Senate Bill No. 670
(By Senator Foster)
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[Introduced February 22, 2010; referred to the Committee on
Education; and then to the Committee on Finance.]
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A BILL to amend and reenact §5A-3-37 of the Code of West Virginia,
1931, as amended, relating to
requiring political subdivisions
of the state and county boards of education to give preference
to resident vendors and vendors employing state residents.
Be it enacted by the Legislature of West Virginia:
That §5A-3-37 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 3. PURCHASING DIVISION.
§5A-3-37. Preference for resident vendors; preference for vendors
employing state residents; preference for veteran
residents; exceptions.
(a) Other provisions of this article notwithstanding,
effective July 1, 1990, through June 30, 1994, in any instance
involving the purchase of construction services for the
construction, repair or improvement of any buildings or portions thereof, where the total aggregate cost thereof, whether one or a
series of contracts are awarded in completing the project, is
estimated by the director to exceed the sum of $50,000 and where
the director or any state department is required under the
provisions of this article to make the purchase, construction,
repair or improvement upon competitive bids, the successful bid
shall be determined as provided in this section. Effective
beginning July 1, 1992, in any instance that a purchase of
commodities or printing by the director or by a state department is
required under the provisions of this article to be made upon
competitive bids, the successful bid shall be determined as
provided in this section. The Secretary of the Department of
Revenue shall
promulgate propose, subject to legislative approval,
any rules necessary to:
(i) (1) Determine that vendors have met
the residence requirements described in this section;
(ii) (2)
establish the procedure for vendors to certify the residency
requirements at the time of submitting their bids;
(iii) (3)
establish a procedure to audit bids which make a claim for
preference permitted by this section and to reject noncomplying
bids; and
(iv) (4) otherwise accomplish the objectives of this
section. In prescribing the rules, the secretary shall use a
strict construction of the residence requirements set forth in this
section.
(b) For purposes of this section, a successful bid shall be
determined and accepted as follows:
(1) From an individual resident vendor who has resided in West
Virginia continuously for
the four years one year immediately
preceding the date on which the bid is submitted or from a
partnership, association, corporation resident vendor, or from a
corporation nonresident vendor which has an affiliate or subsidiary
which employs a minimum of one hundred state residents and which
has maintained its headquarters or principal place of business
within West Virginia continuously for
four years one year
immediately preceding the date on which the bid is submitted, if
the vendor's bid does not exceed the lowest qualified bid from a
nonresident vendor by more than two and one-half percent of the
latter bid, and if the vendor has made written claim for the
preference at the time the bid was submitted.
Provided, That
However, for purposes of this subdivision, any partnership,
association or corporation resident vendor of this state, which
does not meet the requirements of this subdivision solely because
of the continuous
four-year one-year residence requirement, shall
be considered to meet the requirement if at least eighty percent of
the ownership interest of the resident vendor is held by another
individual, partnership, association or corporation resident vendor
who otherwise meets the requirements of this subdivision, including
the continuous
four-year one-year residency requirement.
Provided,
however, That However, the Secretary of the Department of Revenue
shall promulgate rules relating to attribution of ownership among
several resident vendors for purposes of determining the eighty percent ownership requirement;
(2) From a resident vendor, if, for purposes of producing or
distributing the commodities or completing the project which is the
subject of the vendor's bid and continuously over the entire term
of the project, on average at least seventy-five percent of the
vendor's employees are residents of West Virginia
have resided in
the state continuously for the two immediately preceding years and
the vendor's bid does not exceed the lowest qualified bid from a
nonresident vendor by more than two and one-half percent of the
latter bid, and if the vendor has certified the residency
requirements of this subdivision and made written claim for the
preference, at the time the bid was submitted;
(3) From a nonresident vendor, which employs a minimum of one
hundred state residents or a nonresident vendor which has an
affiliate or subsidiary which maintains its headquarters or
principle place of business within West Virginia and which employs
a minimum of one hundred state residents, if, for purposes of
producing or distributing the commodities or completing the project
which is the subject of the vendor's bid and continuously over the
entire term of the project, on average at least seventy-five
percent of the vendor's employees or the vendor's affiliate's or
subsidiary's employees are residents of West Virginia
who have
resided in the state continuously for the two immediately preceding
years and the vendor's bid does not exceed the lowest qualified bid
from a nonresident vendor by more than two and one-half percent of the latter bid, and if the vendor has certified the residency
requirements of this subdivision and made written claim for the
preference, at the time the bid was submitted;
(4) From a vendor who meets either the requirements of both
subdivisions (1) and (2) of this subsection or subdivisions (1) and
(3) of this subsection, if the bid does not exceed the lowest
qualified bid from a nonresident vendor by more than five percent
of the latter bid, and if the vendor has certified the residency
requirements above and made written claim for the preference at the
time the bid was submitted;
(5) From an individual resident vendor who is a veteran of the
United States Armed Forces, the reserves or the National Guard and
has resided in West Virginia continuously for
the four years one
year immediately preceding the date on which the bid is submitted,
if the vendor's bid does not exceed the lowest qualified bid from
a nonresident vendor by more than three and one-half percent of the
latter bid, and if the vendor has made written claim for the
preference at the time the bid was submitted; or
(6) From a resident vendor who is a veteran of the United
States Armed Forces, the Reserves or the National Guard, if, for
purposes of producing or distributing the commodities or completing
the project which is the subject of the vendor's bid and
continuously over the entire term of the project, on average at
least seventy-five percent of the vendor's employees are residents
of West Virginia who have resided in the state
continuously for the two immediately preceding years and the vendor's bid does not
exceed the lowest qualified bid from a nonresident vendor by more
than three and one-half percent of the latter bid, and if the
vendor has certified the residency requirements of this subdivision
and made written claim for the preference, at the time the bid was
submitted.
(b) (c) If the Secretary of the Department of Revenue
determines under any audit procedure that a vendor who received a
preference under this section fails to continue to meet the
requirements for the preference at any time during the term of the
project for which the preference was received the secretary may:
(1) Reject the vendor's bid; or (2) assess a penalty against the
vendor of not more than five percent of the vendor's bid on the
project.
(c) (d) Political subdivisions of the state including county
boards of education
may shall grant the same preferences to any
vendor of this state who has made a written claim for the
preference at the time a bid is submitted, but for the purposes of
this subsection, in determining the lowest bid, any political
subdivision shall exclude from the bid the amount of business
occupation taxes which must be paid by a resident vendor to any
municipality within the county comprising or located within the
political subdivision as a result of being awarded the contract
which is the object of the bid; in the case of a bid received by a
municipality, the municipality shall exclude only the business and occupation taxes as will be paid to the municipality.
Provided,
That However, prior to soliciting any competitive bids, any
political subdivision may, by majority vote of all its members in
a public meeting where all the votes are recorded, elect not to
exclude from the bid the amount of business and occupation taxes as
provided in this subsection.
(d) (e) If any of the requirements or provisions set forth in
this section jeopardize the receipt of federal funds, then the
requirement or provisions are void and of no force and effect for
that specific project.
(e) (f) If any provision or clause of this section or
application
thereof of this section to any person or circumstance
is held invalid, the invalidity
shall does not affect other
provisions or applications of this section which can be given
effect without the invalid provision or application, and to this
end the provisions of this section are severable.
(f) (g) This section may be cited as the "Jobs for West
Virginians Act of 1990."
NOTE: The purpose of this bill is to require political
subdivisions of the state and county boards of education to give
preference to resident vendors and vendors employing state
residents. The bill also lowers certain four-year requirements to
one year and eliminates certain two year requirements.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.