Introduced Version
House Bill 2813 History
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Key: Green = existing Code. Red = new code to be enacted
H. B. 2813
(By Delegate Guthrie)
[Introduced March 4, 2013; referred to the
Committee on Government Organization then Finance.]
A BILL to amend and reenact
§5A-3-3
,
§5A-3-4, §5A-3-10, §5A-3-10b
and §5A-3-11c of the Code of West Virginia, 1931, as amended,
all relating generally to the purchasing division; making
technical corrections; requiring that the manner in which
spending units may be authorized to make direct purchases must
be consistent with the other requirements of this article;
requiring that the director of purchasing may not authorize a
contract that would allow an agency to circumvent the $25,000
threshold for agency purchases; requiring that best value
procurements are subject to the other requirements of this
article; and clarifying that an award to multiple vendors
remains subject to the other requirements of this article.
Be it enacted by the Legislature of West Virginia:
That §5A-3-3
,
§5A-3-4, §5A-3-10, §5A-3-10b and §5A-3-11c of
the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 3. PURCHASING DIVISION.
§5A-3-3. Powers and duties of director of purchasing.
The director, under the direction and supervision of the
secretary, shall be the executive officer of the Purchasing
Division and shall have the power and duty to:
(1) Direct the activities and employees of the Purchasing
Division;
(2) Ensure that the purchase of or contract for commodities
shall be based, whenever possible, on competitive bid;
(3) Purchasing Purchase or contract for, in the name of the
state, the commodities and printing required by the spending units
of the state government;
(4) Apply and enforce standard specifications established in
accordance with section five of this article as hereinafter
provided;
(5) Transfer to or between spending units or sell commodities
that are surplus, obsolete or unused as hereinafter provided;
(6) Have charge of central storerooms for the supply of
spending units, as the director deems advisable;
(7) Establish and maintain a laboratory for the testing of
commodities and make use of existing facilities in state
institutions for that purpose as hereinafter provided, as the
director deems advisable;
(8) Suspend the right and privilege of a vendor to bid on
state purchases when the director has evidence that such the vendor
has violated any of the provisions of the purchasing law or the
rules and regulations of the director;
(9) Examine the provisions and terms of every contract entered
into for and on behalf of the State of West Virginia that impose
any obligation upon the state to pay any sums of money for
commodities or services and approve each such contract as to such
the provisions and terms; and the duty of examination and approval
herein set forth does not supersede the responsibility and duty of
the Attorney General to approve such the contracts as to form:
Provided, That the provisions of this subdivision do not apply in
any respect whatever to construction or repair contracts entered
into by the Division of Highways of the Department of
Transportation: Provided, however, That the provisions of this
subdivision do not apply in any respect whatever to contracts
entered into by the University of West Virginia Board of Trustees
or by the Board of Directors of the State College System, except to
the extent that such the boards request the facilities and services
of the director under the provisions of this subdivision; and
(10) Assure that the specifications and commodity descriptions
in all "requests for quotations" are prepared so as to permit all
potential suppliers-vendors who can meet the requirements of the
state an opportunity to bid and to assure that the specifications and descriptions do not favor a particular brand or vendor. If the
director determines that any such specifications or descriptions as
written favor a particular brand or vendor or if it is decided,
either before or after the bids are opened, that a commodity having
different specifications or quality or in different quantity can be
bought, the director may rewrite the "requests for quotations" and
the matter shall be rebid.
§5A-3-4. Rules of director.
(a) The director shall propose rules for legislative approval
in accordance with the provisions of article three, chapter
twenty-nine-a of this code to:
(1) Authorize a spending unit to purchase specified
commodities directly and prescribe the manner in which such
purchases shall be made, consistent with the requirements of this
article;
(2) Authorize, in writing, a spending unit to purchase
commodities in the open market for immediate delivery in
emergencies, defines emergencies and prescribe the manner in which
such purchases shall be made and reported to the director;
(3) Prescribe the manner in which commodities shall be
purchased, delivered, stored and distributed;
(4) Prescribe the time for making requisitions and estimates
of commodities, the future period which they are to cover, the form
in which they shall be submitted and the manner of their authentication;
(5) Prescribe the manner of inspecting all deliveries of
commodities, and making chemical and physical tests of samples
submitted with bids and samples of deliveries to determine
compliance with specifications;
(6) Prescribe the amount and type of deposit or bond to be
submitted with a bid or contract and the amount of deposit or bond
to be given for the faithful performance of a contract;
(7) Prescribe a system whereby the director shall be is
required, upon the payment by a vendor of an annual fee established
by the director, to give notice to such vendor of all bid
solicitations for commodities of the type with respect to which such
vendor specified notice was to be given, but no such fee shall may
exceed the cost of giving the notice to such vendor, nor shall may
such fee exceed the sum of $125 per fiscal year nor shall may such
fee be charged to persons seeking only reimbursement from a spending
unit;
(8) Prescribe that each state contract entered into by the
Purchasing Division shall contains provisions for liquidated
damages, remedies or provisions for the determination of the amount
or amounts which the vendor shall owe as damages, in the event of
default under such contract by such vendor, as determined by the
director;
(9) Prescribe contract management procedures for all state contracts except government construction contracts including, but
not limited to, those set forth in article twenty-two, chapter five
of this code;
(10) Prescribe procedures by which oversight is provided to
actively monitor spending unit purchases, including, but not limited
to, all technology and software commodities and contractual services
exceeding $1 million, approval of change orders and final acceptance
by the spending units;
(11) Prescribe that each state contract entered into by the
Purchasing Division contain provisions for the cancellation of the
contract upon thirty days' notice to the vendor;
(12) Prescribe procedures for selling surplus commodities to
the highest bidder by means of an Internet auction site;
(13) Provide such other matters as may be necessary to give
effect to the foregoing rules and the provisions of this article;
and
(14) Prescribe procedures for encumbering purchase orders to
ensure that the proper account may be encumbered before sending
purchase orders to vendors.
(b) The director shall propose rules for legislative approval
in accordance with the provisions of article three, chapter
twenty-nine-a of this code to prescribe qualifications to be met by
any person who is to be employed in the Purchasing Division as a
state buyer. The rules must provide that a person may not be employed as a state buyer unless he or she at the time of employment
either is:
(1) 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.
Persons serving as state buyers are subject to the provisions
of article six, chapter twenty-nine of this code.
§5A-3-10. Competitive bids; publication of solicitations for
sealed bids; purchase of products of nonprofit
workshops; employee to assist in dealings with
nonprofit workshops.
(a) A purchase of and contract for commodities, printing and
services shall be based, whenever possible, on competitive bids.
(b) The director shall solicit sealed bids for the purchase of
commodities and printing which is estimated to exceed $25,000. No
spending unit shall may issue a series of requisitions or divide or
plan procurements to circumvent this $25,000 threshold or otherwise
avoid the use of sealed bids, and the director may not approve any
contract that would allow an agency to make purchases that
circumvent the $25,000 threshold or otherwise avoid the use of
sealed bids, unless the contract is otherwise consistent with the
requirements of this article. Any spending unit which awards multiple contracts for the same or similar commodity or service to
an individual vendor over any twelve-month period, the total value
of which exceeds $25,000, shall file copies of all contracts awarded
to the vendor within the twelve preceding months with the director
immediately upon exceeding the $25,000 limit, along with a statement
explaining how the multiple contract awards do not circumvent the
$25,000 threshold. If the spending unit does not immediately report
to the director, the director may suspend the purchasing authority
of the spending unit until the spending unit complies with the
reporting requirement of this subsection. The director may conduct
a review of any spending unit to ensure compliance with this
subsection. Following a review, the director shall complete a
report summarizing his or her findings and forward the report to the
spending unit. In addition, the director shall report to the Joint
Committee on Government and Finance on January 1, and July of each
year the spending units which have reported under this subsection
and the findings of the director.
(c) The director may permit bids by electronic transmission to
be accepted in lieu of sealed bids.
(d) Bids shall be solicited by public notice. The notice may
be published by any advertising medium the director deems advisable.
The director may also solicit sealed bids by sending requests by
mail or electronic transmission to prospective vendors.
(e) The director shall, without competitive bidding, purchase commodities and services produced and offered for sale by nonprofit
workshops, as defined in section one, article one of this chapter,
which are located in this state: Provided, That such commodities
and services shall be of a fair market price and of like quality
comparable to other commodities and services otherwise available as
determined by the director with the advice of the committee on the
purchase of commodities and services from the handicapped.
To encourage contracts for commodities and services with
nonprofit workshops, the director shall employ a person whose
responsibilities in addition to other duties shall be to identify
all commodities and services available for purchase from nonprofit
workshops, to evaluate the need of the state for commodities and
services to coordinate the various nonprofit workshops in their
production efforts and to make available to such workshops
information about available opportunities within state government
for purchase of commodities or services which might be produced and
sold by such workshops. Funds to employ such a person shall be
included annually in the budget.
§5A-3-10b. Best value procurement.
(a) The director may utilize best value procurement to enter
into a contract when he or she determines in writing that it is
advantageous to the state.
(b) A solicitation for bids under best value procurement shall
be made in the same manner as provided in section ten of this article.
(c) Best value procurement awards shall be based on criteria
set forth in the solicitation including, but not limited to, price,
the total cost of acquiring, operating, maintaining and supporting
a commodity or service over its projected lifetime, the evaluated
technical merit of the bidder's bid or proposal, the bidder's past
performance, and the evaluated probability of performing the
requirements stated in the solicitation on time, with high quality,
and in a manner that accomplishes the business objectives set forth
in the solicitation.
(d) The award must be made to the highest scoring responsive
and responsible bidder whose bid is determined, in writing, to be
most advantageous to the state, taking into consideration all
evaluation factors set forth in the best value solicitation.
(e) The director may not use best value procurement to enter
into government construction contracts, including, but not limited
to, those set forth in article twenty-two, chapter five of this
code.
(f) The director may not use best value procurement nor allow
an agency to use best value procurement to enter into contracts that
could later be used to circumvent the requirement in subsection (b)
of section ten of this article that the director must solicit sealed
bids for the purchase of commodities and printing estimated to
exceed $25,000, or otherwise circumvent the requirements of this article.
§5A-3-11c. Multiple awards.
(a) The director may elect to award a contract to one or more
responsive and responsible bidders if the director determines in
writing that a single award to an individual bidder would be
insufficient: Provided, That the basis for the selection among
multiple contracts at the time of purchase shall be the most
practical and economical alternative and shall be in the best
interests of the state.
_(b) The bidding process and each contract awarded under this
section remains subject to all of the requirements of this article
that would otherwise apply to a single contract awarded by the
director.
NOTE: The purpose of this bill is to make technical corrections
to the purchasing division article; to require that the manner in
which spending units may be authorized by the director of the
Purchasing Division to make direct purchases must be consistent with
the other requirements of the purchasing process; to prevent the
director of purchasing from authorizing a contract that would allow
an agency to circumvent the $25,000 threshold for agency purchases;
and to ensure that contracts awarded under best value procurement
and awards to multiple vendors remain subject to the requirements
of the purchasing process.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.