(a) Applicability. —

Any state contract for which an agency is a party with probable fees, including reimbursable expenses and amendments, less than the threshold amount or amounts established by the Contracting and Purchasing Advisory Council pursuant to § 6913 of this title for the completed job 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 title.

(b) Procedure. —

The Director, with the approval of the Contracting and Purchasing Advisory Council, shall provide for a simplified administrative process for obtaining competitive procurement for small professional services purchases. If applicable, 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, §  9;  71 Del. Laws, c. 4, §§  10, 11;  84 Del. Laws, c. 489, § 12; 

(a) Authority. —

Any state contract for which an agency is a party with probable fees, including reimbursable expenses and amendments, greater than the threshold amount or amounts established by the Contracting and Purchasing Advisory Council pursuant to § 6913 of this title 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 title.

(b) Each contracting agency shall publicly announce, not less than once a week for 2 consecutive weeks, 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.

(c) Subject to the exceptions of subsection (b) of this section:

(1) Each agency shall publicly announce each professional services contract subject to subsection (a) of this section by electronic publication accessible to the public in a manner prescribed pursuant to § 6902(12) of this title for 2 consecutive weeks unless a shorter advertisement period has been approved by the Section director.

(2) The advertisement for proposals 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 proposals 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 proposals from that described in the advertisement, on not less than 2 calendar days’ notice, unless special circumstances exist, as determined by the Section director.

(d) Proposal openings. —

(1) At the discretion of the agency, it may elect to have a public proposal opening or not to have a public proposal opening. The agency shall identify the type of proposal opening, public or nonpublic, in the initial solicitation posting. Proposals opened publicly shall have the time and place designated in the solicitation. The main purpose of the proposal opening is to reveal the names of the proposing firms, not to serve as a forum for determining any other factors.

(2) Proposals shall be evaluated based on the requirements set forth in the solicitation. No criteria may be used in proposal evaluations that are not set forth in the solicitation.

(3) Neither the proposals, proposal summaries, nor any other aspect of the proposal evaluations shall be open for public inspection until after receipt of a signed contract.

(e) Vendor eligibility. —

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

(2) Vendors are responsible for reviewing all public advertisements which announce the solicitation and request for proposals 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 on a prospective vendors list 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 provide the firm with a means to register its interest in competing for future formal procurement opportunities. 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, distribute, or announce solicitations, solicit amendments to requests for proposal, or any correspondence utilizing the agency’s vendor eligibility list.

(f) Solicitation. —

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

(2) The solicitation shall include all of the following:

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

b. The agency’s intention to award to more than 1 firm, if applicable;

c. The description, specifications, evaluation criteria as defined in § 6982 of this title, delivery or performance schedule and inspection and acceptance requirements for the resulting contract; and

d. The contract terms and conditions, including warranty and bonding or other security requirements, as applicable.

(3) If the solicitation incorporates documents by reference, the solicitation shall specify where such documents may be obtained or reviewed.

(4) A solicitation may require the submission of proposal samples, descriptive literature and technical data and may require inspection or testing of a product before award.

(5) A copy of the solicitation shall be made available for public inspection at the agency.

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

(g) Pre-proposal conferences. —

An agency may conduct a pre-proposal conference within a reasonable time but not less than 7 days before a proposal opening to explain the requirements of a solicitation. An agency may require mandatory attendance by potential proposing firms at such pre-proposal conferences to qualify as a responsible and responsive proposing firm. Statements made at the pre-proposal conference shall not be considered amendments to the solicitation unless a written amendment is issued pursuant to subsection (h) of this section.

(h) Amendments to solicitations. —

(1) An amendment to a solicitation shall be issued to:

a. Make changes in the solicitation;

b. Correct defects or ambiguities in the solicitation; and/or

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

(2) Amendments to solicitations shall be so identified and shall be advertised along with the original solicitation.

(3) The agency may obtain vendor acknowledgement of all amendments issued.

(i) Withdrawal of proposals. —

(1) A vendor may withdraw its proposal at any time before proposal opening if the withdrawal is received in writing before the proposal opening at the location designated in the invitation for proposals for receipt of proposals. A vendor or its authorized representative may withdraw its proposal in person if, before the proposal opening, the identity of the person requesting withdrawal is established and that person signs a receipt for the proposal. If a proposal has been received electronically, the agency shall delete the file in the agency system records.

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

(3) After a proposal opening, a firm may request in writing that its proposal be withdrawn. Such a request may be allowed only upon the approval of the agency. The agency shall prepare a written determination showing that the request was permitted or denied along with the reasons for such determination.

(j) Late proposals and late modifications. —

(1) A proposal or withdrawal of a proposal is late if it is received at the location designated in the solicitation for receipt of proposals after the time and date set for proposal opening.

(2) Proposing firms submitting proposals or withdrawals of proposals that are late shall be notified as soon as practicable and the proposal shall be returned unopened.

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

(k) Receipt, opening, and recording of proposals. —

(1) Except as provided in paragraph (j)(2) of this section, each proposal shall be time stamped upon receipt and stored by the agency unopened in a secure place until the time and date set for proposal opening.

(2) An envelope that is not marked as a proposal or does not identify the proposing firm or solicitation may be opened solely for the purpose of identification. A 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 proposal responded, and the signature of the person who opened the envelope. The envelope shall be resealed and retained in the procurement file.

(3) If the agency has elected to open proposals publicly, then the opening shall be in the presence of 1 or more witnesses at the time, date, and location designated in the solicitation. Proposal information shall be disclosed at the public opening pursuant to paragraph (d)(1) of this section. The proposal information made available at the public opening shall be recorded on a proposal abstract. The name of the required witness shall also be recorded. The proposal abstract shall be available for public inspection.

(4) Proposals shall not be available for public inspection before receipt of a signed contract pursuant to paragraph (d)(3) of this section. After contract award, the proposals shall be available for public inspection, except to the extent any information is exempt pursuant to Chapter 100 of this title. If the proposing firm designates a portion of its proposal as confidential, it shall isolate and identify in writing the confidential portions. The proposing firm shall include with this designation a statement that explains and supports the proposing firm’s claim that the proposal items identified as confidential contain trade secrets or other proprietary data.

(l) Cancellation of solicitation. —

A solicitation may be canceled or any or all proposals may be rejected in whole or in part 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 a solicitation is canceled prior to the opening of proposals, a notice of cancellation shall be posted with the public record of the solicitation; and

(2) Any proposals that have been received shall be returned unopened to the vendors. Electronic proposals received shall be deleted from the agency system and notice of deletion provided to the vendor.

(3) If a solicitation is canceled after the proposal opening, a notice of cancellation shall be posted with the public record of the solicitation; and

(4) Any proposals shall be returned to the vendors. Electronic proposals shall be deleted from the agency system and notice of deletion provided to the vendor.

(m) Rejection of individual proposals. —

A proposal may be rejected if:

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

(2) The proposal is nonresponsive or not responsible in accordance with subsection (n)(2) of this section; or

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

If an agency rejects a vendor, 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 proposing firm. The final determination shall also be made part of the procurement file. Vendors 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.

(n) Responsiveness and Responsibility of proposing firms. —

(1) An agency shall determine that a proposing firm is responsive to all requirements of the solicitation and request for proposals before selecting a firm for negotiation.

(2) Factors to be considered in determining if a proposing firm is responsible include:

a. The proposing firm’s financial, physical, personnel, or other resources, including subcontracts;

b. The proposing firm’s record of performance and integrity;

c. Whether the proposing firm is qualified legally to contract with the State; and

d. Whether the proposing firm supplied all necessary information concerning its responsiveness.

e. Any additional specific responsibility criteria for a particular procurement that the agency includes in the solicitation.

f. Evaluation Criteria. —

Each agency shall establish written administrative procedures for the evaluation of applicants. One or more of the following criteria may be utilized in ranking the applicants under consideration:

1. Experience and reputation;

2. Expertise (for the particular project under consideration);

3. Capacity to meet requirements (size, financial condition, etc.);

4. Location (geographical);

5. Demonstrated ability;

6. Familiarity with public work and its requirements; or

7. Distribution of work to individuals and firms or economic considerations.

8. Any other criteria deemed necessary for a quality, cost-effective project.

(o) Each project shall be given individual attention, and a weighted average may be applied to criteria according to its importance to each project.

(p) For the selection process described in § 6982(b) of this title, price may be a criterion used to rank applicants under consideration.

(q) If the agency determines that an electronic submission is beneficial, the agency may use this method to receive proposals from proposing firms under this subchapter.

(1) The solicitation must designate that the procurement method will be an electronic submission, a schedule of proposing activities, and an electronic mail account to which the proposals must be sent.

(2) The agency’s representative and a witness shall open the electronic mail account immediately after the closing date and time; record the names of the proposing firms that responded, and the date and time submitted; and prepare a tabulation of all responsive proposing firms for review.

70 Del. Laws, c. 601, §  9;  78 Del. Laws, c. 288, §  4;  81 Del. Laws, c. 298, § 5;  82 Del. Laws, c. 36, § 1;  83 Del. Laws, c. 56, § 37;  84 Del. Laws, c. 124, § 1;  84 Del. Laws, c. 489, § 13;  84 Del. Laws, c. 513, § 1; 

(a) Agencies shall use the selection process described in paragraphs (a)(1) through (5) of this section for those professional services within the scope of the practice of architecture, professional engineering, including, but not limited to, environmental engineering, consulting and environmental monitoring, professional land surveying, construction management, landscape architecture and geology as defined and authorized by the laws of the State or those services performed by persons engaged in the above-mentioned professions in connection with their professional employment or practice.

(1) Based upon the criteria established pursuant to § 6981(n)(2)f. of this title, the agency shall rank, in order of preference, the applicants deemed to be qualified to perform the required services.

(2) Beginning with the qualified firm designated first on the preference list, the agency shall negotiate for professional services at compensation which the agency determines is fair and reasonable. The agency shall conduct an analysis of the cost of the professional services required, in addition to considering their scope and complexity. Fee proposals shall not be solicited from this or any other firm on the preference list for use in comparison of fee negotiations. The agency may require the firm receiving the award to execute a truth-in-negotiation certificate stating the wage rates and other factual unit costs supporting the compensation are accurate, complete and current at the time of contracting. All professional service contracts shall provide that the original contract price and any additions thereto shall be adjusted to exclude any significant sums where the agency determines the contract price was increased due to inaccurate, incomplete or noncurrent wage rates and other factual unit costs. All such contract adjustments shall be made within 1 year following the end of the contract.

(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.

(4) 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.

(5) 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) of this section, agencies shall use the selection process described in paragraphs (b)(1) through (3) of this section.

(1) Based upon the criteria established pursuant to § 6981(n)(2)f. 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 1 of the qualified firms. The agency may negotiate with 1 firm without terminating negotiations with another firm and may negotiate with 1 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 noncurrent wage rates and other factual unit costs. All such contract adjustments shall be made within 1 year following the end of the contract.

(c) Contract award. —

Once the agency has successfully negotiated with the selected proposing firm:

(1) The agency shall award a contract to the selected proposing firm whose proposal is determined in writing to be most advantageous to the State, based on the factors set forth in the solicitation. 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 signed contract, the proposals shall be open for public inspection in accordance with § 6981(k)(4) of this title.

59 Del. Laws, c. 573, §  1;  60 Del. Laws, c. 589, §  1;  70 Del. Laws, c. 601, §  9;  78 Del. Laws, c. 288, §  4;  84 Del. Laws, c. 489, §§ 13, 14; 

The Office of Management and Budget shall provide assistance in selecting professional services firms and negotiating professional service contracts upon the request by an agency, municipality or political subdivision. The Office shall be reimbursed by the municipality or political subdivision for all costs involved.

59 Del. Laws, c. 573, §  1;  60 Del. Laws, c. 589, §  1;  70 Del. Laws, c. 601, §  9;  75 Del. Laws, c. 88, §  16(5); 

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 title, 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 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 15 days of identification of such firm or subcontractor under this section 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.

59 Del. Laws, c. 573, §  1;  60 Del. Laws, c. 589, §  1;  61 Del. Laws, c. 3, §  3;  70 Del. Laws, c. 94, §  2;  70 Del. Laws, c. 601, §  9; 

(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 1 source for the required professional service. Sole source procurement shall not be used unless there is sufficient evidence that there is only 1 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 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, §  9;  75 Del. Laws, c. 88, §  22; 

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.

70 Del. Laws, c. 601, §  9; 

The Section may, with written approval by the Section director or the Section director’s designee, allow an agency to participate in, sponsor, conduct or administer a cooperative agreement for the procurement of professional services with 1 or more public procurement units either within this State, with or within another state, or with a consortium of other states in accordance with an agreement entered into between the participants. Such agreement may include material and/or nonprofessional services with professional services. The other provisions of this subchapter shall not apply when an agency participates in an existing cooperative agreement for the procurement of professional services with a contractor holding a current contract as part of such cooperative agreement.

73 Del. Laws, c. 427, §  1;  77 Del. Laws, c. 327, §  30;  80 Del. Laws, c. 323, §  1;  84 Del. Laws, c. 489, § 15; 

The Section may, with written approval by the Section director or the Section director’s designee, enter into negotiations with various manufacturers or distributors and award contracts which will enable agencies and local governments to purchase professional services at prices approved by the General Services Administration of the United States government or its successor.

80 Del. Laws, c. 323, §  1;  84 Del. Laws, c. 489, § 16; 

(a) Simultaneous with the execution of the formal contract, the agency may require the successful proposing firm 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 solicitation.

(b) 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 proposing firm’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 proposing vendor’s failure to comply and perform the work and complete the contract in accordance with the contract.

(c) 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 moneys 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 proposing firm is liable may maintain an action on the bond for the person’s own use in the name of the State 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 proposing vendor 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.

(d) Other security for contracts under threshold amount. —

Contracts valued less than the threshold amount set by the Contracting and Purchasing Advisory Council may contain a waiver of the bond requirement provided that the successful proposing firm posts 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 earlier than 3 years subsequent to the date of final acceptance by the agency or to the extent of the warranty period, whichever is later. 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 solicitation.

(e) Waivers from performance bonds. —

The State may, at its discretion, reduce or waive the bond or other form of security. Such waiver shall be stated in the solicitation.

84 Del. Laws, c. 489, § 17; 

If any firm entering into a contract under the authority of this chapter neglects or refuses to perform 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 subchapter 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.

84 Del. Laws, c. 489, § 17; 

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.

84 Del. Laws, c. 489, § 17; 

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.

84 Del. Laws, c. 489, § 16;