Chapter 69

§ 6901 Purpose. The purpose of this chapter is to: (1) Create a more efficient procurement process to better enable the State to obtain the highest quality goods, materials and services at the best possible price, thereby maximizing the purchasing value of public moneys; and (2) Create a single forum in which the procurement needs of state agencies and the technical and legal requirements of the Government Support Services are addressed simultaneously so as to increase mutual understanding, respect, trust and fair and equitable treatment for all persons who deal with the state procurement process. 70 Del. Laws, c. 601, §  2 ; 73 Del. Laws, c. 143, §  5 ; 75 Del. Laws, c. 88, §  22(4) ; § 6902 Definitions [For application of this section, see 82 Del. Laws, c. 36, § 3]. For purposes of this chapter: (1) “Agency” means every board, department, bureau, commission, person or group of persons or other authority which directly receives moneys under any budget appropriation act or supplemental appropriation act and which was created and now exists or hereafter is created to: a. Execute, supervise, control and/or administer governmental functions under the laws of this State; and/or b. To perform such governmental functions under the laws of this State, or to perform such other duties as may be prescribed; and/or c. To collect and/or use any taxes, fees, licenses, permits or other receipts for service or otherwise for the performance of any function or related to or supported in whole or in part by the laws of this State; and/or d. To administer any laws providing for the collection of taxes, fees, permits, licenses or other forms of receipts from any sources whatsoever for the use of the State or any agency of the State. “Agency” shall include Delaware Technical and Community College and the Delaware State University but shall not include any local government unit or agency receiving only grants-in-aid appropriations from the State and no other appropriations, as described herein, the University of Delaware, volunteer ambulance/rescue companies, volunteer fire departments and the Delaware Transit Corporation. Nothing in this paragraph shall be deemed to exempt any entity that is otherwise required to comply with § 6960 of this title. (2) “Agency head” means the top official in an agency whether elected, appointed or otherwise. The agency head may delegate duties under this chapter to a designee within the agency. (3) “Agency official” means any employee, consultant, person in the category of other personal service or any other person receiving compensation from the State, its agencies, municipalities, political subdivisions or school boards. (4) “Compensation” means the total amount paid by an agency for professional services, including reimbursed expenses, unless otherwise stated in the contract. (5) “Contractor” means any person, partnership, firm, corporation, nonprofit agency or other business association who has a contract with an agency. (6) “Covered agency” means any agency except school districts, Delaware Technical & Community College, the Delaware State University and the Legislative Branch of State government. (7) “Craft training program” means an apprenticeship program approved by and registered with any state apprenticeship agency or the United States Department of Labor. (8) “Custom fabrication” means the offsite fabrication, assembly, or other production of nonstandard goods or materials, including components, fixtures, or parts thereof, specifically for a public works project. Such goods and materials shall include those used in only the following trades or systems: a. Plumbing or pipe fitting systems, including heating, ventilating, air-conditioning, refrigeration systems, sheet metal or other duct systems. b. Electrical systems. c. Mechanical insulation work. d. Ornamental iron work. e. Commercial signage that does not attempt or appear to direct the movement of traffic on highways or roadways or interfere with, imitate, or resemble any official traffic sign, signal or device. (9) “Director” means, for the purposes of this chapter, the Director of the Office of Management and Budget, except as provided by § 6960 of this title, in which case it shall mean the Secretary of the Department of Labor. (10) “Disadvantaged business enterprise” means a business that has been certified by either the Delaware Office of Supplier Diversity, as a minority, women, veteran, service-disabled veteran, or individual with a disability business or by the Delaware Department of Transportation as a disadvantaged business enterprise. (11) “Electronic bid” means the bidder, in response to an advertised invitation to bid, submits all documentation, except for information and documents specified in the invitation to bid, only through an electronic process to an identified secure electronic mail account that will not be opened by the Office or an agency until the close of the bidding period. In this process, no hard copy documentation shall be submitted to the Office or an agency prior to the award of the contract. (12) “Electronic procurement advertising system” means the advertising system on which all state agencies must submit public notice of bid solicitations, other solicitations, and awarded contracts subject to the public advertising requirements of this chapter. (13) “Electronic submission” means the vendor, in response to an advertised request for proposal, submits all documentation, unless specified in the request for proposal, only through an electronic process to an identified secure electronic mail account that will not be opened by the Office or an agency until the close of the request for proposal submittal period. In this process, no hard copy is to be submitted to the Office or an agency after the close of the request for proposal submittal period unless specifically requested by the Office or agency. (14) “Firm” means a person, organization, partnership, limited partnership, corporation, association, nonprofit agency or other business association. (15) “Internet” means the international computer network of both federal and nonfederal interoperable packet switched data networks, including the graphical subnetwork called the world wide web. (16) “Labor supply ratio” means the number of skilled crafts persons per unskilled workers employed on a public works project. Any person who has completed a federal apprenticeship program, an apprenticeship program approved by the Delaware Department of Labor under Chapter 2 of Title 19, or has otherwise documented 8 years of experience in a particular craft, is deemed to be a skilled crafts person for the purposes of this definition. (17) “Lifecycle costing analysis” means the contracting agency’s evaluation of costs associated with the cost of acquisition, the cost of energy consumption required for operation, the cost of maintenance and the cost of consumables that affect the State’s overall cost of ownership of equipment or public works projects. Such evaluation is used by the contracting agency or project architect or project engineer for the development of contract specifications. (18) “Local government unit” means any municipality incorporated in this State under the authority of the General Assembly and any of the 3 counties. (19) “Materiel” means materials, equipment, tools, supplies, or any other personal property, but does not include real property or electric, gas, water, telephone or similar utilities. (20) “Nonstandard goods or materials” means goods or materials manufactured or prefabricated to specifications for a particular project or for 1 or a limited number of customers. (21) “Office” means the Office of Management and Budget; as provided in § 6960 of this title, “Department” shall mean the Department of Labor. (22) “On-line bidding method” means a procurement process in which the Office or an agency receives vendors’ bids electronically over the Internet as either a substitute for a hard copy bid submission or in a real-time, competitive bidding event. (23) “Professional services” means services which generally require specialized education, training or knowledge and involve intellectual skills. Examples of professional services include, but are not limited to, engineering, environmental engineering, environmental monitoring, land surveying, landscape architecture, geology, architectural, archaeologists, architectural historians, historians, educational consultants, management, medical, teaching, planning, computer information management, financial, accounting, auditing, construction management and arbitration services. Professional services subject to the provisions of § 2507 of this title or which require compliance with Delaware Supreme Court Rule 52 or a substantially similar rule of another state shall not be included in this definition and shall not be subject to this chapter. (24) “Public building” means any edifice or building which is or is to be constructed, reconstructed, altered or repaired pursuant to a public works contract. It does not mean the act or process itself of constructing, reconstructing, altering or repairing. (25) “Public funds” means funds of the State, of any agency within the State, of any public school district, of or from the United States government or of or from any department or representative body thereof. (26) “Public works contract” means construction, reconstruction, demolition, alteration and repair work and maintenance work paid for, in whole or in part, with public funds. (27) “Reverse auction” means an on-line procurement method through which all of the following occur: a. A vendor submits a bid or proposal to provide the lowest price or most advantageous offer on goods or professional or nonprofessional services in response to an invitation to bid, request for proposals, or other solicitation, through real-time electronic competitive bidding. b. During the bidding process, vendor prices are revealed to all participants, without revealing the vendor’s identity. c. A vendor has the opportunity to lower the vendor’s bid or proposal prices for the duration of the time period established for the auction. (28) “Section” means the Section of Government Support Services in the Office of Management and Budget. (29) “Third tier contractor” means a firm that has contracted with a subcontractor to provide services and/or materiel in connection with a public works contract. (30) “User group” means 2 or more agency or nonagency representatives, one of whom shall be an agency representative who provides technical advice to the Government Support Services concerning the requirements of certain materiel and nonprofessional services contracts. Nonagency representatives shall be limited to expected users of the materiel and/or services being procured and/or persons having technical expertise deemed necessary by the agency. In no event shall nonagency representatives be affiliated with a vendor or prospective vendor of the contract. (31) “Volunteer ambulance/rescue companies” means a volunteer ambulance or rescue company certified as such by the State Fire Prevention Commission. (32) “Volunteer fire department” means a volunteer fire department recognized as such by the State Fire Prevention Commission. (33) “Z score” means a calculation used to assess a bidder’s fiscal health. The calculation is based on the following weighted ratios: return on total assets, sales to total assets, equity to debt, working capital to total assets, and retained earnings to total assets. 29 Del. C. 1953, §  6901; 54 Del. Laws, c. 106, §  2 ; 61 Del. Laws, c. 386, §  1 ; 62 Del. Laws, c. 306, §  1 ; 66 Del. Laws, c. 298, §  1 ; 70 Del. Laws, c. 601, §  3 ; 71 Del. Laws, c. 4, §  1 ; 71 Del. Laws, c. 309, §§  1-3 ; 72 Del. Laws, c. 133, §  2 ; 73 Del. Laws, c. 143, §  5 ; 73 Del. Laws, c. 416, §§  1-3 ; 73 Del. Laws, c. 438, §  1 ; 74 Del. Laws, c. 359, §  1 ; 74 Del. Laws, c. 373, §  1 ; 74 Del. Laws, c. 419, §§  1, 2 ; 75 Del. Laws, c. 88, §§  16(5), 22(4) ; 78 Del. Laws, c. 288, §  1 ; 81 Del. Laws, c. 298, § 1 ; 82 Del. Laws, c. 36, § 1 ; 83 Del. Laws, c. 129, § 3 ; 84 Del. Laws, c. 124, § 1 ; 84 Del. Laws, c. 466, § 2 ; 84 Del. Laws, c. 489, § 1 ; 84 Del. Laws, c. 513, § 1 ; 85 Del. Laws, c. 93, § 1 ; § 6903 Violations and penalties. (a) Any person, who, with intent to avoid compliance with this chapter, wilfully fragments or subdivides any contract for the purchase of materiel, nonprofessional services, public works or professional services, shall be subject to the penalties listed in this section. (b) Each contract entered into by an agency for professional services shall contain a prohibition against contingency fees as follows: (1) The firm offering professional services swears that it has not employed or retained any company or person, working primarily for the firm offering professional services, to solicit or secure this agreement by improperly influencing the agency or any of it employees in any professional service procurement process; (2) The firm offering the professional service has not paid or agreed to pay any person, company, corporation, individual or firm, other than a bona fide employee working primarily for the firm offering professional services, any fee, commission, percentage, gift or any other consideration contingent upon or resulting from the award or making of this agreement; and (3) For the violation of this provision, the agency shall have the right to terminate the agreement without liability and, at its discretion, to deduct from the contract price, or otherwise recover the full amount of such fee, commission, percentage, gift or consideration. (c) Any agency official who offers to solicit or secure, or solicits or secures, any agency or central contract and in connection therewith is paid any fee, commission, percentage, gift or any other consideration, shall be subject to the penalties listed in this section. (d) Any individual or firm who offers, agrees or contracts to improperly influence any agency or its employees in the procurement of any agency or central contract and who is paid or is to be paid a fee, commission, percentage, gift or any other consideration contingent upon or resulting from the award or the making of an agency or central contract, shall be subject to the penalties listed in this section. (e) Any individual or firm offering materiel and/or services which shall offer to pay to an agency official, representative or employee or is paid any fee, commission, percentage, gift or any other consideration contingent upon or resulting from the award or making of any agency or central contract shall be subject to the penalties listed in this section. (f) Except for § 6960 of this title, for which the penalties and remedies enumerated in that section shall apply, any individual or firm which commits a violation of this chapter, as listed in this section, shall be punished by a fine of not less than $1,000 and not more than $2,000 or by imprisonment for not more than 6 months, or both, and upon a second or subsequent conviction thereof, shall be punished by a fine of not less than $2,000 and not more than $5,000 or by imprisonment for not more than 1 year, or both. The Superior Court for the State shall have exclusive original jurisdiction over offenses listed in this section. (g) The remedies and penalties provided for in this section are not exclusive and shall be in addition to any other procedures, rights or remedies which exist with respect to any other provisions of law including but not limited to state and/or federal criminal prosecutions or common law or statutory actions brought by private parties and/or the provisions and penalties defined in Chapter 58 of this title. 70 Del. Laws, c. 601, §  4 ; 71 Del. Laws, c. 4, §§  2-4 ; § 6904 Exceptions. (a) If any provision of this chapter conflicts or is inconsistent with any statute, rule or regulation of the federal government applicable to a project or activity, the cost of which is to be paid or reimbursed in whole or in part by the federal government, and due to such conflict or inconsistency the availability of federal funds may be jeopardized, such provision shall not apply to such project or activity. If any provisions of this chapter conflict or are inconsistent with Chapter 40 of Title 31, the provisions of Chapter 40 of Title 31 shall prevail and govern. (b) This chapter shall not apply to any purchase of materials or services from the federal government or from the government of the State including any agency of the State, as defined in § 6902 of this title. (c) This chapter shall not apply to contracts for the transportation of school children. Such contracts shall be submitted to the Secretary of Education through the Department of Education Transportation Office for approval. (d) This chapter shall not apply to any purchase of library materials such as books, periodicals, subscriptions and software by libraries of any agency, nor shall this chapter apply to the purchase of services by libraries of any agency pursuant to Chapter 66 of this title. (e) If no state contract exists for a certain good or service, covered agencies may procure that certain good or service under another agency’s contract so long as the arrangement is agreeable to all parties. Agencies, other than covered agencies, may also procure such goods or services under another agency’s contract when the arrangement is agreeable to all parties. (f) Where, because of changed situations, unforeseen conditions, strikes or acts of God, a change order is determined to be necessary and is requested by the agency and not specified in the agency’s solicitation or advertisement for bids and in the contract, as awarded, the awarding agency may issue a change order setting forth the change, addition or extra work required to be undertaken by the contractor on a contract, which shall not: (1) Be subject to the competitive bidding requirements of this chapter; or (2) Invalidate the contract; provided, that such change is within the scope of the contract as set forth in the standard specifications, special provisions or similar publication of the agency. (g) All material required by any agency shall be purchased, except where hereinafter provided, and all work of a nonprofessional nature, except as hereinafter provided, which is not to be performed by employees of the agency shall be performed under a contract entered into pursuant to this subchapter and after competitive bidding as provided for in this section except that an agency may purchase material or contract for work to be performed without competitive bidding in the following instances: (1) When the purchased material will be used by the Delaware Industries for the Blind within the Department of Health and Social Services as raw material for goods and services which the program manufactures and provides for resale or the purchased material will be used by the Business Enterprise Program of the Division for the Visually Impaired as supplies to operate the vending stands in the program; (2) When material or services are on the procurement list published by the commission for the purchase of products and services of the blind and other severely disabled individuals those materiel or services shall be purchased in accordance with the procedure described in § 9605 of Title 16; or (3) Where the purchased material or work which is the subject of the contract is necessary to enable the Department of Natural Resources and Environmental Control to engage in the preservation of the beaches of the Atlantic Ocean and Delaware Bay shoreline of Delaware in accordance with the Beach Preservation Act, Chapter 68 of Title 7. Notwithstanding the foregoing, any such purchase must be approved by the Budget Commission prior to the commencement of any purchase of material or work. (h) This chapter shall not apply to purchases of historical artifacts or art for the purpose of public display. (i) A contract may be awarded without competition if the agency head, prior to the procurement, determines in writing that there is only 1 source for the required contract. Sole source procurement shall not be used unless there is sufficient evidence that there is only 1 source for the required contract and no other type of goods or service will satisfy the requirements of the agency. The agency shall examine cost or pricing data prior to an award under this subsection. Sole source procurement shall be avoided, except when no reasonable alternative sources exist. A written determination by the agency for the sole source procurement shall be included in the agency’s contract file. (j) This chapter shall not apply to any purchase of educational materials and supplies by post-secondary educational institutions participating in and benefiting from special educational discount and cooperative programs. (k) This chapter shall not apply to the Wilmington Housing Authority in the procurement of goods and/or services when such goods and/or services are provided by primarily Wilmington Housing Authority resident-owned businesses. ( l ) This chapter shall not apply to the office of the Commissioner of Elections or the several departments of elections in the purchase of material or work which is the subject of the contract and which is necessary to enable the Department of Elections to conduct a primary, general, special election or voter registration pursuant to Title 15. (m) This chapter shall not apply to the Department of Education in the procurement of goods and/or services from the Data Service Center, University of Delaware, Delaware State University and Delaware Technical and Community College. (n) This chapter shall not apply to contracts entered into by the Board of Pension Trustees, authorized pursuant to § 8308(c)(5) of this title, with respect to the procurement of financial services, including advisory, management and investment services relating to any fund administered by the Delaware Public Employees’ Retirement System. (o) [Repealed.] 70 Del. Laws, c. 601, §  4 ; 71 Del. Laws, c. 4, §  5 ; 71 Del. Laws, c. 132, §  368 ; 71 Del. Laws, c. 378, §  112 ; 73 Del. Laws, c. 310, §  23 ; 76 Del. Laws, c. 80, §  67 ; 82 Del. Laws, c. 248, § 2 ; 82 Del. Laws, c. 248, § 3 ; 83 Del. Laws, c. 54, § 378 ; § 6905 Failure to comply with contract; new award; supervision. 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 which signed the contract may terminate the contract and proceed to award a new contract in accordance with this chapter or may require the surety on the performance bond to complete the contract in accordance with the terms of the performance bond. 29 Del. C. 1953, §  6906; 54 Del. Laws, c. 106, §  2 ; 70 Del. Laws, c. 601, §  4 ; § 6906 Rental and purchase of motor vehicles; exceptions. (a) Notwithstanding the provisions of this title, all passenger vehicles, including sedans, station wagons, passenger and utility vans, off-road vehicles, police-type cars and station wagons and trucks rated 10,000 GVW or less purchased for State use by any agency/school district must be approved by the Director of the Office of Management and Budget and purchased by contracts administered by the Government Support Services. All other vehicles purchased for State use by any agency/school district must be purchased from contracts administered by the Government Support Services. (b) Notwithstanding the provisions of this title, the purchase of special purpose vehicles by any agency/school district in excess of the restrictions set forth in subsection (a) of this section, without the written approval of the Director of the Office of Management and Budget and the Controller General, is prohibited. (c) Used vehicles employed by any agency for undercover operations may be purchased by negotiation rather than by competitive bidding as provided in this section, provided that the negotiated prices are approved by the Director of the Office of Management and Budget and the Controller General. (d) Except for the Governor’s car, cars rented while on out-of-state business and those cars leased by the Government Support Services, no agency/school district may lease passenger vehicles except from the Government Support Services. (e) Passenger vehicles may not be transferred from one agency/school district to another agency/school district without the approval of the Director of the Office of Management and Budget. (f) The procurement of vehicles by the New Castle County Police shall be exempt from the provisions of this section. (g) The procurement of vehicles by Sussex County shall be exempt from the provisions of this section. 69 Del. Laws, c. 136, §  1 ; 69 Del. Laws, c. 277, §  1 ; 70 Del. Laws, c. 601, §  3 ; 71 Del. Laws, c. 4, §  9 ; 73 Del. Laws, c. 143, §§  5, 6 ; 75 Del. Laws, c. 88, §§  16(5), 21(13), 22(4), 28, 29 ; § 6907 Emergency procedures and critical need for professional services. (a) An agency head may waive any or all provisions of this chapter to meet the critical needs of the agency as required by emergencies or other conditions where it is determined to be in the best interest of the agency. The agency head may determine an emergency condition exists by reason of extraordinary conditions or contingencies that could not reasonably be foreseen and guarded against. An emergency condition creates an immediate and serious need for materiel and/or nonprofessional services that cannot be met through normal procurement methods for the protection of public health, safety or property. (1) Any procurement pursuant to this subsection shall be limited to those materials and/or nonprofessional services necessary to satisfy the emergency. (2) Any public works project contracted pursuant to this subsection shall be subject to § 6960 of this title. (3) Any public works project contracted pursuant to this subsection shall be subject to § 6962(d)(4)b. of this title. (4) A copy of each emergency determination processed under this procedure shall be kept on file by the agency. (b) In addition to the waiver provisions provided for in subsection (a) of this section, an agency head may waive any or all provisions of subchapter VI of this chapter to meet a critical need of the agency as required by an emergency or other condition where it is determined to be in the best interest of the agency. The agency head may determine a critical need exists by reason of conditions or contingencies that could not reasonably be foreseen and guarded against. A critical need creates a need for professional services that cannot be met through normal procurement methods. (1) Any procurement pursuant to this subsection shall be limited to those professional services necessary to satisfy the critical need. (2) A copy of each critical need determination processed under this procedure shall be kept on file by the agency. 70 Del. Laws, c. 601, §  5 ; § 6908 Section powers and duties. (a) In addition to the powers and duties prescribed by other sections in this chapter, the Section shall do all of the following: (1) Review and recommend improvements to the State’s procurement process. (2) Function as the contracting agent in central or joint contracting for state agencies provided, that, at a minimum, all contracts are awarded in conformance with the requirements of this chapter. The Section is required to meet or exceed the requirements of the agencies. (3) Function as a resource for state agencies by providing, on request, procurement information and assistance. (4) Serve as a clearinghouse for procurement information for materiel and services for both agencies and vendors. (5) Promulgate rules and regulations to effect this chapter. Such rules and regulations shall be promulgated according to the Administrative Procedures Act in Chapter 101 of this title and shall be approved by the Contracting and Purchasing Advisory Council. (6) Establish procedures through which all public works contracts, which are paid in whole or in part through public funds, include provisions requiring the contractor, its agents, and employees to implement a mandatory drug testing program for all employees or agents working on the job site in nonclerical positions. Provisions governing mandatory drug testing shall be incorporated into all public works contracts and the rules governing the administration of such tests by the contractor shall be promulgated by the Director pursuant to this subsection. (7) a. Administer on behalf of all agencies this State’s centralized procurement computer system or software that is used for contract development, solicitation, evaluation, and contract administration, including public posting of notice of awarded agency contracts. The Section may, with written approval of the Director, authorize an agency to operate, with approved integration, a separate bidding or contract administration platform provided that all information is readily shared with the statewide portal managed by the Section. The announcement of bid solicitations, other solicitations, and associated notices for the required duration on a site designated by the Section satisfies the public notice and advertisement requirements of this chapter. b. The centralized computer system administered by the Section shall serve as this State’s system of record. Any agency that has elected to use a secondary electronic bid system or solution shall ensure that all requisite information is also provided for publication on the state system of record. (8) Assume such other powers, duties, and functions as the Director of the Office may assign which are not otherwise inconsistent with the laws of this State. (b) The Section shall not charge any agency any fee for central contracting services. The Section Director may charge any agency of this State, local government unit or volunteer fire departments within the State, for which the Section makes purchases, supplies, contractual services or to which it distributes materiel a reasonable service charge. The Section shall deposit such charges into a special account to be used to effectuate the purposes of the Section. 70 Del. Laws, c. 601, §  5 ; 75 Del. Laws, c. 88, §§  16(5), 22 ; 75 Del. Laws, c. 283, §  1 ; 81 Del. Laws, c. 298, § 2 ; 84 Del. Laws, c. 489, § 2 ; 85 Del. Laws, c. 491, § 4 ; § 6909 Special requirements for contracts involving environmental statutes. All contracts covered under this chapter shall make provisions for all federal and state anti-pollution, conservation and environmental statutes, rules and regulations and county ordinances which will be involved in the execution of the contract. 70 Del. Laws, c. 601, §  5 ; 74 Del. Laws, c. 419, §  3 ; § 6909A Lifecycle costing analysis. (a) In the case of small and large public works contracts awarded under § 6961, § 6962 or § 6965 of this title, the contracting agency shall require the project architect or project engineer to perform lifecycle costing analysis on equipment, systems, materiel and design elements for public works projects when said equipment, systems, materiel and design elements have the potential to reduce operating, maintenance or energy costs over the useful life of the public works project. On the basis of said analysis, the project architect or the project engineer shall incorporate in the public works contract specifications the equipment, systems, materiel, and design elements for the public works project that have the lowest total cost of ownership and operation over the useful life of the public works project. The use of lifecycle costing analysis may be waived by the agency head, in writing, if any of said equipment, systems, materiel or design elements are not appropriate for lifecycle costing analysis. (b) In the case of contracts awarded under §§ 6922, 6923, 6924, 6925, 6933, 6934 and 6938 of this title, the contracting agency shall perform lifecycle costing analysis on equipment that has the potential to reduce operating, maintenance or energy costs over the useful life of the equipment. On the basis of said analysis, the contracting agency shall incorporate specifications in the contract for equipment that has the lowest total cost of ownership and operation over the useful life of the equipment. The use of lifecycle costing analysis may be waived by the agency head, in writing, if the equipment is not appropriate for lifecycle costing analysis. In the case of central contracts, and public works contracts awarded by the Office, only the Director may waive the use of lifecycle costing analysis. 74 Del. Laws, c. 419, §  4 ; 75 Del. Laws, c. 88, §  16(5) ; § 6909B Fair background check practices. The State shall include in all formal solicitations a section stating the State does not consider the criminal record, criminal history, credit history, or credit score of an applicant for state employment during the initial application process unless otherwise required by state and/or federal law, and vendors doing business with the State are encouraged to adopt similar policies. 79 Del. Laws, c. 227, §  3 ; Delaware General Assembly Judicial Executive Contact Twitter Help function submitSearch() { if (!window.location.origin) { window.location.origin = window.location.protocol + "//" + window.location.hostname + (window.location.port ? ':' + window.location.port : ''); } keyword = document.getElementById('srch-term').value; window.location.href = "/Search?query=" + keyword; } document.getElementById('srch-term').onkeyup = function (e) { if (e.keyCode == 13) { submitSearch(); } } § 6910 Applicability. (a) This subchapter shall apply to all covered agencies as defined in § 6902(6) of this title. (b) Any organization, entity or person designated as the recipient of grant-in-aid shall be entitled to purchase material, nonprofessional services, or professional services under any central contract negotiated by the Section during the fiscal year for which aid is appropriated, provided that all of the following apply: (1) The organization, entity, or person received an appropriation of at least $100,000. (2) The organization, entity, or person has a staff of at least 5 people. (c) Any bona fide nonprofit organization, entity, or person who is under contract with the State to provide goods or services shall be entitled to purchase materials, nonprofessional services, or professional services under any central contract negotiated by the Section during the fiscal year for which said nonprofit contract is in effect, provided that either of the following apply: (1) The organization, entity, or person is a bona fide § 501(c)(3) [26 U.S.C. § 501(c)(3)] organization under the United States Internal Revenue Code. (2) The organization, entity, or person is a member in good standing of the Delaware Alliance for Nonprofit Advancement or a Delaware registered nonprofit corporation. (d) Any organization, entity, or person who is a participant in the Business Enterprise Program sanctioned by Division of the Visually Impaired (DVI) shall be entitled to purchase material, nonprofessional services, or professional services under any central contract negotiated by the Section, provided that the participant holds a valid license issued by DVI. (e) Any municipality, political subdivision, or local government unit within the State shall be entitled to purchase material, nonprofessional services, or professional services under any central contract negotiated by the Section. 70 Del. Laws, c. 601, §  5 ; 71 Del. Laws, c. 409, §  1 ; 73 Del. Laws, c. 388, §  1 ; 74 Del. Laws, c. 419, §  3 ; 75 Del. Laws, c. 88, §  22 ; 79 Del. Laws, c. 225, §  1 ; 82 Del. Laws, c. 179, § 1 ; § 6911 Authority and responsibilities. (a) The Section shall act as the exclusive contracting agent for all purchases of materiel and nonprofessional services and may act as the exclusive contracting agent for professional services not subject to the small purchasing procedures made by contracting agencies and as outlined in this subchapter and made by 2 or more covered agencies except for lodging and interstate and international travel and except as provided for in subsection (d) of this section. (b) The Section shall have the following responsibilities for central contracts: (1) Assembling the bid specification package; (2) Conducting the advertising, bidding and awarding of each contract; (3) Resolving disagreements between vendors and agencies; and (4) Assuring that vendors and products meet the requirements of awarded contracts. (c) Each agency that participates in a central contract shall have the following responsibilities for the materiel or service purchased under that contract: (1) Providing and approving commodity specifications; (2) Participating in user groups by requiring that appropriate covered agency staff attend user group meetings, as described in § 6912 of this title; and (3) Providing information concerning contract effectiveness to the Section. (d) Covered agencies shall exclusively use central contracts. A covered agency head may exempt the agency from a central contract only when all of the following conditions are met by the covered agency head: (1) Demonstration that participation in a central contract would negatively impact the operations of the covered agency. However, operations, as used in this subsection, shall not include the fiscal impact to the covered agency; (2) Demonstration that the covered agency has attempted to negotiate the specifications with the Section prior to the covered agency head exempting the materiel or service; and (3) Demonstration that the exemption is an exception to the covered agency’s use of a central contract rather than a common practice. Any exemption issued by an agency head under this subsection shall not be a blanket exemption but shall only apply to an individual central contract. (e) The Administrator of the Section may waive the requirement that a covered agency use a state contract in the event the Administrator deems such a waiver is in the best interest of the State. 70 Del. Laws, c. 601, §  5 ; 74 Del. Laws, c. 419, §  3 ; 75 Del. Laws, c. 88, §  22 ; 75 Del. Laws, c. 89, §  157 ; 84 Del. Laws, c. 489, § 3 ; § 6912 Covered agency user groups. (a) The Section shall establish, convene and chair user groups for the purchase of a materiel or service or group of materiel and/or services by a central contract or contracts. Convention of a user group may include, but is not limited to, a formal meeting, electronic mail among user group members and/or a teleconference among user group members. The method by which the user group convenes shall be agreed to by all user group members. (b) The Section shall provide reasonable opportunity for each covered agency to participate in a user group if that covered agency anticipates the purchasing of materiel or service or services or a group of materiel and/or services under a specific central contract to be written and bid. A covered agency not participating in a user group shall not be grounds for an exception to the use of that central contract. A user group shall perform at least the following functions for the materiel or service or group of materiel and/or services to be purchased by a central contract: (1) Make recommendations on the contents of the contract; (2) Rate vendors, materials and/or services; (3) Rate the effectiveness of the contract; and (4) Qualify a materiel and/or service. 70 Del. Laws, c. 601, §  6 ; 74 Del. Laws, c. 419, §  3 ; 75 Del. Laws, c. 88, §  22 ; § 6913 Contracting and purchasing advisory council. (a) There is established a Contracting and Purchasing Advisory Council to consist of all covered agency heads or their designee and 1 additional member representing all public school districts. The Section director shall be a nonvoting member of the Council. (b) The Director of the Office shall be the Council Chair. (c) The purpose of the Council is to advise as to the effectiveness of and make recommendations for changes to the State’s procurement laws, policies and practices to the Director of the Office and the Section director. (d) The Council shall be responsible for: (1) Recommending procurement policy and administrative procedures to the Director. The Director shall elicit the Council’s comments before issuing policy statements, policy changes, administrative procedures or administrative changes regarding this chapter; (2) Reporting annually to the Governor by December 31 of each year concerning the effectiveness of the State’s procurement processes. This report shall include recommended changes to the State’s procurement laws as may be necessary to improve the State’s overall effectiveness; (3) Reviewing vendor concerns regarding the overall procurement process and recommending appropriate action relating to these concerns; and (4) Setting the dollar amount thresholds required in this chapter. When setting these dollar amount thresholds, the Council shall take into consideration operational issues and inflation. Nothing in this subsection shall affect the amounts set in § 6960 of this title. (e) A Contracting and Purchasing Committee shall also be established. The Section director shall appoint representatives to the Committee, with the approval of the Council. The Section director shall chair the Committee. The Committee shall staff the Council, monitor the effectiveness of the State’s procurement process, recommend changes to the procurement process, policies and procedures and any other duties deemed necessary by the Council. 70 Del. Laws, c. 601, §  7 ; 74 Del. Laws, c. 419, §  3 ; 75 Del. Laws, c. 88, §§  16(5), 22 ; 83 Del. Laws, c. 56, § 33(b) ; 84 Del. Laws, c. 489, § 4 ; § 6914 Delegation of centralized contracting authority. The Section may delegate its centralized contracting authority for specific materials and/or services or groups of materials and/or services to another covered agency with the covered agency’s concurrence. 70 Del. Laws, c. 601, §  7 ; 74 Del. Laws, c. 419, §  3 ; 75 Del. Laws, c. 88, §  22 ; § 6915 Exceptions. (a) In a contract for professional services, public works or nonprofessional services, where the contract includes items that are a part of a central purchasing contract, those items shall not be subject to the purchasing requirements of this title. (b) If a service or a materiel is a component part of a specific project that is part of another contract, then the requirements of this subchapter shall not apply. (c) This section is not intended to allow agencies to avoid the use of central purchasing contracts by contracting with a vendor under the auspices of procuring a good or service when the sole or partial purpose of such a contract is to procure from that vendor another good or service that is on a central purchasing contract. 70 Del. Laws, c. 601, §  7 ; 74 Del. Laws, c. 419, §  3 ; § 6922 Small purchase procedure. (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 or amounts 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) ; § 6923 Competitive sealed bidding. (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 materiel 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 announcement and the receipt of sealed bids as provided for in this subchapter. The announcement for such bids shall be published for 2 consecutive weeks unless a shorter advertisement period has been approved by the Section director. Public advertising shall require 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 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, unless special circumstances apply as determined by the Section director. (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 provide the firm with a means to register its interest in competing for future formal procurement opportunities. 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) [Repealed.] (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 made publicly available. (3) [Repealed.] (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 paragraph (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. Bids received electronically shall remain unopened by the agency until the time and date set for the 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 paragraph (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 paragraph (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 or amounts 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 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 publicly posted and made available to all bidders. (2) Any bids that have been received shall be returned unopened to the bidders. (3) Any electronic bids received shall be deleted by the agency and notice of the cancellation sent to those 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 not responsible 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, not responsib