ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 694
(Senators McCabe, Guills and Hunter, original sponsors)
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[Passed March 13, 2004; in effect ninety days from passage.]
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AN ACT 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".
(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.
(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.
(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:
Provided, That the state and its subdivisions may reject all bids
and solicit new bids on 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 contracting public entity may not
award the contract to a bidder which fails to meet these minimum
requirements. As to any 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 entity and all bids submitted in response to the
bid solicitation shall be open and available for public inspection.
(e) 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.
(f) 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.
(g) 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
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 situation where the state or a subdivision thereof
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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