COMMITTEE SUBSTITUTE
FOR
SENATE BILL NO. 296
(By Senators Craigo, Wooton and Dittmar)
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[Originating in the Committee on Finance;
reported April 1, 1993.]
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A BILL to amend and reenact sections thirty-eight, thirty-nine,
forty and forty-one, article three, chapter five-a of the
code of West Virginia, one thousand nine hundred thirty-one,
as amended, all relating to leases of buildings, grounds,
offices or other space by the state; requiring the state to
award lease to vendor with the lowest competitive bid;
promulgation of regulations; and providing an administrative
procedure to be used by the state when leasing property from
private vendors.
Be it enacted by the Legislature of West Virginia:
That sections thirty-eight, thirty-nine, forty and
forty-one, article three, chapter five-a of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended and reenacted, all to read as follows:
ARTICLE 3. PURCHASING DIVISION.
§5A-3-38. Leases for space to be made in accordance with
article.
A department, agency or institution of state government may
not lease, or offer to lease, as lessee, any grounds, buildings,
office or other space except in accordance with this article. A
lease, or offer to lease, any grounds, buildings, office or other
space on behalf of the state shall be based on competitive bids.
§5A-3-39. Leasing of space by secretary; delegation of
authority.
The secretary is authorized to solicit sealed bids for the
lease, in the name of the state, of any grounds, buildings,
office or other space required by any department, agency or
institution of state government:
Provided, That the secretary
may expressly delegate, in writing, the authority granted to him
by this article to the appropriate department, agency or
institution of state government when the rental and other costs
to the state do not exceed the sum of five thousand dollars in
any one fiscal year or when necessary to meet bona fide
emergencies arising from unforeseen causes.
§5A-3-40. Selection of grounds, etc.; acquisition by lease;
long-term leases; requiring approval of secretary for
permanent changes.
The secretary is authorized to select and to acquire by
lease, by competitive bid, in the name of the state, all grounds,
buildings, office space or other space, the rental of which is
necessarily required by any spending unit, upon a certificate
from the chief executive officer or his designee of the spending
unit that the grounds, buildings, office space or other space
requested is required for the proper function of the spending
unit, that the spending unit will be responsible for all rent andother necessary payments in connection with the lease and that
satisfactory grounds, buildings, office space or other space is
not available on grounds and in buildings now owned or leased by
the state.
The secretary is hereby authorized to enter into long-term
leases of buildings, land and space for periods longer than one
fiscal year:
Provided, That the long-term lease agreements are
not for periods in excess of forty years and contain, in
substance, all the following provisions: (1) That the department
of administration, as lessee, shall have the right to cancel the
lease without further obligation on the part of the lessee upon
giving thirty days' written notice to the lessor, the notice
being given at least thirty days prior to the last day of the
succeeding month; (2) that the lease shall be considered canceled
without further obligation on the part of the lessee if the state
Legislature or the federal government should fail to appropriate
sufficient funds to pay for the lease or should otherwise act to
impair the lease or cause it to be canceled; and (3) that the
lease is considered renewed for each ensuing fiscal year during
the term of the lease unless it is canceled by the department of
administration before the end of the then current fiscal year.
A spending unit which is granted any grounds, buildings,
office space or other space leased in accordance with this
section may not order or make permanent changes of any type
thereto, unless the secretary has first determined that the
change is necessary for the proper, efficient and economically
sound operation of the spending unit. For purposes of this
section, a "permanent change" means any addition, alteration,improvement, remodeling, repair or other change involving the
expenditure of state funds for the installation of any tangible
thing which cannot be economically removed from the grounds,
buildings, office space or other space when vacated by the
spending unit.
§5A-3-41. Leases signed by secretary or director; regulations
of the director; approval as to form; filing; and bidding
procedures.
Leases and other instruments for grounds, buildings, office
or other space shall be signed by the secretary or director in
the name of the state. They shall be approved as to form by the
attorney general. A lease or other instrument for grounds,
buildings, office or other space that contains a term, including
any options, of more than six months for its fulfillment shall be
filed with the state auditor.
(a) The director shall adopt and amend rules to:
(1) Prescribe the amount of deposit or bond to be submitted
with a bid and the amount of deposit or bond to be given for the
faithful performance of a lease;
(2) Prescribe a system for the director to give notice to
vendors requesting notice of all bid solicitations for leases.
A fee not to exceed the cost of giving the notice to the vendor
may be charged:
Provided, That the fee may not exceed forty-five
dollars in one fiscal year;
(3) Apply and enforce standard specifications for leases;
(4) Suspend the right and privilege of a vendor to bid on
state leases when the director has evidence that the vendor has
violated any of the provisions of this article or the rules ofthe director;
(b) The director shall examine the provisions and terms of
every lease entered into for and on behalf of the state of West
Virginia that impose any obligation upon the state to pay any
sums of money and approve each lease with respect to the
provisions and terms of the lease. The duty of examination and
approval by the director does not supersede the responsibility
and duty of the attorney general to approve contracts as to form
and the director shall assure that the specifications and
descriptions in all "requests for quotations" are prepared so as
to permit all potential lessor-vendors who can meet the
requirements of the state an opportunity to bid and to assure
that the specifications and descriptions do not favor a
particular vendor. If the director determines that any
specifications or descriptions as written favor a particular
vendor or if it is decided, either before or after the bids are
opened, that a lease having different specifications or quality
can be entered into, the director may rewrite the "requests for
quotations" and the matter shall be rebid.
(c) Bids shall be based on the standard specifications
promulgated and adopted in accordance with the provisions of this
section and shall not be altered or withdrawn after the appointed
hour for the opening of such bids. All leases based on
advertised bid requests made by the director or by a state
department shall be awarded to the lowest responsible bidder,
taking into consideration the qualities of the buildings,
structures, grounds or property involved, conformity with
specifications, suitability to the requirements of the governmentand the lease terms. All bidders submitting bid proposals to the
director are required to submit an extra or duplicate copy to the
state auditor. The secretary shall make a good faith effort to
sign leases for state agencies in all parts of the state in an
equal manner. The secretary shall report to the Legislature
during the first two weeks of each regular session of the
Legislature his or her efforts to guarantee the equal
distribution of leases throughout the state of West Virginia.
Both copies must be received at the respective offices prior
to the specified date and time of the bid openings. The failure
to deliver or the nonreceipt of these bid forms at either of
these offices prior to the appointed date and hour are grounds
for rejection of the bids. In the event of any deviation between
the copies submitted to the director and the state auditor, the
bids as to which there is a deviation shall be rejected if the
deviation relates to the quality or specifications of the
proposed lease property or to the cost of the lease or to the
date of delivery or performance. After the award of the lease,
the director, or someone appointed by him for that purpose, shall
indicate upon the successful bid and its copy in the office of
the state auditor that it was the successful bid. Thereafter,
the copy of each bid in the possession of the director and the
state auditor shall be maintained as a public record by both of
them, shall be open to public inspection in the offices of both
the director and the state auditor and shall not be destroyed by
either of them without the written consent of the legislative
auditor. If the director permits bids by facsimile transmission
machine to be accepted in lieu of sealed bids, a duplicatefacsimile transmission machine bid shall be transmitted to the
state auditor pursuant to this section:
Provided, That an
original bid is received by the state auditor within two working
days following the date specified for bid opening.
(d) The director shall not accept any bid received from any
vendor unless the vendor has paid the annual fee established by
rule promulgated by the director and has filed with the director
an affidavit of the vendor or the affidavit of a member of the
vendor's firm, or, if the vendor is a corporation, the affidavit
of an officer, director or managing agent of such corporation,
disclosing the following information:
(1) If the vendor is an individual, his name and residence
address, and, if he has associates or partners sharing in his
business, their names and residence addresses;
(2) If the vendor is a firm, the name and residence address
of each member, partner or associate of the firm;
(3) If the vendor is a corporation created under the laws of
this state or authorized to do business in this state, the name
and business address of the corporation; the names and residence
addresses of the president, vice president, secretary, treasurer
and general manager, if any, of the corporation; and the names
and residence addresses of each stockholder of the corporation
owning or holding at least ten percent of the capital stock
thereof;
(4) A statement of whether the vendor is acting as agent for
some other individual, firm or corporation and, if so, a
statement of the principal authorizing such representation shall
be attached to the affidavit or whether the vendor is doingbusiness as another entity;
(5) The vendor's latest Dun & Bradstreet rating, if there is
any such rating as to such vendor; and
(6) A list of one or more banking institutions to serve as
references for such vendor.
Whenever a change occurs in the information heretofore
submitted as required, such change shall be reported immediately
in the same manner as required in the original disclosure
affidavit.
The affidavit and information so received by the director
shall be kept in a register of vendors which shall be a public
record and open to public inspection during regular business
hours in the director's office and made readily available to the
public at such time.
The director may waive the above requirements in the case of
any corporation listed on any nationally recognized stock
exchange and in the case of any vendor who or which is the sole
source for the commodity in question.
Any person who makes such affidavit falsely or who shall
knowingly file or cause to be filed with the director, an
affidavit containing a false statement of a material fact or
omitting any material fact, shall be guilty of a misdemeanor,
and, upon conviction thereof, shall be fined not more than one
thousand dollars, and, in the discretion of the court, confined
in jail not more than one year. In any such case, an individual
so convicted shall be adjudged forever incapable of holding any
office of honor, trust or profit in this state or of serving as
a juror.