WEST virginia Legislature
2017 regular session
By
[
to the Committee on Education then Finance.
A BILL to amend and
reenact §18B-5-4 of the Code of West Virginia, 1931, as amended, relating to
higher education advance allowance accounts; authorizing the Auditor to require
supporting documentation along with an accounting of an advance allowance
account; permitting the Auditor to suspend an additional advance allowance
request in certain situations; and authorizing rule-making.
Be it enacted by the
Legislature of West Virginia:
That §18B-5-4 of the
Code of West Virginia, 1931, as amended, be amended and reenacted to read as
follows:
ARTICLE 5. HIGHER EDUCATION BUDGETS AND EXPENDITURES.
§18B-5-4. Purchase or acquisition of materials,
supplies, equipment, services and printing.
(a) The council, commission
and each governing board shall purchase or acquire all materials, supplies,
equipment, services and printing required for that governing board or the
council or commission, as appropriate, and the state institutions of higher
education under their jurisdiction, except the governing boards of Marshall
University and West Virginia University, respectively, are subject to
subsection (d) of this section.
(b) The commission and
council jointly shall adopt rules governing and controlling acquisitions and
purchases in accordance with this section. The rules shall ensure that the
following procedures are followed:
(1) No person is precluded
from participating and making sales thereof to the council, commission or
governing board except as otherwise provided in section five of this article.
Providing consulting services such as strategic planning services does not
preclude or inhibit the governing boards, council or commission from
considering a qualified bid or response for delivery of a product or a
commodity from the individual providing the services;
(2) Specifications are
established and prescribed for materials, supplies, equipment, services and
printing to be purchased;
(3) Purchase order,
requisition or other forms as may be required are adopted and prescribed;
(4) Purchases and
acquisitions in such quantities, at such times and under contract, are
negotiated for and made in the open market or through other accepted methods of
governmental purchasing as may be practicable in accordance with general law;
(5) Bids are advertised on
all purchases exceeding $50,000 and made by means of sealed or electronically
submitted bids and competitive bidding or advantageous purchases effected
through other accepted governmental methods and practices. Competitive bids are
not required for purchases of $50,000 or less.
(6) Notices for
acquisitions and purchases for which competitive bids are being solicited are
posted either in the purchasing office of the specified institution involved in
the purchase or by electronic means available to the public at least five days
prior to making the purchases. The rules shall ensure that the notice is
available to the public during business hours;
(7) Purchases are made in
the open market;
(8) Vendors are notified of
bid solicitation and emergency purchasing; and
(9) No fewer than three
bids are obtained when bidding is required, except if fewer than three bids are
submitted, an award may be made from among those received.
(c) When a state
institution of higher education submits a contract, agreement or other document
to the Attorney General for approval as to form as required by this chapter,
the following conditions apply:
(1) "Form" means
compliance with the Constitution and statutes of the State of West Virginia;
(2) The Attorney General
does not have the authority to reject a contract, agreement or other document
based on the substantive provisions in the contract, agreement or document or
any extrinsic matter as long as it complies with the Constitution and statutes
of this state;
(3) Within fifteen days of
receipt, the Attorney General shall notify the appropriate state institution of
higher education in writing that the contract, agreement or other document is
approved or disapproved as to form. If the contract, agreement or other
document is disapproved as to form, the notice of disapproval shall identify
each defect that supports the disapproval; and
(4) If the state
institution elects to challenge the disapproval by filing a writ of mandamus or
other action and prevails, then the Attorney General shall pay reasonable
attorney fees and costs incurred.
(d) Pursuant to this
subsection, the governing boards of Marshall University and West Virginia
University, respectively, may carry out the following actions:
(1) Purchase or acquire all
materials, supplies, equipment, services and printing required for the
governing board without approval from the commission or the Vice Chancellor for
Administration and may issue checks in advance to cover postage as provided in
subsection (f) of this section;
(2) Purchase from
cooperative buying groups, consortia, the federal government or from federal
government contracts if the materials, supplies, services, equipment or
printing to be purchased is available from these groups and if this would be
the most financially advantageous manner of making the purchase;
(3) Select and acquire by
contract or lease all grounds, buildings, office space or other space, and
capital improvements, including equipment, if the rental is necessarily
required by the governing board; and
(4) Use purchase cards
under terms approved for the commission, the council and governing boards of
state institutions of higher education and participate in any expanded program
of use as provided in subsection (u) of this section.
(e) The governing boards
shall adopt sufficient accounting and auditing procedures and promulgate and
adopt appropriate rules subject to section six, article one of this chapter to
govern and control acquisitions, purchases, leases and other instruments for
grounds, buildings, office or other space, and capital improvements, including
equipment, or lease-purchase agreements.
(f) The council, commission
or each governing board may issue a check in advance to a company supplying
postage meters for postage used by that board, the council or commission and by
the state institutions of higher education under their jurisdiction.
(g) When a purchase is to
be made by bid, any or all bids may be rejected. However, all purchases based
on advertised bid requests shall be awarded to the lowest responsible bidder
taking into consideration the qualities of the articles to be supplied, their
conformity with specifications, their suitability to the requirements of the
governing boards, council or commission and delivery terms. The preference for
resident vendors as provided in section thirty-seven, article three, chapter
five-a of this code applies to the competitive bids made pursuant to this
section.
(h) The governing boards,
council and commission shall maintain a purchase file, which shall be a public
record and open for public inspection.
(1) After the award of the
order or contract, the governing boards, council and commission shall indicate
upon the successful bid the following information:
(A) Designation as the
successful bid;
(B) The reason any bids
were rejected; and
(C) The reason for
rejection, if the mathematical low vendor was not awarded the order or
contract.
(2) A record in the
purchase file may not be destroyed without the written consent of the
Legislative Auditor. Those files in which the original documentation has been
held for at least one year and in which the original documents have been
reproduced and archived on microfilm or other equivalent method of duplication
may be destroyed without the written consent of the Legislative Auditor.
(3) All files, no matter
the storage method, shall be open for inspection by the Legislative Auditor
upon request.
(i) The commission and
council, also jointly, shall promulgate rules to prescribe qualifications to be
met by any person who is to be employed as a buyer pursuant to this section.
These rules shall require that a person may not be employed as a buyer unless
that person, at the time of employment, has one of the following
qualifications:
(1) Is a graduate of an
accredited college or university; or
(2) Has at least four
years' experience in purchasing for any unit of government or for any business,
commercial or industrial enterprise.
(j) Any person making
purchases and acquisitions pursuant to this section shall execute a bond in the
penalty of $50,000, payable to the State of West Virginia, with a corporate
bonding or surety company authorized to do business in this state as surety
thereon, in form prescribed by the Attorney General and conditioned upon the
faithful performance of all duties in accordance with this section and sections
five through eight, inclusive, of this article and the rules of the governing
board and the council and commission. In lieu of separate bonds for these
buyers, a blanket surety bond may be obtained. The bond shall be filed with the
Secretary of State and the cost of the bond shall be paid from funds
appropriated to the applicable governing board or the council or commission.
(k) All purchases and
acquisitions shall be made in consideration and within limits of available
appropriations and funds and in accordance with applicable provisions of
article two, chapter five-a of this code relating to expenditure schedules and
quarterly allotments of funds. Notwithstanding any other provision of this code
to the contrary, only those purchases exceeding the dollar amount for
competitive sealed bids in this section are required to be encumbered. Such
purchases may be entered into the state's centralized accounting system by the
staff of the commission, council or governing boards to satisfy the
requirements of article two, chapter five-a of this code to determine whether
the amount of the purchase is within the quarterly allotment of the commission,
council or governing board, is in accordance with the approved expenditure
schedule and otherwise conforms to the article: Provided, That
notwithstanding the foregoing provisions of this subsection or any other
provision of this code to the contrary, purchases by Marshall University or
West Virginia University are not required to be encumbered.
(l) The governing boards,
council and commission may make requisitions upon the State Auditor for a sum
to be known as an advance allowance account, not to exceed five percent of the
total of the appropriations for the governing board, council or commission, and
the State Auditor shall draw a warrant upon the Treasurer for those accounts.
All advance allowance accounts shall be accounted for by the applicable
governing board or the council or commission once every thirty days or more
often if required by the State Auditor. The Auditor may require the
applicable governing board or the council or commission to submit supporting
documentation to verify the accounting. The Auditor may suspend additional
advance allowance account requests from a governing board, council or
commission if previous advance allowance accounts from that governing board,
council or commission are not accounted for as requested by the Auditor within
sixty days of the request or if the Auditor determines that the funds have been
misused. The Auditor may propose rules for legislative approval in accordance
with article three, chapter twenty-nine-a of this code in order to implement
this subsection.
(m) Contracts entered into
pursuant to this section shall be signed by the applicable governing board or
the council or commission in the name of the state and shall be approved as to
form by the Attorney General. A contract which requires approval as to form by
the Attorney General is considered approved if the Attorney General has not
responded within fifteen days of presentation of the contract. A contract or a
change order for that contract and notwithstanding any other provision of this
code to the contrary, associated documents such as performance and
labor/material payments, bonds and certificates of insurance which use terms
and conditions or standardized forms previously approved by the Attorney
General and do not make substantive changes in the terms and conditions of the
contract do not require approval as to form by the Attorney General. The
Attorney General shall make a list of those changes which he or she considers
to be substantive and the list, and any changes to the list, shall be published
in the State Register. A contract that exceeds the dollar amount requiring
competitive sealed bids in this section shall be filed with the State Auditor.
If requested to do so, the governing boards, council or commission shall make
all contracts available for inspection by the State Auditor. The governing
board, council or commission, as appropriate, shall prescribe the amount of
deposit or bond to be submitted with a bid or contract, if any, and the amount
of deposit or bond to be given for the faithful performance of a contract.
(n) If the governing board,
council or commission purchases or contracts for materials, supplies,
equipment, services and printing contrary to sections four through seven,
inclusive, of this article or the rules pursuant to this article, the purchase
or contract is void and of no effect.
(o) A governing board or
the council or commission, as appropriate, may request the director of
purchasing to make available the facilities and services of that department to
the governing boards, council or commission in the purchase and acquisition of
materials, supplies, equipment, services and printing. The director of
purchasing shall cooperate with that governing board, council or commission, as
appropriate, in all such purchases and acquisitions upon that request.
(p) Each governing board or
the council or commission, as appropriate, may permit private institutions of
higher education to join as purchasers on purchase contracts for materials,
supplies, services and equipment entered into by that governing board or the
council or commission. A private institution desiring to join as purchaser on
purchase contracts shall file with that governing board or the council or
commission, as appropriate, an affidavit signed by the president or designee of
the private institution requesting that it be authorized to join as purchaser
on purchase contracts of that governing board or the council or commission, as
appropriate. The private institution shall agree that it is bound by such terms
and conditions as that governing board or the council or commission may
prescribe and that it will be responsible for payment directly to the vendor
under each purchase contract.
(q) Notwithstanding any
other provision of this code to the contrary, the governing boards, council and
commission, as appropriate, may make purchases from cooperative buying groups,
consortia, the federal government or from federal government contracts if the
materials, supplies, services, equipment or printing to be purchased is
available from that source, and purchasing from that source would be the most
financially advantageous manner of making the purchase.
(r) An independent
performance audit of all purchasing functions and duties which are performed at
any state institution of higher education shall be performed at least once in
each three-year period. The Joint Committee on Government and Finance shall conduct
the performance audit and the governing boards, council and commission, as
appropriate, are responsible for paying the cost of the audit from funds
appropriated to the governing boards, council or commission.
(1) The governing board
shall provide for independent performance audits of all purchasing functions
and duties on its campus at least once in each three-year period.
(2) Each audit shall be
inclusive of the entire time period that has elapsed since the date of the
preceding audit.
(3) Copies of all
appropriate documents relating to any audit performed by a governing board
shall be furnished to the Joint Committee on Government and Finance and the
Legislative Oversight Commission on Education Accountability within thirty days
of the date the audit report is completed.
(s) The governing boards
shall require each institution under their respective jurisdictions to notify
and inform every vendor doing business with that institution of section
fifty-four, article three, chapter five-a of this code, also known as the
Prompt Pay Act of 1990.
(t) Consultant services,
such as strategic planning services, do not preclude or inhibit the governing
boards, council or commission from considering any qualified bid or response
for delivery of a product or a commodity because of the rendering of those
consultant services.
(u) Purchasing card use may
be expanded by the council, commission and state institutions of higher
education pursuant to this subsection.
(1) The council and
commission jointly shall establish procedures to be implemented by the council,
commission and any institution under their respective jurisdictions using
purchasing cards. The procedures shall ensure that each meets the following
conditions:
(A) Appropriate use of the
purchasing card system;
(B) Full compliance with
article three, chapter twelve of this code relating to the purchasing card
program; and
(C) Sufficient accounting
and auditing procedures for all purchasing card transactions.
(2) Notwithstanding any
other provision of this code to the contrary, the council, commission and any
institution authorized pursuant to subdivision (3) of this subsection may use
purchasing cards for the following purposes:
(A) Payment of travel
expenses directly related to the job duties of the traveling employee,
including, but not limited to, fuel and food; and
(B) Payment of any routine,
regularly scheduled payment, including, but not limited to, utility payments
and real property rental fees.
(3) The commission and
council each shall evaluate the capacity of each institution under its
jurisdiction for complying with the procedures established pursuant to
subdivision (2) of this subsection. The commission and council each shall authorize
expanded use of purchasing cards pursuant to that subdivision for any
institution it determines has the capacity to comply.
NOTE: The purpose of this bill is
to provide the Auditor with greater oversight of advance allowance accounts.
The bill also authorizes rule-making.
Strike-throughs indicate language
that would be stricken from a heading or the present law and underscoring
indicates new language that would be added.