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Introduced Version House Bill 2813 History

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hb2813 intr
H. B. 2813


          (By Delegate Guthrie)
          [Introduced March 4, 2013; referred to the
          Committee on Government Organization then Finance.]




A BILL to amend and reenact §5A-3-3 , §5A-3-4, §5A-3-10, §5A-3-10b and §5A-3-11c of the Code of West Virginia, 1931, as amended, all relating generally to the purchasing division; making technical corrections; requiring that the manner in which spending units may be authorized to make direct purchases must be consistent with the other requirements of this article; requiring that the director of purchasing may not authorize a contract that would allow an agency to circumvent the $25,000 threshold for agency purchases; requiring that best value procurements are subject to the other requirements of this article; and clarifying that an award to multiple vendors remains subject to the other requirements of this article.
Be it enacted by the Legislature of West Virginia:
     That §5A-3-3
, §5A-3-4, §5A-3-10, §5A-3-10b and §5A-3-11c of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 3. PURCHASING DIVISION.
§5A-3-3. Powers and duties of director of purchasing.
     The director, under the direction and supervision of the secretary, shall be the executive officer of the Purchasing Division and shall have the power and duty to:
     (1) Direct the activities and employees of the Purchasing Division;
     (2) Ensure that the purchase of or contract for commodities shall be based, whenever possible, on competitive bid;
     (3) Purchasing Purchase or contract for, in the name of the state, the commodities and printing required by the spending units of the state government;
     (4) Apply and enforce standard specifications established in accordance with section five of this article as hereinafter provided;
     (5) Transfer to or between spending units or sell commodities that are surplus, obsolete or unused as hereinafter provided;
     (6) Have charge of central storerooms for the supply of spending units, as the director deems advisable;
     (7) Establish and maintain a laboratory for the testing of commodities and make use of existing facilities in state institutions for that purpose as hereinafter provided, as the director deems advisable;
     (8) Suspend the right and privilege of a vendor to bid on state purchases when the director has evidence that such the vendor has violated any of the provisions of the purchasing law or the rules and regulations of the director;
     (9) Examine the provisions and terms of every contract entered into for and on behalf of the State of West Virginia that impose any obligation upon the state to pay any sums of money for commodities or services and approve each such contract as to such the provisions and terms; and the duty of examination and approval herein set forth does not supersede the responsibility and duty of the Attorney General to approve such the contracts as to form: Provided, That the provisions of this subdivision do not apply in any respect whatever to construction or repair contracts entered into by the Division of Highways of the Department of Transportation: Provided, however, That the provisions of this subdivision do not apply in any respect whatever to contracts entered into by the University of West Virginia Board of Trustees or by the Board of Directors of the State College System, except to the extent that such the boards request the facilities and services of the director under the provisions of this subdivision; and
     (10) Assure that the specifications and commodity descriptions in all "requests for quotations" are prepared so as to permit 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 having different specifications or quality or in different quantity can be bought, the director may rewrite the "requests for quotations" and the matter shall be rebid.
§5A-3-4. Rules of director.
     (a) The director shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to:
     (1) Authorize a spending unit to purchase specified commodities directly and prescribe the manner in which such purchases shall be made, consistent with the requirements of this article;
     (2) Authorize, in writing, a spending unit to purchase commodities in the open market for immediate delivery in emergencies, defines emergencies and prescribe the manner in which such purchases shall be made and reported to the director;
     (3) Prescribe the manner in which commodities shall be purchased, delivered, stored and distributed;
     (4) Prescribe the time for making requisitions and estimates of commodities, the future period which they are to cover, the form in which they shall be submitted and the manner of their authentication;
     (5) Prescribe the manner of inspecting all deliveries of commodities, and making chemical and physical tests of samples submitted with bids and samples of deliveries to determine compliance with specifications;
     (6) Prescribe the amount and type of deposit or bond to be submitted with a bid or contract and the amount of deposit or bond to be given for the faithful performance of a contract;
     (7) Prescribe a system whereby the director shall be is required, upon the payment by a vendor of an annual fee established by the director, to give notice to such vendor of all bid solicitations for commodities of the type with respect to which such vendor specified notice was to be given, but no such fee shall may exceed the cost of giving the notice to such vendor, nor shall may such fee exceed the sum of $125 per fiscal year nor shall may such fee be charged to persons seeking only reimbursement from a spending unit;
     (8) Prescribe that each state contract entered into by the Purchasing Division shall contains provisions for liquidated damages, remedies or provisions for the determination of the amount or amounts which the vendor shall owe as damages, in the event of default under such contract by such vendor, as determined by the director;
     (9) Prescribe contract management procedures for all state contracts except government construction contracts including, but not limited to, those set forth in article twenty-two, chapter five of this code;
     (10) Prescribe procedures by which oversight is provided to actively monitor spending unit purchases, including, but not limited to, all technology and software commodities and contractual services exceeding $1 million, approval of change orders and final acceptance by the spending units;
     (11) Prescribe that each state contract entered into by the Purchasing Division contain provisions for the cancellation of the contract upon thirty days' notice to the vendor;
     (12) Prescribe procedures for selling surplus commodities to the highest bidder by means of an Internet auction site;
     (13) Provide such other matters as may be necessary to give effect to the foregoing rules and the provisions of this article; and
     (14) Prescribe procedures for encumbering purchase orders to ensure that the proper account may be encumbered before sending purchase orders to vendors.
     (b) The director shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to prescribe qualifications to be met by any person who is to be employed in the Purchasing Division as a state buyer. The rules must provide that a person may not be employed as a state buyer unless he or she at the time of employment either is:
     (1) A graduate of an accredited college or university; or
     (2) Has at least four years' experience in purchasing for any unit of government or for any business, commercial or industrial enterprise.
     Persons serving as state buyers are subject to the provisions of article six, chapter twenty-nine of this code.
§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.
 (a) A purchase of and contract for commodities, printing and services shall be based, whenever possible, on competitive bids.
 (b) The director shall solicit sealed bids for the purchase of commodities and printing which is estimated to exceed $25,000. No spending unit shall may issue a series of requisitions or divide or plan procurements to circumvent this $25,000 threshold or otherwise avoid the use of sealed bids, and the director may not approve any contract that would allow an agency to make purchases that circumvent the $25,000 threshold or otherwise avoid the use of sealed bids, unless the contract is otherwise consistent with the requirements of this article. Any spending unit which awards multiple contracts for the same or similar commodity or service to an individual vendor over any twelve-month period, the total value of which exceeds $25,000, shall file copies of all contracts awarded to the vendor within the twelve preceding months with the director immediately upon exceeding the $25,000 limit, along with a statement explaining how the multiple contract awards do not circumvent the $25,000 threshold. If the spending unit does not immediately report to the director, the director may suspend the purchasing authority of the spending unit until the spending unit complies with the reporting requirement of this subsection. The director may conduct a review of any spending unit to ensure compliance with this subsection. Following a review, 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 of each year the spending units which have reported under this subsection and the findings of the director.
 (c) The director may permit bids by electronic transmission to be accepted in lieu of sealed bids.
 (d) Bids shall be solicited by public notice. The notice may be published by any advertising medium the director deems advisable. The director may also solicit sealed bids by sending requests by mail or electronic transmission to prospective vendors.
 (e) The director shall, without competitive bidding, purchase commodities and services produced and offered for sale by nonprofit workshops, as defined in section one, article one of this chapter, which are located in this state: Provided, That such 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 with the advice of the committee on the purchase of commodities and services from the handicapped.
 To encourage contracts for commodities and services with nonprofit workshops, the director shall employ a person whose responsibilities in addition to other duties shall be 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 such 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.
§5A-3-10b. Best value procurement.
 (a) The director may utilize best value procurement to enter into a contract when he or she determines in writing that it is advantageous to the state.
 (b) A solicitation for bids under best value procurement shall be made in the same manner as provided in section ten of this article.
 (c) Best value procurement awards shall be based on criteria set forth in the solicitation including, but not limited to, price, the total cost of acquiring, operating, maintaining and supporting a commodity or service over its projected lifetime, the evaluated technical merit of the bidder's bid or proposal, the bidder's past performance, and the evaluated probability of performing the requirements stated in the solicitation on time, with high quality, and in a manner that accomplishes the business objectives set forth in the solicitation.
 (d) The award must be made to the highest scoring responsive and responsible bidder whose bid is determined, in writing, to be most advantageous to the state, taking into consideration all evaluation factors set forth in the best value solicitation.
 (e) The director may not use best value procurement to enter into government construction contracts, including, but not limited to, those set forth in article twenty-two, chapter five of this code.
 (f) The director may not use best value procurement nor allow an agency to use best value procurement to enter into contracts that could later be used to circumvent the requirement in subsection (b) of section ten of this article that the director must solicit sealed bids for the purchase of commodities and printing estimated to exceed $25,000, or otherwise circumvent the requirements of this article.
§5A-3-11c. Multiple awards.
 
(a) The director may elect to award a contract to one or more responsive and responsible bidders if the director determines in writing that a single award to an individual bidder would be insufficient: Provided, That the basis for the selection among multiple contracts at the time of purchase shall be the most practical and economical alternative and shall be in the best interests of the state.
_(b) The bidding process and each contract awarded under this section remains subject to all of the requirements of this article that would otherwise apply to a single contract awarded by the director.

 NOTE: The purpose of this bill is to make technical corrections to the purchasing division article; to require that the manner in which spending units may be authorized by the director of the Purchasing Division to make direct purchases must be consistent with the other requirements of the purchasing process; to prevent the director of purchasing from authorizing a contract that would allow an agency to circumvent the $25,000 threshold for agency purchases; and to ensure that contracts awarded under best value procurement and awards to multiple vendors remain subject to the requirements of the purchasing process.


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