SB 474 — Exempting DOH from Purchasing Division procedures

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Red = new code to be enacted WEST virginia legislature regular session IntroducedCommittee Substitute for Senate Bill 474 By Senators Clements, Swope, Stollings, Roberts, Romano, and Plymale [Introduced[Originating Februaryin 26,the 2021;Committee on Transportation and Infrastructure;

referredreported to the Committee on TransportationMarch and24, Infrastructure]2021]     A BILL to amend and reenact §17-2A-13§5A-3-3 of the Code of West Virginia, 1931, as amended, relating to authorizingexpanding the authority of the Division of Highways to utilize its own purchasing and contracting system;system and expanding the exemption from requirements of the Purchasing Division within the Department of Administration.

mandating compliance with Federal Highway Administration and other requirements;

and requiring a procedural rule.

ARTICLE 2A.3.

WESTPURCHASING VIRGINIADIVISION. COMMISSIONER OF HIGHWAYS.

§17-2A-13.§5A-3-3.

PurchasePowers orand acquisitionduties of materials,Director suppliesof andPurchasing. equipment.

(a) The Alldirector, Notwithstandingunder the provisionsdirection and supervision of §5A-1-1the etsecretary, seq.is the executive officer of the Purchasing Division and has the power and duty to:

of(1) thisDirect code, all materials, supplies and equipment required for the stateactivities road program and systememployees shall be purchased and acquired by the commissioner through the department of purchases, the DivisionPurchasing ofDivision; Highways’ competitive bid process except as otherwise provided by law.

The(2) directorEnsure of purchases commissioner shall adopt rules and regulations, in accordance with §29-3A-1 et seq., governing and controlling acquisitions and purchases in accordance with accepted business practices so that nothe personspurchase shallof, beor precludedcontract fromfor, participatingcommodities and makingservices salesare thereofbased, towhenever thepossible, commissionon commissioner. competitive Thebid; commissioner shall:

 (1)(3) establishPurchase andor prescribecontract Prescribefor, specifications, in allthe propername cases,of forthe materials,state, suppliesthe commodities, services, and equipmentprinting torequired beby purchased;the spending units of the state government;

shall(4) adoptApply and prescribeenforce suchstandard (2)specifications Prescribeestablished purchasein order,accordance requisitionwith or§5A-3-5 otherof formsthis code as mayhereinafter beprovided; required;

shall(5) negotiate Transfer (3)to Negotiateor forbetween andspending makeunits purchasesor andsell acquisitionscommodities inthat suchare quantities,surplus, atobsolete, such times and under contract, in the open market or throughunused other accepted business methods and practices, as mayhereinafter beprovided; practicable in accordance with general law;

shall(6) determineHave (4)charge Determineof whethercentral tostorerooms advertise for bids,the tosupply purchase by means of sealedspending bidsunits andas competitivethe biddingdirector orconsiders toadvisable; effect advantageous purchases through other accepted methods and practices;

and(7) shallEstablish postand (5)maintain Post in a publiclaboratory placefor in the officestesting of thecommodities commission and themake departmentuse of purchases,existing availablefacilities commissioner,in onstate theinstitutions division’sfor website,that andpurpose throughas thehereinafter internetprovided biddingas site used by the division,director inconsiders aadvisable; manner accessible to the public during all business hours notices of all acquisitions and purchases to be made, at least two weeks prior to making such purchases.

(b)(8) AllSuspend purchasesthe right and acquisitionsprivilege shallof bea madevendor into considerationbid andon withinstate limitspurchases ofwhen availablethe appropriationsdirector andhas fundsevidence andthat inthe accordancevendor withhas applicableviolated provisionsany of articlethe two,provisions chapter five-a of thisthe code,purchasing relatinglaw toor expenditurethe schedulesrules and quarterlyregulations allotments of funds.the director;

The(9) directorExamine ofthe purchasesprovisions shalland maketerms availableof theevery facilitiescontract andentered servicesinto offor hisand departmenton tobehalf of the commissionerState inof theWest purchaseVirginia andthat acquisitionimpose ofany materials,obligation suppliesupon andthe equipmentstate andto shallpay cooperateany withsums theof commissionermoney infor allcommodities suchor purchasesservices and acquisitionsapprove uponthe requestcontract ofas theto commissioner.such provisions and terms;

Theand actual expenses incurred by the directorduty of purchasesexamination inand allapproval suchherein casesset shallforth bedoes paidnot bysupersede the commissionerresponsibility (c)and Theduty commissioner shall propose a procedural rule setting forth the requirements of its purchasing system.  The system must meet or exceed the FederalAttorney HighwayGeneral Administration’sto requirements,approve award the contracts as to lowestform: bidders unless circumstances justify another bidder, and require fair and equitable administration.

 Provided, NOTE:That the provisions of this subdivision do not apply in any respect whatever to construction or repair contracts that include equipment, supplies, materials, or labor, or all or a combination of the same, and are entered into by the Division of Highways of the Department of Transportation or to construction or reclamation contracts entered into by the Department of Environmental Protection:

TheProvided, purposehowever, ofThat this bill is to authorize an exemption from the Divisionprovisions of Purchasingthis forsubdivision thedo Divisionnot ofapply Highways.  Currently, the Highways has contract bidding procedures in placeany forrespect constructionwhatsoever materialsto andcontracts laborentered butinto utilizesby the DivisionUniversity of PurchasingWest forVirginia everythingBoard else. of FederalTrustees lawor requiresby Highways,the ifboard federalof fundsdirectors areof used,the tostate havecollege asystem, competitiveexcept bidto processthe forextent construction contracts.  It is anticipated that asuch similarboards electronicrequest bidthe processfacilities wouldand beservices used  for other types of contracts.  This will reduce the timedirector itunder takes to prepare bid specifications and let the bidsprovisions therebyof providingthis systemicsubdivision: efficiencies and cost reductions.

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(10) Assure that the specifications and descriptions in all solicitations are prepared so as to provide all potential suppliers-vendors who can meet the requirements of the state an opportunity to bid and to assure that the specifications and descriptions do not favor a particular brand or vendor.

If the director determines that any such specifications or descriptions as written favor a particular brand or vendor or if it is decided, either before or after the bids are opened, that a commodity or service having different specifications or quality or in different quantity can be bought, the director may rewrite the solicitation and the matter shall be rebid;

and (11) Issue a notice to cease and desist to a spending unit when the director has credible evidence that a spending unit has violated competitive bidding or other requirements established by this article and the rules promulgated hereunder.

Failure to abide by the notice may result in penalties set forth in §5A-3-17 of this code.

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