H. B. 2192
(By Delegates Tillis, Damron, Linch, Kuhn
and Hutchins)
[Introduced January 13, 1999; referred to the
Committee on Finance.]
A BILL to amend and reenact section eleven, article three,
chapter five-a of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, relating to purchasing
in open market on competitive bids; bids to be based on
standard specifications; period for alteration or withdrawal
of bids; awards to lowest responsible bidder; uniform bids;
record of bids; exceptions; debarment of vendors.
Be it enacted by the Legislature of West Virginia:
That section eleven, article three, chapter five-a of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
ARTICLE 3. PURCHASING DIVISION.
§5A-3-11. Purchasing in open market on competitive bids; bids to be based on standard specifications; period for alteration or withdrawal of bids; awards to lowest responsible bidder; uniform bids; record of bids; and exception.
The director may make a purchase of commodities, printing,
and services of ten thousand dollars or less in amount in the
open market, but such purchase shall, wherever possible, be based
on at least three competitive bids.
The director may authorize spending units to purchase
commodities, printing and services in the amount of one thousand
dollars in the open market without competitive bids.
Bids shall be based on the standard specifications
promulgated and adopted in accordance with the provisions of
section five of this article, and
shall may not be altered or
withdrawn after the appointed hour for the opening of such bids.
All open market orders, purchases based on advertised bid
requests or contracts made by the director or by a state
department 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 government and the delivery terms:
Provided, That state bids on school buses shall be accepted from
all bidders who shall then be awarded contracts if they meet the state board's "Minimum Standards for Design and Equipment of
School Buses." County boards of education may select from those
bidders who have been awarded contracts and shall pay the
difference between the state aid formula amount and the actual
cost of bus replacement. Any or all bids may be rejected. If
all bids received on a pending contract are for the same unit
price or total amount, the director shall have authority to
reject all bids, and to purchase the required commodities,
printing and services in the open market, if the price paid in
the open market does not exceed the bid prices.
The provisions in this section shall govern the debarment of
vendors. "Debar" means to exclude, pursuant to established
administrative procedures, from contracting and subcontracting
with the state for a specified period of time commensurate with
the seriousness of the failure or offense or the inadequacy of
performance.
A vendor or supplier of goods or services to the state or a
governmental agency and the enterprise for which the illegal
action was taken, convicted under this chapter, or convicted
under the laws of any other state or the federal government for
actions which would constitute a violation of this chapter, are
prohibited from bidding on a state or governmental contract for
three years from the date of conviction, unless the state or
governmental agency accepting bids expressly allows the vendor or supplier to bid after being informed of the conviction.
(a) Debarment shall be imposed only in the public interest
for the state's protection and not for purposes of punishment and
shall be imposed only for the causes set forth in this chapter.
(b) The director shall obtain lists of vendors declared
ineligible under federal laws and regulations applicable to the
state and shall notify state agencies of the ineligibility
restrictions promulgated under federal authority in accordance
with the provisions of subsection (d) of this section.
(c) Any state official making a declaration of the
ineligibility of any individual or firm to contract or
subcontract with the state under authority of any state statute
or regulation shall inform the director in writing of the
declaration. The notice to the director shall cite the statutory
basis for the declaration and the grounds for the declaration.
The director shall include notice of the ineligibility
restrictions on the lists issued under subsection (d) of this
section.
(d) The director shall compile and maintain a current,
consolidated list of all vendors that have been debarred or
declared ineligible.
(e) The director shall revise and distribute the
consolidated list quarterly to all agencies and shall provide
with the list the name and telephone number of the official responsible for its maintenance and telephone number of the
official responsible for its maintenance and distribution.
(f) The consolidated list shall include the following:
(1) The names and addresses of all debarred or ineligible
vendors, in alphabetical order, with cross references when more
than one name is involved in a single action;
(2) The cause for each action, and pertinent statutory or
regulatory authority;
(3) The scope of the action;
(4) The name of the state or federal agency or other
authority responsible for the action, and the name and telephone
number of the point of contact for the action; and
(5) The termination date for each listing.
(g) Unless the director determines in writing that there is
a compelling reason to do otherwise, an agency may not solicit
offers from, award contracts to, or consent to subcontract with
a debarred vendor.
(h) A vendor listed as ineligible shall be excluded from
receiving contracts and, if applicable, subcontracts, under the
conditions and for the period set forth in the applicable statute
or regulation.
(i) After the opening of bids or receipts of proposals, the
contracting officer shall review the list of parties excluded
from procurement programs.
(1) Bids received from any listed vendor in response to an
invitation for bids shall be entered on the abstract of bids, and
rejected unless the acquiring agency's head or designee
determines in writing that there is a compelling reason to
consider the bid.
(2) Proposals, quotations or offers received from any listed
vendor may not be evaluated for award or included in the
competitive range, nor may discussions be conducted with a listed
offeror during a period of ineligibility, unless the acquiring
agency's head or designee determines, in writing, that there is
a compelling reason to do so.
(3) Immediately prior to award, the contracting officer
shall again review the list to ensure that no award is made to a
listed vendor.
(j) The contracting officer may not exercise an option to
renew or otherwise extend a current contract with a debarred
vendor, or a contract which is being performed in any part by a
debarred subcontractor, unless the director approves the action
in writing, based on compelling reasons for exercise of the
option or extension.
(k) In any subcontract subject to the state's consent, the
contracting officer may not consent to the award of a subcontract
to any debarred vendor unless the director approves the award, in
writing, based on compelling reasons for the award.
(1) The director may debar a vendor for any of the following
causes:
(1) Conviction of, or civil judgment for, commission of
fraud or a criminal offense in connection with obtaining,
attempting to obtain or performing a public contract or
subcontract;
(2) Conviction of, or civil judgment for, violation of any
federal or state antitrust statute relating to the submission of
offers;
(3) Conviction of, or civil judgment for, commission of
embezzlement, theft, forgery, bribery, falsification or
destruction of records, making false statements or receiving
stolen property in connection with the performance of a vending
contract;
(4) Conviction of, or civil judgment for, commission of any
other offense indicating a lack of business integrity or business
honesty that seriously and directly affects the present
responsibility of the vendor or subcontractor;
(5) Violation of the term of a state contract or subcontract
so serious as to justify debarment, such as willful failure to
perform in accordance with the terms of one or more state
contracts, a history of failure to perform or unsatisfactory
performance on one or more state contracts;
(6) Conviction of provisions of the West Virginia Workers' Compensation Act, convictions of the West Virginia Unemployment
Compensation Act, convictions of the West Virginia tax department
laws, convictions of the provisions of the West Virginia vendor's
licensing statutes and convictions of the West Virginia
department of labor statutes and regulations.
(7) Any other cause of a serious or compelling nature that
affects the present responsibility of the vendor or
subcontractor.
(m) Debarment shall constitute debarment of all divisions or
other organizational elements of the vendor, unless the debarment
decision is limited by its terms to specific divisions,
organizational elements or commodities.
(n) The director may extend the debarment decision to
include any affiliates of the vendor by specifically naming the
affiliate and giving the affiliate written notice of the proposed
debarment and an opportunity to respond in accordance with the
provisions of this chapter.
(o) The director may reduce the period or extent of
debarment, upon the vendor's request supported by documentation,
for the following reasons:
(1) Newly discovered material evidence;
(2) Reversal of the conviction or judgment upon which
debarment was based; or
(3) Elimination of the causes for which the debarment was imposed.
(p) The director may extend the debarment period for an
additional period if the director determines that the extension
is necessary to protect the interests of the state. The
extension of debarment shall be subject to the procedures set
forth in subsection (q) of this section.
(q) The director shall initiate debarment proceedings by
notifying the vendor and any specifically named affiliates by
certified mail, return receipt requested, of the following:
(1) The reasons for the proposed debarment in sufficient
detail to put the vendor on notice of the conduct or transactions
upon which the proposed debarment is based;
(2) The causes, set forth in subsection (k) of this section,
relied upon for the proposed debarment;
(3) That within thirty working days after receipt of the
notice, the vendor may submit, in person, in writing, or through
a representative, information and argument in opposition to the
proposed debarment, including any additional specific information
which raises a genuine issue of material fact;
(4) The state's procedures governing debarment
decision-making;
(5) The potential effect of the proposed debarment; and
(6) That the state will not solicit offers from, award
contracts to, renew, or otherwise extend contracts with, or consent to subcontracts with the vendor pending debarment
decision.
(r) In debarment actions not based upon a conviction or
civil judgment, if the director finds that the vendor's
submission in opposition raises a genuine dispute over facts
material to the proposed debarment, the director, in accordance
with the provisions found in sections one through five, article
five, chapter twenty-nine-a of this code, shall do the following:
(1) Afford the vendor an opportunity to appear with counsel,
submit documentary evidence, present witnesses and confront any
state evidence or testimony; and
(2) Make an electronic record of the proceedings and make a
copy or transcription of the record available at cost to the
vendor upon request;
(3) The hearing will be conducted in Kanawha County unless
otherwise designated by the director.
(s) In any action in which the proposed debarment is not
based upon a conviction or civil judgment, the cause for
debarment shall be established by a preponderance of the
evidence.
(t) In actions based upon a conviction or civil judgment, or
in which there is no genuine issue of material fact, the director
shall make a decision on the basis of all the information in the
administrative record, including any submission made by the vendor.
(u) The decision under subsection (r) of this section shall
be made within thirty working days after receipt of any
information and argument submitted by the vendor, unless the
director extends this period for good cause.
(v) In actions in which additional proceedings are necessary
to decide issues of material fact, the director shall prepare
written findings of fact. The director shall base the debarment
decision on the facts as found, together with any information and
argument submitted by the vendor and any other information in the
administrative record.
(w) If the director decides to impose debarment, the vendor
and any affiliates involved shall be given prompt notice of the
debarment action by certified mail, return receipt requested.
The notice shall include the following:
(1) A reference to the notice of proposed debarment;
(2) The specific reasons for the debarment;
(3) The period of debarment, including effective dates;
(4) A statement advising that the debarment is effective
throughout the executive branch of the state government unless
the commissioner determines in writing, based on compelling
reasons and certification by the head of a contracting agency,
that continued business dealings between that agency and the
vendor are justified; and
(5) Notice to the debarred vendor of its rights to judicial
or administrative review as provided in this article.
(x) If debarment is not imposed, the director shall promptly
notify the vendor and any affiliates involved of the decision by
certified mail, return receipt requested.
(y) A vendor or agent of a vendor who violates any provision
of this section is guilty of a misdemeanor. In addition to any
criminal penalties imposed, after a hearing, the director may
impose a civil penalty on a person, who, in connection with the
certification of eligibility under this section:
(1) Made a false sworn statement; or
(2) Made an unsworn falsification with the intent to mislead
a public servant in the performance of a duty.
(z) The amount of the civil penalty under subsection (y) of
this section for an employer who falsely certifies that he or she
is eligible to bid on contracts under this section is equal to
the amount of the contract, not to exceed two hundred fifty
thousand dollars for each false certification.
(aa) A self reporting statement made in the form included in
subdivision (1) of this subsection shall be submitted by any
vendor prior to submission of a bid for any state public
contract.
(1)
CERTIFICATION OF ELIGIBILITY
Invitation No.:
Project:
, being
(President or Authorized Official of Bidder)
duly sworn (or under penalty of perjury under the laws of the
United States and the state of West Virginia), certifies that,
except as noted below, (the company) or any person associated
therewith in the capacity of (owner, partner, director, officer,
principal investor, project director, manager, auditor or any
position involving the administration of state funds): Is not
currently under suspension, debarment, voluntary exclusion or
determination of ineligibility under any federal or state
statute; has not been suspended, debarred, voluntarily excluded
or determined ineligible by any federal or state agency within
the past three years; does not have a proposed debarment pending;
and has not been indicted, convicted, or had a civil judgment
rendered against (it) by a court of competent jurisdiction in any
matter involving fraud or official misconduct within the past
three years.
Exceptions will not necessarily result in denial of award,
but will be considered in determining bidder responsibility. For
any exception noted, indicate below to whom it applies,
initiating agency and dates of action. Providing false
information may result in criminal prosecution or administrative
sanctions.
______________________ ____
Vendor Date
______________________
Vendor Number
President or Authorized Official
Title
The penalties for making false statements are prescribed in
subsection (y), section eleven, article three, chapter five-a of
this code.
Any bidder who submits a bid proposal to the purchasing
division shall submit an extra or duplicate copy to the state
auditor.
Both copies must be received at the respective offices
prior to the specified date and time of the bid openings. The
failure to deliver or the nonreceipt of these bid forms at either
of these offices prior to the appointed date and hour are grounds
for rejection of the bids. In the event of any deviation between
the copies submitted to the purchasing division and the state
auditor, such bids as to which there is
such a deviation shall be
rejected, if the deviation relates to the quantity, quality or
specifications of the commodities, printing or services to be
furnished or to the price therefor or to the date of delivery or
performance. After the award of the order or contract, the
director, or someone appointed by him
or her for that purpose,
shall indicate upon the successful bid and its copy in the office of the state auditor that it was the successful bid. Thereafter,
the copy of each bid in the possession of the director and the
state auditor shall be maintained as a public record by both of
them, shall be open to public inspection in the offices of both
the director and the state auditor and
shall may not be destroyed
by either of them without the written consent of the legislative
auditor:
Provided, That
the board of regents the governing board
as defined in section two, article one, chapter eighteen-b of
this code, may certify in writing to the director the need for a
specific item essential to a particular usage either for
instructional or research purposes at an institution of higher
education and the director upon review of such certification may
provide for the purchase of said specific items in the open
market without competitive bids. If the director permits bids by
facsimile transmission machine to be accepted in lieu of sealed
bids pursuant to the provisions of section ten of this article,
a duplicate facsimile transmission machine bid shall be
transmitted to the state auditor pursuant to this section:
Provided, however, That an original bid is received by the state
auditor within two working days following the date specified for
bid opening.
NOTE: The purpose of this bill is to provide procedures and guidelines concerning the debarment of vendors which contract to
supply goods or services to the state.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.