H. B. 4185
(By Mr. Speaker, (Mr. Miley) and Delegate Armstead)
[By Request of the Executive]
[Introduced January 15, 2014; referred to the
Committee on Government Organization then the Judiciary.]
A BILL to amend and reenact §5A-1-1 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new section, designated §5A-1-10; to amend and reenact §5A-3-1, §5A-3-3, §5A-3-4, §5A-3-5, §5A-3-11, §5A-3-17, §5A-3-28, §5A-3-30 and §5A-3-31 of said code; and to amend said code by adding thereto three new sections, designated §5A-3-10d, §5A-3-10e and §5A-3-60, all relating generally to purchasing; revising the definition of “commodities”; eliminating the definition of “contractual services”; defining “contract,” “grant,” “procurement,” “public funds,” and “services”; revising the definition of “vendor”; requiring state spending units to purchase commodities and services on a competitive basis; authorizing the secretary of the Department of Administration to issue a notice to cease and desist when purchases are not made on a competitive basis; clarifying the purposes and policies of the Purchasing Division; clarifying the applicability of the article; clarifying that procurements must include adequate specifications and descriptions; authorizing the director of purchasing to issue a notice to cease and desist when purchases are not made on a competitive basis; adding the term “services” to where “commodities” is referenced throughout the code; removing reference to “contractual services”; authorizing reverse auctions for purchasing commodities; defining “reverse auction”; permitting third-party vendors to administer reverse auctions; affording the director of the Purchasing Division rule-making authority to implement reverse auctions; authorizing prequalification agreements and the secondary bid process for the direct procurement of certain commodities; defining “information technology,” “state,” “prequalification agreement,” “prequalified vendor,” and the “secondary bid process”; requiring approval of the director of the Purchasing Division for prequalification agreements, secondary bid process commodities procurements anticipated to cost in excess of $50,000 and information technology procurements anticipated to cost in excess of $1,000,000; affording the director of the Purchasing Division rule-making authority to establish procedures regarding prequalification agreements, prequalification, the secondary bid process, and related matters; clarifying circumstances in which grants are exempt from competitive bidding requirements; imposing personal liability upon spending officers and other responsible individuals who have knowingly and willfully violated competitive bidding requirements; expanding criminal penalties for undermining competition; requiring certain executive department officials to attend annual training on purchasing procedures; and making technical corrections.
Be it enacted by the Legislature of West Virginia:
That §5A-1-1 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that said code be amended by adding thereto a new section, designated §5A-1-10; that §5A-3-1, §5A-3-3, §5A-3-4, §5A-3-5, §5A-3-11, §5A-3-17, §5A-3-28, §5A-3-30 and §5A-3-31 of said code be amended and reenacted; and that said code be amended by adding thereto three new sections, designated §5A-3-10d, §5A-3-10e and §5A-3-60, all to read as follows:
ARTICLE 1. DEPARTMENT OF ADMINISTRATION.
For the purpose of this chapter:
(1) "Commodities" means supplies, material, equipment, contractual services, and any other articles or things used by or furnished to a department, agency or institution of state government.
(2) "Contractual services" means telephone, telegraph, electric light and power, water and similar services.
(2) “Contract” means an agreement between a state spending unit and a vendor relating to the procurement of commodities or services, or both.
(3) "Debarment" means the exclusion of a vendor from the right to bid on contracts to sell goods or supply services to the state or its subdivisions for a specified period of time.
(4) "Director" means the director of the division referred to in the heading of the article in which the word appears.
(5) “Electronic” means electrical, digital, magnetic, optical, electromagnetic, or any other similar technology.
(6) “Electronic transmission” or “electronically transmitted” means any process of communication not directly involving the physical transfer of paper that is suitable for the retention, retrieval and reproduction of information by the recipient.
(7) "Expendable commodities" means those commodities which, when used in the ordinary course of business, will become consumed or of no market value within the period of one year or less.
(8) “Grant” means the furnishing of assistance (financial or otherwise) to any person or entity to support a program authorized by law.
(8) (9) "Nonprofit workshops" means an establishment: (a) Where any manufacture or handiwork is carried on; (b) which is operated either by a public agency or by a cooperative or by a nonprofit private corporation or nonprofit association, in which no part of the net earnings thereof inures, or may lawfully inure, to the benefit of any private shareholder or individual; (c) which is operated for the primary purpose of providing remunerative employment to blind or severely disabled persons who cannot be absorbed into the competitive labor market; and (d) which shall be approved, as evidenced by a certificate of approval, by the state Board of Vocational Education, Division of Vocational Rehabilitation.
(9) (10) “Printing” means printing, binding, ruling, lithographing, engraving and other similar services.
(11) “Procurement” means the buying, purchasing, renting, leasing or otherwise obtaining of commodities or services.
(12) “Public funds” means funds of any character, including federal moneys, belonging to or in the custody of any state spending unit.
(10) (13) “Record” means information that is inscribed on a read-only tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(11) (14) "Removable property" means any personal property not permanently affixed to or forming a part of real estate.
(12) (15) “Request for quotations” means a solicitation for a bid where cost is the primary factor in determining the award.
(13) (16) “Responsible bidder” means a vendor who has the capability to fully perform the contract requirements, and the integrity and reliability which will assure good faith performance.
(14) (17) “Responsive bidder” means a vendor who has submitted a bid which conforms in all material respects to the bid solicitation.
(15) (18) "Secretary" means the Secretary of Administration.
(19) “Services” means the furnishing of labor, time, expertise or effort by a contractor, not involving the delivery of a specific end commodity or product, other than one that may be incidental to the required performance.
(16) (20) "Spending officer" means the executive head of a spending unit, or a person designated by him or her.
(17) (21) "Spending unit" means a department, agency or institution of the state government for which an appropriation is requested, or to which an appropriation is made by the Legislature.
(18) (22) "The state and its subdivisions" means the State of West Virginia, every political subdivision thereof, every administrative entity that includes such a subdivision, all municipalities and all county boards of education.
(19) (23) "Vendor" means any person or entity that may, through contract or expression of interest, is registered with the Purchasing Division to supply the state or its subdivisions with commodities or services and lessors of real property.
§5A-1-10. General procurement provisions for the state and its subdivisions, and spending units.
(a) Unless this code specifically provides to the contrary, purchases for commodities and services by spending units shall be based, whenever possible, on a competitive process.
(b) The secretary shall issue a notice to cease and desist to any spending unit when the secretary has credible evidence that a spending unit has failed, where possible, to purchase commodities and services on a competitive basis.
ARTICLE 3. PURCHASING DIVISION.
§5A-3-1. Division created; purpose; director; applicability of article; continuation.
(a) The Purchasing Division within the Department of Administration is continued. for the purpose of establishing centralized offices to provide purchasing, and travel services to the various state agencies. The underlying purposes and policies of the Purchasing Division are:
(1) To establish centralized offices to provide purchasing and travel services to the various state agencies;
(2) To simplify, clarify, and modernize the law governing procurement by this state;
(3) To permit the continued development of procurement policies and practices;
(4) To make as consistent as possible the procurement rules and practices among the various spending units;
(5) To provide for increased public confidence in the procedures followed in public procurement;
(6) To ensure the fair and equitable treatment of all persons who deal with the procurement system of this state;
(7) To provide increased economy in procurement activities and to maximize to the fullest extent practicable the purchasing value of public funds;
(8) To foster effective broad-based competition within the free enterprise system;
(9) To provide safeguards for the maintenance of a procurement system of quality and integrity; and
(10) To obtain in a cost-effective and responsive manner the commodities and services required by spending units in order for those spending units to better serve this state’s businesses and residents.
(b) The director of the Purchasing Division shall, at the time of appointment:
(1) Be a graduate of an accredited college or university; and
(2) Have spent a minimum of ten of the fifteen years immediately preceding his or her appointment employed in an executive capacity in purchasing for any unit of government or for any business, commercial or industrial enterprise.
(c) The provisions of this article apply to all of the spending units of state government, except as otherwise provided by this article or by law.
(d) The provisions of this article do not apply to the judicial branch, the legislative branch, to purchases of stock made by the Alcohol Beverage Control Commissioner, and to purchases of textbooks for the State Board of Education.
(e) The provisions of this article shall apply to every expenditure of public funds by a spending unit for commodities and services irrespective of the source of the funds.
§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 and services shall be based, whenever possible, on competitive bid;
(3) Purchasing Purchase or contract for, in the name of the state, the commodities, services 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 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 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 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 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” procurements are prepared so as to permit 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 “requests for quotations” request at issue 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 such notice may result in penalties set forth in section seventeen of this article.
§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 and services directly and prescribe the manner in which such purchases shall be made;
(2) Authorize, in writing, a spending unit to purchase commodities and services in the open market for immediate delivery in emergencies, defines define emergencies and prescribe the manner in which such purchases shall be made and reported to the director;
(3) Prescribe the manner in which commodities and services shall be purchased, delivered, stored and distributed;
(4) Prescribe the time for making requisitions and estimates of commodities and services, 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 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 and services of the type with respect to which such vendor specified notice was to be given, but no such fee shall exceed the cost of giving the notice to such vendor, nor shall such fee exceed the sum of $125 per fiscal year nor shall 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 contain 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-3-5. Purchasing section standard specifications – Promulgation and adoption by director; applicable to all purchases.
The director shall promulgate and adopt standard specifications based on scientific and technical data for appropriate commodities and services, which shall establish the quality to which commodities to be purchased and services to be contracted for by the state must conform. Standard specifications shall apply to every future purchase of or contract for the commodities or services described in the specifications and shall include information relating to the cost of maintenance and expected life of the commodity if the director determines there are nationally accepted industry standards for the commodity. No purchases by any spending unit may be exempt from compliance with the standard specifications so established, but the director may exempt the purchase of particular items from the standard specifications if it is considered necessary and advisable. The director shall update the standard specifications, as necessary.
§5A-3-10d. Reverse auctions.
(a) Notwithstanding any other provision of this code, the director is hereby authorized to initiate reverse auctions to procure commodities. The director may not use reverse auctions for the procurement of services under any circumstances.
(b) Reverse auctions may be utilized if the director determines their use would be fair, economical and in the best interests of the state, and the commodities to be procured:
(1) Are subject to low price volatility;
(2) Have specifications that are common and not complex;
(3) Vary little between suppliers;
(4) Are sourced primarily based on price, with limited ancillary considerations;
(5) Require little collaboration from suppliers; and
(6) Are sold by a large, competitive supply base.
(c) For purposes of this section, “reverse auction” means a process by which bidders compete to provide commodities in an open and interactive market, including, but not limited to, the Internet. Reverse auction bids are opened and made public upon receipt by the director, and then bidders are given the opportunity to submit revised bids until the bidding process is complete. The contract is awarded to the lowest responsible bidder.
(d) The director may contract with qualified, industry-recognized third-party vendors to conduct reverse auctions on behalf of the director.
(e) The director shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to establish the procedures for conducting reverse auctions. The rules shall include procedures for contracting with qualified, industry-recognized third-party vendors.
§5A-3-10e. Prequalification agreements; secondary bid process.
(a) Subject to the limitations of this section, the director may permit the state and its spending units to procure commodities directly through a secondary bid process if the director determines the process is fair, economical and in the best interests of the state.
(b) Definitions. For purposes of this section:
(1) “Information technology” means hardware and software related to electronic processing, and storage, retrieval, transmittal and manipulation of data.
(2) “Prequalification agreement” means an agreement between the state and at least two prequalified vendors authorizing the state to purchase a commodity directly and on a recurrent basis through the secondary bid process.
(3) “Prequalified vendor” means a “vendor,” as that term is defined in section one, article one, chapter five-a of this code, that has entered into a prequalification agreement with the state and may use the secondary bid process subject to the terms and conditions of the prequalification agreement.
(4) “Secondary bid process” means the competitive bidding process whereby the prequalified vendors that are parties to a prequalification agreement may submit sealed bids to provide a commodity identified in the prequalification agreement subject to the limitations set forth in this section.
(5) “State” means the State of West Virginia and its spending units.
(c) Prequalification procedures.
(1) For each 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 secondary bid process.
(2) A prequalification agreement may authorize the secondary bid process 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 prequalification agreement.
(4) If the director determines that a vendor meets the requirements set forth in the prequalification agreement, the vendor may enter into the prequalification agreement as a prequalified vendor.
(d) Secondary bid procedures.
(1) The state may commence the secondary bid process by issuing a request for a commodity identified in the prequalification agreement, stating in the request the quantity of the commodity to be procured in that particular instance.
(2) The prequalified vendor that submits the lowest secondary bid in response to the request shall be awarded the procurement in that particular instance.
(3) The secondary bid process may not be utilized for any request for commodities, other than information technology, anticipated to cost more than $50,000, 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 to circumvent the monetary limitation in this subsection.
(4) The secondary bid process may not be utilized for any request for information technology anticipated to cost more than $1,000,000, unless approved in writing by the director of purchasing. The state may not issue a series of orders each anticipated to cost less than $1,000,000 to circumvent the monetary limitation in this subsection.
(e) Rulemaking authority. The director of the Purchasing Division shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code, to establish, among other things, procedures by which prequalification agreements shall be solicited and entered into; procedures by which interested vendors may be prequalified; and procedures by which the secondary bid process shall be conducted.
§5A-3-11. Purchasing in open market on competitive bids; debarment; bids to be based on written specifications; period for alteration or withdrawal of bids; awards to lowest responsible bidder; uniform bids; record of bids; requirements of vendors to pay taxes, fees and debts; and exception; and grant exemption.
(a) The director may make a purchase of commodities, printing, and services of $25,000 or less in amount in the open market, but the purchase shall, wherever possible, be based on at least three competitive bids, and shall include the cost of maintenance and expected life of the commodities if the director determines there are nationally accepted industry standards for the commodities being purchased.
(b) The director may authorize spending units to purchase commodities, printing and services in the amount of $2,500 or less in the open market without competitive bids: Provided, That the cost of maintenance and expected life of the commodities must be taken into consideration if the director determines there are nationally accepted industry standards for the commodities being purchased.
(c) Bids shall be based on the written specifications in the advertised bid request and may not be altered or withdrawn after the appointed hour for the opening of the bids.
(d) A vendor who has been debarred pursuant to the provisions of sections thirty-three-a through thirty-three-f, article three, chapter five-a of this code, may not bid on or be awarded a contract under this section.
(e) All open market orders, purchases based on advertised bid requests or contracts made by the director or by a state department shall be awarded to the lowest responsible bidder or bidders, taking into consideration the qualities of the commodities or services to be supplied, their conformity with specifications, their suitability to the requirements of the government, the delivery terms and, if the director determines there are nationally accepted industry standards, cost of maintenance and the expected life of the commodities: Provided, That state bids on school buses shall be accepted from all bidders who shall then be awarded contracts if they meet the state board's "Minimum Standards for Design and Equipment of School Buses." County boards of education may select from those bidders who have been awarded contracts and shall pay the difference between the state aid formula amount and the actual cost of bus replacement. Any or all bids may be rejected.
(f) If all bids received on a pending contract are for the same unit price or total amount, the director has the authority to reject all bids, and to purchase the required commodities, printing and services in the open market, if the price paid in the open market does not exceed the bid prices.
(g) The bid must be received by the Purchasing Division prior to the specified date and time of the bid opening. The failure to deliver or the nonreceipt of the bid by the Purchasing Division prior to the appointed date and hour shall result in the rejection of the bid. The vendor is solely responsible for the receipt of bid by the Purchasing Division prior to the appointed date and hour of the bid opening. All bids will be opened publicly by two or more persons from the Purchasing Division. Vendors will be given notice of the day, time and place of the public bid opening. Bids may be viewed immediately after being opened.
(h) After the award of the order or contract, the director, or someone appointed by him or her for that purpose, shall indicate upon the successful bid that it was the successful bid. Thereafter, the copy of each bid in the possession of the director shall be maintained as a public record, shall be open to public inspection in the office of the director and may not be destroyed without the written consent of the Legislative Auditor.
(i)(1) A grant awarded by the state is exempt from the competitive bidding requirements set forth in this chapter, unless the grant is used to procure commodities or services that directly benefit a spending unit.
(2) Where a grant awarded to the state requires the procurement of commodities or services that will directly benefit a spending unit, the procurement is not exempt from the competitive bidding requirements set forth in this chapter.
(3) Where a grant awarded to the state requires the state to transfer some or all of the grant to an individual, entity or vendor as a subgrant to accomplish a public purpose, and no contract for commodities or services directly benefitting a spending unit will result, the subgrant is not subject to the competitive bidding requirements set forth in this chapter.
§5A-3-17. Purchases or contracts violating article void; personal liability.
If a spending unit purchases or contracts for commodities or services contrary to the provisions of this article or the rules and regulations made thereunder, such purchase or contract shall be void and of no effect. The head spending officer of such spending unit, or any other individual charged with responsibility for the purchase or contract shall be personally liable for the costs of such purchase or contract, and, if already paid out of state funds, the amount thereof may be recovered in the name of the state in an appropriate action instituted therefor: Provided, That the state establishes by a preponderance of the evidence that the individual acted knowingly and willfully.
§5A-3-28. Financial interest of secretary, etc.; receiving reward from interested party; penalty; application of bribery statute.
Neither the secretary, nor the director nor any employee of the division of purchasing, shall be financially interested, or have any beneficial personal interest, directly or indirectly, in the purchase of any commodities, services or printing, nor in any firm, partnership, corporation or association furnishing them. Neither the secretary, nor the director nor any employee of the division of purchasing shall accept or receive directly or indirectly from any person, firm or corporation, known by such secretary, director or employee to be interested in any bid, contract or purchase, by rebate, gift or otherwise, any money or other thing of value whatsoever, or any promise, obligation or contract for future reward, or compensation.
A person who violates this section shall be guilty of a misdemeanor, and, upon conviction thereof, shall be confined in jail not less than three months nor more than one year, or fined not less than $50 nor more than $1,000, or both, in the discretion of the court: Provided, That any person who violates any of the provisions of the last sentence of the first paragraph of this section under circumstances constituting the crime of bribery under the provisions of section three, article five-a, chapter sixty-one of this code, shall, upon conviction of bribery, be punished as provided in said article five-a.
§5A-3-30. Statement of purpose; obtaining money and property under false pretenses or by fraud from the state or a political subdivision of the state; penalties; definition.
(a) The Legislature of the State of West Virginia hereby declares that the purpose of this statute is to promote equal and fair bidding for the purchase of commodities and services by the state and any political subdivision of the state purchasing commodities and services under any state contract; to eliminate fraud in the procurement of commodities and services by the state.
(b) It is unlawful for any person to obtain any services, money, goods or other property from the state or any political subdivision of the state under any contract made under the provisions of this article, by false pretense, token or representation, or by delivery of inferior commodities, with intent to defraud. A person who violates this subsection is guilty of a felony, and, upon conviction thereof, shall be confined in a state correctional facility for not less than one year nor more than five years, and shall be fined not exceeding $1,000.
(c) It shall not be a defense to a charge under this section that: (1) The commodities or services purchased were accepted and used, or are being used, by the state or a political subdivision of the state; or (2) the commodities or services are functional or suitable for the purpose for which the commodities or services were purchased by the state or a political subdivision of the state notwithstanding the standard or specification issued by the purchasing agency or the division of purchasing.
(d) For the purpose of this section, "inferior commodities" includes, but shall not be limited to: (1) Any commodity which does not meet the specification or standard issued by the purchasing agency and the division of purchasing, or any change order approved by both the purchasing agency and division of purchasing; and (2) any commodity which is of a lesser quality, quantity, or measure of any kind set forth within the specification or standard issued by the purchasing agency and the division of purchasing.
§5A-3-31. Corrupt actions, combinations, collusions or conspiracies prohibited; penalties.
It shall be unlawful for any person to corruptly act alone or combine, collude or conspire with one or more other persons with respect to the purchasing or supplying of services, commodities or printing to the state under the provisions of this article if the purpose or effect of such action, combination, collusion or conspiracy is either to: (1) Lessen competition among prospective vendors; or (2) cause the state to pay a higher price for such services, commodities or printing than would be or would have been paid in the absence of such action, combination, collusion or conspiracy; or (3) cause one prospective vendor or vendors to be preferred over one or more other prospective vendor or vendors. Any person who violates any provision of this section shall be guilty of a felony, and, upon conviction thereof, shall be confined in penitentiary a correctional facility not less than one nor more than five years, and be fined not exceeding $5,000.
§5A-3-60. Annual purchasing training.
(a) All Executive Department secretaries, commissioners, deputy commissioners, assistant commissioners, directors, deputy directors, assistant directors, department heads, deputy department heads, and assistant department heads are hereby required to take one hour of training on purchasing procedures annually.
(b) The director of the Purchasing Division shall offer the one-hour training contemplated by this section at least two times per year and shall develop its substance in accordance with the requirements of this article. The training shall be recorded by audio and visual means and shall be made available to the individuals listed in subsection (a) of this section in the event they are unable to attend the training in person.
(c) All individuals listed in subsection (a) shall certify, in writing and on a form developed by the director of the Purchasing Division, the date, time, location and manner in which they took the training. Completed forms shall be returned to the director and maintained in his or her office.
NOTE: The purpose of this bill is to implement purchasing reforms. Specifically, the bill modifies and creates several definitions; clarifies the purposes of the purchasing provisions; authorizes the secretary of the Department of Administration and the director of purchasing to issue cease and desist notices when a spending unit has violated competitive bidding requirements; adds “services” to references of “commodities”; provides the Purchasing Division with alternative methods to purchase certain commodities, including the reverse auction and prequalification agreement/secondary bid processes; imposes a civil penalty on individuals who have knowingly and willingly violated competitive bidding requirements; imposes a criminal penalty on individuals who undermine the fair competitive bidding process; and requires certain executive department officials to attend annual training on purchasing procedures.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.
§5A-1-10, §5A-3-10d, §5A-3-10e, and §5A-3-60 are new; therefore, they have been completely underscored.