Senate Bill No. 694
(By Senators McCabe, Guills and Hunter)
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[Introduced February 23, 2004; referred to the Committee on
Finance.]
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A BILL to amend and reenact §5-22-1 of the code of West Virginia,
1931, as amended, relating to the requirement that competitive
bids for government construction projects be awarded to the
lowest qualified responsible bidder; adding a new subsection
to the section to give the section a name; providing
clarification as to the meaning of the term "lowest qualified
responsible bidder"; establishing procedures and requirements
to be followed in awarding contracts for government
construction projects; and adding criminal penalties for
violation of the procedures and requirements to be followed in
awarding government construction projects.
Be it enacted by the Legislature of West Virginia:
That §5-22-1 of the code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 22. GOVERNMENT CONSTRUCTION CONTRACTS.
§5-22-1. Bidding required; government construction contracts to go
to lowest qualified responsible bidder; procedures to
be followed in awarding government construction
projects; penalties for violation of procedures and
requirements debarment; exceptions.
(a) This section and the requirements set forth in this
section may be referred to as the "West Virginia Fairness In
Competitive Bidding Act."
(a) (b) As used in this section, "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.
(b) (c) The state and its subdivisions shall, except as
provided in this section, solicit competitive bids for every
construction project exceeding twenty-five thousand dollars in
total cost:
Provided, That 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. All bids
submitted pursuant to this chapter shall include a valid bid bond
or other surety as approved by the state of West Virginia or its
subdivisions.
(c) (d)
Following the solicitation of su]ch bids, the construction contract shall be awarded to the lowest qualified
responsible bidder, who shall furnish a sufficient performance and
payment bond: Provided, That the state and its subdivisions may
reject all bids and solicit new bids on said project. As used in
this section, the term "lowest qualified responsible bidder"
means the bidder that bids the lowest price and that meets, as a
minimum, all the following requirements in connection with the
bidder?s response to the bid solicitation. The bidder must certify
that it: (1) Is ready, able and willing to timely furnish the
labor and materials required to complete the contract; (2) is in
compliance with all applicable laws of the state of West Virginia;
and (3) has supplied a valid bid bond or such other surety as may
be authorized or approved by the contracting public entity. The
public contracting entity shall not award the contract to a bidder
which fails to meet these minimum requirements. As to any
prospective low bidder which the public contracting entity
determines not to have met any one or more of the requirements of
this section or other requirements as determined by the public
entity in the written bid solicitation, prior to the time a
contract award is made the contracting public entity shall document
in writing and in reasonable detail the basis for such
determination, and shall place such writing in the bid file. After
the award of a bid under this section, the bid file of the
public contracting agency and all bids submitted in response to the bid solicitation shall be open and available for public
inspection. Any public official or other person who individually
or together with others knowingly makes an award of a contract
under this section in violation of the procedures and requirements
of this section is subject to the penalties set forth in section
twenty-nine, article three, chapter five-a of the code of
West Virginia.
(d) (e)
All bids shall be opened in accordance with the
provisions of section two of this article, except design-build
projects which are governed by article twenty-two-a, chapter five
of this code are exempt from these provisions.
(e) (f)
Nothing in this section shall apply to:
(1) Work performed on construction or repair projects by
regular full-time employees of the state or its subdivisions;
(2) Prevent students enrolled in vocational educational
schools from being utilized in construction or repair projects when
such use is a part of the student?s training program;
(3) Emergency repairs to building components and systems. For
the purpose of this subdivision, emergency repairs means repairs
that if not made immediately will seriously impair the use of such
building components and systems, or cause danger to those persons
using such building components and systems; and
(4) Any situation where the state or a subdivision thereof
shall come to an agreement with volunteers, or a volunteer group, whereby the governmental body will provide construction or repair
materials, architectural, engineering, technical or any other
professional services and the volunteers will provide the necessary
labor without charge to, or liability upon, the governmental body.
NOTE: This bill establishes the "West Virginia Fairness in
Competitive Bidding Act," and clarifies the procedures to be
followed by public entities in awarding government construction
contracts. The bill provides a definition of the term "lowest
qualified responsible bidder"; sets forth procedures to be followed
by public contracting entities in making awards of government
construction contracts; and establishes criminal penalties for
persons who violate the procedures to be followed in awarding
government construction contracts.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.