ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 4442
(By Delegates Linch, Pino, Varner,
Leach, Staton, Douglas and Laird)
[Passed March 11, 2000; in effect ninety days from passage.]
AN ACT to amend and reenact section one, article twenty-two,
chapter five of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; to amend and reenact section
eleven, article three, chapter five-a of said code; and to
further amend said article by adding six new sections
designated sections thirty-three-a, thirty-three-b, thirty-
three-c, thirty-three-d, thirty-three-e and thirty-three-f;
to amend and reenact section eleven, article one, chapter
seven of said code; to amend and reenact section nineteen,
article four, chapter seventeen of said code; to amend and
reenact section fifteen, article nine-d, chapter eighteen of
said code; and to amend and reenact section five, article
five, chapter eighteen-b of said code, all relating to
debarment of vendors from bidding on certain government
contracts; debarment procedure; duties of the director of
purchasing in regard to debarment; scope of the applicability of the debarment process; providing for an
administrative procedure for contesting debarment decisions;
and promulgation of rules.
Be it enacted by the Legislature of West Virginia:
That section one, article twenty-two, chapter five of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; that section eleven, article
three, chapter five-a of said code be amended and reenacted; that
article three of said chapter be further amended by adding six
new sections designated section thirty-three-a, section thirty-
three-b, section thirty-three-c, section thirty-three-d, section
thirty-three-e, and section thirty-three-f; that section eleven,
article one, chapter seven of said code be amended and reenacted;
that section nineteen, article four, chapter seventeen of said
code be amended and reenacted; that section fifteen, article
nine-d, chapter eighteen of said code be amended and reenacted;
and that section five, article five, chapter eighteen-b of said
code be amended and reenacted, all to read as follows:
CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR,
SECRETARY OF STATE AND ATTORNEY GENERAL; BOARD OF PUBLIC WORKS;
MISCELLANEOUS AGENCIES, COMMISSIONS, OFFICES, PROGRAMS, ETC.
ARTICLE 22. GOVERNMENT CONSTRUCTION CONTRACTS.
§5-22-1. Bidding required; government construction contracts to
go to qualified responsible bidder; debarment; exceptions.
(a) 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.
(b) 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,
article three, chapter five-a of this code, may not bid on or be
awarded a contract under this section.
(c) Following the solicitation of such 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 said project.
(d) 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 such use is a part of the students training program;
(3) Emergency repairs to building components and systems. For the purpose of this subdivision, emergency repairs means
repairs that if not made immediately will seriously impair the
use of such building components and systems, or cause danger to
those persons using such building components and systems; and
(4) Any situation where the state or a subdivision thereof
shall come to 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.
CHAPTER 5A. DEPARTMENT OF ADMINISTRATION.
ARTICLE 3. PURCHASING DIVISION.
§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; and
exception.
(a) The director may make a purchase of commodities,
printing, and services of ten thousand dollars or less in amount
in the open market, but the purchase shall, wherever possible, be
based on at least three competitive bids.
(b) The director may authorize spending units to purchase
commodities, printing and services in the amount of one thousand dollars in the open market without competitive bids.
(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,
taking into consideration the qualities of the articles to be
supplied, their conformity with specifications, their suitability
to the requirements of the government and the delivery terms:
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) All bidders submitting bid proposals to the purchasing
division are required to submit an extra or duplicate copy to the
state auditor.
(h) 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 purchasing division and the state
auditor, the bids as to which there is a deviation shall be
rejected, if the deviation relates to the quantity, quality or
specifications of the commodities, printing or services to be
furnished or to the price therefor or to the date of delivery or
performance.
(i) 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 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 may not be destroyed by
either of them without the written consent of the legislative
auditor:
Provided, That the governing board as defined in
section two, article one, chapter eighteen-b of this code, may
certify in writing to the director the need for a specific item
essential to a particular usage either for instructional or
research purposes at an institution of higher education and the
director upon review of such certification may provide for the
purchase of said specific items in the open market without
competitive bids.
(j) If the director permits bids by facsimile transmission
machine to be accepted in lieu of sealed bids pursuant to the
provisions of section ten of this article, a duplicate facsimile
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.
§5A-3-33a. Definitions.
For purposes of the provisions of sections thirty-three-a
through thirty-three-f of this article:
(a) "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.
(b) "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) "Vendor" means any person or entity that is eligible to
bid on contracts to supply the state or its subdivisions with
commodities or services, including contracting services for the
construction and improvement of roads and buildings.
§5A-3-33b. Scope.
The provisions of sections thirty-three-a through thirty-
three-f of this article govern the debarment of vendors with
regard to bids under the following provisions of this code:
(a) Section one, article twenty-two, chapter five, relating
to bids for construction contracts by the state and its
subdivisions;
(b) Section eleven, article three, chapter five-a, relating
to the purchase of supplies and printing by the state;
(c) Section eleven, article one, chapter seven, relating to
bids for the purchase of commodities and printing by county
commissions;
(d) Sections nineteen and twenty, article four, chapter
seventeen, relating to bids for construction and reconstruction
of state roads and bridges and the furnishing of materials and
supplies therefor;
(e) Article nine-d, chapter eighteen, relating to the awarding of contracts by the school building authority; and
(f) Sections four and five, article five, chapter
eighteen-b, relating to expenditures by the governing boards for
higher education.
§5A-3-33c. Duties.
The director has primary responsibility for administering
the debarment process. The director's duties include:
(a) Obtaining lists of vendors declared ineligible under
federal laws and regulations;
(b) Notification of all contracting officials for the state
and its subdivisions regarding debarred vendors;
(c) Compiling and maintaining a current, consolidated list
of all vendors that have been debarred or declared ineligible,
the period of such debarment, and the reasons therefor;
(d) Investigating complaints about vendors from the
officials of the state and its subdivisions responsible for
contracting with vendors for supplies and services;
(e) Initiating and conducting debarment procedures;
(f) Proposing rules for legislative approval, pursuant to
the provisions of article three, chapter twenty-nine-a of this
code, for the operation of the debarment process described in the
provisions of sections thirty-three-a through thirty-three-f of
this article.
§5A-3-33d. Grounds for debarment.
Grounds for debarment are:
(a) Conviction of an offense involving fraud or a felony
offense in connection with obtaining or attempting to obtain a
public contract or subcontract.
(b) Conviction of any federal or state antitrust statute
relating to the submission of offers.
(c) 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.
(d) Conviction of a felony offense demonstrating a lack of
business integrity or business honesty that affects the present
responsibility of the vendor or subcontractor.
(e) Default on obligations owed to the state, including but
not limited to, obligations under the West Virginia workers'
compensation act, 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, 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.
(f) 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.
(g) Violation of the terms of a public contract or
subcontract for:
(1) Willful failure to substantially perform in accordance
with the terms of one or more public contracts;
(2) 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;
(3) 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;
(4) A repeated pattern or practice of failure to perform so
serious and compelling as to justify debarment; or
(5) 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-3-33e. Debarment procedure.
(a) The director shall obtain lists of vendors declared
ineligible under federal laws and regulation and lists of vendors
who are in default on state obligations, and shall initiate
debarment proceedings with respect to such vendors, except when
good cause is shown which includes evidence that the vendor has
become responsible.
(1) In the case of federal ineligibility restrictions
applicable to state agencies, the director shall also notify the
appropriate agencies of any ineligibility determined under
federal authority.
(2) The director may also initiate debarment proceedings if
he or she finds probable cause for debarment for any ground set
forth in section thirty-three-d of this article.
(3) The director shall initiate debarment proceedings when
any state agency requests debarment of a vendor and the director
finds that probable cause for debarment exists.
(b) The director shall notify the vendor by certified mail,
return receipt requested, of the following:
(1) The reasons for the proposed debarment in sufficient
detail to put the vendor on notice of the conduct or transactions
upon which the proposed debarment is based;
(2) The causes relied upon for the proposed debarment;
(3) That within thirty working days after receipt of the
notice, the vendor may submit in writing information and argument
in opposition to the proposed debarment;
(4) The procedures governing debarment decision-making; and
(5) The potential effect of the proposed debarment.
(c) In the event a vendor wishes to contest the debarment
decision, the director shall decide the matter in accordance with
the provisions of article five, chapter twenty-nine-a of this
code.
(d) In any debarment decision, the director shall make a
specific finding, based on the substantial record, whether the
public interest requires that the debarment decision extend to
all commodities and services of the vendor, or whether the public
interest allows the debarment decision to be limited to specific
commodities or services.
(e)
In any debarment decision, the director shall specify
the length of the debarment period. The debarment period must be
for the period of time that the director finds necessary and
proper to protect the public from an irresponsible vendor.
(f) Proof of grounds for debarment must be clear and
convincing.
§5A-3-33f. Effects of debarment.
(a) Unless the director determines in writing that there is
a compelling reason to do otherwise, the state and its
subdivisions may not solicit offers from, award contracts to, or
consent to subcontract with a debarred vendor during the
debarment period.
(b) The contracting officer may not exercise an option to
renew or otherwise extend a current contract with a debarred
vendor, or a contract which is being performed in any part by a
debarred subcontractor, unless the director approves the action
in writing, based on compelling reasons for exercise of the
option or extension.
(c) The debarment decision may extend to all commodities and
services of the vendor, or may be limited to specific commodities
or services, as the director specifically finds, in the debarment
procedure under section thirty-three-e of this article, to be in
the public interest based on the substantial record.
(d)
The director may extend the debarment to include an affiliate of the vendor upon proof necessary to pierce the
corporate veil at common law. The director shall follow the same
procedure, and afford the affiliate like notice, hearing and
other rights, for extending the debarment to the affiliate as
provided for under section thirty-three-e for the debarment of
the vendor.
(e) The director may reduce the period or extent of
debarment, upon the vendor's request supported by documentation,
for the following reasons:
(1) Newly discovered material evidence;
(2) Reversal of the conviction or judgment upon which
debarment was based;
(3) Elimination of the causes for which the debarment was
imposed; or
(4) Other good cause shown, including evidence that the
vendor has become responsible.
(f) The director may extend the debarment period for an
additional period if the director determines that the extension
is necessary to protect the interests of the state. Upon the
expiration of a debarment period, the director shall extend the
debarment period for any vendor who has not paid all current
state obligations for at least the four most recent calendar
quarters, exempting the current calendar quarter, and for any
vendor who is in default on a repayment agreement with an agency of the state, until such time as the cause for the extended
debarment is removed. If the director extends the debarment
period, the director shall follow the same procedures, and afford
the vendor like notice, hearing and other rights for extending
the debarment, as provided for debarment under section thirty-
three-e of this article.
(g) A debarment under this article may be waived by the
director with respect to a particular contract if the director
determines the debarment of the vendor would severely disrupt the
operation of a governmental entity to the detriment of the
general public or would not be in the public interest.
CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.
ARTICLE 1. COUNTY COMMISSIONS GENERALLY.
§7-1-11. Purchasing in open market or competitive bids;
debarment.
(a) County commissions may make a purchase of commodities
and printing of fifteen thousand dollars or less in amount in the
open market, but a purchase of and contract for commodities and
printing over fifteen thousand dollars shall be based on
competitive bids, except in case of emergency.
(b) The county commission of any county is authorized and
empowered to promulgate rules governing the procedure of
competitive bids:
Provided, That 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.
(c) As used in this section, the terms "commodities" and
"printing" shall have the same meaning as those terms are defined
in section one, article one, chapter five-a of this code.
CHAPTER 17. ROADS AND HIGHWAYS.
ARTICLE 4. STATE ROAD SYSTEM.
§17-4-19. Contracts for construction, materials, etc.; work by
prison labor, etc.; bidding procedure.
(a) All work of construction and reconstruction of state
roads and bridges, and the furnishing of all materials and
supplies therefor, and for the repair thereof shall be done and
furnished pursuant to contract, except that the commissioner may
not be required to award any contract for work which can be done
advantageously, economically and practicably by commission forces
or prison labor and by use of state road equipment, or for
materials and supplies, which are manufactured, processed or
assembled by the commissioner:
Provided, That the commissioner
may not be required to award any contract for work, materials or
supplies for an amount less than three thousand dollars. In all
the work, the commissioner shall utilize state road forces or
prison labor and state road equipment and shall manufacture,
process and assemble all the materials and supplies for the work
whenever and wherever the commissioner, in his or her discretion, finds work and services advantageous, economical and practicable
in the state road program.
(b)
If the work is to be done, or the materials therefor
are to be furnished by contract, the commissioner shall thereupon
publish the following described advertisement as a Class II legal
advertisement, in compliance with the provisions of article
three, chapter fifty-nine of this code, and the publication area
for the publication shall be the county or municipality in which
the road lies.
(c) The advertisement shall also be published at least once
in at least one daily newspaper published in the city of
Charleston and in other journals or magazines as may to the
commissioner seem advisable. The advertisement shall solicit
sealed proposals for the construction or other improvement of the
road, and for the furnishing of materials therefor, accurately
describing the same, and stating the time and place for opening
the proposals and reserving the right to reject any and all
proposals:
Provided, That whenever the estimated amount of any
contract for work or for materials or supplies is less than three
thousand dollars, the commissioner may not be required to
advertise the letting of the contract in newspapers as above
required, but may award the contract to the lowest responsible
bidder, when two or more sealed proposals or bids have been
received by him or her without the advertisement, but the contract may not be so awarded unless the bid of the successful
bidder is three thousand dollars or less.
(d) The commissioner shall have the power to prescribe
proper prequalifications of contractors bidding on state road
construction work:
Provided, That 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) To all sealed proposals there shall be attached the
certified check of the bidder or bidder's bond acceptable to the
commissioner, in the amount as the commissioner shall specify in
the advertisement, but not to exceed five percent of the
aggregate amount of the bid; but the amount shall never be less
than five hundred dollars. The proposals shall be publicly
opened and read at the time and place specified in the
advertisement, and the contract for the work, or for the supplies
or materials required therefor shall, if let, be awarded by the
commissioner to the lowest responsible bidder for the type of
construction selected.
(f) In case all bids be rejected, the commissioner may
thereafter do the work with commission forces or with prison
labor, or may readvertise in the same manner as before and let a
contract for the work pursuant thereto.
CHAPTER 18. EDUCATION.
ARTICLE 9D. SCHOOL BUILDING AUTHORITY.
§18-9D-15. Legislative intent; distribution of money.
(a) It is the intent of the Legislature to empower the
school building authority to facilitate and provide state funds
and to administer all federal funds provided for the construction
and major improvement of school facilities so as to meet the
educational needs of the people of this state in an efficient and
economical manner. The authority shall make funding
determinations in accordance with the provisions of this article
and shall assess existing school facilities and each facility's
school major improvement plan in relation to the needs of the
individual student, the general school population, the
communities served by the facilities and facility needs
statewide.
(b) An amount that is no more than three percent of the sum
of moneys that are determined by the authority to be available
for distribution during the then current fiscal year from: (1)
Moneys paid into the school building capital improvements fund
pursuant to section ten, article nine-a of this chapter; (2) the
issuance of revenue bonds for which moneys in the school building
debt service fund are pledged as security; (3) moneys paid into
the school construction fund pursuant to section six of this
article; and (4) any other moneys received by the authority,
except moneys paid into the school major improvement fund pursuant to section six of this article, may be allocated and may
be expended by the authority for projects that service the
educational community statewide or, upon application by the state
board, for educational programs that are under the jurisdiction
of the state board. In addition, upon application by the state
board or the administrative council of an area vocational
educational center established pursuant to article two-b of this
chapter, the authority may allocate and expend under this section
moneys for school major improvement projects proposed by the
state board or an administrative council for school facilities
under the direct supervision of the state board or an
administrative council, respectively:
Provided, That the
authority may not expend any moneys for a school major
improvement project proposed by the state board or the
administrative council of an area vocational educational center
unless the state board or an administrative council has submitted
a ten-year school major improvement plan, to be updated annually,
pursuant to section sixteen of this article:
Provided, however,
That the authority shall, before allocating any moneys to the
state board or the administrative council of an area vocational
educational center for a school improvement project, consider all
other funding sources available for the project.
(c) An amount that is no more than two percent of the moneys
that are determined by the authority to be available for distribution during the current fiscal year from: (1) Moneys
paid into the school building capital improvements fund pursuant
to section ten, article nine-a of this chapter; (2) the issuance
of revenue bonds for which moneys in the school building debt
service fund are pledged as security; (3) moneys paid into the
school construction fund pursuant to section six of this article;
and (4) any other moneys received by the authority, except moneys
deposited into the school major improvement fund, shall be set
aside by the authority as an emergency fund to be distributed in
accordance with the guidelines adopted by the authority.
(d) The remaining moneys determined by the authority to be
available for distribution during the then current fiscal year
from: (1) Moneys paid into the school building capital
improvements fund pursuant to section ten, article nine-a of this
chapter; (2) the issuance of revenue bonds for which moneys in
the school building debt service fund are pledged as security;
(3) moneys paid into the school construction fund pursuant to
section six of this article; and (4) any other moneys received by
the authority, except moneys deposited into the school major
improvement fund, shall be allocated and expended on the basis of
need and efficient use of resources, the basis to be determined
by the authority in accordance with the provisions of section
sixteen of this article.
(e) If a county board of education proposes to finance a project that is approved pursuant to section sixteen of this
article through a lease with an option to purchase leased
premises upon the expiration of the total lease period pursuant
to an investment contract, the authority may allocate no moneys
to the county board in connection with the project:
Provided,
That the authority may transfer moneys to the state board of
education, which, with the authority, shall lend the amount
transferred to the county board to be used only for a one-time
payment due at the beginning of the lease term, made for the
purpose of reducing annual lease payments under the investment
contract, subject to the following conditions:
(1) The loan shall be secured in the manner required by the
authority, in consultation with the state board, and shall be
repaid in a period and bear interest at a rate as determined by
the state board and the authority and shall have such terms and
conditions as are required by the authority, all of which shall
be set forth in a loan agreement among the authority, the state
board and the county board;
(2) The loan agreement shall provide for the state board and
the authority to defer the payment of principal and interest upon
any loan made to the county board during the term of the
investment contract, and annual renewals of the investment
contract, among the state board, the authority, the county board
and a lessor:
Provided, That in the event a county board, which has received a loan from the authority for a one-time payment at
the beginning of the lease term, does not renew the subject lease
annually until performance of the investment contract in its
entirety is completed, the county board is in default and the
principal of the loan, together with all unpaid interest accrued
to the date of the default, shall at the option of the authority,
in consultation with the state board, become due and payable
immediately or subject to renegotiation among the state board,
the authority and the county board:
Provided, however, That if
a county board renews the lease annually through the performance
of the investment contract in its entirety, the county board
shall exercise its option to purchase the leased premises:
Provided further, That the failure of the county board to make a
scheduled payment pursuant to the investment contract constitutes
an event of default under the loan agreement:
And provided
further, That upon a default by a county board, the principal of
the loan, together with all unpaid interest accrued to the date
of the default, shall at the option of the authority, in
consultation with the state board, become due and payable
immediately or subject to renegotiation among the state board,
the authority and the county board:
And provided further, That
if the loan becomes due and payable immediately, the authority,
in consultation with the state board, shall use all means
available under the loan agreement and law to collect the outstanding principal balance of the loan, together with all
unpaid interest accrued to the date of payment of the outstanding
principal balance; and
(3) The loan agreement shall provide for the state board and
the authority to forgive all principal and interest of the loan
upon the county board purchasing the leased premises pursuant to
the investment contract and performance of the investment
contract in its entirety.
(f) To encourage county boards to proceed promptly with
facilities planning and to prepare for the expenditure of any
state moneys derived from the sources described in this
subsection, any county board failing to expend money within three
years of the allocation to the county board shall forfeit the
allocation and thereafter is ineligible for further allocations
pursuant to this subsection until the county board is ready to
expend funds in accordance with an approved facilities plan:
Provided, That the authority may authorize an extension beyond
the three-year forfeiture period not to exceed an additional two
years. Any amount forfeited shall be added to the total funds
available in the school construction fund of the authority for
future allocation and distribution.
(g) The remaining moneys that are determined by the
authority to be available for distribution during the then
current fiscal year from moneys paid into the school major improvement fund pursuant to section six of this article shall be
allocated and distributed on the basis of need and efficient use
of resources, the basis to be determined by the authority in
accordance with the provisions of section sixteen of this
article:
Provided, That the moneys may not be distributed to any
county board that does not have an approved school major
improvement plan or to any county board that is not prepared to
commence expenditures of the funds during the fiscal year in
which the moneys are distributed:
Provided, however, That any
moneys allocated to a county board and not distributed to that
county board shall be deposited in an account to the credit of
that county board, the principal amount to remain to the credit
of and available to the county board for a period of two years.
Any moneys which are unexpended after a two-year period shall be
redistributed on the basis of need from the school major
improvement fund in that fiscal year.
(h) No local matching funds may be required under the
provisions of this section. However, the responsibilities of the
county boards of education to maintain school facilities are not
negated by the provisions of this article. To be eligible to
receive an allocation of school major improvement funds from the
authority, a county board must have expended in the previous
fiscal year an amount of county moneys equal to or exceeding the
lowest average amount of money included in the county board's maintenance budget over any three of the previous five years and
must have budgeted an amount equal to or greater than the average
in the current fiscal year:
Provided, That the state board of
education shall promulgate rules relating to county boards'
maintenance budgets, including items which shall be included in
the budgets.
(i) Any county board may use moneys provided by the
authority under this article in conjunction with local funds
derived from bonding, special levy or other sources.
Distribution to a county board, or to the state board or the
administrative council of an area vocational educational center
pursuant to subsection (b) of this section, may be in a lump sum
or in accordance with a schedule of payments adopted by the
authority pursuant to guidelines adopted by the authority.
(j) Funds in the school construction fund shall first be
transferred and expended as follows:
Any funds deposited in the school construction fund shall be
expended first in accordance with an appropriation by the
Legislature. To the extent that funds are available in the
school construction fund in excess of that amount appropriated in
any fiscal year, the excess funds may be expended in accordance
with the provisions of this article. Any projects which the
authority identified and announced for funding on or before the
first day of August, one thousand nine hundred ninety-five, or identified and announced for funding on or before the
thirty-first day of December, one thousand nine hundred
ninety-five, shall be funded by the authority in an amount which
is not less than the amount specified when the project was
identified and announced.
(k) It is the intent of the Legislature to encourage county
boards to explore and consider arrangements with other counties
that may facilitate the highest and best use of all available
funds, which may result in improved transportation arrangements
for students, or which otherwise may create efficiencies for
county boards and the students. In order to address the intent
of the Legislature contained in this subsection, the authority
shall grant preference to those projects which involve
multicounty arrangements as the authority shall determine
reasonable and proper.
(l) County boards shall submit all designs for construction
of new school buildings to the school building authority for
review and approval prior to preparation of final bid documents:
Provided, That 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.
CHAPTER 18B. HIGHER EDUCATION.
ARTICLE 5. HIGHER EDUCATION BUDGETS AND EXPENDITURES.
§18B-5-5. Prequalification disclosure by vendors; register of
vendors; exceptions; suspension of vendors.
(a) Every person, firm or corporation selling or offering
to sell to the governing boards, upon competitive bids or
otherwise, any materials, equipment or supplies in excess of
fifteen thousand dollars shall comply with all of the provisions
of section twelve, article three, chapter five-a of this code and
shall file with the director of the purchasing division of the
state of West Virginia the affidavit required herein:
Provided,
That every such person, firm or corporation who is presently in
compliance with said section shall not be required to requalify
thereunder to be able to transact business with the governing
boards.
(b) Any person, firm or corporation failing or refusing to
comply with said statute as herein required shall be ineligible
to sell or offer to sell commodities or printing to the governing
boards as hereinafter set forth:
Provided, That any person
suspended under the provisions of section thirty-nine, article
three, chapter five-a of this code shall not be eligible to sell
or offer to sell commodities or printing to the governing boards:
Provided, however, That the governing boards shall have the power
and authority to suspend, for a period not to exceed one year,
the right and privilege of a person to bid on purchases of the
governing boards when there is reason to believe that such person has violated any of the provisions in sections four through seven
of this article or the rules of the governing boards pursuant
thereto. Every person whose right to bid has been so suspended
shall be notified thereof by a letter posted by registered mail
containing the reason for such suspension and shall have the
right to have the appropriate governing board's action reviewed
in accordance with section forty, article three, chapter five-a
of this code:
Provided further, That 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.
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