H. B. 3104
(By Delegates Michael, White, H.K., Kominar, Stalnaker, Boggs,
Thompson, Proudfoot, Palumbo, White, G., Anderson, Border and
Wakim)
(Originating in the Committee on Finance)
[March 17, 2005]
A BILL to amend and reenact §5A-7-4a of the Code of West Virginia,
1931, as amended, relating to the payment of
telecommunications charges; authorizing the Director to review
and reject telecommunications charges under certain
circumstances and authorizing emergency rules in certain
circumstances.
Be it enacted by the Legislature of West Virginia:
That §5A-7-4a of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
§5A-7-4a. Payment of legitimate uncontested invoices for
telecommunications services; procedures and powers of
the information and communications Division and
Secretary of administration.
(a) The Legislature finds that it is in the best interest of
the state, its spending units and those vendors supplying
telecommunications services to the state and its spending units
that any properly registered and qualified vendor supplying telecommunications services to two or more spending units under a
shared account is entitled to prompt payment upon presentation of
a legitimate uncontested invoice for telecommunications services to
the Division, as provided in the following subsections.
(b) To facilitate the administration and payment of
telecommunications services, there is hereby created in the State
Treasury a special revenue account to be known as the
"Telecommunications Services Payment and Reserve Fund." All moneys
transferred from state spending units pursuant to the requirements
of this section shall be deposited in the account. Expenditures
from the fund shall be made by the Director for the exclusive
purposes set forth in this section:
Provided, That no more than
one hundred and fifty thousand dollars or the actual amount
collected pursuant to subsection
(i) (j) of this section in any
fiscal year, whichever is less, may be expended from the fund in
any fiscal year to defray the costs of administration of this
section.
(c) Upon receipt of any telecommunications charges from a
properly registered and qualified vendor,
the Division shall
conduct a preliminary review of the charges. If the Division
determines during this preliminary review that: (1) any of the
charges are not authorized by law or by the contract under which
the telecommunications services are provided; (2) no specific
spending unit is designated for any charge; or (3) any charge or
service is not in accordance with contract pricing, the Division
shall reject those charges. Within fourteen days of receipt of any telecommunications charge, the Director shall notify a vendor of
any rejected charges and shall include in the notice a description
of the rejected charges, the reasons a charge was rejected and a
proposed resolution of the rejected charge. The Director and the
vendor shall attempt to resolve the matter in good faith. Within
ninety days of the receipt of the vendor's invoice or a time period
mutually agreed to by the vendor and Secretary, the Secretary shall
make the final decision as to the legitimacy of the rejected amount
and determine if payment is warranted. If the final decision of
the Secretary is to require payment of the rejected amount, the
Secretary shall cause the Division to bill that amount to the
appropriate spending unit which shall remit payment of the amount
as required in subsection (d) of this section. If the final
decision of the Secretary is to refuse to pay any amount, the
vendor may proceed in accordance with the provisions of article
two, chapter fourteen of this code.
(d) Following the preliminary review of the charges, the
Director shall fully apportion
all telecommunications charges
not
rejected during the preliminary review required by subsection (c)
of this section among spending units based on the spending unit's
service and usage, as determined by the Director. The Director
shall send each spending unit a statement of the spending unit's
proportionate share of any telecommunications charges within thirty
days of receipt by the Division of the invoice detailing the
telecommunications charges. The statement is to provide a date of
no more than thirty calendar days from the date the Division sends the statement by which the spending unit shall submit payment or
transfer to the telecommunications services payment and reserve
fund all funds necessary to pay for the spending unit's charges in
full:
Provided, That the statement sent in last month of the
fiscal year shall provide that the transfer shall be made by the
thirty-first day of July. If feasible for the spending unit, the
preferable method of payment is by intergovernmental transfer.
(d) (e) All spending units shall budget for telecommunications
service expenses. Prior to the date provided in each statement
sent to a spending unit pursuant to subsection
(c) (d) of this
section, each spending unit shall pay or transfer the statement
amount to the telecommunications services payment and reserve fund.
(e) (f) If a spending unit fails to pay or transfer funds by
the date specified in the statement sent pursuant to subsection
(c)
(d) of this section, the Secretary of the department of
administration shall transfer to the telecommunications services
payment and reserve fund the statement amount plus an additional
penalty in the amount of three percent of the statement amount from
any funds supporting the administration of that spending unit:
Provided, That the Secretary shall complete all such transfers by
the thirty-first day of July of each fiscal year. Upon exercising
a transfer under the authority of this subsection, the Director
shall provide a notification to the spending unit, including, but
not limited to, the date, time, total amount of the transfer,
statement amount and penalty amount. If a participating spending
unit does not maintain funds in the state treasury, the Secretary may transfer funds by wire from any depository outside the state
treasury. A participating spending unit maintaining funds in
depositories outside the State Treasury shall furnish the Secretary
access to those funds for the exclusive purposes of this section.
(f) (g) If a spending unit contests any portion of its
statement, it shall nonetheless remit payment for the entire
statement amount and notify the Division in writing within thirty
days of statement receipt by the spending unit. The Secretary
shall consider any contested apportionments of charges and provide
a final determination on the apportionment of legitimate charges.
Corrections or adjustments to apportionments may be effected on
future transfer payments:
Provided, That legitimate vendor charges
are to be fully apportioned. If the basis of the contest is vendor
error, overcharge, service failure, failure to terminate services
as required by the Division, or other failure of or error in vendor
performance, the Director shall withhold the contested amount from
current or future vendor payments, pending resolution by the
Secretary, and the Director shall bring the contested matter to the
attention of the vendor. The Director and the vendor shall attempt
to resolve the matter in good faith. Within ninety days of the
receipt of the vendor's invoice or a time period mutually agreed to
by the vendor and Secretary, the Secretary shall make the final
decision as to the legitimacy of the contested amount and determine
if payment is warranted. If the final decision of the Secretary is
to refuse to pay any amount, the vendor may proceed in accordance
with the provisions of article two, chapter fourteen of this code.
(g) (h) The Director shall provide for full payment of
legitimate, uncontested telecommunications charges within ninety
days of receipt of an invoice detailing the telecommunications
charges by the Division. Payment for the charges shall be made by
the Director from the telecommunications services payment and
reserve fund.
(h) (i) The Director may direct the discontinuance of
telecommunications services to any spending unit that fails to
comply with the provisions of this section and the vendor supplying
telecommunication services shall comply with the written direction
of the Director on discontinuance of services.
(i) (j) To help defray the additional cost of administering
this section, the Director may assess a proportional fee of up to
one hundred fifty thousand dollars in aggregate per fiscal year to
the participating spending units based on each spending unit's
portion of service and usage. This fee is to be included in the
statement sent to spending units pursuant to subsection
(c) (d) of
this section and transferred to the telecommunications service
payment and reserve fund by the date specified in the statement for
the transfer of payment.
(j) (k) Notwithstanding any other provision of this code to
the contrary, for purposes of this section, an invoice is
considered received by the Division on the date on which the
invoice is marked as received by the Division, or three business
days after the date of the postmark made by the United States
postal service as evidenced on the envelope in which the invoice is mailed, whichever is earlier:
Provided, That if an invoice is
received by the Division prior to the date on which the
telecommunications services covered by the invoice are delivered or
fully performed, for purposes of determining the ninety-day time
period for payment in subsection
(g) (h) of this section, the
invoice is considered received on the date on which the
telecommunications services covered by the invoice were delivered
or fully performed.
(k) (l) For purposes of this section, "telecommunications
service" means and includes not only telephone service regulated
under chapter twenty-four of this code or under federal law, but
also may include, at the discretion of the Secretary of
administration, wireless service, voice over internet protocol
service, internet service and any other service or equipment used
for the electronic transmission of voice or data
: Provided, That
such service is provided under a shared account.
(l) (m) The Director may propose rules for legislative
approval in accordance with the provisions of article three,
chapter twenty-nine-a of this code to effectuate the purposes of
this section. The initial rule filed by the Division pursuant
to
the amendments to this subsection
enacted during the regular
session of the Legislature in two thousand five shall be filed as
an emergency rule.