ENGROSSED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 694
(By Senators McCabe, Guills and Hunter)
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[Originating in the Committee on Finance;
reported February 26, 2004.]
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A BILL to amend and reenact §5-22-1 of the code of West Virginia,
1931, as amended, relating to establishing the West Virginia
fairness in competitive bidding act; requiring that
competitive bids for government construction projects be
awarded to the lowest qualified responsible bidder; providing
clarification of the term "lowest qualified responsible
bidder"; establishing procedures and requirements to be
followed in awarding contracts for government construction
projects; and providing criminal penalties for violation of
the procedures and requirements to be followed in awarding
government construction projects.
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".
(a) (b) 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) (c) 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, 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.
(c) (d) 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 the project.
As used
in this section, the term "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: (1) Is ready, able and willing to timely furnish the
labor and materials required to complete the contract; (2) is in
compliance with all applicable laws of the state of West Virginia;
and (3) has supplied a valid bid bond or other surety authorized or
approved by the contracting public entity. The public contracting
entity shall not award the contract to a bidder which fails to meet
these minimum requirements. As to any prospective low bidder which
the public contracting 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
public contracting agency and all bids submitted in response to the bid solicitation shall be open and available for public inspection.
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.
(d) (e) All bids shall be opened in accordance with the
provisions of section two of this article, except design-build
projects which are governed by article twenty-two-a, chapter five
of this code are exempt from these provisions.
(e) (f) 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 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
such building components and systems or cause danger to those
persons using
such the building components and systems; and
(4) Any situation where the state or a subdivision thereof
shall come to 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.
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