Introduced Version
Senate Bill 574 History
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Key: Green = existing Code. Red = new code to be enacted
Senate Bill No. 574
(By Senators Kessler (Mr. President), Beach, Chafin, Edgell,
Facemire, Fitzsimmons, Green, D. Hall, Laird, Miller, Snyder,
Stollings, Unger, Yost, Plymale, Cookman and Wells)
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[Introduced March 20, 2013; referred to the Committee on
Government Organization; and then to the Committee on Finance .]
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A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §21-16-1, §21-16-2
and §21-16-3, all relating to requiring the use of American
manufactured goods in the construction, alteration or repair
of public buildings and public works; and definitions.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §21-16-1, §21-16-2 and
§21-16-3, all to read as follows:
ARTICLE 16. WEST VIRGINIA BUY AMERICAN ACT.
§21-16-1. Short title.
This article shall be known as the West Virginia Buy American
Act of 2013.
§21-16-2. Use of American materials.
(a) Notwithstanding any other provision of law, each contract
for the construction, reconstruction, alteration, repair,
improvement or maintenance of a public building or public works
made by a public agency shall contain a provision that the
manufactured goods used or supplied in the performance of the
contract or any subcontract thereto shall be manufactured in the
United States.
(b) Each public agency shall call for the use of United States
origin manufactured goods in the design and engineering
specifications for the projects for public buildings and public
works.
(c) The provisions of subsections (a) and (b) of this section
do not apply in any case or category of cases in which the
Department of Labor finds:
(1) That their application to the procurement of a
manufactured good would be inconsistent with the public interest;
(2) That a manufactured good sought for procurement is not
produced in the United States in sufficient and reasonably
available quantities and of a satisfactory quality;
(3) That the cost of a manufactured good manufactured in the
United States is unreasonable;
(4) That a manufactured good is included on the applicable
annual lists of manufactured goods that have been identified by the
Department of Labor as not produced in the Untied States in sufficient quantities in the previous calendar year;
(5) That a manufactured good is required for completion of the
project and its procurement was unplanned or is de minimis;
(6) That the equipment, materials or supplies are necessary
for the completion of the project but are not permanently
incorporated or attached to the final project; or
(7) That the cost of the total project for the construction,
reconstruction, alteration, repair, improvement or maintenance of
a public building or public works is less than $1 million.
(d) The Department of Labor shall implement procedures to
allow a reasonable amount of time for public review and comment on
a requested waiver under subsection (c) of this section before
making a finding based on the request and shall publish a detailed
justification for any waiver granted.
(e) Annual lists of items availability and nonavailability:
(1) The Department of Labor shall develop and reissue annually
thereafter and publish:
(A) A list of manufactured goods deemed to qualify as
manufactured in the Untied States for purposes of this article and
required under subsection (b) to be specified in the design and
engineering specifications in any project for the construction,
reconstruction, alteration, repair, improvement or maintenance of
a project for public buildings and public works;
(B) A list of manufactured goods found not to be available, or not known to be available based on existing information available,
pursuant to subdivision (2), subsection (c) of this section in the
previous calendar year.
(2) Safe harbor:
(A) Any person who uses or supplies foreign origin
manufactured goods under a contract subject to the requirements of
this section is not in violation of this section if that person
reasonably relied upon the finding of unavailability included in
the Department of Labor's most recent published annual list.
(B) Any person who uses or supplies foreign origin
manufactured goods under a contract subject to the requirements of
this section is not in violation of this section until the list
provided for under paragraph (A), subdivision (1), subsection (e)
has been developed.
(3) In developing the lists or contracting for the development
of the lists, the Department of Labor shall implement procedures to
promote public input. In doing so, the Department of Labor shall:
(A) Publish the lists on the publicly accessible Internet
website of the state and in the West Virginia Purchasing Bulletin;
(B) Make the lists available annually for public review and
comment not less than thirty days prior to publication;
(C) Take into account all comments received and resolve
disputes raised during the public comment period; and
(D) Invite public comments as to items' availability for which no determination on availability has been made.
(4) (A) The Department of Labor shall develop the lists over
a period not to exceed three years, provided that the manufactured
goods most commonly used in such projects for the construction,
reconstruction, alteration, repair, improvement or maintenance of
a public building or public works and the manufactured goods
determined to be available are included in the first publication of
the list; and
(B) That a public agency, in consultation with the Department
of Labor, shall have the discretion to, on an ad hoc basis, deviate
from the lists when a prototype manufactured good not manufactured
in the United States is incorporated for testing purposes.
(C) The Department of Labor shall develop a process to
annually review and amend the lists required under subdivision (1)
of this subsection in accordance with the requirements for public
input under subdivision (3) of this subsection.
(f) Intentional Violations. -- A person, as defined in
subsection (a), section three, article eleven, chapter five of this
code, shall be subject to debarment or suspension provided for
under article three of chapter five-a of this code if it has been
determined by a court or federal or state agency that the person
intentionally:
(1) Affixed a label bearing a "Made in America" inscription,
or any inscription with the same meaning, to any manufactured good used in projects to which this section applies that was not made in
the United States;
(2) Represented that any manufactured good used in projects to
which this section applies that was not produced in the United
States, was produced in the United States;
(3) Represented that a manufactured good was or was not
manufactured in the United States for purposes of the Department of
Labor's determinations as to a manufactured good's availability and
the development of the lists provided in subsection (e) of this
section; or
(4) Violated any portion of this law.
(g) This section shall be applied in a manner consistent with
the state's obligations under any applicable international
agreements in force or any agreement to which the state heretofore
obligates itself pertaining to government procurement.
§21-16-3. Definitions.
For the purposes of this article, the following words have the
meaning ascribed to them in this section:
(1) "Public agency" means the State of West Virginia, its
departments, agencies, boards, commissions, and institutions, and
all units and political subdivisions thereof, including local
school districts;
(2) "Manufactured in the United States" means:
(A) In the case of a manufactured good, a good will be considered manufactured in the United States if:
(i) All the manufacturing processes for the manufactured good
take place in the United States; and
(ii) The origin of a manufactured goods's components or
subcomponents meets a minimum level of domestic content, as
determined by the Department of Labor; and
(B) The Department of Labor shall, prior to Fiscal Year 2018,
make a recommendation to the Legislature as to whether the
preference provided in section two of this article may be increased
for offers offering to supply manufactured goods that are
predominantly comprised of components or subcomponents mined,
produced or manufactured in the United States.
(3) "Manufactured good" means:
(A) An article, material, or supply brought to a construction
site for incorporation into a public building or public work. The
term should also include those items brought to the site
preassembled from articles, materials or supplies; and
(B) Articles, materials or supplies acquired for public use.
(4) "Public Buildings and Public Works" means any structure,
building, highway, waterway, pipeline, treatment works, utility
system, street, bridge, transit system, airport or other
betterment, work or improvement whether of a permanent or temporary
nature and whether for governmental or proprietary use. The term
includes, but is not limited to, any tanks, culverts or pipelines, railway, street railway, subway, elevated and monorail passenger or
passenger and rail rolling stock, self-propelled cars, gallery
cars, locomotives, passenger buses, wires, poles and equipment for
electrification of a transit system, rails, tracks, roadbeds,
guideways, elevated structures, buildings, schools, hospitals,
stations, terminals, docks, shelters and repairs to any of the
foregoing.
(5) "United States" means the United States of America and
includes all territory, continental or insular, subject to the
jurisdiction of the United States.
NOTE: The purpose of this bill is to require the use of
American manufactured goods in the construction, alteration or
repair of public buildings and public works.
This article is new; therefore, strike-throughs and
underscoring have been omitted.