AN ACT TO AMEND TITLE 29 OF THE DELAWARE CODE RELATING TO THE ELECTRONIC SUBMISSION OF BIDS AND BID OPENINGS FOR ELECTRONIC BIDDING.

Legislation Document

SPONSOR:

Rep. Morrison & Sen. Hansen

HOUSE OF REPRESENTATIVES

153rd GENERAL ASSEMBLY

HOUSE BILL NO. 390

AN ACT TO AMEND TITLE 29 OF THE DELAWARE CODE RELATING TO THE ELECTRONIC SUBMISSION OF BIDS AND BID OPENINGS FOR ELECTRONIC BIDDING.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend § 6923, Title 29 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:

§ 6923. Competitive sealed bidding.

(p)

Electronic bid submission. —

(1) If the Office or an agency determines that

an

requiring

electronic bid submission

in response to an advertisement, solicitation, or request for proposal, or allowing electronic bid submission as an option for submission of a response to an advertisement, solicitation, or request for proposal

is advantageous, the Office or the agency may use electronic bidding

through a platform or provider of their choosing

to obtain bids for the purchase of goods and nonprofessional services.

(2) The solicitation must designate that the procurement method will be

an

solely by

electronic bid

submission

, or if electronic and paper bid submissions will both be accepted

, a schedule of bid activities, and

an electronic mail account

the approved platform or vendor to which the bidding response must be sent.

(3)

The

When the Office or an agency limits bidding to electronic bid submissions, the

Section’s or the agency’s representative and a witness shall open the

e-mail account

bids received via the approved platform or provider

immediately after the closing date and

time;

time

, record the vendors that submitted bids, the date and time submitted, the bids, and associated

prices;

prices,

and prepare a bid tabulation of all responsive vendors for review.

The Office or the agency’s representative opening the bid does not need to provide space for or conduct a public meeting or open the bid in the presence of the public.

(4) When the Office or an agency chooses to accept both electronic and paper bid submissions in response to an advertisement, solicitation or request for proposal, the Office or agency must follow the requirements for doing a public bid opening, including providing facilities for public attendance at the bid opening.

Section 2. Amend § 6924, Title 29 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:

§ 6924. Competitive sealed proposal; request for proposal procedure.

(b)

Advertising requirements. —

(1) Proposals shall be solicited through a request for proposal which shall be issued and shall

include

indicate whether a bid must be submitted electronically or if both electronic and paper submissions will be accepted. The proposal must identify the platform or provider for submitting and receiving electronic bids as provided for in § 6923(p)(1) of this title, and

the location where

paper

proposals are to be received and the date and time the proposals are to be opened.

(2) Adequate public notice of the request for proposals shall be given in the

same

manner as provided in § 6923(b) of this title.

(3) Proposals

shall

that are submitted in response to an advertisement, solicitation, or request for proposal which specifies that paper bids and electronic bids will be accepted must

be opened publicly at the time and place designated in the request for proposals. The name of each offeror and such other relevant information as is specified in the request for proposals shall be read

publicly

and displayed on the electronic bidding platform or provider

and

recorded in accordance with the request for proposal promulgated by the agency. All other information contained in the proposals shall be confidential so as to avoid disclosure of contents prejudicial to competing offerors during the process of negotiation.

(4) The opening of the electronic submissions submitted for advertisements, solicitations, or requests for proposal, where electronic submissions is the sole manner of bidding, does not need to be completed in a setting open to the public. The name of each offeror and such other relevant information as is specified in the request for proposals must be read, displayed electronically online through the designated platform or provider, and recorded in accordance with the request for proposal promulgated by the agency. All other information contained in the proposals must be confidential to avoid disclosure of contents prejudicial to competing offerors during the process of negotiation.

(4)

(5)

The request for proposals shall state the relative importance of price and other evaluation factors.

(5)

(6)

Offerors intending to submit proposals may be afforded an opportunity for discussion for the purpose of clarification to assure full understanding of and responsiveness to the solicitation requirements. Negotiations may be conducted with responsible offerors who submit proposals found to be reasonably likely to be selected for award. Offerors

shall

must

be accorded fair treatment with respect to any opportunity for discussion and amending proposals, and such amendments may be permitted after submissions and before award for the purpose of obtaining best and final offers. In conducting discussions, there

shall

must

be no disclosure of any information derived from proposals submitted by competing offerors.

(6)

(7)

The award shall be made in writing to the responsible offeror or offerors whose proposal is determined to be the most advantageous to the State taking into consideration the evaluation factors set forth in the request for proposals. No other factors or criteria may be used in the evaluation. (The award of a contract for goods

and/or

or

services may be made upon criteria which do not include price. The contract file shall contain the basis on which the award is made.)

Section 3. Amend § 6962, Title 29 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:

§ 6962. Large public works contract procedures [For application of this section, see 82 Del. Laws, c. 36, § 3].

(b)

Advertising requirements. —

Each agency shall publicly announce, for 2 consecutive weeks, each public works contract 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.

Director and the electronic procurement advertising system described in § 6902(12) of this title, for each public works contract

.

An agency may also maintain a register of prospective bidders which may be used to provide direct notification of contracts to be bid. This register shall not be used in a manner which will limit the competitiveness of the bidding process described in this subchapter. No agency shall be subject to a cause of action or be otherwise liable for any errors or omissions in administering a bid registry. The public announcement shall also state the nature of the contract under the following conditions:

(3)

If an agency requires bids be submitted electronically, the agency must state the requirement in the advertisement and identify the platform or provider for submission of the electronic bid.

(d)

Bid specifications and plans requirements

. —

(12)

Public bid opening requirements. —

a.

Unless bids are accepted only by electronic submission,

Bids

bids

shall be opened publicly and the contractor and total bid price or the contractor, base bid, and alternate price should be read aloud

and displayed

at the time and place designated in the plans and specifications.

If bids are accepted only by electronic submission, opening shall be in accordance with paragraph (d)(13)g. of this section.

b. Bids shall be unconditionally accepted without alteration. After the bid opening, no corrections in bid prices or other provisions of bids prejudicial to the interests of the State or fair competition shall be permitted.

(13)

Bid evaluation, contract award and execution procedure

. —

a. The contracting agency shall award any public works contract within 30 days of the bid opening to the lowest responsive and responsible bidder, unless the agency elects to award on the basis of best value, in which case the election to award on the basis of best value shall be stated in the invitation to bid.

By mutual consent, the agency and the awarded bidder may extend the time limit for contract award

. Any public school district and its board shall award public works contracts in accordance with this section’s requirements except it shall award the contract within 60 days of the bid opening. A contracting agency shall extend the 30-day bid evaluation period by a total of 5 working days and a school district shall extend the 60-day bid evaluation period by a total of 5 working days if a bid is nonresponsive or a bidder is judged to be not responsible, and the bidder cannot be notified in writing a minimum of 5 days prior to the end of the 30-day bid evaluation period in the case of an agency, or the 60-day bid evaluation period in the case of a school district. Written notification to the bidder or bidders whose bid is non-responsive or who have been determined to be not responsible shall be received at least 5 working days prior to the end of the original or the extended evaluation period and shall specify the reason or reasons why the bid is nonresponsive or the bidder determined to be not responsible. If the bid evaluation period is extended by 5 working days, the contracting agency or school district shall notify each bidder in writing prior to the end of the 30-day bid evaluation period in the case of an agency, or the 60-day bid evaluation period in the case of a school district, that the bid evaluation period is being extended by 5 working days. The written notification to all bidders shall include the calendar date by which the agency or school district shall award a contract or reject all bids.

g.

Electronic bid or electronic submission

. —

1.

If the Office or an agency determines that an electronic bid or electronic submission is beneficial, the Office or the agency may use the selected method to obtain bids for public works contracts.

If the Office or agency limits bidding submissions to electronic submission, the Office’s or the agency’s representative and a witness must open the bids received via the approved platform or provider immediately after the closing date and time, without the need to provide space for or conduct a public meeting or bid opening in the presence of the public, record the vendors that submitted bids, the date and time submitted, the bids, and associated prices. The Office or agency must prepare a bid tabulation of all responsive vendors for review, which must be made available and posted on the agency’s website within 2 business days of the bid being awarded. This manner of opening electronic only bid submissions is exempted from the requirements of Chapter 100 of this title regarding public meetings.

2. The opening of the electronic submissions submitted for lettings where electronic submissions were selected as the sole manner of bidding need not be completed in a setting open to the public. All other information contained in the proposals must be confidential to avoid disclosure of contents prejudicial to competing offerors during the process of negotiation.

3. When the Office or agency chooses to accept both electronic and paper bid submissions in response to a letting, the Office or agency must follow the requirements for doing a public bid opening set forth in paragraph (d)(13)g.4. of this section, including providing facilities for public attendance at the bid opening.

4. Proposals which are submitted in response to a letting which specifies that paper bids and electronic bids will be accepted must be opened at the time and place designated in the request for proposals. The name of each offeror and other relevant information as is specified in the request for proposals must be read and displayed publicly and recorded in accordance with the request for proposal promulgated by the agency. All other information contained in the proposals must be confidential to avoid disclosure of contents prejudicial to competing offerors during the process of negotiation.

2.

5.

The solicitation must designate that the procurement method will be

solely

an electronic bid or electronic submission,

or if electronic and paper submissions will be accepted,

a schedule of bid activities, and an electronic mail account to which the response must be sent.

3. The Office’s or 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 vendors that responded, the date and time submitted, and the bids or associated prices; and prepare a tabulation of all responsive vendors for review.

SYNOPSIS

This Act clarifies that the agencies may, in their discretion, determine the methodology to be used for bid submission, including limiting bidding to solely electronic submissions. This Act allows for electronic bidding to be conducted through a platform of the agency’s choice. Where electronic bidding is identified as the sole manner of bidding, the agency is not required to provide an anchor location for public attendance at the bid opening. The agency is then required to provide the results of the bidding in real time via an electronic remote hosting platform of the agency’s choosing. The agency must post the results of the solicitation to their website within two (2) business days. Additionally, this Act clarifies that a newspaper advertisement is not required if advertisement is submitted to the electronic procurement advertising system defined in § 6902(12) of this title. Finally, this Act clarifies that the agency and awarded bidder may mutually consent to extend the time limit for contract award.