H. B. 3117

(By Mr. Speaker, Mr. Kiss, Delegates Staton, Amores,

Michael, Pino, Kuhn and Cann )

(Originating in the Committee on the Judiciary)

[February 27, 2003]

A BILL to amend and reenact section one, article twenty-two, chapter five 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 two, all relating to bidding on government construction contracts; inclusion of certain valid bid bonds; designation of time and place of opening of certain bids; inability to waive certain bid provisions and requirements; and inability to resubmit certain bids on a project after bid withdrawal.

Be it enacted by the Legislature of West Virginia:

That section one, article twenty-two, chapter five 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 two, all to read as follows:

§5-22-1. Bidding required; government construction contracts to go to qualified responsible bidder; debarment; exceptions.

(a) As used in this section, "the state and its subdivisions" means the state of West Virginia, every political subdivision thereof, every administrative entity that includes such a subdivision, all municipalities and all county boards of education.
(b) The state and its subdivisions shall, except as provided in this section, solicit competitive bids for every construction project exceeding twenty-five thousand dollars in total cost: Provided, That a vendor who has been debarred pursuant to the provisions of sections thirty-three-a through thirty-three-f, article three, chapter five-a of this code, may not bid on or be awarded a contract under this section. All bids submitted pursuant to this chapter shall include a valid bid bond.
(c) Following the solicitation of such bids, the construction contract shall be awarded to the lowest qualified responsible bidder, who shall furnish a sufficient performance and payment bond: Provided, That the state and its subdivisions may reject all bids and solicit new bids on said project.
(d) The opening of bids shall be governed by the provisions of section two of this article: Provided, That design-build projects governed by article 22A of chapter five of the code of West Virginia are exempt from these provisions.
(d) (e) Nothing in this section shall apply to:
(1) Work performed on construction or repair projects by regular full-time employees of the state or its subdivisions;
(2) Prevent students enrolled in vocational educational schools from being utilized in construction or repair projects when such use is a part of the student's training program;
(3) Emergency repairs to building components and systems. For the purpose of this subdivision, emergency repairs means repairs that if not made immediately will seriously impair the use of such building components and systems, or cause danger to those persons using such building components and systems; and
(4) Any situation where the state or a subdivision thereof shall come to an agreement with volunteers, or a volunteer group, whereby the governmental body will provide construction or repair materials, architectural, engineering, technical or any other professional services and the volunteers will provide the necessary labor without charge to, or liability upon, the governmental body.
§5-22-2. Designation of time and place for opening of bids;
right to reject or withdraw bid; bid resubmission.

(a) The public entity accepting public contract bids shall, in its resolution providing for the contract or purchase and for the advertisement for bids, designate the time and place that the bids will be received and shall at that time and place publicly open the bids and read them aloud: Provided, That no public entity shall accept or take any bids, including receiving any hand delivered bids, after the time advertised to take bids and that no bids be opened on days which are recognized as holidays by the United States Postal Service. No public entity shall accept or consider any bids that do not contain a valid bid bond.
(b) The provisions and requirements of this section, section one of article twenty-two of this chapter, the requirements stated in the advertisement for bids and the requirements on the bid form shall not be waived by any public entity. The public entity may reject an erroneous bid after the opening if all the following conditions exist: (1) An error was made; (2) the error materially affected the bid; (3) rejection of the bid would not cause a hardship on the public entity involved, other than losing an opportunity to receive construction projects at a reduced cost; and (4) enforcement of the part of the bid in error would be unconscionable. In order for the public entity to reject a bid, the public file shall contain documented evidence that all the conditions set forth in this subdivision exist. If the public entity determines the bid to be erroneous, the public entity shall return the bid security to the contractor.
(c) A contractor who withdraws a bid under the provisions of this section shall not be allowed to resubmit a bid on the project. If the bid withdrawn is the lowest bid, the next lowest bid may be accepted.