§ 6981 — Large professional service procurement process
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(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 before the opening of proposals, a notice of cancellation must be posted with the public record of the solicitation.
(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.
(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 paragraph (n)(1) of this section; or
(2) The proposal is nonresponsive or not responsible in accordance with paragraph (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.
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