Senate Bill No. 331
(By Senator Craigo)
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[Introduced February 13, 1995; referred to the Committee
on Government Organization; and then to the Committee on
Finance.]
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A BILL to amend and reenact sections three, ten, twelve and
thirteen, article three, chapter five-a 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 fifty-five, all relating to
purchasing and bidding procedures for the state; requiring
an independent audit of purchasing functions; requiring
notice of the "Prompt Pay Act of 1990"; amending the items
of information required to be disclosed by vendors; amending
the attorney general's duties with respect to approval of
contracts; and requiring a report card on state business.
Be it enacted by the Legislature of West Virginia:
That sections three, ten, twelve and thirteen, article
three, chapter five-a 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 fifty-five, 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
and printing shall be based, whenever possible, on competitive
bid;
(3) 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;
(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;
(8) Suspend the right and privilege of a vendor to bid on
state purchases when the director has evidence that such 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 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 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 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;
(11) Require an annual audit of all functions and duties of
the purchasing division by an independent auditor to ensure
compliance with all provisions of this article; and
(12) Ensure that all vendors doing business with the state
are informed and notified as to the provisions of section
fifty-four of this article.
§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 purchase of and contract for commodities, printing and
services shall be based, whenever possible, on competitive bids.
The director shall solicit sealed bids for the purchase of
commodities and printing which is estimated to exceed ten
thousand dollars fifteen thousand dollars. No spending unit
shall issue a series of requisitions which would circumvent this
ten thousand dollar fifteen thousand dollar maximum. The
director may permit bids by facsimile transmission machine to be accepted in lieu of sealed bids: Provided, That an original bid
is received within two working days following the date specified
for bid opening. Bids shall be obtained 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 to prospective suppliers and by posting
notice on a bulletin board in his office: Provided, however,
That the director shall, without competitive bidding, purchase
commodities and printing 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 further,
That such commodities and printing shall be of a fair market
price and of like quality comparable to other commodities and
printing otherwise available as determined by the director with
the advice of the committee on the purchase of commodities and
services from the handicapped.
Toward the end of effecting the making of contracts for
commodities and printing of nonprofit workshops, the director
shall employ a person whose responsibilities in addition to other duties shall be to identify all commodities and printing
available for purchase from such nonprofit workshops, to evaluate
the need of the state for such commodities and printing 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 printing which might be produced and sold by such
workshops. Funds to employ such a person shall be included
annually in the budget.
§5A-3-12. Prequalification disclosure and payment of annual fee
by vendors required; form and contents; register of
vendors; false affidavits, etc.; penalties.
The director shall not accept any bid received from any
vendor unless the vendor has paid the annual fee specified in
section four of this article and has filed with the director an
affidavit of the vendor or the affidavit of a member of the
vendor's firm, or, if the vendor is a corporation, the affidavit
of an officer, director or managing agent, of such corporation,
disclosing the following information:
(1) If the vendor is an individual, his name and residence address, and, if he has associates or partners sharing in his
business, their names and residence addresses;
(2) If the vendor is a firm, the name and residence address
of each member, partner or associate of the firm;
(3) If the vendor is a corporation created under the laws of
this state or authorized to do business in this state, the name
and business address of the corporation; the names and residence
addresses of the president, vice president, secretary, treasurer
and general manager, if any, of the corporation; and the names
and residence addresses of each stockholder of the corporation
owning or holding at least ten percent of the capital stock
thereof;
(4) A statement of whether the vendor is acting as agent for
some other individual, firm or corporation, and if so, a
statement of the principal authorizing such representation shall
be attached to the affidavit or whether the vendor is doing
business as another entity.
(5) The vendor's latest Dun & Bradstreet rating, if there is
any such rating as to such vendor; and
(6) A list of one or more banking institutions to serve as
references for such vendor.
Whenever a change occurs in the information heretofore
submitted as required, such change shall be reported immediately
in the same manner as required in the original disclosure
affidavit.
The affidavit and information so received by the director
shall be kept in a register of vendors which shall be a public
record and open to public inspection during regular business
hours in the director's office and made readily available to the
public at such time.
The director may waive the above requirements in the case of
any corporation listed on any nationally recognized stock
exchange and in the case of any vendor who or which is the sole
source for the commodity in question.
Any person who makes such affidavit falsely or who shall
knowingly file or cause to be filed with the director, an
affidavit containing a false statement of a material fact or
omitting any material fact, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than one
thousand dollars, and, in the discretion of the court, confined
in jail not more than one year. In any such case, an individual
so convicted shall be adjudged forever incapable of holding any
office of honor, trust or profit in this state, or of serving as
a juror.
§5A-3-13. Contracts to be approved as to form; filing.
Contracts shall be approved as to form by the attorney
general. A contract that requires more than six months for its
fulfillment shall be filed with the state auditor. A contract or
change order for that contract which in total do 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 to the contract, shall not
require the approval of the attorney general: Provided, That the
attorney general shall make a list of those changes which he or
she deems to be substantive and the list, as will as any changes
thereto, shall be published in the state register. A copy of
each purchase order or contract issued by the purchasing division and any associated change orders shall be filed with the state
auditor.
§5A-3-55. Report card on West Virginia business.
The purchasing director shall make an annual report to the
finance committees of the Senate and House of Delegates regarding
the entities with which the state contracted in the previous
year. The purpose of the report is to allow the Legislature to
monitor the progress West Virginia businesses are making in
becoming more competitive in being awarded contracts with the
state. The 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
state contracted, the number of in-state firms with which the
state contracted, the dollar amount of each contract, the
equipment, commodity or service for which the contract was let
and the purchasing director's recommendations, if any, on the
manner in which the purchasing procedures could be improved.
NOTE: This bill requires an annual audit of the purchasing
division by an independent auditor; requires all vendors doing
business in the state to be notified of the Prompt Pay Act of
1990; increases the amount of purchase required by sealed bids
from $10,000.00 to $15,000.00; eliminates the disclosure of
certain information by vendors; provides that contract or change
orders that do not exceed $15,000.00 do not require the approval
of the attorney general; and requires the purchasing director to
make annual reports to the finance committees of the Senate and
House of Delegates on contracts awarded with the state.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
§5A-3-55 is new; therefore, strike-throughs and underscoring
have been omitted.