and Social Services. This work group shall be known as the State Materials Recycling Team (SMRT) and its members shall be appointed by the respective Department heads. The Chair of the SMRT will be selected by the team's membership. The work group's primary purposes shall be:

(1) To educate state agencies about recycling and to promote the purchase of recycled products as called for in this subsection;

(2) To develop a methodology for tracking purchases made in accordance with this section;

(3) To review and assess State agency recycling practices; and

(4) To report to the Governor and the General Assembly on an annual basis its findings and conclusions with respect to the above purposes.

72 Del. Laws, c. 491, § 1; 74 Del. Laws, c. 419, § 8; 75 Del. Laws, c. 88, § 16(5).;

(a) Agencies shall purchase Energy Star products, as designated by the federal Environmental Protection Agency, when such products are available. The agency may include non-Energy Star rated equipment as an alternate in the bid documents to enable lifecycle costing analysis to be performed as part of the analysis of responsive bids. The agency shall be required to award a contract that includes the procurement of Energy Star rated equipment unless the agency can demonstrate, in writing, to the satisfaction of the Director, that the interests of the state would be better served by procuring non-Energy Star rated equipment.

(b) Prior to initiating a request for procurement of any product, an agency shall review the specifications for such product to determine whether an Energy Star product is available. If an Energy Star product is available, the agency is required to include in its bid specifications the requirement that the product be an Energy Star product unless the agency can demonstrate, in writing, to the satisfaction of the agency head, that a product with an Energy Star rating meets at least 1 of the following criteria:

(1) The product is not available competitively,

(2) The product is not available within a reasonable time frame, or

(3) The product does not meet appropriate performance standards.

The agency may include non-Energy Star rated equipment as an alternate in the bid documents to enable lifecycle costing analysis to be performed as part of the analysis of responsive bids. The agency shall be required to award a contract that includes the procurement of Energy Star rated equipment unless the agency can demonstrate, in writing, to the satisfaction of the Director, that the interests of the state would be better served by procuring non-Energy Star rated equipment.

74 Del. Laws, c. 416, § 1; 75 Del. Laws, c. 88, § 16(5).;