Committee Substitute
House Bill 2616 History
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COMMITTEE SUBSTITUTE
FOR
H. B. 2616
(By Delegates Brown, Miley, Burdiss,
Talbott, Overington and Pino)
(Originating in the Committee on the Judiciary)
[February 22, 2007]
A BILL to amend and reenact §64-1-1 of the Code of West Virginia,
1931, as amended; and to amend and reenact article 2, chapter
64 of said code
, all relating generally to the promulgation of
administrative rules by the various executive or
administrative agencies and the procedures relating thereto;
the promulgation of administrative rules by the Department of
Administration and the procedures relating thereto
legislative
mandate or authorization; the promulgation of certain
legislative rules by various executive or administrative
agencies of the state; authorizing certain of the agencies to
promulgate certain legislative rules in the form that the
rules were filed in the State Register; authorizing certain of
the agencies to promulgate certain legislative rules with
various modifications presented to and recommended by the
Legislative Rule-Making Review Committee; authorizing certain
of the agencies to promulgate certain legislative rules as
amended by the Legislature; authorizing certain of the
agencies to promulgate certain legislative rules with various modifications presented to and recommended by the Legislative
Rule-Making Review Committee and as amended by the
Legislature;
and disapproving certain rules;
authorizing the
Department of Administration to promulgate a legislative rule
relating to purchasing; authorizing the Department of
Administration to promulgate a legislative rule relating to
cannibalization of state property;
authorizing the Department
of Administration to promulgate a legislative rule relating to
waste disposal of state property; authorizing the Department
of Administration to promulgate a legislative rule relating to
the administration of state funds and grants; authorizing the
Consolidated Public Retirement Board to promulgate a
legislative rule relating to the deputy sheriff retirement
system; authorizing the Consolidated Public Retirement Board
to promulgate a legislative rule relating to the teachers'
defined contribution system; authorizing the Consolidated
Public Retirement Board to promulgate a legislative rule
relating to teachers' retirement system; authorizing the
Consolidated Public Retirement Board to promulgate a
legislative rule relating to the public employees retirement
system; authorizing the Consolidated Public Retirement Board
to promulgate a legislative rule relating to refund,
reinvestment and loan interest factors; authorizing the
Division of Personnel to promulgate a legislative rule
relating to the administrative rule of the Division of
Personnel; authorizing the Division of Personnel to promulgate a legislative rule relating to workers'
compensation TTD rule; authorizing the Division of Personnel
to promulgate a legislative rule relating to interdepartmental
transfer rule; and authorizing the Board of Risk & Insurance
Management to promulgate a legislative rule relating to mine
subsidence insurance.
Be it enacted by the Legislature of West Virginia:
That §64-1-1 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that article 2, chapter 64 of said
code be amended and reenacted, all to read as follows:
ARTICLE 1. GENERAL LEGISLATIVE AUTHORIZATION.
§64-1-1. Legislative authorization.
Under the provisions of article three, chapter twenty-nine-a
of the Code of West Virginia, the Legislature expressly authorizes
the promulgation of the rules described in articles two through
eleven, inclusive, of this chapter, subject only to the limitations
set forth with respect to each such rule in the section or sections
of this chapter authorizing its promulgation. Legislative rules
promulgated pursuant to the provisions of articles one through
eleven, inclusive, of this chapter in effect at the effective date
of this section shall continue in full force and effect until
reauthorized in this chapter by legislative enactment or until
amended by emergency rule pursuant to the provisions of article
three, chapter twenty-nine-a of this code.
ARTICLE 2. AUTHORIZATION FOR DEPARTMENT OF ADMINISTRATION TO PROMULGATE LEGISLATIVE RULES.
§64-2-1. Department of Administration.
(a) The legislative rule filed in the state register on the
twenty-eighth day of July, two thousand six, authorized under the
authority of section four, article three, chapter five-a, of this
code, modified by the Department of Administration to meet the
objections of the legislative rule-making review committee and
refiled in the state register on the eleventh day of January, two
thousand seven, relating to the Department of Administration
(Purchasing, 148 CSR 1), is authorized with the following
amendments:
On page 13, subdivision 7.10.1, after the first sentence, by
striking out the remainder of subdivision 7.10.1 and inserting in
lieu thereof the following:
"In arriving at a determination, the Director will consider
the following factors, insofar as they are applicable:
(1) The quality, availability, and reliability of the
supplies, materials, equipment, or service and their adaptability
to the particular use required;
(2) The ability, capacity, and skill of the bidder;
(3) The sufficiency of the bidder's financial resources;
(4) The bidder's ability to provide maintenance, repair parts,
and service;
(5) The compatibility with existing equipment;
(6) The need for flexibility in evaluating new products on a large scale before becoming contractually committed for all use;
and
(7) Any other relevant factors.";
On page 14, subdivision 7.13.1, at the beginning of the first
sentence, by striking out the word "The" and inserting in lieu
thereof the words "For contracts for commodities and services in
the amount of $1 million or less, the";
On page 14, after subdivision 7.13.1, by inserting a new
subdivision, designated subdivision 7.13.2, to read as follows:
"7.13.2. For contracts for commodities and services in an
amount exceeding $1 million, the following contract management
procedures apply:
a. Post Award Conferences.
The agency administrator responsible for administering the
contract shall hold a post award conference with the contractor to
ensure a clear and mutual understanding of all contract terms and
conditions, and the respective responsibilities of all parties.
The agenda for the conference shall include, at a minimum, the
introduction of all participants and identification of agency and
contractor key personnel, and discussion of the following items:
(1) The scope of the contract, including specifications of
what the agency is buying;
(2) The contract terms and conditions, particularly any
special contract provisions;
(3) The technical and reporting requirements of the contract;
(4) The contract administration procedures, including contract monitoring and progress measurement;
(5) The rights and obligations of both parties and the
contractor performance evaluation procedures;
(6) An explanation that the contractor will be evaluated on
its performance both during and at the conclusion of the contract
and that such information may be considered in the selection of
future contracts;
(7) Potential contract problem areas and possible solutions;
(8) Invoicing requirements and payment procedures, with
particular attention to whether payment will be made according to
milestones achieved by the contractor;
(9) An explanation of the limits of authority of the personnel
of both the agency and the contractor.
b. Monitoring.
The agency shall develop a comprehensive and objective
monitoring checklist which:
(1) Measures outcomes;
(2) Monitors compliance with contract requirements; and
(3) Assesses contractor performance.
c. Reports.
The agency shall make the following reports to the Director,
on a schedule established by the Director, but not less frequently
than once each year:
(1) Status Reports. Status reports describe the progress of
the work; track the organizational structure of the statement of
work in terms of phases, segments, deliverables and products; and describe what work is complete and what work is pending and
contrast that status against the contract schedule. If there are
any unresolved issues that the agency is contractually obligated to
resolve, those issues should be included in the status report and
a resolution should be requested.
(2) Activity Reports. Activity reports describe all activity
on the project, regardless of whether substantial progress has been
made toward completion of the project. If payment is based on the
number of completed transactions, these activities must be
specifically set out in the report.";
On page 14, after subsection 7.13, by inserting the following:
"7.14. Inspection.
17.14.1. The agency shall inspect all materials, supplies,
and equipment upon delivery to insure compliance with the contract
requirements and specifications.
17.14.2. The agency shall report any discrepancies to the
Director immediately.
17.14.3. If unlisted shortages are discovered, the vendor and
the Director must be notified immediately.
17.14.4. A contractor may be required to pick up any
merchandise not conforming to specifications and replace the
merchandise immediately.
7.15. Substitutions.
Substitution of items called for in a contract is not
permitted without the Director's prior approval. The Director will
not approve substitution of items unless the substituted items are of equal quality and are offered at the same or lower price.
7.16. Cancellations.
7.16.1. The director may cancel a purchase or contract under
any one of the following conditions including, but not limited to:
(a) The vendor agrees to the cancellation;
(b) The vendor has obtained the contract by fraud, collusion,
conspiracy, or in conflict with any statutory or constitutional
provision of the state of West Virginia;
(c) Failure to conform to contract requirements or standard
commercial practices;
(d) The existence of an organizational conflict of interest is
identified; or
(e) Funds are not appropriated or an appropriation is
discontinued by the legislature for the acquisition.
17.16.2. Notwithstanding other provisions of this
subdivision, the Director may cancel a purchase or contract for any
reason or for no reason, upon 30 days' notice to the vendor.
7.17. Damages.
7.17.1. A vendor who fails to perform as required under a
contract shall be liable for actual damages and costs incurred by
the state.
17.17.2. If any merchandise delivered under a contract has
been used or consumed by an agency and on testing is found not to
comply with specifications, no payment may be approved by the
Director for the merchandise until the amount of actual damages
incurred has been determined.
17.17.3. The Director shall seek to collect damages by
following the procedures established by the Office of the Attorney
General for the collection of delinquent obligations."; and
On page 17, section §148-1-11, after subsection 11.1, by
striking out subsections 11.2, 11.3, 11.4 and 11.5 in their
entirety and inserting in lieu thereof the following:
"11.2. The state spending unit for surplus property may
contract with one or more nationally recognized commercial Internet
auction sites to coordinate sales of surplus property, pursuant to
the provisions of §5A-3-45 of the West Virginia Code and this rule.
11.3. To ensure that organizations eligible under Federal
Property Management Regulations (41 CFR Chapter 101) have priority
in obtaining surplus property, all surplus property will be listed
on the West Virginia State Agency for Surplus Property website for
at least five (5) working days prior to being made available on an
Internet auction site."
.
(b) The legislative rule filed in the state register on the
eleventh day of July, two thousand six, authorized under the
authority of section forty-five, article three, chapter five-a, of
this code, modified by the Department of Administration to meet the
objections of the legislative rule-making review committee and
refiled in the state register on the sixteenth day of August, two
thousand six, relating to the Department of Administration
(cannibalization of state property, 148 CSR 16), is authorized,
with the following amendment:
On pages one and two, by striking out section four in its entirety and renumbering the remaining section accordingly;
On page two, section five, by inserting a new subsection to
read as follows:
"4.1. State assets shall be disposed of exclusively through
the state agency for surplus property.";
On page two, section five, by redesignating subsections 5.1.
through 5.6. as subsections 4.2. through 4.7.;
On page two, subdivisions 5.1.a. through 5.1.c., by inserting
the word "The" before the word "commodity";
On page two, subdivision 5.1.d., by inserting the word "A"
before the word "description";
On page two, subdivision 5.1.e., by capitalizing the word
"whether"; after the word "If", by inserting the word "the"; and by
striking out the words "why the agency is" and inserting in lieu
thereof the word "for";
On page two, subdivision 5.1.f., by capitalizing the word
"how";
On page two, subdivision 5.1.g., lines one and two, by
capitalizing the word "who" and, after the word "document", by
inserting a comma and the words "signed by the spending officer,";
On page two, subdivision 5.1.g., line three, by striking out
the words "which will identify" and inserting in lieu thereof the
word "identifying";
On page two, subdivision 5.1.g., line five, by striking out
the words "qualification. This document must be signed by the
spending officer." and inserting in lieu thereof the word "qualifications";
On pages two and three, by striking out subsection 5.2. in its
entirety and by inserting in lieu thereof the following:
"4.2.a. If the agency plans to use the cannibalized parts
immediately, it must provide the following additional information:
4.2.a.1. Whether the part restores the commodity to an
operable condition;
4.2.a.2. If the part does not restore the property to an
operable condition, additional justification for the initial
cannibalization, along with the additional steps required to
restore the property to an operable condition; and
4.2.a.3. The cost of the parts and labor to restore the
commodity to an operable condition without cannibalization.
4.2.b. The agency must properly retire an inoperable part
being replaced to the state agency for surplus property using the
authorized means of disposal outlined in W. Va. Code §5A-3-45.
4.2.c. The Director shall make a comparison of the current
value of the asset being cannibalized, the value of the property
being repaired and the cost to repair the item without
cannibalization. The Director will not authorize cannibalization
unless the value of the repaired asset exceeds the value of the
asset to be cannibalized, along with the cost of the
cannibalization/repair process."
On page three, subsection 5.3., lines one and two, after the
word "use", by inserting a comma and the words "it must submit
written"; after the word "justification" by striking out the words "must be submitted"; after the word "to" by striking out the words
"and approved by"; and, after the word "property" by inserting the
words "for approval";
On page three, subsection 5.3. by striking out "5.3.a." and by
redesignating paragraphs 5.3.a.1. through 5.3.a.4 as subdivisions
4.3.a. through 4.3.d.;
On page three, paragraph 5.3.a.1., by striking out the words
"the potential" and inserting in lieu thereof the word "The";
On page three, paragraph 5.3.a.2. by capitalizing the word
"the" at the beginning of the paragraph;
On page three, paragraph 5.3.a.3. by capitalizing the word
"the" at the beginning of the paragraph and, after the word
"stored;", by inserting the word "and";
On page three, paragraph 5.3.a.2. by capitalizing the word
"the" at the beginning of the paragraph;
On page three, subsection 5.5., lines one and two, by striking
out the words "make determination' and inserting in lieu thereof
the word "determine" and by capitalizing the word "state";
On page three, paragraph 5.5.a. by striking out the word "The"
and inserting in lieu thereof the words "Does the" and, after the
word "cannibalized", by inserting a question mark;
On page three, paragraph 5.5.b. by striking out the words
"There is" and inserting in lieu thereof the words "Is there" and,
after the word "form;", by inserting "?; and";
On page three, paragraph 5.5.c., by striking out the word
"The" and inserting in lieu thereof the words "Does the"; by striking out the words "does not"; by capitalizing the word
"state"; by striking out the word "non-used" and inserting in lieu
thereof the word "unused"; and, after the word "components" by
changing the period to a question mark;
And,
On page three, section 5.6, line one, after the words "review
the" by inserting the word "agency".
(c) The legislative rule filed in the state register on the
eleventh day of July, two thousand six, authorized under the
authority of section forty-five, article three, chapter five-a, of
this code, modified by the Department of Administration to meet the
objections of the legislative rule-making review committee and
refiled in the state register on the sixteenth day of August, two
thousand six, relating to the Department of Administration (waste
disposal of state property, 148 CSR 17), is authorized.
(d) The legislative rule filed in the state register on the
twenty-sixth day of July, two thousand six, authorized under the
authority of section fourteen, article four, chapter twelve, of
this code, modified by the Department of Administration to meet the
objections of the legislative rule-making review committee and
refiled in the state register on the twentieth day of November, two
thousand six, relating to the Department of Administration
(administration of state funds and grants, 148 CSR 18), is
authorized.
§64-2-2. Consolidated Public Retirement Board.
(a) The legislative rule filed in the state register on the twelfth day of July, two thousand six, authorized under the
authority of section one, article ten-D, chapter five, of this
code, modified by the Consolidated Public Retirement Board to meet
the objections of the legislative rule-making review committee and
refiled in the state register on the nineteenth day of September,
two thousand six, relating to the Consolidated Public Retirement
Board (deputy sheriff retirement system, 162 CSR 10), is
authorized.
(b) The legislative rule filed in the state register on the
twelfth day of July, two thousand six, authorized under the
authority of section one, article ten-D, chapter five, of this
code, relating to the Consolidated Public Retirement Board
(teachers' defined contributions system, 162 CSR 3), is authorized.
(c) The legislative rule filed in the state register on the
twelfth day of July, two thousand six, authorized under the
authority of section one, article ten-D, chapter five, of this
code, relating to the Consolidated Public Retirement Board
(teachers' retirement system, 162 CSR 4), is authorized.
(d) The legislative rule filed in the state register on the
twelfth day of July, two thousand six, authorized under the
authority of section one, article ten-D, chapter five, of this
code, modified by the Consolidated Public Retirement Board to meet
the objections of the legislative rule-making review committee and
refiled in the state register on the nineteenth day of September,
two thousand six, relating to the Consolidated Public Retirement
Board (public employees retirement system, 162 CSR 5), is authorized.
(e) The legislative rule filed in the state register on the
twelfth day of July, two thousand six, authorized under the
authority of section one, article ten-D, chapter five, of this
code, modified by the Consolidated Public Retirement Board to meet
the objections of the legislative rule-making review committee and
refiled in the state register on the nineteenth day of September,
two thousand six, relating to the Consolidated Public Retirement
Board (Refund, reinstatement and loan interest factors, 162 CSR
7), is authorized.
§64-2-3. Division of Personnel.
(a) The legislative rule filed in the state register on the
twenty-first day of July, two thousand six, authorized under the
authority of section ten, article six, chapter twenty-nine, of this
code, modified by the Division of Personnel to meet the objections
of the legislative rule-making review committee and refiled in the
state register on the thirtieth day of November, two thousand six,
relating to the Division of Personnel (administrative rule of the
West Virginia Division of Personnel, 143 CSR 1), is authorized
with
the following amendment:
On page seven, subsection 3.88, following the words "not to
exceed", by striking out the number "1,000" and inserting in lieu
thereof the number "720";
On page twenty-one, subsection 9.4, following the words "not
to exceed", by striking out the number "1,000" and inserting in
lieu thereof the number "720";
And,
On page twenty-two, subsection 9.5, by striking subsection (e)
in its entirety, and by redesignating the remaining subsections
accordingly.
(b) The legislative rule filed in the state register on the
twenty-first day of July, two thousand six, authorized under the
authority of section one, article four, chapter twenty-three, of
this code, relating to the Division of Personnel (workers'
compensation temporary total disability, 143 CSR 3), is authorized.
(c) The legislative rule filed in the state register on the
seventeenth day of February, two thousand six, authorized under the
authority of section two, article two, chapter five-F, of this
code, modified by the Division of Personnel to meet the objections
of the legislative rule-making review committee and refiled in the
state register on the twenty-first day of November, two thousand
six, relating to the Division of Personnel (interdepartmental
transfer of permanent state employees, 143 CSR 7), is authorized.
§64-2-4. Board of Risk and Insurance Management.
The legislative rule filed in the state register on the
twenty-first day of July, two thousand six, authorized under the
authority of section fifteen, article thirty, chapter thirty-three,
of this code, modified by the Board of Risk and Insurance
Management to meet the objections of the legislative rule-making
review committee and refiled in the state register on the third day
of November, two thousand six, relating to the Board of Risk and
Insurance Management (mine subsidence insurance, 115 CSR 1), is authorized.