(a) In any case where a contract for work and materials shall be let as a result of competitive bidding, the successful bidder shall, ~~promptly and~~ within 20 days after notice of award, execute a formal contract to be approved as to its form, terms, and conditions by the commissioner, and shall also execute and deliver to the commissioner a good and sufficient surety or collateral bond, payable to the State of West Virginia, to be approved by the commissioner, in such amount as the commissioner may require, but not to exceed 110 percent of the contract price, conditioned that ~~such~~ the contractor shall well and truly perform ~~his~~ the contract. ~~and~~ The commissioner shall have authority to grant a surety or collateral bond requirement required under this section below 50 percent of the contract price below the requirements of this section, as determined by objective criteria determined by the commissioner. Any contractor or bidder that is adversely affected by the commissioner’s ruling under this section shall have the right to appeal said ruling to the Kanawha County Circuit Court to determine if the setting of said bonding requirement is appropriate based upon objective criteria as the court may determine. Said appeal shall be heard subject to a de novo review.

(b) The contractor shall pay in full to the persons entitled thereto for all material, gas, oil, repairs, supplies, tires, equipment, rental charges for equipment and charges for the use of equipment, and labor used by ~~him in and about~~ the contractor in the performance of such contract, or which reasonably appeared, at the time of delivery or performance, would be substantially consumed in and about the performance of ~~such~~ the contract. ~~An action either at law or in equity,~~ A legal action may be maintained upon ~~such~~ the bond for breach thereof by any person for whose benefit the ~~same~~ bond was executed or by his or her assignee.

(c) The bidder who has the contract awarded to him or her and who fails within 20 days after notice of the award to execute the required contract and bond shall forfeit such check or bond, ~~and the check or bond~~ which shall be taken and considered as liquidated damages and not as a penalty for failure of such bidder to execute ~~such~~ the contract and bond.

(d) Upon the execution of ~~such~~ the contract and bond by the successful bidder, his or her check or bond shall be ~~returned~~ released to him or her. The checks or bonds of the unsuccessful bidders shall be ~~returned~~ released to them promptly after the bids are opened and the contract awarded to the successful bidder.

(e) A duplicate copy of such contract and bond shall be furnished by the Commissioner of the Division of Highways, in ~~loose-leaf form~~ electronic or paper form as may be required, to the ~~clerk of the county court~~ county clerk of the county in which such contract is to be performed. ~~and it shall be~~ It is the duty of the county clerk to bind and preserve the same in his or her office and index the same in the name of the commissioner and of the contractor.