WEST virginia legislature

2024 regular session

Committee Substitute

for

House Bill 5604

By Delegates Householder, Riley, Hanshaw (Mr. Speaker), Cannon, Linville, Maynor, Phillips, Burkhammer, and Hott

[Originating in the Committee on Finance; Reported on February 22, 2024]

A BILL to amend and reenact §5A-3-10 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new section designated §5A-3-10f, and to amend and reenact §5A-6-2 of said code; and to amend said code by adding thereto a new section, designated §5A-6-4f, all relating generally to procurement by state spending units.  

Be it enacted by the Legislature of West Virginia:

ARTICLE 3. PURCHASING DIVISION.  

§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; continuing procurements over $1 million.

(a) A purchase of and contract for commodities, printing, and services shall be based on competitive bids, except when another method of procurement is determined to be in the best interest of the State.

(b) The director shall solicit, on behalf of spending units, sealed bids for the purchase of commodities and printing which is estimated to exceed $25,000.  The director may delegate the procurement of commodities, services, or printing estimated to be $25,000 or less to the spending unit.  The director may set a higher or lower delegated procurement limit for a particular spending unit if the director determines that such action would be in the best interest of the spending unit and the State. In no event may the director authorize more than $100,000 of delegated procurement authority to a spending unit.

(c) Bids for the purchase of technical infrastructure.  Notwithstanding the provisions of subsection (b) of this section to the contrary, the director shall solicit, on behalf of spending units, sealed bids for the purchase of technical infrastructure as defined in §5A-6-2 of this code which is estimated to exceed $250,000. The director shall delegate the procurement of technical infrastructure estimated to be $250,000 or less to the spending unit.  The director may set a higher or lower delegated procurement limit for a particular spending unit for the purchase of technical infrastructure if the director determines that such action would be in the best interest of the spending unit and the State.

(d) Spending units shall not make an individual purchase in excess of the delegated procurement limit established in subsection (b) subsections (b) or (c) of this section, issue a series of requisitions for the same or similar commodity or service or divide or plan procurements with the intention to circumvent the delegated procurement limit established in subsection (b) subsections (b) or (c) of this section, or otherwise avoid the use of sealed bids. Any spending unit that discovers it has awarded multiple contracts for the same or similar commodity or service to an individual vendor over any 12-month period shall file copies of all contracts awarded or orders placed for the commodity, service, or printing in question within the 12 preceding months with the director upon exceeding the delegated limit limits, along with a statement explaining how either the multiple contract awards or orders do not circumvent the delegated procurement limit limits, or how the contracts or orders were not intended to circumvent the delegated limit limits. If the spending unit does not report to the director within a reasonable period, the director shall contact the spending unit to request such statement and may suspend the purchasing authority of the spending unit until the spending unit complies with the reporting requirement of this subsection, as determined appropriate. The director may conduct a review of any spending unit to ensure compliance with this subsection. Following a review, in consultation with the relevant spending unit, 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 January 1 and July 1 of each year the spending units which have reported under this subsection and the findings of the director.

(d) (e) The director may permit bids by electronic transmission to be accepted in lieu of sealed bids.

(e) (f) Bids shall be solicited by public notice. The notice may be published by any advertising medium the director considers advisable. The director may also solicit sealed bids by sending requests by mail or electronic transmission to prospective vendors.

(f) (g) (1) The director may, without competitive bidding, purchase commodities and services produced and offered for sale by nonprofit workshops, as defined in §5A-1-1 of this code, which are located in this state: Provided, That the 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.

(2) To encourage contracts for commodities and services with nonprofit workshops, the director shall employ a person whose responsibilities in addition to other duties are 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 the 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.

(g) (h) For all commodities and services in an amount exceeding $1 million, if the procurement of the commodity or service is continuing in nature, 12 months prior to the expiration of the contract or final renewal option, whichever is later, the spending unit shall coordinate with the Purchasing Division on a new procurement for such commodity or service under the requirements of this article. This procurement shall be awarded or terminated no later than 180 days after the procurement specifications have been finally approved by the Purchasing Division.

§5A-3-10f. Use of cooperative contracts.

Any state spending unit may make a written request to the director to procure technical infrastructure pursuant to a competitively procured agreement.  The director shall respond to the request within 30 days of receipt of the request.  If the director does not respond within 30 days of receipt of the request, the director is deemed to have approved the request and the spending unit may procure technical infrastructure pursuant to the competitively procured agreement.

ARTICLE 6. OFFICE OF TECHNOLOGY.  

§5A-6-2. Definitions.

As used in this article:

"Information systems" means a discrete set of information resources organized for the collection, processing, maintenance, use, sharing, dissemination, or disposition of information.

"Information technology" means any equipment or interconnected system or subsystem of equipment that is used in the automatic acquisition, storage, manipulation, management, movement, control, display, switching, interchange, transmission, or reception of data or information.

"Information technology marketplace portal" or “IT marketplace portal” means a structured digital catalog that customers can use to find, buy, deploy, and manage third-party information technology products and services whose pricing and discount levels are set by the third-party providers.

"Technology services" means professional services designed to provide functions, maintenance, and support of information technology devices, or services including, but not limited to, computer systems application development and maintenance; systems integration and interoperability; operating systems maintenance and design; computer systems programming; computer systems software support; planning and security relating to information technology devices; data management consultation; information technology education and consulting; information technology planning and standards; establishment of local area network and workstation management standards; and cloud computing.

"Telecommunications" means the preparation, transmission, communication, or related processing of information by electrical, electromagnetic, electromechanical, electro-optical, or electronic means.

"Chief Information Officer" means the person holding the position created in §5A-6-3 of this code and vested with authority to oversee state spending units in planning and coordinating information systems that serve the effectiveness and efficiency of the state and individual state spending units, and further the overall management goals and purposes of government: Provided, That reference to "Chief Technology Officer" in other articles of this code shall mean "Chief Information Officer".

"Technical infrastructure" means all information systems, information technology, information technology equipment, telecommunications, and technology services as defined in this section.

"Technology project" means a project where technology is a significant component and is either valued at $250,000 or more, or will involve sensitive or restricted data.

"Steering committee" means an internal agency oversight committee established jointly by the Chief Information Officer and the agency proposing the project, which shall include representatives from the Office of Technology and at least one representative from the agency proposing the project.

"Technology portfolio" means a strategic management process documenting relationships between agency missions and information technology and telecommunications investments.

§5A-6-4f. Information technology marketplace portal.

 (a) On or before September 1, 2024, the Secretary of Administration shall approve at least two IT marketplace portals for use by state spending units.  Any IT marketplace approved by the Secretary must meet the following minimum qualifications: (1) Be as equally accessible to West Virginia-based third-party solutions as they are to national solutions; (2) offer real-time transaction capability; (3) offer third-party solutions in addition to a providers’ own products; (4) have the capability to apply negotiated contracts; (5) have the capability to search and filter by compliance frameworks; (6) have capability to view product security compliance in real-time; and (7) offer diverse solution types.  Diverse solution types include, but are not limited to software, software as a service, machine learning algorithms, professional services, large data sets, and virtual images.

(b) The Chief Information Officer shall determine if the procurement of technical infrastructure through an IT marketplace portal is advantageous for the State of West Virginia.  The Chief Information Officer may utilize best value procurement when determining if using an IT marketplace portal is most advantageous for the State.

(c) Upon the approval of an IT marketplace portal by the Secretary, a state spending unit may use the IT marketplace to procure technical infrastructure.