Delaware

Key Agency(ies): In Delaware, the Office of Management and Budget’s (OMB) Section of Government Support Services (GSS) acts as the exclusive central contracting authority for most state agency purchases. The OMB Director is responsible for overseeing these functions and promulgating procedures. Each agency, however, typically has a procurement unit or contracting officer responsible for agency-specific procurements not handled centrally.

Key Statute: Delaware’s procurement law is codified in Title 29 of the Delaware Code (Del. Code Ann.), Chapter 69 – “State Procurement.”

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Key Regulations: Delaware does not utilize substantial procurement regulations. However, the Delaware Code authorizes the OMB Director to issue written procedures for certain aspects of procurement, including small purchase procedures. The OMB Director also maintains a Procurement Manual providing guidance consistent with the Code.

Procurement Types/Highlights: The primary procurement methods used in Delaware are:

Open Market Purchase: For low value acquisitions under certain thresholds, agencies may directly obtain quotes without a formal solicitation. Currently, for material and non-professional services, the open market purchase threshold is $50,000. For professional services, the threshold is $100,000. Agencies are still expected to seek fair and reasonable pricing.

Three-Quote/Three Bid Procedure: For purchases above the Open Market threshold but below the threshold for formal competition, Delaware has established intermediate procedures. Agencies must solicit at least three written quotes for vendors, but the agency still is not required to publish a formal solicitation. For material and non-professional services, agencies must use intermediate procedures for purchases between $50,000 and $99,999. For professional services, the threshold is $100,000 to $149,999.

Competitive Sealed Bidding (Invitation for Bids): This is the default method of procurement for contract values exceeding the intermediate procurement thresholds. The solicitation must be posted publicly for a minimum of two weeks, and awards are made to the lowest-price responsive and responsible bidder.

Competitive Sealed Proposals (Request for Proposals): This method is used when sealed bidding is not practical or when factors other than price matter significantly. An agency head must make a written determination justifying an RFP. Proposals are evaluated according to the criteria in the solicitation, and the contract is awarded to the proposal determined to be the most advantageous to the state.

Bid Protests: Bid Protests in Delaware must be filed at GSS for central contracts or directly at the procuring agency.

Timeliness Rules:

• For central contracts, protests challenging the terms of a solicitation must be submitted to the GSS Director at least two business days prior to the closing date for the receipt of bids or proposals.
• Protests challenging an award decision must be filed within 10 days after the contractor receives notice of the award.

Protest Process:

• The Delaware Code does not provide for a formal protest hearing process. Generally, the GSS Director or an officer within the procuring agency will review the allegations of the protest and issue a decision.
• An agency may stay the award or performance of a contract pending resolution of a protest, unless a compelling state interest requires the contract award to proceed.
• In some cases, the agency may conduct an informal hearing to allow the protester to present evidence for its case. The agency will issue a written decision on the protest “as expeditiously as possible.”
• The agency’s decision is the final administrative decision.

Claims:

• Delaware includes a standard dispute resolution clause in all of its formal bid solicitation templates that provide for a claim resolution process. That clause provides that should any contract controversy arise, the contractor and the agency must first attempt good-faith negotiation to resolve the dispute.
• Should negotiations fail, the parties can then elect mediation by a third party to facilitate a settlement. Following mediation, parties can proceed to arbitration or litigation to resolve the dispute.
• Should contractors pursue litigation against the state, they may either file their suit in the Delaware Superior Court for claims seeking monetary damages, or in the Delaware Court of Chancery for claims seeking equitable relief.

Suspension & Debarment:

• Delaware does not have a comprehensive statutory regime governing suspension and debarment. The OMB Manual states that outside of construction contracts “there are no provisions in the Delaware Code authorizing formal debarment of a vendor.”
• Instead, Delaware relies on responsibility determinations to exclude irresponsible contractors. Contractors with a history of poor performance or unethical behavior may be found not responsible and excluded from specific solicitations.

Interesting/Distinctions: Delaware does have a formal debarment process for construction contractors, as prescribed by Del. Code Ann. tit. 29, § 6962(d)(14). If a contractor materially fails to perform a construction contract, the contracting agency may seek to have the contractor debarred from future construction projects.

To initiate debarment proceedings, the contracting agency must file a petition with the OMB Director requesting the contractor be suspended or debarred. If the OMB Director determines the petition has merit, they will schedule a hearing for the matter to be considered. Following the hearing, the OMB Director decides whether to suspend, debar, or deny the petition. For a first offense, a contractor may be debarred for up to one year. For a second offense, a contractor may be debarred for up to three years. For a third offense, a contractor may be permanently debarred.

Delaware also provides for cooperative use of state contracts by local administrative divisions. Any city, county, or school district may utilize a state contract if it so chooses.