New Castle County - Civil Division

November 12, 2002



J. Ross Harris, P.E.
President

Council of the Delaware Association of Professional Engineers
56 W. Main St., Suite 208
Christiana, DE 19702



RE: DAPE's Inquiries Concerning The State Procurement Act

Dear Mr. Harris:

The Council of the Delaware Association of Professional Engineers ("DAPE") has asked for an opinion concerning three questions under the State Procurement
Act, 29 Del.C. Ch. 69 and the Code of Ethics issued by DAPE Council. 

Specifically, Council inquired: (1) in the large professional service procurement process, whether the criteria for agency ranking, prior to negotiation, of the RFP
responses is confined to those set forth in 29 Del.C. §6981(e), as indicated by §6982(a)(1), or, in the initial ranking process, can the engineering fee and/or total
project cost be included as additional criteria; (2) considering the prohibition stated in §6982(a)(2), whether it is permissible under the law to request cost
proposals/information for purposes of ranking the responses, with the understanding that initial negotiations may not be with the provider of the lowest cost
proposal; and (3) whether it is a violation of the DAPE Code of Ethics if an engineer responds to an agency's request for proposal when the agency's request is in
violation of state law.(1)

For the reasons stated below, we conclude that: (1) price cannot be considered in the initial ranking process for those professional services indicated in 29 Del.C.
§6982(a) because it is not specifically authorized under this section of the State Procurement Act and is only authorized by 29 Del.C. §6982(b); (2) consistent with
the federal Brooks Architect-Engineers Act, the provisions for initial ranking of professional services set forth in Section 6982(a) are based upon a proposer's
qualifications; and (3) whether an engineer could be subject to a disciplinary charge before DAPE Council under DAPE's Code of Ethics depends on the
circumstances of a particular case.

1. Criteria

Council inquired whether, prior to negotiation, the criteria for agency ranking for an RFP is confined to those criteria set forth in §6981(e) as indicated by
§6982(a)(1), or, in the initial ranking process, can the engineering fee and/or total project cost(2) be included as additional criteria. To properly address your
inquiry, it is necessary to first consider the provisions of 29 Del.C. §6981(e):



(e) Each agency shall establish written administrative procedures for the evaluation of applicants. These administrative procedures shall be adopted and
made available to the public by each agency before publicly announcing an occasion when professional services are required. One or more of the following
criteria may be utilized in ranking the applicants:



(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.



29 Del.C. §6981(e) (emphasis added). 

The purpose of interpreting a statute is "to ascertain and to give effect to the intent of the legislature." Hudson Farms, Inc. v. McGrellis, 620 A.2d 215, 217 (Del.
Supr. 1993).(3) In doing so, the interpretation should be consistent with the overall purposes of the statute. Rubick v. Security Instrument Corp., 766 A.2d 15, 19
(Del. Supr. 2000). If there is no reasonable doubt as to the meaning of the words used, a statute is unambiguous and the Court's role is limited to an application of
the plain meaning of the words. Id. at 18. In performing this analysis, the words in the statute are given their common, ordinary meaning. 1 Del.C. §303; Hudson
Farms, 620 A.2d at 217. In other words, "[w]here the intent of the legislature is clearly reflected by unambiguous language in the statute, the language itself
controls." State v. Cooper, 575 A.2d 1074, 1075 (Del. Supr. 1990). "In the absence of any ambiguity, the language of the statute must be regarded as conclusive
of the General Assembly's intent." Id. at 1076.

Additionally, a court may draw inferences concerning the meaning of a statute from its composition and structure. Klotz v. Warner Communications, Inc., 674
A.2d 878, 879 (Del. Supr. 1995). The grammatical structure of a statute and application of grammatical rules are relevant and necessary concerning statutory
interpretation.

According to §6981(e), an agency has a mandatory duty to establish evaluation procedures concerning applicants. The word "shall" is considered generally to
indicate a mandatory requirement. Delaware Citizens for Clean Air, Inc. v. Water and Air Resources Comm., 303 A.2d 666 (Del. Super. 1973). The procedures
or methods for evaluating applicants are usually set forth in a procuring agency's Request for Proposals or a procedures manual, and are properly left to a procuring
agency's determination provided such methods are within the parameters of the State Procurement Act.

Section 6981(e) also states, "[o]ne or more of the following criteria may be utilized in ranking the applicants under consideration ... ." While "shall" is
presumptively mandatory, the word "may" indicates generally a permissive characteristic, however, the use of this test depends upon the context of the statutory
language and "[t]he mere use of a term does not control the question of legislative intent if the full setting of the statute suggests a different construction." Miller v.
Spicer, 602 A.2d 65, 67 (Del. Supr. 1991) Here, the use of "may" under §6981(e) suggests that an agency has some discretion concerning the seven criteria listed
for ranking applicants. A procuring agency is not legally required to consider all of the seven criteria set forth in §6981(e) for ranking. While a procuring agency can
set forth its criteria for purposes of ranking according to §6981(e), it cannot consider fees in the ranking process under §6982(a).

2. Request Cost Proposals/Information

With respect to Council's second inquiry, we understand your question to be whether a procuring agency can request cost for purposes of ranking responses under
29 Del.C. §6982(a). To properly address this inquiry, it is necessary to consider the provisions of 29 Del.C. §6982 in their entirety and in conjunction with
§6981(e). 

Section 6982(a) sets forth the process for ranking specific professional services, including architectural and professional engineering services:

(1) Based upon the criteria established pursuant to §6981(d) [sic - §6981(e)] of this title, the agency shall rank, in order of preference, the applicants deemed
to be qualified to perform the required services.

(2) Beginning with the most qualified firm designated 1st on the preference list, the agency shall negotiate for professional services at compensation which the
agency determines is fair and reasonable. The agency shall conduct an analysis of the cost of the professional services required, in addition to considering their
scope and complexity. Fee proposals shall not be solicited from this or any other firm on the preference list for use in comparison of fee negotiations. The
agency may require the firm receiving the award to execute a truth-in-negotiation certificate stating the wage rates and other factual unit costs supporting the
compensation are accurate, complete and current at the time of contracting. ...



29 Del.C. §6982(a) (emphasis added). Section 6982(b) sets forth the selection process concerning the procurement of all other professional services not included
in §6982(a):

(b) For all professional services not described in subsection (a) of this section, agencies shall use the selection process described in paragraphs (1) through (5) [sic
- (3)] of this subsection.

(1) Based upon the criteria established pursuant to §6981(e) of this title, the agency shall determine all applicants that meet the minimum qualifications to perform
the required services.

(2) The agency shall then interview at least 1 of the qualified firms. The agency may negotiate with 1 firm without terminating negotiations with another firm and may
negotiate with 1 or more firms during the same period. At any point in the negotiation process, the agency may, at its discretion, terminate negotiations with any or
all firms.

(3) The agency may require the firm with whom the agency is negotiating to execute a truth-in-negotiation certificate stating the wage rates and other factual unit
costs supporting the compensation are accurate, complete and current at the time of contracting. ...



29 Del.C. §6982(b). 



There are several critical distinctions between §6982(a) and §6982(b) regarding the procedures for professional service procurement. Section 6982(a) requires a
procuring agency initially to rank applicants in order of their qualifications. After ranking, an agency attempts to negotiate with an applicant designated first on the
list a contract that is "fair and reasonable." Section 6982(a) expressly provides that a procuring agency cannot solicit fee proposals from a first-ranked applicant or
any other applicants as a basis for comparison when negotiating fees. If an agency and a first-ranked applicant fail to negotiate a contract, then an agency must
formally terminate negotiations before initiating negotiations with the second-ranked applicant.

The selection process set forth in §6982(b) is less restrictive. Instead of ranking applicants, a procuring agency here must simply determine that applicants meet the
minimum qualifications for providing the professional services sought. An agency then must interview at least one of the qualified firms and can negotiate with one or
multiple firms simultaneously. Unlike §6982(a), there is no requirement of formally terminating negotiations with one applicant before negotiating with a second, and
no limitation concerning fee proposals. 

When construing a statute, courts have recognized that the "[l]egislature inserted every provision for some useful purpose and construction." Murtha v. Continental
Opticians, Inc., 729 A.2d 312, 318 (Del. Super. 1997). Principles of statutory construction also dictate that language may not be engrafted upon a statute which
has been clearly excluded therefrom by the legislature. Id. "[W]here a statute is unambiguous ... a Court should not make an interpolation. Words ... cannot be
added when the words may have been purposely omitted from the statute." Jacobs v. Metropolitan Life Ins. Co., 1 A.2d 601, 603 (Del. Super. 1937). It is also
necessary to consider the composition and structure of §6982(a)(1) and (2) for determining legislative intent. Klotz, 674 A.2d at 879. 

In order to give full effect to the legislative intent, it is necessary to harmonize the statutes together. Council 81, AFSCME v. Lank, 1987 WL 25474 (Del. Super.
Nov. 19, 1987). It is presumed that, when enacting a statute, the legislature had in mind previous statutes relating to the same subject matter and the new provision
was enacted in accord with the legislative policy embodied in the prior statutes, and consequently, all statutes should be construed together. Monroe Park v.
Metropolitan Life Ins. Co., 457 A.2d 734, 737 (Del. Supr. 1983). Therefore, to determine the true legislative intent concerning professional service procurement,
the provisions of §6982 must be reconciled and evaluated together.

The first two provisions of §6982(a) require a procuring agency to negotiate compensation(4) for services with a first-ranked qualified firm, at terms which the
agency determines is fair and reasonable. This language also indicates that the negotiation of compensation for architectural and professional engineering services is
the second step in the process, following the ranking of applicants that is based upon qualifications. Additionally, a comparison of §§6982(a) and (b) shows that the
General Assembly expressly limited the criteria of an agency's ranking for professional services listed in §6982(a) by excluding fee proposals, while §6982(b) fails
to include any similar provision: "[f]ee proposals shall not be solicited from this or any other firm on the preference list for use in comparison of fee negotiations." 29
Del.C. §6982(a)(2). Similarly, §6981 also provides that "[f]or the selection process described in §6982(b) of this title, price may be a criteria used to rank
applicants under consideration." 29 Del.C. §6981(h). This subsection refers exclusively to §6982(b), which sets forth the selection process for professional service
contracts other than those indicated in §6982(a). Presumably, if the General Assembly had intended to include the selected professional services described in
§6982(a) as part of the price considerations set forth in §6981(h), then it either would have expressly done so or it would not have enacted the current provision of
§6981(h).

The provisions of §6982(a) are consistent with and follow the federal Brooks Architect-Engineers Act, 40 U.S.C. §§541 et seq. ("Brooks Act").(5) The Brooks
Act, which was enacted in 1972, governs the selection of architectural/engineering (A/E) services for federal government contracts. Like Delaware's Procurement
Act, it expressly provides for a two-step procurement procedure: first, the procuring government agency determines which A/E firms are the most highly qualified
to provide the services required; and second, the agency then negotiates with the highest qualified firm for a contract to provide the services at a fair price. 40
U.S.C. §§543 and 544.

According to §543, A/E firms are invited to submit annually a statement of qualification and performance data, which is reviewed by the head of the procuring
agency for each proposed project for evaluation. It requires the agency to establish and publish evaluation criteria and based upon such criteria, select no less than
three firms to be the most highly qualified to provide the required services. This provision is similar to 29 Del.C. §§6981(e) and 6982(a)(1). 

Additionally, §544 provides that the procuring agency is to first negotiate with the highest qualified firm at "compensation which the agency head determines is fair
and reasonable to the Government." If the agency is unable to negotiate successfully a contract, then negotiations are formally terminated and negotiations are
undertaken with the second most qualified firm. Similarly, the provisions of 29 Del.C. §§6982(a)(2) and (a)(3) reflect the federal terms.

The provisions of the Brooks Act are carried out through federal regulations that set forth the "policies and procedures peculiar to contracting for construction and
architect-engineer services." 48 C.F.R. 36.000. The regulations provide specific procedures, forms and criteria about the evaluation and selection of A/E firms. Of
interest is that the regulations contain specific provisions concerning price. See, e.g., 48 C.F.R. 36.214 (procedures for price negotiation in construction
contracting); 48 C.F.R. 36.303 (procedures for two phases of solicitation of design-build selection that expressly prohibit cost or price-related factors in phase
one).

The similar procurement process for engineering services under the Brooks Act supports the interpretation of the Delaware Procurement Act that fees are
negotiated subsequent to an initial ranking based on qualification. 

3. DAPE Code of Ethics

Council further inquired whether it is a violation of the DAPE Code of Ethics if an engineer responds to an agency's request for proposal when the agency's request
is in violation of state law.(6)

DAPE Council, not this Office, is vested with the authority to determine whether or not an applicant, engineer or engineering corporation has violated DAPE's
Code of Ethics. Section 2823 of the Delaware Professional Engineers Act provides:

(a) The Council shall have the power to review the actions and representations of any applicant as well as the professional conduct of any individual,
corporation or partnership authorized under this chapter to engage in the practice of engineering in Delaware. Following such review the Council shall
have the power to require the successful completion of additional training or education courses and/or to refuse registration, warn, or reprimand or censure or
suspend for a period of time not exceeding 2 years, refuse to renew or revoke any authorization issued to practice engineering in Delaware to any individual,
corporation or partnership found guilty of:

(1) The practice of fraud or deceit in obtaining any authorization to practice engineering in this State.

(2) Any gross negligence, incompetence or misconduct in the practice of engineering.

(3) Violation of the code of ethics promulgated by the Council.





24 Del.C. §2823(a) (emphasis added). Therefore, the third inquiry raised is an issue that would need to be decided by DAPE Council.

Additionally, DAPE Council's determination of whether or not an engineer or engineering corporation violated its Code of Ethics would depend upon the facts of
each case brought before Council.(7) It is unclear whether or not a violation of the DAPE's Code of Ethics could be determined, as such would need to be decided
on a case-by-case basis. 

Further, DAPE's hypothetical inquiry assumes that a Request for Proposal is inconsistent with the procurement laws. Such a finding would have to made by a court
of appropriate authority.(8)

Assuming that a Request for Proposal may not comport with the State Procurement Act, equitable estoppel may prevent Council from enforcing a disciplinary
action under DAPE's Code of Ethics against an engineer or engineering corporation. The doctrine of equitable estoppel can be applied against a government
agency(9) where "[a] citizen relies: (1) in good faith upon an act or omission of the government and (2) changes positions to his detriment, (3) in a situation where
the balance of the competing interests suggests that the inequity and injustice of forcing the individual to suffer the adverse consequences resulting from such reliance
outweighs any countervailing public policy interest." Mirzakhalili v. Chagnon, 2000 WL 1724326, at 12 (Del. Ch. Nov. 9, 2000).

Based on the foregoing reasons, we conclude that: (1) price cannot be considered in the initial ranking process for professional services indicated in 29 Del.C.
§6982(a); (2) the provisions for initial ranking of professional services set forth in §6982(a) are based upon a proposer's qualifications; and (3) whether an engineer
could be subject to a disciplinary charge before DAPE Council under DAPE's Code of Ethics depends on the circumstances of a particular case.

If you have any further questions concerning these matters, please contact our Office.



Very truly yours,



Laura L. Gerard

Deputy Attorney General









Lawrence W. Lewis

Deputy Attorney General,

Government Services Group Leader





Approved:





_____________________

Malcolm Cobin

State Solicitor





cc: The Honorable M. Jane Brady

Attorney General



Mr. Philip G. Johnson

Opinion Coordinator













dape ag op rev.wpd

1. Jurisdiction for oversight of the State Procurement Act is expressly vested in the Division of Purchasing, Department of Administrative Services. 29 Del.C.
§6908. There is no provision in the Delaware Professional Engineers Act, 24 Del.C. Ch. 28, that indicates DAPE exercises any jurisdiction concurrent with the
Division of Purchasing. See Lynch v. Tunnell, 236 A.2d 369 (Del. Supr. 1967) (powers of an administrative agency must be found in its enabling statute that
authorizes such powers). 

Protests against bids are embodied in a procuring agency's bid protest procedures or challenges to bids are filed in the Delaware Court of Chancery by a next
apparent responsive and responsible lowest bidder. See, e.g., Wohlsen Construction Co. v. Dept. of Administrative Services, 1998 WL 157365 (Del. Ch. Mar.
31, 1998) (plaintiff, as second apparent responsive and responsible lowest bidder, raised bid protest and subsequently filed suit in court for declaratory and
injunctive relief concerning award of construction contract). DAPE does not have standing as an entity to raise a bid protest directly. 

2. "Fee" and "cost" are not defined in the State Procurement Act. 29 Del.C. §6902. As discussed, infra, the terms "compensation," "cost," "fee proposals" and
"contract price" are utilized in 29 Del.C. §6982(a)(2), but only "compensation" is defined. 29 Del.C. §6902(4). Undefined words in a statute should be given their
common, ordinary meaning. Hudson Farms, 620 A.2d at 217. By discriminate use of different words, the General Assembly intended each to have a different
meaning. Schueler v. Martin, 674 A.2d 882, 888 (Del. Super. 1996) ("[W]hen different terms are used in various parts of a statute, it is reasonable to assume that
distinctions between the terms were intended."). 

3. "The foundational rule of statutory construction is that a court must give a statute its plain meaning if the statutory language is clear and unambiguous. That is, the
court is bound to give effect to the literal meaning without consulting other indicia of intent or meaning when the meaning of the statutory text itself is 'plain' or 'clear
and unambiguous'. This rules makes it necessary first to determine whether a statute has a plain meaning or is ambiguous in order to know whether other indicia of
intent or meaning should be considered." Bestemps v. Gibbs, 1998 WL 960759, at 2 (Del. Super. Oct. 22, 1998). 

4. "Compensation" is defined as "the total amount paid by an agency for professional services, including reimbursed expenses, unless otherwise stated in the
contract." 29 Del.C. §6904. "Fee," "cost" and "price" are not defined in the State Procurement Act and should be given their common, ordinary meaning. Hudson
Farms, 620 A.2d at 217. 

5. While not specifically requested in DAPE's letter, the federal law concerning procurement of architectural/engineering services warrants some discussion. 

6. It is not clear from the question as to which "state law" DAPE is referring, however, this Office presumes DAPE means the State Procurement Act. 

7. In a case decided by the U.S. Supreme Court in 1978, 6 years after the passage of the Brooks Act, the federal government sued the National Society of
Professional Engineers (NSPE), alleging that NSPE's canon of ethics that prohibited competitive bidding by its members violated the federal Sherman Anti-Trust
Act. The U.S. Supreme Court held that the canon was not justified and violated the Sherman Anti-Trust Act. Noting that the federal government decided not to
require competitive bidding for purchases of engineering services under the Brooks Act, the Court reasoned that the Sherman Act prohibited unreasonable
restraints on competition. It concluded that NSPE's ban on competitive bidding prevented all customers from making price comparisons in the initial selection of an
engineer, which imposed NSPE's views of the costs and benefits of competition on the entire market. National Society of Professional Engineers v. U.S., 435 U.S.
679, 695 (1978). 

8. See note 1 supra. 

9. The Court in Mirzakhalili determined that DAPE Council and DAPE's staff are a government agency of the State for purposes of administering 24 Del.C. Ch. 28
and for purposes of 42 U.S.C. §1983. The Court noted that DAPE is a statutorily created body whose Council exercises significant governmental powers, such as
licensing and disciplining professional engineers. It concluded that DAPE, by statute, is "[e]ssentially a professional licensing and regulatory body that exercises the
State's authority within its statutory domain." 2000 WL 1724326, at 18 n.67.