SB 283 — Relating generally to procurement by state agencies

(3) “Preapproved” “Prequalified vendor” means a “vendor”, as that term is defined in §5A-1-1 of this code, that has entered into a master contract prequalification agreement with the Purchasing Division and may participate in the direct ordering process delegated prequalification bidding subject to the terms and conditions of the master contract prequalification agreement.

(4) “ Direct ordering process” “Delegated prequalification bidding” means the competitive bidding process whereby the preapproved prequalified vendors that are parties to a master contract prequalification agreement may submit sealed bids directly to spending units to provide a commodity identified in the master contract prequalification agreement subject to the limitations set forth in this section.

(c) Master contract Prequalification agreement.

— (1) For each master contract prequalification agreement, the director shall set forth the requirements, technical or otherwise, under which a vendor may be qualified to supply a commodity through the direct ordering process delegated prequalification bidding.

For each master contract prequalification agreement, the director shall follow the notice and advertising requirements set forth in §5A-3-10 of this code.

(2) A master contract prequalification agreement may authorize the direct ordering process delegated prequalification bidding for only one type of commodity.

(3) A vendor may submit information to the director to establish that it meets the requirements set forth in the master contract prequalification agreement.

(4) If the director determines that a vendor meets the requirements set forth in the master contract prequalification agreement, the vendor may enter into the master contract prequalification agreement as a preapproved prequalified vendor.

(d) Direct ordering Delegated prequalification bidding procedures.

— (1) A spending unit may commence the direct ordering delegated prequalification bidding process by issuing a request for a commodity identified in the master contract, prequalification agreement stating in the request the quantity of the commodity to be procured.procured in that particular instance.

(2) The preapproved prequalified vendor that submits the lowest bid in response to the request shall be awarded the procurement.procurement in that particular instance.

(3) The direct ordering process delegated prequalification bidding may not be utilized for any request for commoditiescommodities, other than information technology, anticipated to cost more than $$50,000 $1 million, unless approved in writing by the Director of Purchasing.

The state may not issue a series of orders each anticipated to cost less than $$50,000 $1 million to circumvent the monetary limitation in this subsection.

 (e)(4) Rule-makingThe authority.direct ordering process may not be utilized for any request for information technology anticipated to cost more than $1 million, unless approved in writing by the Director of Purchasing.

The state may not issue a series of orders each anticipated to cost less than $1 million to circumvent the monetary limitation in this subsection.

(e) Rule-making authority.

of this code to implement this section, including,including but not limited to,to provisions to establish procedures for the solicitation and authorization of master contracts prequalification agreements, preapproval prequalification of vendors, and implementation of direct ordering delegated prequalification bidding.

(1) Conviction of an offense involving fraud or a felony offense in connection with related to obtaining or attempting to obtain a public contract or subcontract;

(3) Conviction of an offense involving embezzlement, theft, forgery, bribery, falsification, or destruction of records, making false statements, or receiving stolen property in connection with related to the performance of a contract;

or (8) Violation of the terms of a public contract or subcontract for:

or (E) (9) 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.

(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 a related party of the vendor.  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 §5A-3-33e of this code for the debarment of the vendor.

ReciprocalPreference preference;for resident vendors;

preference for resident vendors foremploying certainstate contracts.residents;

 (a)preference Forfor purposesveteran ofresidents; this section, a vendor shall be deemed to be a resident of this state if such vendor:

exceptions Reciprocal preference.

(a) 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 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.” (a) In any instance that a purchase of commodities or printing by the director or by a state spending unit is required under the provisions of this article to be made upon competitive bids, preference shall be given to resident vendors of West Virginia against a nonresident vendor from any state that gives or requires a preference to bidders from that state.

The amount of the preference shall be equal to the amount of the preference given or required by the state of the nonresident vendor for that particular supply.

(b) A vendor shall be deemed to be a resident of this state if such vendor:

(3) Has actually paid, and not just applied to pay, personal property taxes imposed by chapter 11 of this code on equipment used in the regular course of supplying services or commodities of the general type offered;

(b)(c) ExceptIf as provided in §5A-3-37(c) of this code, in any instance that a purchase of commodities or printing by the directorrequirements or byprovisions aset stateforth spendingin unitthis issection requiredjeopardizes under the provisionsreceipt of thisfederal articlefunds tothen besuch maderequirements uponor competitiveprovision bids, preference shall only be givenvoid toand resident vendors of Westno Virginiaforce againstand aeffect. nonresident vendor from any state that gives or requires a preference to bidders from that state.

The amount of the preference shall be equal to the amount of the preference given or required by the state of the nonresident vendor for that particular supply.

(c)(1) In any instance that a purchase of motor vehicles or construction and maintenance equipment and machinery used in highway and other infrastructure projects 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 subsection.

(2) For purposes of this subsection, a successful bid shall be determined and accepted as follows:

(A) 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 100 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 paragraph, any partnership, association, or corporation resident vendor of this state which does not meet the requirements of this paragraph solely because of the continuous four-year residence requirement, shall be considered to meet the requirement if at least 80 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 paragraph, including the continuous four-year residency requirement:

Provided, however, That the Purchasing Division shall promulgate rules relating to attribution of ownership among several resident vendors for purposes of determining the 80 percent ownership requirement;

or (B) From a resident vendor, if, for purposes of producing or distributing the motor vehicles or the construction and maintenance equipment and machinery used in highway and other infrastructure projects which are the subject of the vendor’s bid and continuously over the entire term of the contract, on average at least 75 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 paragraph and made written claim for the preference, at the time the bid was submitted;

or (C) From a nonresident vendor, which employs a minimum of 100 state residents or a nonresident vendor which has an affiliate or subsidiary which maintains its headquarters or principal place of business within West Virginia and which employs a minimum of 100 state residents, if, for purposes of producing or distributing the motor vehicles or the construction and maintenance equipment and machinery used in highway and other infrastructure projects which are the subject of the vendor’s bid and continuously over the entire term of the contract, on average at least 75 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 paragraph and made written claim for the preference, at the time the bid was submitted;

or (D) From a vendor who meets either the requirements of both §5A-3-37(c)(2)(A) and §5A-3-37(c)(2)(B) of this code or §5A-3-37(c)(2)(A) and §5A-3-37(c)(2)(C) of this code, 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 (E) 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 (F) 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 motor vehicles or construction and maintenance equipment and machinery used in highway and other infrastructure projects which are the subject of the vendor’s bid and continuously over the entire term of the contract, on average at least 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 paragraph and made written claim for the preference, at the time the bid was submitted;

or (G) Notwithstanding any provisions of §5A-3-37(c)(2)(A), §5A-3-37(c)(2)(B), §5A-3-37(c)(2)(C), §5A-3-37(c)(2)(D), §5A-3-37(c)(2)(E), or §5A-3-37(c)(2)(F) of this code to the contrary, if any nonresident vendor that is bidding on the purchase of motor vehicles or construction and maintenance equipment and machinery used in highway and other infrastructure projects by the director or by a state department is also certified as a small-, women-, or minority-owned business pursuant to §5A-3-59, the nonresident vendor shall be provided the same preference made available to any resident vendor under the provisions of this subdivision.

(3) 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.

(4) The Purchasing Division shall promulgate any rules necessary to:

(A) Determine that vendors have met the residence requirements described in this section;

(B) establish the procedure for vendors to certify the residency requirements at the time of submitting their bids;

(C) establish a procedure to audit bids which make a claim for preference permitted by this section and to reject noncomplying bids;

and (D) otherwise accomplish the objectives of this subsection.

(d) If the Purchasing Division 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 contract for which the preference was received the Purchasing Division 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 contract.

(e) 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.

or (7) Selling the commodities to the highest bidder by means of an Internet auction site approved by the director, as set forth in an emergency a legislative rule pursuant to the provisions of chapter 29A of this code.

The agency, with due consideration given to current market prices fair market value as determined by an independent automotive pricing guide, shall set the price at a fair market price to be paid by the receiving eligible organization for motor vehicles sold pursuant to this provision.

TheProvided, fairThat marketthe valuesale shallprice beof basedany onmotor avehicle thoroughsold inspectionto ofan theeligible vehicleorganization bymay annot employeebe ofless than the agency“average wholoan” shallvalue, consideras published in the mileagemost recent available eastern edition of the vehicleNational andAutomobile theDealer’s conditionAssociation of(N.A.D.A.) theOfficial body,Used engine,Car andGuide, tiresif asthe indicatorsvalue ofis itsavailable, unless the fair market value.value of the vehicle is less than the N.A.D.A.

“average loan” value, in which case the vehicle may be sold for less than the “average loan” value The fair market value shall be based on a thorough inspection of the vehicle by an employee of the agency who shall consider the mileage of the vehicle and the condition of the body, engine, and tires as indicators of its fair market value.

Provided however, further, That county boards of education may either elect to start the selection process over in the original order of preference, or it may select additional professional firms in order of their competence and qualifications, and it shall continue negotiations in accordance with this section until an agreement is reached:

§5G-1-4.

Contracts for architectural and engineering services;

selection process where total project costs are estimated to cost less than $250,000;

division of highways procurements.

(a) In the procurement of architectural and engineering services for projects estimated to cost less than $250,000, competition shall be sought by the agency.

The agency shall conduct discussions with three or more professional firms solicited on the basis of known or submitted qualifications for the assignment prior to the awarding of any contract:

Provided, That if a judgment is made that special circumstances exist and that seeking competition is not practical, the agency may, with the prior approval of the director of purchasing, select a firm on the basis of previous satisfactory performance and knowledge of the agency’s facilities and needs.

After selection, the agency and firm shall develop the scope of services required and negotiate a contract.

(b) The Division of Highways may procure the services of architectural and engineering firms under the provisions of this section in an amount not to exceed $750,000 for the services per project.

(a) “Applicable contract” means a contract of a state agency that has an actual or estimated value of at least $100,000 $1 million:

Provided, That this shall include a series of related contracts or orders in which the cumulative total exceeds $100,000 $1 million.

(1) A business entity performing work or service pursuant to, or in furtherance of, the applicable contract, including specifically sub-contractors;

(2) the person(s) any person who have has an ownership interest equal to or greater than 25% 25 percent in the business entity performing work or service pursuant to, or in furtherance of, the applicable contract;

Provided, That §6D-1-1(d)(3)subdivision of(2) this code shall notbe includeinapplicable personsif ora business entitiesentity performingis legala servicespublicly relatedtraded tocompany: the negotiation or drafting of the applicable contract.

Provided, however, That §6D-1-1(d)(3) of this code shall not include persons or business entities performing legal services related to the negotiation or drafting of the applicable contract.

(a) The council, commission,commission and each governing board shall purchase or acquire all materials, supplies, equipment, services,services and printing required for their respective needs:

(1) No person is precluded from participating and making sales thereof to the council, commission,commission or governing board except as otherwise provided in §18B-5-5 of this code.

The preference for resident vendors as provided in section thirty-seven, article three, chapter five-a of this code applies to the competitive bids made pursuant to this section.

(B) Full compliance of §12-3-1 et seq.

  Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.