Introduced Version
House Bill 2716 History
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Key: Green = existing Code. Red = new code to be enacted
H. B. 2716
(By Delegates Diserio, Walker, Ferro, Skinner, Barill,
Swartzmiller, Nelson, E., Ellem, Storch,
Marcum and White)
[Introduced February 25, 2013; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend and reenact §5-22-1 of the Code of West Virginia,
1931, as amended, relating to the West Virginia Fairness in
Competitive Bidding Act, specifically, to lower the threshold
amount, from $500,000 to $100,000, for triggering a low
bidder's duty to submit list of subcontractors on government
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 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.
The state and its subdivisions may reject all bids and solicit new
bids on the project.
(e) The apparent low bidder on a contract for the
construction, alteration, decoration, painting or improvement of a
new or existing building or structure with the Department of
Administration, Division of Purchasing, valued at more than
$500,000.00 $100,000 shall submit a list of all subcontractors who
will perform more than $25,000 of work on the project including
labor and materials. Provided, That this section shall not apply
to any other construction projects, such as This section does not
apply to other construction projects such as highway, mine
reclamation, water or sewer projects. The list shall include the
names of the bidders and the license numbers as required by article
eleven, chapter twenty-one of this code. This information shall be
provided to the Division of Purchasing contracting public entity
within one business day of the opening 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 subcontractor list
within one business day after the deadline for submitting bids shall result in disqualification of the bid.
(f) Written approval must be obtained from the Division of
Purchasing contracting public entity before any subcontractor
substitution is permitted. Substitutions are not permitted unless:
(1) The subcontractor listed in the original bid has filed for
bankruptcy;
(2) The Division of Purchasing contracting public entity
refuses to approve a subcontractor in the original bid because the
subcontractor is under a debarment pursuant to section
thirty-three-d, article three, chapter five-a of this code or a
suspension under section thirty-two, article three, chapter five-a
of this code; or
(3) The contractor certifies in writing that the subcontractor
listed in the original bill fails, is unable or refuses to perform
his subcontract.
(g) The amendments to this section made during the 2012
regular session of the Legislature shall expire one year from the
effective date of the amendments absent further action of the
Legislature.
(h) (g) 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 a 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.
(i) (h) Any A 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.
(j) (i) No officer or employee of this state or of any a
public agency, public authority, public corporation or other public
entity and no person acting or purporting to act on behalf of such
an officer or employee or public entity shall require that any a
performance bond, payment bond or surety bond required or permitted
by this section be obtained from any a particular surety company,
agent, broker or producer.
(k) (j) 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.
(l) Nothing in this section shall apply applies 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 A situation where the state or a subdivision thereof
subdivision reaches an agreement with volunteers or a volunteer
group whereby in which 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 lower the threshold
amount, from $500,000 to $100,000, for triggering a low bidder's
duty to submit list of subcontractors on government contracts.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.