H. B. 4582
(By Delegates Campbell, Guthrie, Hatfield,
Phillips, M. Poling, Kominar, White,
Craig, Marshall, Spencer and Mahan)
[Introduced February 19, 2010
; referred to the
Committee on Finance.]
A BILL to amend and reenact §5A-3-37 of the Code of West Virginia,
1931, as amended; and to amend said code by adding thereto a
new section, designated §5A-3-59, all relating generally to
small, women and minority-owned businesses.
Be it enacted by the Legislature of West Virginia:
That §5A-3-37 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that said code be amended by adding
thereto a new section, designated §5A-3-59, all to read as follows:
ARTICLE 3. PURCHASING DIVISION.
§5A-3-37. Preference for resident vendors; preference for vendors
employing state residents; preference for veteran
residents; exceptions.
(a)
Other provisions of this article notwithstanding,
effective July 1, 1990, through June 30, 1994, in any instance
involving the purchase of construction services for the
construction, repair or improvement of any buildings or portions thereof, where the total aggregate cost thereof, whether one or a
series of contracts are awarded in completing the project, is
estimated by the director to exceed the sum of $50,000 and where
the director or any state department is required under the
provisions of this article to make the purchase, construction,
repair or improvement upon competitive bids, the successful bid
shall be determined as provided in this section. Effective
beginning July 1, 1992, in any instance that a purchase of
commodities or printing by the director or by a state department is
required under the provisions of this article to be made upon
competitive bids, the successful bid shall be determined as
provided in this section. The Secretary of the Department of
Revenue shall promulgate any rules necessary to: (i) Determine
that vendors have met the residence requirements described in this
section; (ii) establish the procedure for vendors to certify the
residency requirements at the time of submitting their bids; (iii)
establish a procedure to audit bids which make a claim for
preference permitted by this section and to reject noncomplying
bids; and (iv) otherwise accomplish the objectives of this section.
In prescribing the rules, the secretary shall use a strict
construction of the residence requirements set forth in this
section. For purposes of this section, a successful bid shall be
determined and accepted as follows:
(1) From an individual resident vendor who has resided in West
Virginia continuously for the four years immediately preceding the date on which the bid is submitted or from a partnership,
association, corporation resident vendor, or from a corporation
nonresident vendor which has an affiliate or subsidiary which
employs a minimum of one hundred state residents and which has
maintained its headquarters or principal place of business within
West Virginia continuously for four years immediately preceding the
date on which the bid is submitted, if the vendor's bid does not
exceed the lowest qualified bid from a nonresident vendor by more
than two and one-half percent of the latter bid, and if the vendor
has made written claim for the preference at the time the bid was
submitted:
Provided, That for purposes of this subdivision, any
partnership, association or corporation resident vendor of this
state, which does not meet the requirements of this subdivision
solely because of the continuous four-year residence requirement,
shall be considered to meet the requirement if at least eighty
percent of the ownership interest of the resident vendor is held by
another individual, partnership, association or corporation
resident vendor who otherwise meets the requirements of this
subdivision, including the continuous four-year residency
requirement:
Provided, however, That the Secretary of the
Department of Revenue shall promulgate rules relating to
attribution of ownership among several resident vendors for
purposes of determining the eighty percent ownership requirement;
or
(2) From a resident vendor, if, for purposes of producing or distributing the commodities or completing the project which is the
subject of the vendor's bid and continuously over the entire term
of the project, on average at least seventy-five percent of the
vendor's employees are residents of West Virginia who have resided
in the state continuously for the two immediately preceding years,
and the vendor's bid does not exceed the lowest qualified bid from
a nonresident vendor by more than two and one-half percent of the
latter bid, and if the vendor has certified the residency
requirements of this subdivision and made written claim for the
preference, at the time the bid was submitted; or
(3) From a nonresident vendor, which employs a minimum of one
hundred state residents or a nonresident vendor which has an
affiliate or subsidiary which maintains its headquarters or
principle principal place of business within West Virginia and
which employs a minimum of one hundred state residents, if, for
purposes of producing or distributing the commodities or completing
the project which is the subject of the vendor's bid and
continuously over the entire term of the project, on average at
least seventy-five percent of the vendor's employees or the
vendor's affiliate's or subsidiary's employees are residents of
West Virginia who have resided in the state continuously for the
two immediately preceding years and the vendor's bid does not
exceed the lowest qualified bid from a nonresident vendor by more
than two and one-half percent of the latter bid, and if the vendor
has certified the residency requirements of this subdivision and made written claim for the preference, at the time the bid was
submitted; or
(4) From a vendor who meets either the requirements of both
subdivisions (1) and (2) of this subsection or subdivisions (1) and
(3) of this subsection, if the bid does not exceed the lowest
qualified bid from a nonresident vendor by more than five percent
of the latter bid, and if the vendor has certified the residency
requirements above and made written claim for the preference at the
time the bid was submitted; or
(5) From an individual resident vendor who is a veteran of the
United States Armed Forces, the Reserves or the National Guard and
has resided in West Virginia continuously for the four years
immediately preceding the date on which the bid is submitted, if
the vendor's bid does not exceed the lowest qualified bid from a
nonresident vendor by more than three and one-half percent of the
latter bid, and if the vendor has made written claim for the
preference at the time the bid was submitted; or
(6) From a resident vendor who is a veteran of the United
States Armed Forces, the Reserves or the National Guard, if, for
purposes of producing or distributing the commodities or completing
the project which is the subject of the vendor's bid and
continuously over the entire term of the project, on average at
least seventy-five percent of the vendor's employees are residents
of West Virginia who have resided in the state continuously for the
two immediately preceding years and the vendor's bid does not exceed the lowest qualified bid from a nonresident vendor by more
than three and one-half percent of the latter bid, and if the
vendor has certified the residency requirements of this subdivision
and made written claim for the preference, at the time the bid was
submitted;
or
(7) Notwithstanding any provisions of subdivisions (1), (2),
(3), (4), (5) or (6) of this subsection to the contrary, if any
nonresident vendor that is bidding on the purchase of commodities
or printing by the director or by a state department is also
certified as a small, women or minority-owned business pursuant to
section fifty-nine of this article, the nonresident vendor shall be
provided the same preference made available to any resident vendor
under the provisions of this subsection.
(b) If the Secretary of the Department of Revenue determines
under any audit procedure that a vendor who received a preference
under this section fails to continue to meet the requirements for
the preference at any time during the term of the project for which
the preference was received the secretary may: (1) Reject the
vendor's bid; or (2) assess a penalty against the vendor of not
more than five percent of the vendor's bid on the project.
(c) Political subdivisions of the state including county
boards of education may grant the same preferences to any vendor of
this state who has made a written claim for the preference at the
time a bid is submitted, but for the purposes of this subsection,
in determining the lowest bid, any political subdivision shall exclude from the bid the amount of business occupation taxes which
must be paid by a resident vendor to any municipality within the
county comprising or located within the political subdivision as a
result of being awarded the contract which is the object of the
bid; in the case of a bid received by a municipality, the
municipality shall exclude only the business and occupation taxes
as will be paid to the municipality:
Provided, That prior to
soliciting any competitive bids, any political subdivision may, by
majority vote of all its members in a public meeting where all the
votes are recorded, elect not to exclude from the bid the amount of
business and occupation taxes as provided in this subsection.
(d) If any of the requirements or provisions set forth in this
section jeopardize the receipt of federal funds, then the
requirement or provisions are void and of no force and effect for
that specific project.
(e) If any provision or clause of this section or application
thereof to any person or circumstance is held invalid, the
invalidity shall not affect other provisions or applications of
this section which can be given effect without the invalid
provision or application, and to this end the provisions of this
section are severable.
(f) This section may be cited as the "Jobs for West Virginians
Act of 1990."
§5A-3-59. Small, women and minority-owned businesses.
(a) As used in this section:
(1) "Minority individual" means an individual who is a citizen
of the United States or a noncitizen who is in full compliance with
United States immigration law and who satisfies one or more of the
following definitions:
(A) "African American" means a person having origins in any of
the original peoples of Africa and who is regarded as such by the
community of which this person claims to be a part.
(B) "Asian American" means a person having origins in any of
the original peoples of the Far East, Southeast Asia, the Indian
subcontinent or the Pacific Islands, including, but not limited to,
Japan, China, Vietnam, Samoa, Laos, Cambodia, Taiwan, Northern
Mariana, the Philippines, a U.S. territory of the Pacific, India,
Pakistan, Bangladesh, or Sri Lanka and who is regarded as such by
the community of which this person claims to be a part.
(C) "Hispanic American" means a person having origins in any
of the Spanish-speaking peoples of Mexico, South or Central
America, or the Caribbean Islands or other Spanish or Portuguese
cultures and who is regarded as such by the community of which this
person claims to be a part.
(D) "Native American" means a person having origins in any of
the original peoples of North America and who is regarded as such
by the community of which this person claims to be a part or who is
recognized by a tribal organization.
(2) "Minority-owned business" means a business concern that is
at least fifty-one percent owned by one or more minority individuals or in the case of a corporation, partnership, or
limited liability company or other entity, at least fifty-one
percent of the equity ownership interest in the corporation,
partnership, or limited liability company or other entity is owned
by one or more minority individuals and both the management and
daily business operations are controlled by one or more minority
individuals.
(3) "Small business" means a business, independently owned or
operated by one or more persons who are citizens of the United
States or noncitizens who are in full compliance with United States
immigration law, which, together with affiliates, has two hundred
fifty or fewer employees, or average annual gross receipts of $10
million or less averaged over the previous three years.
(4) "State agency" means any authority, board, department,
instrumentality, institution, agency, or other unit of state
government. "State agency" does not include any county, city or
town.
(5) "Women-owned business" means a business concern that is at
least fifty-one percent owned by one or more women who are citizens
of the United States or noncitizens who are in full compliance with
United States immigration law, or in the case of a corporation,
partnership or limited liability company or other entity, at least
fifty-one percent of the equity ownership interest is owned by one
or more women who are citizens of the United States or noncitizens
who are in full compliance with United States immigration law, and both the management and daily business operations are controlled by
one or more women who are citizens of the United States or
noncitizens who are in full compliance with United States
immigration law.
(b) Any director or any state department shall establish
programs consistent with this chapter to facilitate the
participation of small businesses and businesses owned by women and
minorities in procurement transactions. The programs established
shall be in writing and shall include specific plans to achieve any
goals established therein. State agencies shall submit annual
progress reports on small, women and minority-owned business
procurement to the Department of Administration in a form specified
by the Department of Administration.
(c) The Department of Administration shall propose rules, for
legislative approval pursuant to article three, chapter twenty-
nine-a, to implement certification programs for small, women and
minority-owned businesses. These certification programs shall deny
certification to vendors from states that deny like certifications
to West Virginia-based small, women or minority-owned businesses or
that provide a preference for small, women or minority-owned
businesses based in that state that is not available to West
Virginia-based businesses. The rules shall:
(1) Establish minimum requirements for certification of small,
women and minority-owned businesses;
(2) Provide a process for evaluating existing local, state, private sector and federal certification programs that meet the
minimum requirements; and
(3) Mandate certification, without any additional paperwork or
fee, of any prospective state vendor that has obtained
certification under any certification program that is determined to
meet the minimum requirements established in the regulations.
NOTE: The purpose of this bill is to create reciprocity for
West Virginia small, women and minority-owned businesses who
receive such preferences in other states.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§5A-3-59 is new; therefore, it has been completely
underscored.
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