Introduced Version
Senate Bill 137 History
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Key: Green = existing Code. Red = new code to be enacted
Senate Bill No. 137
(By Senators Yost and Fitzsimmons)
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[Introduced February 13, 2013; referred to the Committee on
Labor; and then to the Committee on Finance.]
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A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §5A-3-5a; to amend
and reenact §15-2-10 of said code; to amend said code by
adding thereto a new section, designated §18-2-23b; and to
amend and reenact §18B-5-4 of said code, all relating to
requiring all uniforms purchased by the state to be used or
worn by employees of the state, including State Police
officers, State Board of Education employees and employees of
state institutions of higher education, to be manufactured in
the United States; and providing an effective date.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §5A-3-5a; §15-2-10 of
said code be amended and reenacted; that said code be amended by
adding thereto a new section, designated §18-2-23b; and that §18B-5-4 of said code be amended and reenacted, all to read as follows:
CHAPTER 5A. DEPARTMENT OF ADMINISTRATION.
ARTICLE 3. PURCHASING DIVISION.
§5A-3-5a. Uniforms to be made in the United States.
The director shall promulgate and adopt standards that require
all uniforms worn or used by employees of the state, including but
not limited to the employees of the boards and agencies identified
in section one, article two, chapter five-f of this code, be
manufactured in the United States. Notwithstanding any provision
of this code to the contrary, these standards apply to every future
purchase of uniforms after June 30, 2013. No purchase by any
spending unitis exempt from compliance with these standards.
CHAPTER 15. PUBLIC SAFETY.
ARTICLE 2. WEST VIRGINIA STATE POLICE.
§15-2-10. Uniforms; authorized equipment, weapons and supplies;
local headquarters; quarters for members; life
insurance; medical and hospital fees for injuries and
illnesses of members incurred in line of duty.
(a) The standard uniform to be used by the West Virginia State
Police after the effective date of this article shall be as
follows: Forestry green blouse with West Virginia State Police
emblem on sleeve; black shoulder strap one-inch black stripe around
sleeve, four inches from end of sleeve; forestry green breeches with one-inch black stripe down the side; trousers (slacks) with
one-inch black stripe down the side for officers and clerks
regularly enlisted in the State Police; forestry green shirts with
West Virginia State Police emblem on sleeve; black shoulder straps;
forestry green mackinaw with West Virginia State Police emblem on
sleeve; black shoulder straps; one-inch black stripe around sleeve
four inches from end of sleeve; campaign hat of olive drab color;
black Sam Browne belt with holster; black leggings and shoes; the
officer's uniform will have one and one-quarter inch black stripe
around the sleeve of blouse and mackinaw four inches from end of
sleeve circumposed with one-half inch gold braid, also black
collars on blouse, with two silver shoulder bars for captains, one
silver shoulder bar for first lieutenant, one gold shoulder bar for
second lieutenant. For noncommissioned officers the uniform blouse
and shirt will have thereon black chevrons of the appropriate rank.
(b) The standard uniform used by the West Virginia State
Police identified in subsection (a) of this section purchased after
June 30, 2013 shall be manufactured in the United States.
____(b) (c) The superintendent shall establish the weapons and
enforcement equipment which are authorized for use by members of
the State Police and shall provide for periodic inspection of the
weapons and equipment. He or she shall provide for the discipline
of members using other than authorized weapons and enforcement
equipment.
(c) (d) The superintendent shall provide the members of the
State Police with suitable arms and weapons and, when he or she
considers it necessary, with suitably equipped automobiles,
motorcycles, watercraft, airplanes and other means of conveyance to
be used by the West Virginia State Police, the Governor and other
officers and executives in the discretion of the Governor, in times
of flood, disaster and other emergencies, for traffic study and
control, criminal and safety work and in other matters of official
business. He or she shall also provide the standard uniforms for
all members of the State Police, for officers, noncommissioned
officers and troopers provided for in this section. All uniforms
and all arms, weapons and other property furnished the members of
the State Police by the State of West Virginia are and remain the
property of the state.
(d) (e) The superintendent may purchase and maintain on behalf
of members group life insurance not to exceed the amount of
$
5,000
on behalf of each member.
(e) (f) The superintendent may contract and furnish at state
police expense medical and hospital services for treatment of
illness or injury of a member which shall be determined by the
superintendent to have been incurred by the member while engaged in
the performance of duty and from causes beyond control of the
members. Notwithstanding any other provision of this code, the
superintendent has the right of subrogation in any civil action or settlement brought by or on behalf of a member in relation to any
act by another which results in the illness, injury or death of a
member. To this end, the superintendent may initiate an action on
behalf of the State Police in order to recover the costs incurred
in providing medical and hospital services for the treatment of a
member resulting from injury or illness originating in the
performance of official duties. This subsection shall not affect
the power of a court to apply ordinary equitable defenses to the
right of subrogation.
The superintendent may also consult with the executive
director of the Workers' Compensation Commission in an effort to
defray the cost of medical and hospital services. In no case will
the compensation rendered to health care providers for medical and
hospital services exceed the then current rate schedule in use by
the Workers' Compensation Commission.
Third-party reimbursements received by the superintendent
after the expiration of the fiscal year in which the injury,
illness or death occurred will be deposited to a nonexpiring
special revenue account. Funds deposited to this account may be
used solely for defraying the costs of medical or hospital services
rendered to any sworn members as a direct result of an illness,
injury or death resulting from the performance of official duties.
(f) (g) The superintendent shall establish and maintain local
headquarters at those places in West Virginia that are in his or her judgment suitable and proper to render the West Virginia State
Police most efficient for the purpose of preserving the peace,
protecting property, preventing crime, apprehending criminals and
carrying into effect all other provisions of this article. The
superintendent shall provide, by acquisition, lease or otherwise,
for local headquarters, for housing and quarters for the
accommodation of the members of the West Virginia State Police, and
for any other facilities necessary or useful for the effective
operation of the West Virginia State Police and shall provide all
equipment and supplies necessary for the members of the West
Virginia State Police to perform their duties.
CHAPTER 18. EDUCATION.
ARTICLE 2. STATE BOARD OF EDUCATION.
§18-2-23b. Purchase of uniforms; made in the United States.
The West Virginia Board of Education, through the State
Superintendent of Schools, shall promulgate and establish standards
requiring all uniforms worn or used by employees of the State Board
of Education purchased after June 30, 2013 to be manufactured in
the United States.
CHAPTER 18B. HIGHER EDUCATION.
ARTICLE 5. HIGHER EDUCATION BUDGETS AND EXPENDITURES.
§18B-5-4. Purchase or acquisition of materials, supplies,
equipment, services and printing.
(a) The council, commission and each governing board shall
purchase or acquire all materials, supplies, equipment, services
and printing required for that governing board or the council or
commission, as appropriate, and the state institutions of higher
education under their jurisdiction, except the governing boards of
Marshall University and West Virginia University, respectively, are
subject to subsection (d) of this section.
(b) The commission and council jointly shall adopt rules
governing and controlling acquisitions and purchases in accordance
with this section. The rules shall ensure that the following
procedures are followed:
(1) No person is precluded from participating and making sales
thereof to the council, commission or governing board except as
otherwise provided in section five of this article. Providing
consulting services such as strategic planning services does not
preclude or inhibit the governing boards, council or commission
from considering a qualified bid or response for delivery of a
product or a commodity from the individual providing the services;
(2) Specifications are established and prescribed for
materials, supplies, equipment, services and printing to be
purchased;
(3) Purchase order, requisition or other forms as may be
required are adopted and prescribed;
(4) Purchases and acquisitions in such quantities, at such times and under contract, are negotiated for and made in the open
market or through other accepted methods of governmental purchasing
as may be practicable in accordance with general law;
(5) Bids are advertised on all purchases exceeding $25,000,
and made by means of sealed or electronically-submitted bids and
competitive bidding or advantageous purchases effected through
other accepted governmental methods and practices. Competitive
bids are not required for purchases of $25,000 or less.
(6) Notices for acquisitions and purchases for which
competitive bids are being solicited are posted in the purchasing
office of the specified institution involved in the purchase, at
least two weeks prior to making the purchases. The rules shall
ensure that the notice is available to the public during business
hours;
(7) Purchases are made in the open market;
(8) Vendors are notified of bid solicitation and emergency
purchasing; and
(9) Purchases after June 30, 2013 of uniforms to be used or
worn by employees of a state institution of higher learning shall
be manufactured in the United States; and
_____(9) (10) No fewer than three bids are obtained when bidding is
required, except if fewer than three bids are submitted, an award
may be made from among those received.
(c) When a state institution of higher education submits a contract, agreement or other document to the Attorney General for
approval as to form as required by this chapter the following
conditions apply:
(1) "Form" means compliance with the Constitution and statutes
of the State of West Virginia;
(2) The Attorney General does not have the authority to reject
a contract, agreement or other document based on the substantive
provisions in the contract, agreement or document or any extrinsic
matter as long as it complies with the Constitution and statutes of
this state;
(3) Within fifteen days of receipt, the Attorney General shall
notify the appropriate state institution of higher education in
writing that the contract, agreement or other document is approved
or disapproved as to form. If the contract, agreement or other
document is disapproved as to form, the notice of disapproval shall
identify each defect that supports the disapproval; and
(4) If the state institution elects to challenge the
disapproval by filing a writ of mandamus or other action and
prevails, then the Attorney General shall pay reasonable attorney
fees and costs incurred.
(d) Pursuant to this subsection, the governing boards of
Marshall University and West Virginia University, respectively, may
carry out the following actions:
(1) Purchase or acquire all materials, supplies, equipment, services and printing required for the governing board without
approval from the commission or the Vice Chancellor for
Administration and may issue checks in advance to cover postage as
provided in subsection (f) of this section;
(2) Make purchases from cooperative buying groups, consortia,
the federal government or from federal government contracts if the
materials, supplies, services, equipment or printing to be
purchased is available from these groups and if this would be the
most financially advantageous manner of making the purchase;
(3) Select and acquire by contract or lease all grounds,
buildings, office space or other space, and capital improvements,
including equipment, if the rental is necessarily required by the
governing board; and
(4) Use purchase cards under terms approved for the
commission, the council and governing boards of state institutions
of higher education and participate in any expanded program of use
as provided in subsection (u) of this section.
(e) The governing boards shall adopt sufficient accounting and
auditing procedures and promulgate and adopt appropriate rules
subject to section six, article one of this chapter to govern and
control acquisitions, purchases, leases and other instruments for
grounds, buildings, office or other space, and capital
improvements, including equipment, or lease-purchase agreements.
(f) The council, commission or each governing board may issue a check in advance to a company supplying postage meters for
postage used by that board, the council or commission and by the
state institutions of higher education under their jurisdiction.
(g) 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, council or commission and
delivery terms. The preference for resident vendors as provided in
section thirty-seven, article three, chapter five-a of this code
applies to the competitive bids made pursuant to this section.
(h) The governing boards, council and commission shall
maintain a purchase file, which shall be a public record and open
for public inspection.
(1) After the award of the order or contract, the governing
boards, council and commission shall indicate upon the successful
bid the following information:
(A) Designation as the successful bid;
(B) The reason any bids were rejected; and
(C) The reason for rejection, if the mathematical low vendor
was not awarded the order or contract.
(2) A record in the purchase file may not 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.
(3) All files, no matter the storage method, shall be open for
inspection by the Legislative Auditor upon request.
(i) The commission and council, also jointly, shall promulgate
rules to prescribe qualifications to be met by any person who is to
be employed as a buyer pursuant to this section. These rules shall
require that a person may not be employed as a buyer unless that
person, at the time of employment has one of the following
qualifications:
(1) Is 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.
(j) Any person making purchases and acquisitions pursuant to
this section shall execute a bond in the penalty of $50,000,
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 this
section and sections five through eight, inclusive, of this article and the rules of the governing board and the council and
commission. In lieu of separate bonds for these buyers, a blanket
surety bond may be obtained. The bond shall be filed with the
Secretary of State and the cost of the bond shall be paid from
funds appropriated to the applicable governing board or the council
or commission.
(k) 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. Notwithstanding any other provision
of this code to the contrary, only those purchases exceeding the
dollar amount for competitive sealed bids in this section are
required to be encumbered and they may be entered into the state's
centralized accounting system by the staff of the commission,
council or governing boards to satisfy the requirements of article
two, chapter five-a of this code to determine whether the amount of
the purchase is within the quarterly allotment of the commission,
council or governing board, is in accordance with the approved
expenditure schedule and otherwise conforms to the article.
(l) The governing boards, council and commission may make
requisitions upon the State Auditor for a sum to be known as an
advance allowance account, not to exceed five percent of the total
of the appropriations for the governing board, council or commission, and the State Auditor shall draw a warrant upon the
Treasurer for those accounts. All advance allowance accounts shall
be accounted for by the applicable governing board or the council
or commission once every thirty days or more often if required by
the State Auditor.
(m) Contracts entered into pursuant to this section shall be
signed by the applicable governing board or the council or
commission in the name of the state and shall be approved as to
form by the Attorney General. A contract which requires approval
as to form by the Attorney General is considered approved if the
Attorney General has not responded within fifteen days of
presentation of the contract. A contract or a change order for
that contract and notwithstanding any other provision of this code
to the contrary, associated documents such as performance and
labor/material payments, bonds and certificates of insurance 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 do not require approval as to
form by the Attorney General. The Attorney General shall make a
list of those changes which he or she considers to be substantive
and the list, and any changes to the list, shall be published in
the State Register. A contract that exceeds the dollar amount
requiring competitive sealed bids in this section shall be filed
with the State Auditor. If requested to do so, the governing boards, council or commission shall make all contracts available
for inspection by the State Auditor. The governing board, council
or commission, as appropriate, 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.
(n) If the governing board, council or commission purchases or
contracts for materials, supplies, equipment, services and printing
contrary to sections four through seven of this article or the
rules pursuant to this article, the purchase or contract is void
and of no effect.
(o) A governing board or the council or commission, as
appropriate, may request the director of purchasing to make
available the facilities and services of that department to the
governing boards, council or commission in the purchase and
acquisition of materials, supplies, equipment, services and
printing. The director of purchasing shall cooperate with that
governing board, council or commission, as appropriate, in all such
purchases and acquisitions upon that request.
(p) Each governing board or the council or commission, as
appropriate, may permit private institutions of higher education to
join as purchasers on purchase contracts for materials, supplies,
services and equipment entered into by that governing board or the
council or commission. A private institution desiring to join as purchaser on purchase contracts shall file with that governing
board or the council or commission, as appropriate, an affidavit
signed by the president or designee of the private institution
requesting that it be authorized to join as purchaser on purchase
contracts of that governing board or the council or commission, as
appropriate. The private institution shall agree that it is bound
by such terms and conditions as that governing board or the council
or commission may prescribe and that it will be responsible for
payment directly to the vendor under each purchase contract.
(q) Notwithstanding any other provision of this code to the
contrary, the governing boards, council and commission, as
appropriate, may make purchases from cooperative buying groups,
consortia, the federal government or from federal government
contracts if the materials, supplies, services, equipment or
printing to be purchased is available from that source, and
purchasing from that source would be the most financially
advantageous manner of making the purchase.
(r) An independent performance audit of all purchasing
functions and duties which are performed at any state institution
of higher education, except Marshall University and West Virginia
University, shall be performed each fiscal year. The Joint
Committee on Government and Finance shall conduct the performance
audit and the governing boards, council and commission, as
appropriate, are responsible for paying the cost of the audit from funds appropriated to the governing boards, council or commission.
(1) The governing boards of Marshall University and West
Virginia University, respectively, shall provide for independent
performance audits of all purchasing functions and duties on their
campuses at least once in each three-year period.
(2) Each audit shall be inclusive of the entire time period
that has elapsed since the date of the preceding audit.
(3) Copies of all appropriate documents relating to any audit
performed by the governing boards of Marshall University and West
Virginia University shall be furnished to the Joint Committee on
Government and Finance and the Legislative Oversight Commission on
Education Accountability within thirty days of the date the audit
report is completed.
(s) The governing boards shall require each institution under
their respective jurisdictions to notify and inform every vendor
doing business with that institution of section fifty-four, article
three, chapter five-a of this code, also known as the Prompt Pay
Act of 1990.
(t) Consultant services, such as strategic planning services,
do not preclude or inhibit the governing boards, council or
commission from considering any qualified bid or response for
delivery of a product or a commodity because of the rendering of
those consultant services.
(u) Purchasing card use may be expanded by the council, commission and state institutions of higher education pursuant to
this subsection.
(1) The council and commission jointly shall establish
procedures to be implemented by the council, commission and any
institution under their respective jurisdictions using purchasing
cards. The procedures shall ensure that each meets the following
conditions:
(A) Appropriate use of the purchasing card system;
(B) Full compliance with article three, chapter twelve of this
code relating to the purchasing card program; and
(C) Sufficient accounting and auditing procedures for all
purchasing card transactions.
(2) Notwithstanding any other provision of this code to the
contrary, the council, commission and any institution authorized
pursuant to subdivision (3) of this subsection may use purchasing
cards for the following purposes:
(A) Payment of travel expenses directly related to the job
duties of the traveling employee, including, but not limited to,
fuel and food; and
(B) Payment of any routine, regularly scheduled payment,
including, but not limited to, utility payments and real property
rental fees.
(3) The commission and council each shall evaluate the
capacity of each institution under its jurisdiction for complying with the procedures established pursuant to subdivision (2) of this
subsection. The commission and council each shall authorize
expanded use of purchasing cards pursuant to that subdivision for
any institution it determines has the capacity to comply.
NOTE: The purpose of this bill is to require all uniforms
purchased by the state to be used or worn by employees of the state
and its agencies to be manufactured in the United States. The bill
requires employee uniforms purchased by the State Board of
Education and state institutions of higher education to be made in
the United States. The bill provides an effective date of July 1,
2013.
§5A-3-5a and §18-2-23b are new; therefore, strike-throughs and
underscoring have been omitted.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.