Senate Bill No. 106
(By Senators Oliverio, Prezioso and McKenzie)
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[Introduced February 21, 1997; referred to the Committee
on Government Organization; and then to the Committee on
Finance.]
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A BILL to amend article three, chapter five-a of the code of West
Virginia, one thousand nine hundred thirty-one, as amended,
by adding thereto a new section, designated section thirty- seven-b, relating to creating a bidding preference for
in-state architects, engineers and construction managers in
the awarding of state contracts.
Be it enacted by the Legislature of West Virginia:
That article three, chapter five-a of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended by adding thereto a new section, designated section
thirty-seven-b, to read as follows:
ARTICLE 3. PURCHASING DIVISION.
§5A-3-37b. Preference for resident architects, engineers and construction managers; exceptions.
(a) Other provisions of this article notwithstanding, in any
instance involving the purchase of architectural, engineering or
construction management services where the director or any state
department is required under the provisions of this article to
make the purchase upon competitive bids, the successful bid shall
be determined as provided in this section. The secretary of the
department of tax and revenue shall promulgate any rules
necessary to: (i) Determine that architects, engineers and
construction managers have met the residence requirements
described in this section; (ii) establish the procedure for
architects, engineers and construction managers 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 architect, engineer or
construction manager who has resided in West Virginia
continuously for the four years immediately preceding the date on
which the bid is submitted, or from a resident architectural,
engineering or construction management partnership, association
or corporation, or from a nonresident architectural, engineering or construction management corporation 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 architect's, engineer's or construction manager's bid does
not exceed the lowest qualified bid from a nonresident architect,
engineer or construction manager by more than five percent of the
latter bid, and if the architect, engineer or construction
manager has made written claim for the preference at the time the
bid was submitted.
(2) For purposes of this subdivision, any resident
architectural, engineering or construction management
partnership, association or corporation 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 architectural, engineering
or construction management partnership, association or
corporation is held by another individual architect, engineer or
construction manager or architectural, engineering or
construction management partnership, association or corporation
which otherwise meets the requirements of this subdivision,
including the continuous four-year residency requirement:
Provided, That the secretary of the department of tax and revenue
shall promulgate rules relating to attribution of ownership among
several resident architects, engineers and construction managers
for purposes of determining the eighty percent ownership
requirement;
(b) If the secretary of the department of tax and revenue
determines under any audit procedure that an architect, engineer,
construction manager or architectural, engineering or
construction management partnership, association or corporation
which 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 bid; or (2) assess a penalty
against the architect, engineer, construction manager or
architectural, engineering or construction management
partnership, association or corporation of not more than five
percent of the bid on the project.
(c) If any requirement or provision set forth in this
section jeopardizes the receipt of federal funds, then the
requirement or provision is void and of no force and effect for
that specific project.
NOTE: This bill would create a preference for in-state
architects, engineers and construction managers for state
contracts that are subject to the competitive bidding process.
This section is new; therefore, strike-throughs and
underscoring have been omitted.