ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 4031
(By Mr. Speaker, (Mr. Kiss), and Delegate Trump)
[By Request of the Executive]
[Passed March 10, 2006; in effect ninety days from passage.]
AN ACT to repeal §5A-3-33a of the Code of West Virginia, 1931, as
amended; to amend and reenact §5A-1-1 of said code; to amend
and reenact §5A-3-4, §5A-3-5, §5A-3-10, §5A-3-10a, §5A-3-11,
§5A-3-19, §5A-3-33d and §5A-3-45 of said code; to amend said
code by adding thereto six new sections, designated §5A-3-9a,
§5A-3-10b, §5A-3-10c, §5A-3-11a, §5A-3-11b and §5A-3-11c; and
to amend and reenact §5A-3C-11 of said code, all relating to
the Purchasing Division of the Department of Administration;
providing for the powers and duties of the director; defining
certain terms; providing for the director to promulgate
legislative rules on contract management procedures, division
procedures for oversight of contract management, cancellation
of contracts and selling surplus commodities by means of an
internet auction site; increasing the annual vendor fee;
establishing a fund for fees; providing for specification
standards to include cost of maintenance and expected life of commodities; increasing the minimum contract amount requiring
competitive bids; providing for competitive bids to be opened
publicly; providing requirements for competitive bids;
requiring spending units to report multiple contract awards to
a single vendor; authorizing the director to conduct
compliance reviews of spending units; providing for bids by
electronic transmission; providing for bid solicitation
requirements; modifying prohibition against awarding contracts
to debtors of state; providing for best value procurement;
providing for sole source procurement; providing requirements
for open market purchases; increasing the maximum amount of
purchases which may be made in the open market; providing
requirements for contract awards; providing requirements for
the delivery of bids to the Purchasing Division; deleting the
requirements for duplicate bids; authorizing the director to
engage in negotiations and discussions with responsible
bidders and to obtain best and final offers; providing for
contract awards to multiple vendors; authorizing the director
to participate in, sponsor, conduct or administer cooperative
purchasing agreements or consortia; providing grounds for
debarment of vendors; providing for the disposition of surplus
state property by means of an internet auction site; and
providing that contracts executed pursuant to the
Pharmaceutical Availability and Affordability Act of 2004 are
not subject to state purchasing requirements.
Be it enacted by the Legislature of West Virginia:
That §5A-3-33a of the Code of West Virginia, 1931, as amended,
be repealed; that §5A-1-1 of said code be amended and reenacted;
that §5A-3-4, §5A-3-5, §5A-3-10, §5A-3-10a, §5A-3-11, §5A-3-19,
§5A-3-33d and §5A-3-45 of said code be amended and reenacted; that
said code be amended by adding thereto six new sections, designated
§5A-3-9a, §5A-3-10b, §5A-3-10c, §5A-3-11a, §5A-3-11b and §5A-3-11c;
and that §5A-3C-11 of said code be amended and reenacted, all to
read as follows:
ARTICLE 1. DEPARTMENT OF ADMINISTRATION.
§5A-1-1. Definitions.
For the purpose of this chapter:
(1) "Commodities" means supplies, material, equipment,
contractual services, and any other articles or things used by or
furnished to a department, agency or institution of State Government.
(2) "Contractual services" means telephone, telegraph,
electric light and power, water and similar services.
(3) "Debarment" means the exclusion of a vendor from the right
to bid on contracts to sell goods or supply services to the state
or its subdivisions for a specified period of time.
(4) "Director" means the director of the division referred to
in the heading of the article in which the word appears.
(5) "Electronic" means electrical, digital, magnetic, optical,
electromagnetic, or any other similar technology.
(6) "Electronic transmission" or "electronically transmitted"
means any process of communication not directly involving the
physical transfer of paper that is suitable for the retention,
retrieval and reproduction of information by the recipient.
(7) "Expendable commodities" means those commodities which,
when used in the ordinary course of business, will become consumed
or of no market value within the period of one year or less.
(8) "Nonprofit workshops" means an establishment: (a) Where
any manufacture or handiwork is carried on; (b) which is operated
either by a public agency or by a cooperative or by a nonprofit
private corporation or nonprofit association, in which no part of
the net earnings thereof inures, or may lawfully inure, to the
benefit of any private shareholder or individual; (c) which is
operated for the primary purpose of providing remunerative
employment to blind or severely disabled persons who cannot be
absorbed into the competitive labor market; and (d) which shall be
approved, as evidenced by a certificate of approval, by the State
Board of Vocational Education, Division of Vocational
Rehabilitation.
(9) "Printing" means printing, binding, ruling, lithographing,
engraving and other similar services.
(10) "Record" means information that is inscribed on a read-
only tangible medium or that is stored in an electronic or other
medium and is retrievable in perceivable form.
(11) "Removable property" means any personal property not
permanently affixed to or forming a part of real estate.
(12) "Request for quotations" means a solicitation for a bid
where cost is the primary factor in determining the award.
(13) "Responsible bidder" means a vendor who has the
capability to fully perform the contract requirements, and the
integrity and reliability which will assure good faith performance.
(14) "Responsive bidder" means a vendor who has submitted a
bid which conforms in all material respects to the bid
solicitation.
(15) "Secretary" means the Secretary of Administration.
(16) "Spending officer" means the executive head of a spending
unit, or a person designated by him or her.
(17) "Spending unit" means a department, agency or institution
of the State Government for which an appropriation is requested, or
to which an appropriation is made by the Legislature.
(18) "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.
(19) "Vendor" means any person or entity that is registered
with the Purchasing Division to supply the state or its
subdivisions with commodities or services and lessors of real
property.
ARTICLE 3. PURCHASING DIVISION.
§5A-3-4. Rules of director.
(a) The director shall propose rules for legislative approval
in accordance with the provisions of article three, chapter twenty-
nine-a of this code to:
(1) Authorize a spending unit to purchase specified
commodities directly and prescribe the manner in which such
purchases shall be made;
(2) Authorize, in writing, a spending unit to purchase
commodities in the open market for immediate delivery in emergencies, define such emergencies and prescribe the manner in
which such purchases shall be made and reported to the director;
and for the purposes mentioned in subdivision (1) and this
subdivision (2), the head of any spending unit, or the financial
governing board of any institution, may, with the approval of the
director, make requisitions upon the Auditor for a sum to be known
as an advance allowance account, in no case to exceed five percent
of the total of the appropriations for any such spending unit, and
the Auditor shall draw his or her warrant upon the Treasurer for
such accounts; and all such advance allowance accounts shall be
accounted for by the head of the spending unit or institution once
every thirty days or more frequently if required by the State
Auditor or director;
(3) Prescribe the manner in which commodities shall be
purchased, delivered, stored and distributed;
(4) Prescribe the time for making requisitions and estimates
of commodities, the future period which they are to cover, the form
in which they shall be submitted and the manner of their
authentication;
(5) Prescribe the manner of inspecting all deliveries of
commodities, and making chemical and physical tests of samples
submitted with bids and samples of deliveries to determine
compliance with specifications;
(6) Prescribe the amount of deposit or bond to be submitted
with a bid or contract and the amount of deposit or bond to be
given for the faithful performance of a contract;
(7) Prescribe a system whereby the director shall be required,
upon the payment by a vendor of an annual fee established by the
director, to give notice to such vendor of all bid solicitations
for commodities of the type with respect to which such vendor
specified notice was to be given, but no such fee shall exceed the
cost of giving the notice to such vendor, nor shall such fee exceed
the sum of one hundred twenty-five dollars per fiscal year nor
shall such fee be charged to persons seeking only reimbursement
from a spending unit;
(8) Prescribe that each state contract entered into by the
Purchasing Division shall contain provisions for liquidated
damages, remedies, or provisions for the determination of the
amount or amounts which the vendor shall owe as damages, in the
event of default under such contract by such vendor;
(9) Prescribe contract management procedures for all state
contracts except government construction contracts including but
not limited to those set forth in article twenty-two, chapter five
of this code;
(10) Prescribe procedures by which oversight is provided to
actively monitor spending unit purchases, including but not limited
to, all technology and software commodities and contractual
services exceeding one million dollars, approval of change orders
and final acceptance by the spending units.
(11) Prescribe that each state contract entered into by the
purchasing division contain provisions for cancellation of the
contract upon thirty days' notice to the vendor;
(12) Prescribe procedures for selling surplus commodities to
the highest bidder by means of an internet auction site; and
(13) Provide for such other matters as may be necessary to
give effect to the foregoing rules and the provisions of this
article.
(b) The director shall propose rules for legislative approval
in accordance with the provisions of article three, chapter twenty-
nine-a of this code to prescribe qualifications to be met by any
person who on and after the effective date of this section is to be
employed in the Purchasing Division as a state buyer. The rules
must provide that a person may not be employed as a state buyer
unless he or she at the time of employment either is: (1) A
graduate of an accredited college or university; or (2) has at
least four years' experience in purchasing for any unit of
government or for any business, commercial or industrial
enterprise. Persons serving as state buyers are subject to the
provisions of article six, chapter twenty-nine of this code.
§5A-3-5. Purchasing section standard specifications -
Promulgation and adoption by director; applicable to
all purchases.
The director shall promulgate and adopt standard
specifications based on scientific and technical data for
appropriate commodities, which shall establish the quality to which
commodities to be purchased and services to be contracted for by
the state must conform. Standard specifications shall apply to every future purchase of or contract for the commodities described
in the specifications and shall include information relating to the
cost of maintenance and expected life of the commodity if the
director determines there are nationally accepted industry
standards for the commodity. No purchases by any spending unit may
be exempt from compliance with the standard specifications so
established, but the director may exempt the purchase of particular
items from the standard specifications if it is considered
necessary and advisable. The director shall update the standard
specifications, as necessary.
§5A-3-9a. Creation of a Fund.
The "Vendor Registration Payment Fund" is hereby redesignated
and continued as the "Vendor Fee Fund," and the balance remaining
upon the effective date of this section shall remain upon
redesignation. Moneys deposited in this fund shall be administered
by the purchasing division and used for the purposes established
in this article. Expenditures are to be made only in accordance
with appropriation by the Legislature and in accordance with the
provisions of article three, chapter twelve of this code and upon
the fulfillment of the provisions of article two, chapter eleven-b
of this code:
Provided, That for the fiscal year beginning the
first day of July, two thousand six, expenditures are authorized
from deposits rather than pursuant to appropriations by the
Legislature.
Amounts collected which are found from time to time to exceed the
funds needed for purposes set forth in this article may be transferred to other accounts or funds and used for other purposes
by appropriation of the Legislature.
§5A-3-10. Competitive bids; publication of solicitations for
sealed bids; purchase of products of nonprofit
workshops; employee to assist in dealings with
nonprofit workshops.
(a) A purchase of and contract for commodities, printing and
services shall be based, whenever possible, on competitive bids.
(b) The director shall solicit sealed bids for the purchase of
commodities and printing which is estimated to exceed twenty-five
thousand dollars. No spending unit shall issue a series of
requisitions or divide or plan procurements to circumvent this
twenty-five thousand dollar threshold or otherwise avoid the use of
sealed bids. Any spending unit which awards multiple contracts for
the same or similar commodity or service to an individual vendor
over any twelve-month period, the total value of which exceeds
twenty-five thousand dollars, shall file copies of all contracts
awarded to the vendor within the twelve preceding months with the
director immediately upon exceeding the twenty-five thousand dollar
limit, along with a statement explaining how the multiple contract
awards do not circumvent the twenty-five thousand dollar threshold.
If the spending unit does not immediately report to the director,
the director may suspend the purchasing authority of the spending
unit until the spending unit complies with the reporting
requirement of this subsection. The director may conduct a review of any spending unit to ensure compliance with this subsection.
Following a review, the director shall complete a report
summarizing his or her findings and forward the report to the
spending unit. In addition, the director shall report to the Joint
Committee on government and finance on the first day of January and
July of each year the spending units which have reported under this
subsection and the findings of the director.
(c) The director may permit bids by electronic transmission to
be accepted in lieu of sealed bids.
(d)Bids shall be solicited by public notice. The notice may be
published by any advertising medium the director deems advisable.
The director may also solicit sealed bids by sending requests by
mail or electronic transmission to prospective vendors.
(e) The director shall, without competitive bidding, purchase
commodities and services produced and offered for sale by nonprofit
workshops, as defined in section one, article one of this chapter,
which are located in this state:
Provided, That such commodities
and services shall be of a fair market price and of like quality
comparable to other commodities and services otherwise available as
determined by the director with the advice of the committee on the
purchase of commodities and services from the handicapped.
To encourage contracts for commodities and services with
nonprofit workshops, the director shall employ a person whose
responsibilities in addition to other duties shall be to identify
all commodities and services available for purchase from nonprofit
workshops, to evaluate the need of the state for commodities and services to coordinate the various nonprofit workshops in their
production efforts and to make available to such workshops
information about available opportunities within state government
for purchase of commodities or services which might be produced and
sold by such workshops. Funds to employ such a person shall be
included annually in the budget.
§5A-3-10a. Prohibition for awarding contracts to vendors which
owe a debt to the state or its political
subdivisions.
(a) Unless the context clearly requires a different meaning,
for the purposes of this section, the terms:
(1) "Debt" means any assessment, premium, penalty, fine, tax
or other amount of money owed to the state or any of its political
subdivisions because of a judgment, fine, permit violation, license
assessment, amounts owed to the workers' compensation funds as
defined in article two-c of chapter twenty-three of this code,
penalty or other assessment or surcharge presently delinquent or
due and required to be paid to the state or any of its political
subdivisions, including any interest or additional penalties
accrued thereon.
(2) "Debtor" means any individual, corporation, partnership,
association, limited liability company or any other form or
business association owing a debt to the state or any of its
political subdivisions.
(3) "Political subdivision" means any county commission; municipality; county board of education; any instrumentality
established by a county or municipality; any separate corporation
or instrumentality established by one or more counties or
municipalities, as permitted by law; or any public body charged by
law with the performance of a government function and whose
jurisdiction is coextensive with one or more counties or
municipalities.
(4) "Related party" means a party, whether an individual,
corporation, partnership, association, limited liability company or
any other form or business association or other entity whatsoever,
related to any vendor by blood, marriage, ownership or contract
through which the party has a relationship of ownership or other
interest with the vendor so that the party will actually or by
effect receive or control a portion of the benefit, profit or other
consideration from performance of a vendor contract with the party
receiving an amount that meets or exceeds five percent of the total
contract amount.
(b) No contract or renewal of any contract may be awarded by
the state or any of its political subdivisions to any vendor or
prospective vendor when the vendor or prospective vendor or a
related party to the vendor or prospective vendor is a debtor and
the debt owed is an amount greater than one thousand dollars in the
aggregate.
(c) The prohibition of this section does not apply where a
vendor has contested any tax administered pursuant to chapter
eleven of this code, amount owed to the workers' compensation funds as defined in article two-c of chapter twenty-three of this code,
permit fee or environmental fee or assessment and the matter has
not become final or where the vendor has entered into a payment
plan or agreement and the vendor is not in default of any of the
provisions of such plan or agreement.
(d) All bids, contract proposals or contracts with the state
or any of its political subdivisions submitted or approved under
the provisions of this code shall include an affidavit that the
vendor, prospective vendor or a related party to the vendor or
prospective vendor does not owe any debt in an amount in excess of
one thousand dollars or, if a debt is owed, that the provisions of
subsection (c) of this section apply.
§5A-3-10b. Best value procurement.
(a) The Director may utilize best value procurement to enter
into a contract when he or she determines in writing that it is
advantageous to the state.
(b) A solicitation for bids under best value procurement shall
be made in the same manner as provided in section ten of this
article.
(c) Best value procurement awards shall be based on criteria
set forth in the solicitation including, but not limited to, price,
the total cost of acquiring, operating, maintaining and supporting
a commodity or service over its projected lifetime, the evaluated
technical merit of the bidder's bid or proposal, the bidder's past
performance, and the evaluated probability of performing the
requirements stated in the solicitation on time, with high quality, and in a manner that accomplishes the business objectives set forth
in the solicitation.
(d) The award must be made to the highest scoring responsive
and responsible bidder whose bid is determined, in writing, to be
most advantageous to the state, taking into consideration all
evaluation factors set forth in the best value solicitation.
(e) The Director may not use best value procurement to enter
into government construction contracts, including but not limited
to those set forth in article twenty-two, chapter five of this
code.
§5A-3-10c. Sole source procurement.
The director may award a contract without advertisement or
competition if he or she determines in writing that there is only
one source for the required commodity or service. The director may
require the submission of cost or pricing data in connection with
an award under this section. Prior to an award under this section,
the spending unit requesting the procurement shall provide written
documentation to the director setting forth the basis for the sole
source procurement and the specific efforts made to determine the
availability of other sources. Prior to a final determination by
the director, the registered vendors will be notified of the
commodity or service being sought and the vendors will be provided
an opportunity to indicate an interest in bidding on such a
commodity or service, to establish whether the commodity or service
is, in fact, available only from a sole source. On an annual
basis, the director shall report the spending units who have determined a sole source for their commodities or services, the
type of commodity or service and the determination made by the
director.
§5A-3-11. Purchasing in open market on competitive bids;
debarment; bids to be based on standard
specifications; period for alteration or withdrawal
of bids; awards to lowest responsible bidder;
uniform bids; record of bids; requirements of
vendors to pay taxes, fees and debts; and
exception.
(a) The director may make a purchase of commodities,
printing,and services of twenty-five thousand dollars or less in
amount in the open market, but the purchase shall, wherever
possible, be based on at least three competitive bids, and shall
include the cost of maintenance and expected life of the
commodities if the director determines there are nationally
accepted industry standards for the commodities being purchased.
(b) The director may authorize spending units to purchase
commodities, printing and services in the amount of two thousand
five hundred dollars or less in the open market without competitive
bids:
Provided, That the cost of maintenance and expected life of
the commodities must be taken into consideration if the director
determines there are nationally accepted industry standards for the
commodities being.
(c) Bids shall be based on the standard specifications promulgated and adopted in accordance with the provisions of
section five of this article and may not be altered or withdrawn
after the appointed hour for the opening of the bids.
(d) A vendor who has been debarred pursuant to the provisions
of sections thirty-three-a through thirty-three-f, article three,
chapter five-a of this code, may not bid on or be awarded a
contract under this section.
(e) All open market orders, purchases based on advertised bid
requests or contracts made by the director or by a state department
shall be awarded to the lowest responsible bidder or bidders,
taking into consideration the qualities of the commodities or
services to be supplied, their conformity with specifications,
their suitability to the requirements of the government, the
delivery terms and, if the director determines there are nationally
accepted industry standards, cost of maintenance and the expected
life of the commodities :
Provided, That state bids on school
buses shall be accepted from all bidders who shall then be awarded
contracts if they meet the state board's "Minimum Standards for
Design and Equipment of School Buses." County boards of education
may select from those bidders who have been awarded contracts and
shall pay the difference between the state aid formula amount and
the actual cost of bus replacement. Any or all bids may be
rejected.
(f) If all bids received on a pending contract are for the
same unit price or total amount, the director has the authority to
reject all bids, and to purchase the required commodities, printing and services in the open market, if the price paid in the open
market does not exceed the bid prices.
(g)
The bid must be received by the Purchasing Division prior to
the specified date and time of the bid opening. The failure to
deliver or the nonreceipt of the bid by the Purchasing Division
prior to the appointed date and hour shall result in the rejection
of the bid. The vendor is solely responsible for the receipt of
bid by the Purchasing Division prior to the appointed date and hour
of the bid opening. All bids will be opened publicly by two or
more persons from the Purchasing Division. Vendors will be given
notice of the day, time and place of the public bid opening. Bids
may be viewed immediately after being opened.
(h) After the award of the order or contract, the director, or
someone appointed by him or her for that purpose, shall indicate
upon the successful bid that it was the successful bid.
Thereafter, the copy of each bid in the possession of the director
shall be maintained as a public record, shall be open to public
inspection in the office of the director and may not be destroyed
without the written consent of the Legislative Auditor.
§5A-3-11a. Negotiation when all bids exceed available funds.
(a) Spending units shall include the maximum budgeted amount
available for each purchase in a requisition submitted to the
Purchasing division, No person may disclose this maximum budgeted
amount to any vendor prior to the award of a contract. If all bids submitted pursuant to a solicitation exceed the funds available for
the purchase, and the director determines in writing that there are
no additional funds available from any source to permit an award to
the responsive and responsible bidder and the best interest of the
state will not permit the delay attendant to a resolicitation under
revised specifications or for revised quantities, then a negotiated
award may be made as set forth in this section.
(1) If the director determines in writing that there is only
one responsive and responsible bidder, he or she may negotiate the
price for a noncompetitive award or the specifications for a
noncompetitive award based solely on the original purpose of the
solicitation.
(2) If the Purchasing Division solicits bids with a request
for quotation and there is more than one bidder, the director may
negotiate with bidders determined in writing to be responsive and
responsible, based on criteria contained in the bid invitation:
Provided, That the Director must negotiate first with the lowest
bidder. If the Director does not award the bid to the lowest
bidder, he or she may close negotiations with that bidder and enter
into negotiations with the next lowest bidder, and may continue to
do so in like manner with the remaining responsive and responsible
bidders. The director may not extend an offer to any bidder that
is not first extended to the prior bidders in order of rank.
(3) If the Purchasing Division solicits bids utilizing a best
value procurement, as set forth in section ten-b of this section,
and there is more than one bidder, the director may negotiate with bidders determined in writing to be responsive and responsible,
based on criteria contained in the bid invitation:
Provided, That
the Director must negotiate first with the highest scoring bidder.
If the Director does not award the bid to the highest scoring
bidder, he or she may close negotiations with that bidder and enter
into negotiations with the next highest scoring bidder, and may
continue to do so in like manner with the remaining responsive and
responsible bidders. The director may not extend an offer to any
bidder that is not first extended to the prior bidders in order of
rank.
(b) After negotiations occur pursuant to subsection(a) of this
section, if the director determines that more than fifteen percent
of the value of the bid must be renegotiated by revising the
specifications of the original solicitation, only a resolicitation
may be initiated or the solicitation may be withdrawn.
(c) The Director may not renegotiate with any bidder after
closing negotiations with that bidder and entering into
negotiations with the next bidder.
§5A-3-11b. Discussion and final offers.
(a) As provided in the bid solicitation, the director may
conduct discussions with, and obtain best and final offers from,
responsive and responsible bidders who submit proposals determined
to be reasonably susceptible of being selected for award for the
purpose of clarification to assure full understanding of, and
responsiveness to, the solicitation requirements. Bidders must be
accorded fair and equal treatment with respect to any opportunity for discussion and revision of proposals, and revisions may be
permitted after submissions and prior to award for the purpose of
obtaining best and final offers. In conducting discussions, there
may be no disclosure of any information derived from proposals
submitted by competing bidders.
(b) The following contracts are exempt from this section:
(1) Government construction contracts, including but not
limited to those set forth in article twenty-two, chapter five of
this code; and,
(2) The purchase of supplies and material.
§5A-3-11c. Multiple awards.
The director may elect to award a contract to one or more
responsive and responsible bidders if the director determines in
writing that a single award to an individual bidder would be
insufficient:
Provided, That the basis for the selection among
multiple contracts at the time of purchase shall be the most
practical and economical alternative and shall be in the best
interests of the state.
§5A-3-19. Purchases from federal government and other sources.
(a) Notwithstanding any other provision of this article, the
director may, upon the recommendation of a state spending unit,
participate in, sponsor, conduct, or administer a cooperative
purchasing agreement or consortium for the purchase of commodities
or services with agencies of the federal government, agencies of
other states, other public bodies or other state agencies, if
available and financially advantageous. At the discretion of the
director, bids may be solicited to determine whether participation in such a cooperative purchasing agreement or consortium is
financially advantageous.
(b) The Department of Administration may approve
administrative fees, not to exceed the amount of fifty thousand
dollars, necessary to participate in a cooperative purchasing
agreement. Fees which exceed fifty thousand dollars are subject to
the competitive bid requirements of this article.
§5A-3-33d. Grounds for debarment.
Grounds for debarment are:
(1) Conviction of an offense involving fraud or a felony
offense in connection with obtaining or attempting to obtain a
public contract or subcontract;
(2) Conviction of any federal or state antitrust statute
relating to the submission of offers;
(3) Conviction of an offense involving embezzlement, theft,
forgery, bribery, falsification or destruction of records, making
false statements or receiving stolen property in connection with
the performance of a contract;
(4) Conviction of a felony offense demonstrating a lack of
business integrity or business honesty that affects the present
responsibility of the vendor or subcontractor;
(5) Default on obligations owed to the state, including, but
not limited to, obligations owed to the workers' compensation
funds, as defined in article two-c of chapter twenty-three of this
code, and obligations under the West Virginia Unemployment
Compensation Act and West Virginia state tax and revenue laws. For
purposes of this subsection, a vendor is in default when, after due notice, the vendor fails to submit a required payment, interest
thereon or penalty, and has not entered into a repayment agreement
with the appropriate agency of the state or has entered into a
repayment agreement but does not remain in compliance with its
obligations under the repayment agreement. In the case of a vendor
granted protection by order of a federal bankruptcy court or a
vendor granted an exemption under any rule of the bureau of
employment programs or the Insurance Commission, the director may
waive debarment under section thirty-three-f of this article:
Provided, That in no event may debarment be waived with respect to
any vendor who has not paid all current state obligations for at
least the four most recent calendar quarters, excluding the current
calendar quarter, or with respect to any vendor who is in default
on a repayment agreement with an agency of the state;
(6) The vendor is not in good standing with a licensing board,
in that the vendor is not licensed when licensure is required by
the law of this state, or the vendor has been found to be in
violation of an applicable licensing law after notice, opportunity
to be heard and other due process required by law;
(7) The vendor is an active and knowing participant in
dividing or planning procurements to circumvent the twenty-five
thousand dollar threshold requiring a sealed bid or otherwise avoid
the use of a sealed bid: or
(8) Violation of the terms of a public contract or subcontract
for:
(A) Willful failure to substantially perform in accordance
with the terms of one or more public contracts;
(B) Performance in violation of standards established by law
or generally accepted standards of the trade or profession
amounting to intentionally deficient or grossly negligent
performance on one or more public contracts;
(C) Use of substandard materials on one or more public
contracts or defects in construction in one or more public
construction projects amounting to intentionally deficient or
grossly negligent performance, even if discovery of the defect is
subsequent to acceptance of a construction project and expiration
of any warranty thereunder;
(D) A repeated pattern or practice of failure to perform so
serious and compelling as to justify debarment; or
(E) Any other cause of a serious and compelling nature
amounting to knowing and willful misconduct of the vendor that
demonstrates a wanton indifference to the interests of the public
and that caused, or that had a substantial likelihood of causing,
serious harm to the public.
§5A-3-45. Disposition of surplus state property; semiannual
report; application of proceeds from sale.
(a) The state agency for surplus property has the exclusive
power and authority to make disposition of commodities or
expendable commodities now owned or in the future acquired by the
state when the commodities are or become obsolete or unusable or
are not being used or should be replaced.
(b) The agency shall determine what commodities or expendable
commodities should be disposed of and make disposition in the
manner which will be most advantageous to the state. The disposition may include:
(1) Transferring the particular commodities or expendable
commodities between departments;
(2) Selling the commodities to county commissions, county
boards of education, municipalities, public service districts,
county building commissions, airport authorities, parks and
recreation commissions, nonprofit domestic corporations qualified
as tax exempt under Section 501(c)(3) of the Internal Revenue Code
of 1986, as amended, or volunteer fire departments in this state
when the volunteer fire departments have been held exempt from
taxation under Section 501(c) of the Internal Revenue Code;
(3) Trading in the commodities as a part payment on the
purchase of new commodities;
(4) Cannibalizing the commodities pursuant to procedures
established under subsection (g) of this section;
(5) Properly disposing of the commodities as waste; or
(6) Selling the commodities to the highest bidder by means of
public auctions or sealed bids, after having first advertised the
time, terms and place of the sale as a Class II legal advertisement
in compliance with the provisions of article three, chapter
fifty-nine of this code. The publication area for the publication
is the county in which the sale is to be conducted. The sale may
also be advertised in other advertising media that the agency
considers advisable. The agency may sell to the highest bidder or
to any one or more of the highest bidders, if there is more than
one, or, if the best interest of the state will be served, reject
all bids.
(7) Selling the commodities to the highest bidder by means of
an internet auction site approved by the director, as set forth in
an emergency rule pursuant to the provisions of chapter
twenty-nine-a of this code.
(c) Upon the transfer of commodities or expendable commodities
between departments, or upon the sale of commodities or expendable
commodities to an eligible organization, the agency shall set the
price to be paid by the receiving eligible organization, with due
consideration given to current market prices.
(d) The agency may sell expendable, obsolete or unused motor
vehicles owned by the state to an eligible organization, other than
volunteer fire departments. In addition, the agency may sell
expendable, obsolete or unused motor vehicles owned by the state
with a gross weight in excess of four thousand pounds to an
eligible volunteer fire department. The agency, with due
consideration given to current market prices, shall set the price
to be paid by the receiving eligible organization for motor
vehicles sold pursuant to this provision:
Provided, That the sale
price of any motor vehicle sold to an eligible organization may not
be less than the "average loan" value, as published in the most
recent available eastern edition of the National Automobile
Dealer's Association (N. A. D. A.) Official Used Car Guide, if the
value is available, unless the fair market value of the vehicle is
less than the N. A. D. A. "average loan" value, in which case the
vehicle may be sold for less than the "average loan" value. The
fair market value shall be based on a thorough inspection of the
vehicle by an employee of the agency who shall consider the mileage of the vehicle and the condition of the body, engine and tires as
indicators of its fair market value. If no fair market value is
available, the agency shall set the price to be paid by the
receiving eligible organization with due consideration given to
current market prices. The duly authorized representative of the
eligible organization, for whom the motor vehicle or other similar
surplus equipment is purchased or otherwise obtained, shall cause
ownership and proper title to the motor vehicle to be vested only
in the official name of the authorized governing body for whom the
purchase or transfer was made. The ownership or title, or both,
shall remain in the possession of that governing body and be
nontransferable for a period of not less than one year from the
date of the purchase or transfer. Resale or transfer of ownership
of the motor vehicle or equipment prior to an elapsed period of one
year may be made only by reason of certified unserviceability.
(e) The agency shall report to the Legislative Auditor,
semiannually, all sales of commodities or expendable commodities
made during the preceding six months to eligible organizations.
The report shall include a description of the commodities sold, the
price paid by the eligible organization which received the
commodities and to whom each commodity was sold.
(f) The proceeds of the sales or transfers shall be deposited
in the State Treasury to the credit on a pro rata basis of the fund
or funds out of which the purchase of the particular commodities or
expendable commodities was made:
Provided, That the agency may
charge and assess fees reasonably related to the costs of care and
handling with respect to the transfer, warehousing, sale and distribution of state property disposed of or sold pursuant to the
provisions of this section.
(g)(1) For purposes of this section, "cannibalization" means
the removal of parts from one commodity to use in the creation or
repair of another commodity.
(2) The Director of the Purchasing Division shall propose for
promulgation legislative rules to establish procedures that permit
the cannibalization of a commodity when it is in the best interests
of the state. The procedures shall require the approval of the
director prior to the cannibalization of the commodity under such
circumstances as the procedures may prescribe.
(3) (A) Under circumstances prescribed by the procedures,
state agencies shall be required to submit a form, in writing or
electronically, that, at a minimum, elicits the following
information for the commodity the agency is requesting to
cannibalize:
(I) The commodity identification number;
(ii) The commodity's acquisition date;
(iii) The commodity's acquisition cost;
(iv) A description of the commodity;
(v) Whether the commodity is operable and, if so, how well it
operates;
(vi) How the agency will dispose of the remaining parts of the
commodity; and
(vii) Who will cannibalize the commodity and how the person is
qualified to remove and reinstall the parts.
(B) If the agency has immediate plans to use the cannibalized parts, the form shall elicit the following information for the
commodity or commodities that will receive the cannibalized part or
parts:
(I) The commodity identification number;
(ii) The commodity's acquisition date;
(iii) The commodity's acquisition cost;
(iv) A description of the commodity;
(v) Whether the commodity is operable;
(vi) Whether the part restores the commodity to an operable
condition; and
(vii) The cost of the parts and labor to restore the commodity
to an operable condition without cannibalization.
(C) If the agency intends to retain the cannibalized parts for
future use, it shall provide information justifying its request.
(D) The procedures shall provide for the disposal of the
residual components of cannibalized property.
(h) (1) The Director of the Purchasing Division shall propose
for promulgation legislative rules to establish procedures that
allow state agencies to dispose of commodities in a landfill, or by
other lawful means of waste disposal, if the value of the commodity
is less than the benefit that may be realized by the state by
disposing of the commodity using another method authorized in this
section. The procedures shall specify circumstances where the
state agency for surplus property shall inspect the condition of
the commodity prior to authorizing the disposal and those
circumstances when the inspection is not necessary prior to the
authorization.
(2) Whenever a state agency requests permission to dispose of
a commodity in a landfill, or by other lawful means of waste
disposal, the state agency for surplus property has the right to
take possession of the commodity and to dispose of the commodity
using any other method authorized in this section.
(3) If the state agency for surplus property determines,
within fifteen days of receiving a commodity, that disposing of the
commodity in a landfill or by other lawful means of waste disposal
would be more beneficial to the state than disposing of the
commodity using any other method authorized in this section, the
cost of the disposal is the responsibility of the agency from which
it received the commodity.
ARTICLE 3C. PHARMACEUTICAL AVAILABILITY AND AFFORDABILITY ACT OF
2004.
§5A-3C-11. Agency's management ability continued.
(a) Nothing contained in this article may be construed to
limit the ability of the various state agencies to enter into
contracts or arrangement or to otherwise to manage their pharmacy
programs until such time as the programs created or authorized
pursuant to this article are implemented.
(b) The provisions of article three, chapter five-a of this
code do not apply to the agreements and contracts executed under
the provisions of this article.