H. B. 2088
(By Delegate Howard)
[Introduced February 9, 2005; referred to the
Committee on Government Organization then Finance.]
A BILL to amend and reenact §5A-3-37 of the code of West Virginia,
1931, as amended, relating to increasing the resident vendor's
bid ratio from two and one-half percent to five percent.
Be it enacted by the Legislature of West Virginia:
That §5A-3-37 of the code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 3. PURCHASING DIVISION.
§5A-3-37. Preference for resident vendors; preference for vendors
employing state residents; exceptions.
(a) Other provisions of this article notwithstanding,
effective the first day of July, one thousand nine hundred ninety,
through the thirtieth day of June, one thousand nine hundred
ninety-four, in any instance involving the purchase of construction
services for the construction, repair or improvement of any
buildings or portions thereof, where the total aggregate cost thereof, whether one or a series of contracts are awarded in
completing the project, is estimated by the Director to exceed the
sum of fifty thousand dollars and where the Director or any state
department is required under the provisions of this article to make
the purchase, construction, repair or improvement upon competitive
bids, the successful bid shall be determined as provided in this
section. Effective beginning the first day of July, one thousand
nine hundred ninety-two, in any instance that a purchase of
commodities or printing by the Director or by a State Department is
required under the provisions of this article to be made upon
competitive bids, the successful bid shall be determined as
provided in this section. The Secretary of the Department of
tax
and Revenue shall promulgate any rules
and regulations necessary
to: (i) Determine that vendors have met the residence requirements
described in this section; (ii) establish the procedure for vendors
to certify the residency requirements at the time of submitting
their bids; (iii) establish a procedure to audit bids which make a
claim for preference permitted by this section and to reject
noncomplying bids; and (iv) otherwise accomplish the objectives of
this section. In prescribing the rules,
and regulations the
Secretary shall use a strict construction of the residence
requirements set forth in this section. For purposes of this
section, a successful bid shall be determined and accepted as
follows:
(1) From an individual resident vendor who has resided in West
Virginia continuously for the four years immediately preceding the
date on which the bid is submitted or from a partnership,
association, corporation resident vendor, or from a corporation
nonresident vendor which has an affiliate or subsidiary which
employs a minimum of one hundred state residents and which has
maintained its headquarters or principal place of business within
West Virginia continuously for four years immediately preceding the
date on which the bid is submitted, if the vendor's bid does not
exceed the lowest qualified bid from a nonresident vendor by more
than
two and one-half five percent of the latter bid, and if the
vendor has made written claim for the preference at the time the
bid was submitted:
Provided, That for purposes of this
subdivision, any partnership, association or corporation resident
vendor of this State, which does not meet the requirements of this
subdivision solely because of the continuous four-year residence
requirement, shall be considered to meet the requirement if at
least eighty percent of the ownership interest of the resident
vendor is held by another individual, partnership, association or
corporation resident vendor who otherwise meets the requirements of
this subdivision, including the continuous four-year residency
requirement:
Provided, however, That the Secretary of the
Department of
tax and Revenue shall promulgate rules
and
regulations relating to attribution of ownership among several resident vendors for purposes of determining the eighty percent
ownership requirement; or
(2) From a resident vendor, if, for purposes of producing or
distributing the commodities or completing the project which is the
subject of the vendor's bid and continuously over the entire term
of the project, on average at least seventy-five percent of the
vendor's employees are residents of West Virginia who have resided
in the State continuously for the two immediately preceding years
and the vendor's bid does not exceed the lowest qualified bid from
a nonresident vendor by more than
two and one-half five percent of
the latter bid, and if the vendor has certified the residency
requirements of this subdivision and made written claim for the
preference, at the time the bid was submitted; or
(3) From a nonresident vendor, which employs a minimum of one
hundred state residents or a nonresident vendor which has an
affiliate or subsidiary which maintains its headquarters or
principle place of business within West Virginia and which employs
a minimum of one hundred state residents, if, for purposes of
producing or distributing the commodities or completing the project
which is the subject of the vendor's bid and continuously over the
entire term of the project, on average at least seventy-five
percent of the vendor's employees or the vendor's affiliate's or
subsidiary's employees are residents of West Virginia who have
resided in the State continuously for the two immediately preceding years and the vendor's bid does not exceed the lowest qualified bid
from a nonresident vendor by more than
two and one-half five
percent of the latter bid, and if the vendor has certified the
residency requirements of this subdivision and made written claim
for the preference, at the time the bid was submitted; or
(4) From a vendor who meets either the requirements of both
subdivisions (1) and (2) of this subsection or subdivisions (1) and
(3) of this subsection, if the bid does not exceed the lowest
qualified bid from a nonresident vendor by more than five percent
of the latter bid, and if the vendor has certified the residency
requirements above and made written claim for the preference at the
time the bid was submitted.
(b) If the Secretary of the Department of
tax and Revenue
determines under any audit procedure that a vendor who received a
preference under this section fails to continue to meet the
requirements for the preference at any time during the term of the
project for which the preference was received the Secretary may:
(1) Reject the vendor's bid; or (2) assess a penalty against the
vendor of not more than five percent of the vendor's bid on the
project.
(c) Political subdivisions of the State including county
boards of education may grant the same preferences to any vendor of
this State who has made a written claim for the preference at the
time a bid is submitted, but for the purposes of this subsection, in determining the lowest bid, any political subdivision shall
exclude from the bid the amount of business occupation taxes which
must be paid by a resident vendor to any municipality within the
county comprising or located within the political subdivision as a
result of being awarded the contract which is the object of the
bid; in the case of a bid received by a municipality, the
municipality shall exclude only the business and occupation taxes
as will be paid to the municipality:
Provided, That prior to
soliciting any competitive bids, any political subdivision may, by
majority vote of all its members in a public meeting where all the
votes are recorded, elect not to exclude from the bid the amount of
business and occupation taxes as provided in this subsection.
(d) If any of the requirements or provisions set forth in this
section jeopardize the receipt of federal funds, then the
requirement or provisions are void and of no force and effect for
that specific project.
(e) If any provision or clause of this section or application
thereof to any person or circumstance is held invalid, the
invalidity shall not affect other provisions or applications of
this section which can be given effect without the invalid
provision or application, and to this end the provisions of this
section are severable.
(f) This section may be cited as the "Jobs for West Virginians
Act of 1990."
NOTE: The purpose of this bill is to improve the resident
vendor's opportunity to gain bid acceptance over a nonresident
vendor.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.