Senate Bill No. 330
(By Senator Craigo)
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[Introduced February 13, 1995; referred to the Committee
on Education; and then to the Committee on Finance.]
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A BILL to amend and reenact sections four, five, six and seven,
article five, chapter eighteen-b of the code of West
Virginia, one thousand nine hundred thirty-one, as amended;
and to further amend said article by adding thereto a new
section, designated section eight, all relating to
purchasing and bidding procedures for institutions of higher
education.
Be it enacted by the Legislature of West Virginia:
That sections four, five, six and seven, article five,
chapter eighteen-b of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, be amended and reenacted;
and that said article be further amended by adding thereto a new
section, designated section eight, all to read as follows:
ARTICLE 5. HIGHER EDUCATION BUDGETS AND EXPENDITURES.
§18B-5-4. Purchase or acquisition of materials, supplies,
equipment and printing.
(a) Each governing board, through the senior administrator,
shall purchase or acquire all materials, supplies, equipment and
printing required for that board, and the state institutions of
higher education under its jurisdiction. The governing boards
shall adopt rules governing and controlling acquisitions and
purchases in accordance with the provisions of this section.
Such rules shall assure that the governing board: (1) Shall not
preclude any person from participating and making sales thereof
to the board except as otherwise provided in section five of this
article; (2) shall establish and prescribe specifications, in all
proper cases, for materials, supplies, equipment and printing to
be purchased; (3) shall adopt and prescribe such purchase order,
requisition or other forms as may be required; (4) shall
negotiate for and make purchases and acquisitions in such
quantities, at such times and under contract, in the open market
or through other accepted methods of governmental purchasing as
may be practicable in accordance with general law; (5) shall
advertise for bids on all purchases exceeding five thousand
dollars fifteen thousand dollars, to purchase by means of sealed bids and competitive bidding or to effect advantageous purchases
through other accepted governmental methods and practices; and
(6) shall post in a public place in the central office of the
governing boards, in the purchasing office of the specific
institution involved in the purchase and in the office of the
department of purchases, available to the public during all
business hours, notices of all acquisitions and purchases for
which competitive bids are being solicited in the purchasing
office of the specified institution involved in the purchase, at
least two weeks prior to making such purchases and ensure that
the notice is available to the public during business hours; (7)
shall provide forThe governing boards shall further adopt rules
relating to purchasing in the open market; pursuant to section
thirteen, article three, chapter five-a of this code, and (8)
shall further make provision for vendor notification of bid
solicitation and emergency purchasing; and (9) provide that
competitive bids shall not be required for purchases of one
thousand dollars or less.
(b) 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 and delivery terms:
Provided, That the preference for resident vendors as provided in
section forty-four thirty-seven, article three of said chapter
five-a of this code shall apply to the competitive bids made
pursuant to this section.
(c) The governing boards shall maintain a purchase file,
which shall be a public record and open for public inspection.
After the award of the order or contract, the governing boards
shall indicate upon the successful bid that it was the successful
bid, and shall further indicate why bids are rejected and, if the
mathematical low vendor is not awarded the order or contract, the
reason therefor. No records in the purchase file shall 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. All files, no matter the storage
method, shall be open for inspection by the legislative auditor
upon request.
(b) (d) The governing boards shall also adopt rules to prescribe qualifications to be met by any person who, on and
after the effective date of this section, is to be employed as a
buyer pursuant to this section. Such These rules shall provide
require that no person shall be employed as a buyer unless such
that person, 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. Any person
making purchases and acquisitions pursuant to this section shall
execute a bond in the penalty of fifty thousand dollars, 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 sections four through seven eight of this article
and the rules of the governing boards. In lieu of separate bonds
for such buyers, a blanket surety bond may be obtained. Any such
bond or bonds shall be filed with the secretary of state. The
cost of any such bond or bonds shall be paid from funds
appropriated to the applicable governing board.
(c) (e) 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 and in accordance
with section sixteen, article three of said chapter.
(f) The governing boards may make requisitions upon the
auditor for a sum to be known as an advance allowance account, in
no case to exceed five percent of the total of the appropriations
for the board, and the auditor shall draw a warrant upon the
treasurer for such accounts; and all such advance allowance
accounts shall be accounted for by the applicable governing board
once every thirty days or more often if required by the state
auditor. Such authority shall not be delegated to any state
institution under the control and supervision of the board.
(g) Contracts entered into pursuant to this section shall be
signed by the applicable governing board in the name of the state
and shall be approved as to form by the attorney general:
Provided, That a contract or a change order for that contract
which in total does not exceed fifteen thousand dollars and 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 does not
require approval by the attorney general: Provided, however, That the attorney general shall make a list of those changes
which he or she deems to be substantive and the list, and any
changes thereto, shall be published in the state register. A
contract that requires exceeds fifteen thousand dollars more than
six months for its fulfillment shall be filed with the state
auditor: Provided, That upon request, the governing boards shall
make all contracts available for inspection by the state auditor.
The governing board 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. If the governing board purchases or contracts for
materials, supplies, equipment and printing contrary to the
provisions of sections four through seven of this article or the
rules pursuant thereto, such purchase or contract shall be void
and of no effect.
(h) Either governing board may request the director of
purchases to make available, from time to time, the facilities
and services of that department to the board in the purchase and
acquisition of materials, supplies, equipment and printing, and
the director of purchases shall cooperate with that governing
board in all such purchases and acquisitions upon such request.
(i) Each governing board shall permit private institutions of higher education to join as purchasers on purchase contracts
for materials, supplies and equipment entered into by that
governing board. Any private school desiring to join as
purchasers on such purchase contracts shall file with that
governing board an affidavit signed by the president of the
institution of higher education or a designee requesting that it
be authorized to join as purchaser on purchase contracts of that
governing board and agreeing that it will be bound by such terms
and conditions as that governing board may prescribe, and that it
will be responsible for payment directly to the vendor under each
purchase contract.
(j) Notwithstanding any other provision of this code to the
contrary, the governing boards may make purchases from the
federal government or from federal government contracts if the
materials, supplies, equipment or printing to be purchased is
available from the federal government or from a federal contract
and purchasing from the federal government or from a federal
government contract would be the most financially advantageous
manner of making the purchase.
(k) An independent audit of all purchasing functions and
duties which are performed at any institution of higher education
shall be performed each fiscal year. The respective governing board shall be responsible for selecting the audit firm and
paying the cost of the audits from funds appropriated to the
governing boards.
(l) The governing boards shall require each institution
under their respective jurisdiction to notify and inform every
vendor doing business with that institution of the provisions of
section fifty-four, article three, section five-a of this code,
also known as the "Prompt Pay Act of 1990."
§18B-5-5. Prequalification disclosure by vendors; register of
vendors; exceptions; suspension of vendors.
(a) Every person, firm or corporation selling or offering to
sell to the governing boards, upon competitive bids or otherwise,
any materials, equipment, supplies or printing in excess of
fifteen thousand dollars shall comply with all of the provisions
of section fourteen-a twelve, article three, chapter five-a of
this code and shall file with the director of the purchasing
division of the state of West Virginia the affidavit required
herein: Provided, That every such person, firm or corporation who
is presently in compliance with said section shall not be
required to requalify thereunder to be able to transact business
with the governing boards.
(b) Any person, firm or corporation failing or refusing to comply with said statute as herein required shall be ineligible
to sell or offer to sell commodities or printing to the governing
boards as hereinafter set forth: Provided, That any person
suspended under the provisions of section thirty-nine of said
article three shall not be eligible to sell or offer to sell
commodities or printing to the governing boards: Provided,
however, That the governing boards shall have the power and
authority to suspend, for a period not to exceed one year, the
right and privilege of a person to bid on purchases of the
governing boards when there is reason to believe that such person
has violated any of the provisions in sections four through seven
of this article or the rules of the governing boards pursuant
thereto. Every person whose right to bid has been so suspended
shall be notified thereof by a letter posted by registered mail
containing the reason for such suspension and shall have the
right to have the appropriate governing board's action reviewed
in accordance with section forty, article three, chapter five-a
of this code.
§18B-5-6. Other code provisions relating to purchasing not
controlling; exceptions; criminal provisions and
penalties; financial interest of governing boards,
etc.; receiving anything of value from interested party and penalties therefor; application of
bribery statute.
The provisions of article three, chapter five-a of this code
shall not control or govern the purchase, acquisition or other
disposition of any equipment, materials, supplies or printing by
the governing boards, except as provided in sections four through
seven of this article: Provided, That sections thirty-six,
thirty-seven and thirty-eight twenty-nine, thirty and thirty-one,
article three of said chapter five-a shall apply to all
purchasing activities of the governing boards.
Neither the governing boards, nor any employee of the
governing boards, shall be financially interested, or have any
beneficial personal interest, directly or indirectly, in the
purchase of any equipment, materials, supplies or printing, nor
in any firm, partnership, corporation or association furnishing
them. Neither the governing boards nor any employee of said
boards shall accept or receive directly or indirectly from any
person, firm or corporation, known by the governing boards or
such employee to be interested in any bid, contract or purchase,
by rebate, gift or otherwise, any money or other thing of value
whatsoever, or any promise, obligation or contract for future
reward, or compensation.
A person who violates any of the provisions of this section
shall be guilty of a misdemeanor and, upon conviction thereof,
shall be imprisoned in jail not less than three months nor more
than one year, or fined not less than fifty nor more than one
thousand dollars, or both imprisoned and fined, in the discretion
of the court: Provided, That any person who violates any of such
provisions by receiving money or other thing of value under
circumstances constituting the crime of bribery under the
provisions of section three, article five-a, chapter sixty-one of
this code, shall, upon conviction of bribery, be punished as
provided in section nine of said article five-a.
§18B-5-7. Disposition of obsolete and unusable equipment,
surplus supplies and other unneeded materials;
inventories.
The governing boards shall dispose of obsolete and unusable
equipment, surplus supplies and other unneeded materials, either
by transfer to other governmental agencies or institutions, by
exchange or trade, or by sale as junk or otherwise. The
governing boards shall adopt rules governing and controlling the
disposition of all such equipment, supplies and materials. At
least ten days prior to the disposition, the governing boards
shall advertise, by newspaper publication as a Class II legal advertisement in compliance with the provisions of article three,
chapter fifty-nine of this code, in the county in which the
equipment, supplies and materials are located the availability
or sales of such disposable equipment, supplies and materials and
may sell same the disposable equipment, supplies and materials,
in whole or in part, at public auction or by sealed bid, or may
transfer, exchange or trade same to other governmental agencies
or institutions (if by exchange or trade, then without
advertising), in whole or in part, as sound business practices
may warrant under existing circumstances and conditions. The
governing boards shall inventory all such disposable equipment,
supplies and materials from time to time as quantity and stocks
may warrant, and shall make a complete annual inventory thereof
as of the thirty-first day of March of each year. The governing
boards may report such inventories to the director of purchases
whose services and facilities shall be available to the governing
boards in making advantageous disposition of any part or all of
such disposable equipment, supplies and materials. Such
inventories shall briefly describe the disposable items, the date
of purchase thereof, the vendor to the applicable governing
board, the purchase price paid therefor and the governing board's
order number authorizing disposition thereof and shall indicate briefly the reason said items are no longer needed or can no
longer be used by the governing board. All such inventories
shall be kept as public records open to public inspection at one
or more of the institutions under the jurisdiction of the
governing boards for a period of five years and may thereafter be
destroyed: Provided, That under no circumstances shall any of
the property described in this section be sold, transferred or
conveyed to any private person, firm or corporation other than by
public auction or as provided in article eight, chapter five-a of
this code.
§18B-5-8. Report card on West Virginia business.
The governing boards shall make an annual report to the
finance committees of the House of Delegates and the Senate
regarding the entities with which the governing boards contracted
in the previous year. This report shall be submitted on or
before the fifteenth day of January of each year and shall be
cumulative in nature. The report shall include, but not be
limited to, information regarding the number of out of state
entities with which the governing board contracted, the number of
in-state firms with which the governing board contracted, the
dollar amount of each contract; the equipment, commodity or
service for which the contract was let; the governing board's recommendations, if any, on the manner in which the purchasing
procedures could be improved.
NOTE: The purpose of this bill is to change the purchasing
and bidding procedures for institutions of higher education. It
also increases the dollar amount of contracts that will be
subject to the sealed bid process; eliminates the requirement
that contracts or change orders for certain contract amounts be
approved by the attorney general; and requires governing boards
to have annual independent audits relating to all purchasing
functions and duties. The bill also requires governing boards to
make an annual report to the finance committees of the Senate and
House of Delegates regarding contracts.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
§18B-5-8 is new; therefore, strike-throughs and underscoring
have been omitted.