TITLE 29

State Government

Budget, Fiscal, Procurement and Contracting Regulations

CHAPTER 69. STATE PROCUREMENT

Subchapter VI. Professional Services


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.

70 Del. Laws, c. 601, § 9; 71 Del. Laws, c. 4, §§ 10, 11.;

(a) 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 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.

(c) Subject to the exceptions of subsection (b) of this section, 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(10) of this title for 2 consecutive weeks.

(d) 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;

(6) Indication of how interested professionals can apply for consideration;

(7) The agency's intention to award to more than 1 firm, if applicable; and

(8) A description of the selection process to be used, as defined in § 6982 of this title.

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

(f) Each agency shall establish written administrative procedures for the evaluation of applicants. These administrative procedures shall be adopted and made available to the public by each agency before publicly announcing an occasion when professional services are required. 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.

(g) In addition to the above, other criteria necessary for a quality, cost-effective project may be utilized.

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

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

70 Del. Laws, c. 601, § 9; 78 Del. Laws, c. 288, § 4.;

(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(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(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.

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

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 Director, 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.;

The Director may 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.;