H. B. 2923
(By Delegates Klempa, Givens, Martin,
Argento, Swartzmiller, Walker, Manypenny and D. Poling)
[Introduced March 3, 2009; referred to the
Committee on Energy, Industry and Labor, Economic
Development and Small Business then Government
Organization.]
A BILL to amend and reenact §5-22-1 of the Code of West Virginia,
1931, as amended, relating to requiring the disclosure of
subcontractors within two hours of the close of bids for
public construction contracts.
Be it enacted by the Legislature of West Virginia:
That §5-22-1 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 22. GOVERNMENT CONSTRUCTION CONTRACTS.
§5-22-1. Bidding required; government construction contracts to go
to lowest qualified responsible bidder; procedures to
be followed in awarding government construction
projects; penalties for violation of procedures and
requirements debarment; exceptions.
(a) This section and the requirements set forth in this
section may be referred to as the "West Virginia Fairness In
Competitive Bidding Act."
(b) As used in this section:
(1) "Lowest qualified responsible bidder" means the bidder that bids the lowest price and that meets, as a minimum, all the
following requirements in connection with the bidder?s response to
the bid solicitation. The bidder must certify that it:
(A) Is ready, able and willing to timely furnish the labor and
materials required to complete the contract;
(B) Is in compliance with all applicable laws of the State of
West Virginia; and
(C) Has supplied a valid bid bond or other surety authorized
or approved by the contracting public entity.
(2) "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.
(c) The state and its subdivisions shall, except as provided
in this section, solicit competitive bids for every construction
project exceeding $25,000 in total cost:
Provided, That a vendor
who has been debarred pursuant to the provisions of sections
thirty-three-a through thirty-three-f, inclusive, 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 or other surety as approved by the
State of West Virginia or its subdivisions.
(d) Following the solicitation of 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 the project:
Provided, however, That all
bidders on a construction contract shall submit a list of all
subcontractors including the addresses and license numbers as
required by article eleven, chapter twenty-one of this code to the
contracting public entity within two hours of the close of bids for
review prior to the awarding of a construction contract. If no
subcontractors are to be used to complete the project it will be so
noted on the subcontractor list. Failure to submit the
subcontractors list within two hours after the deadline for
submitting bids shall result in disqualification of the bid.
Written approval must be obtained from the owner or the owner's
representative before any subcontractor substitution is permitted.
Substitutions are not permitted unless it can be shown to be to the
advantage of the owner.
(e) The contracting public entity may not award the contract
to a bidder which fails to meet the minimum requirements set out in
this section. As to any prospective low bidder which the
contracting public entity determines not to have met any one or
more of the requirements of this section or other requirements as
determined by the public entity in the written bid solicitation,
prior to the time a contract award is made, the contracting public
entity shall document in writing and in reasonable detail the basis
for the determination and shall place the writing in the bid file.
After the award of a bid under this section, the bid file of the
contracting public agency and all bids submitted in response to the
bid solicitation shall be open and available for public inspection. (f) Any public official or other person who individually or
together with others knowingly makes an award of a contract under
this section in violation of the procedures and requirements of
this section is subject to the penalties set forth in section
twenty-nine, article three, chapter five-a of the Code of West
Virginia.
(g) No officer or employee of this state or of any public
agency, public authority, public corporation or other public entity
and no person acting or purporting to act on behalf of such officer
or employee or public entity shall require that any performance
bond, payment bond or surety bond required or permitted by this
section be obtained from any particular surety company, agent,
broker or producer.
(h) All bids shall be open in accordance with the provisions
of section two of this article, except design-build projects which
are governed by article twenty-two-a of this chapter and are exempt
from these provisions.
(i) 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
the use is a part of the student?s training program;
(3) Emergency repairs to building components and systems. For
the purpose of this subdivision, the term emergency repairs means
repairs that if not made immediately will seriously impair the use of building components and systems or cause danger to those persons
using the building components and systems; and
(4) Any situation where the state or a subdivision thereof
reaches 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.
NOTE: The purpose of this bill is to require the disclosure of
subcontractors within two hours of the close of bids for public
contracts. The bill provides that if this disclosure is not made
the bid will be disqualified. The bill also requires that if no
subcontractors are to be used their nonuse will be noted.
Additionally, the bill prohibits the substitution of a contractor
unless it is to the owner's advantage.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.