Del. Code 29, § 6923 : State Government — State Procurement — Materiel And Nonprofessional Services — Competitive sealed bidding

Current through 2016 Legislative Session, Act 399

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

(b) Advertising requirements. --

(1) If the probable cost of the material or nonprofessional services estimated to annually exceed the threshold amount or amounts set by the Contracting and Purchasing Advisory Council pursuant to § 6913 of this title, the procurement shall be made only after public advertising and the receipt of sealed bids as provided for in this subchapter. The advertisement for such bids shall be published at least once a week for 2 consecutive weeks in a newspaper published or circulated in each county of the State. Public advertising shall require electronic publication accessible to the public in a manner prescribed pursuant to § 6902(10) of this title for 2 consecutive weeks.

(2) The advertisement for bids shall state the name of the procuring agency, indicate with reasonable accuracy the character, quantity and location of the work or the character and quantity of materiel, the time and place for the opening of bids and where the specifications or descriptions may be obtained. The advertisement shall also state that the agency may extend the time and place for opening of bids from that described in the advertisement, on not less than 2 calendar days' notice, by certified delivery, facsimile machine or other electronic means to those bidders who obtained copies of the specifications or descriptions.

(1) Bids shall be opened publicly at the time and place designated in the invitation to bid. The main purpose of the bid opening is to reveal the name(s) of the bidder(s), not to serve as a forum for determining the low bidder(s). The disclosure of additional information, including prices, shall be at the discretion of the procuring agency until such time that the responsiveness of each bid has been determined.

(2) The contract shall be awarded within 30 calendar days of the bid opening to the lowest responsive and responsible bidder whose bid conforms in all material respects to the requirements and criteria set forth in the invitation to bid, except that in the case of a public school district and its board or designee or the Department of Education, the contract shall be awarded within 60 days thereafter.

(3) The bids, bid summaries and bid tabulations shall not be open for public inspection until after receipt of a fully executed contract. Bids shall be unconditionally accepted without alteration. Bids shall be evaluated based on the requirements set forth in the invitation to bid. No criteria may be used in bid evaluations that are not set forth in the invitation to bid. After bid opening, no corrections in bid prices or other provisions of bids prejudicial to the interests of this State or fair competition shall be permitted.

(d) Vendor eligibility. --

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

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

(3) To supplement the contract public notice, the agency may compile and maintain a prospective vendors list. Inclusion of the name of a person shall not indicate whether the firm is responsible concerning a particular procurement or otherwise capable of successfully performing a contract.

(4) Firms desiring to be included on the prospective vendors list shall notify the agency. Upon notification, the agency shall mail or otherwise provide the firm with a vendor registration form. The firm shall complete the vendor registration form and return it to the agency. A vendor registration list shall not be used as a means to restrict competition.

(5) No cause of action shall accrue from any good faith effort to contact and distribute invitations to bid, amendments to invitations to bid as well as all correspondence utilizing the agency's vendor eligibility list.

(6) Firms that fail to respond to solicitations for 2 consecutive procurement contracts for a particular item may be removed from the applicable vendors list. The agency shall send notice of such a removal by mail or facsimile to the firm. Firms may be reinstated upon request.

(e) Invitation to bid. --

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

(2) The invitation to bid shall include the following:

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

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

c. The contract terms and conditions, including, but not limited to, warranty and bonding or other security requirements, as applicable.

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

(4) An invitation to bid may require the submission of bid samples, descriptive literature and technical data and may require inspection or testing of a product before award.

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

(f) Pre-bid conferences. -- An agency may conduct a pre-bid conference within a reasonable time but not less than 7 days before a bid opening to explain the requirements of an invitation to bid. An agency may require mandatory attendance by bidders at such pre-bid conferences to qualify as a responsible and responsive bidder. Statements made at the pre-bid conference shall not be considered amendments to the invitation to bid unless a written amendment is issued pursuant to subsection (g) of this section.

(g) Amendments to invitations to bid. --

(1) An amendment to an invitation to bid shall be issued to:

a. Make changes in the invitation to bids;

b. Correct defects or ambiguities in the invitation to bid; and/or

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

(2) Amendments to invitations to bid shall be so identified and shall be sent to all firms to whom the agency distributed an invitation to bid.

(3) The agency shall obtain verification of bidder receipt of all amendments issued.

(h) Withdrawal of bids. --

(1) A bidder may withdraw its bid at any time before bid opening if the withdrawal is received in writing before the bid opening at the location designated in the invitation for bids for receipt of bids. A bidder or its authorized representative may withdraw its bid in person if, before the bid opening, the identity of the person requesting withdrawal is established and that person signs a receipt for the bid.

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

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

(i) Late bids and late modifications. --

(1) A bid or withdrawal of a bid is late if it is received at the location designated in the invitation to bid for receipt of bids after the time and date set for bid opening.

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

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

(j) Receipt, opening and recording of bids. --

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

(2) An envelope that is not marked as a bid or does not identify the bidder or solicitation may be opened solely for the purpose of identification. Record shall be made on the envelope of the reason for opening it, the date and time it was opened, the solicitation to which the bid responded and the signature of the person who opened the envelope. The envelope shall be resealed and retained in the procurement file.

(3) Bids shall be opened publicly and in the presence of 1 or more witnesses at the time, date and location designated in the invitation. Bid information shall be disclosed at the public opening pursuant to subsection (c)(1) of this section. The bid information made available at the public opening shall be recorded on a bid abstract. The name of the required witness shall also be recorded. The bid abstract shall be available for public inspection.

(4) Bids shall not be available for public inspection before receipt of a fully executed contract pursuant to subsection (c)(3) of this section. After contract award, the bids shall be available for public inspection, except to the extent that withholding of information is permitted by Chapter 100 of this title or otherwise permitted or required by law. If the bidder designates a portion of its bid as confidential, it shall isolate and identify in writing the confidential portions. The bidder shall include with this designation a statement that explains and supports the firm's claim that the bid items identified as confidential contain trade secrets or other proprietary data.

(k) Bid evaluation and award. --

(1) The contract shall be awarded to the lowest responsible and responsive bidder whose bid meets the requirements and evaluation criteria set forth in the invitation to bid. If the invitation to bid so provides, award may be made by individual line item, by group of line items, by county, zone or any other way designated by the agency or for the aggregate total of all line items; otherwise award shall be made in lump sum. A formal contract shall be executed with the successful bidder within 20 days after the award of the contract.

(2) A contract may be awarded to a firm other than the lowest responsible and responsive bidder if, in the opinion of the agency, the interests of the State shall be better served by awarding the contract to some other bidder provided the agency head makes a written determination of the reason or reasons for granting the contract to a firm other than the lowest responsible and responsive bidder.

(3) A product acceptability evaluation may be conducted to determine whether a bidder's product meets the bid specifications. Any bidder's offer that does not meet the bid specifications shall be rejected as nonresponsive.

(4) Bids shall be evaluated to determine which bidder offers the lowest cost to the agency in accordance with the evaluation criteria set forth in the invitation to bid. Only objectively measurable criteria that are set forth in the invitation to bid shall be applied in determining the lowest bidder. Examples of such criteria include, but are not limited to, transportation cost, energy cost, ownership cost and other identifiable costs. Evaluation factors need not be precise predictors of actual future costs, but to the extent possible, the evaluation factors shall be reasonable estimates based upon information the agency has available concerning future use. Prior unsatisfactory performance on a State contract by a bidder may be included in the evaluation criteria to determine if a bidder is responsible.

(5) A contract may not be awarded to a bidder submitting a higher quality item than that designated in the invitation for bids unless the bidder is also the lowest bidder as determined under this section. The agency may seek clarification of a bid, but negotiations are not permitted with any bidder.

(6) If 2 or more responsible firms bid an equal amount and such amount is the lowest bid, the agency may award the contract to any 1 of them or reject all bids consistent with the provisions of this section.

(7) A record showing the basis for determining the successful bidder shall be retained in the agency procurement file.

(8) A written notice of award shall be sent to the successful bidder. For procurement greater than the threshold amount(s) set by the Contracting and Purchasing Advisory Council pursuant to § 6913 of this title, each unsuccessful bidder shall be notified of the award. Notice of award shall be made available to the public.

(l) Only 1 bid received. --

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

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

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

(2) If only 1 responsive bid is received and the bid is rejected, the agency may:

a. Solicit new bids; or

b. Cancel the proposed procurement.

(m) Cancellation of invitation to bid. -- An invitation to bid or other solicitation may be canceled or any or all bids may be rejected in whole or in part prior to the opening of bids as may be specified in the solicitation if it is in the best interest of the State. The reasons for the cancellation or rejection shall be made part of the procurement file.

(1) If an invitation to bid or other solicitation is canceled prior to the opening of bids, a notice of cancellation shall be sent to all bidders.

(2) Any bids that have been received shall be returned unopened to the bidders.

(n) Rejection of individual bids. -- A bid may be rejected if:

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

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

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

Bidders whose bids are rejected under this section shall be notified in writing about the rejection. Record of the rejection shall be made part of the procurement file.

(o) Responsiveness of bidders. -- An agency shall determine that a bidder is responsive before awarding a contract to that bidder. Factors to be considered in determining if a bidder is responsible include:

(1) The bidder's financial, physical, personnel or other resources, including subcontracts;

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

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

(4) Whether the bidder supplied all necessary information concerning its responsiveness.

The agency may establish specific responsibility criteria for a particular procurement. Specific responsibility criteria shall be set forth in the solicitation. If an agency determines that a bidder is nonresponsive and/or nonresponsible, the determination shall be in writing and set forth the basis for the determination. A copy of the determination shall be promptly sent to the affected bidder. The final determination shall be made part of the procurement file.

(p) Electronic bid submission. --

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

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

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

(q) Reverse auction. --

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

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

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

(4)

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

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

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

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

Del. C. § 6923

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