Senate Bill No. 478

(By Senators Oliverio and Buckalew, Kimble and Manchin)

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[Introduced February 19, 1996; referred to the Committee on Government Organization; and then to the Committee on Finance.]
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A BILL to amend article three, chapter five-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section thirty- seven-b, relating to creating a bidding preference for in-state architects, engineers and construction managers in the awarding of state contracts.

Be it enacted by the Legislature of West Virginia:
That article three, chapter five-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new section, designated section thirty-seven-b, to read as follows:
ARTICLE 3. PURCHASING DIVISION.
§5A-3-37b. Preference for resident architects, engineers and
construction managers; exceptions.
(a) Other provisions of this article notwithstanding, in any instance involving the purchase of architectural, engineering or construction management services where the director or any state department is required under the provisions of this article to make the purchase upon competitive bids, the successful bid shall be determined as provided in this section. The secretary of the department of tax and revenue shall promulgate any rules necessary to: (i) Determine that architects, engineers and construction managers have met the residence requirements described in this section; (ii) establish the procedure for architects, engineers and construction managers to certify the residency requirements at the time of submitting their bids; (iii) establish a procedure to audit bids which make a claim for preference permitted by this section and to reject noncomplying bids; and (iv) otherwise accomplish the objectives of this section. In prescribing the rules, the secretary shall use a strict construction of the residence requirements set forth in this section. For purposes of this section, a successful bid shall be determined and accepted as follows:
(1) From an individual resident architect, engineer or construction manager who has resided in West Virginia continuously for the four years immediately preceding the date on which the bid is submitted, or from a resident architectural, engineering or construction management partnership, association or corporation, or from a nonresident architectural, engineering or construction management corporation which has an affiliate or subsidiary which employs a minimum of one hundred state residents and which has maintained its headquarters or principal place of business within West Virginia continuously for four years immediately preceding the date on which the bid is submitted, if the architect's, engineer's or construction manager's bid does not exceed the lowest qualified bid from a nonresident architect, engineer or construction manager by more than five percent of the latter bid, and if the architect, engineer or construction manager has made written claim for the preference at the time the bid was submitted.
(2) For purposes of this subdivision, any resident architectural, engineering or construction management partnership, association or corporation of this state, which does not meet the requirements of this subdivision solely because of the continuous four-year residence requirement, shall be considered to meet the requirement if at least eighty percent of the ownership interest of the resident architectural, engineering or construction management partnership, association or corporation is held by another individual architect, engineer or construction manager or architectural, engineering or construction management partnership, association or corporation which otherwise meets the requirements of this subdivision, including the continuous four-year residency requirement: Provided, That the secretary of the department of tax and revenue shall promulgate rules relating to attribution of ownership among several resident architects, engineers and construction managers for purposes of determining the eighty percent ownership requirement;
(b) If the secretary of the department of tax and revenue determines under any audit procedure that an architect, engineer, construction manager or architectural, engineering or construction management partnership, association or corporation which received a preference under this section fails to continue to meet the requirements for the preference at any time during the term of the project for which the preference was received the secretary may: (1) Reject the bid; or (2) assess a penalty against the architect, engineer, construction manager or architectural, engineering or construction management partnership, association or corporation of not more than five percent of the bid on the project.
(c) If any requirement or provision set forth in this section jeopardizes the receipt of federal funds, then the requirement or provision is void and of no force and effect for that specific project.





NOTE: This bill would create a preference for in-state architects, engineers and construction managers for state contracts that are subject to the competitive bidding process.

This section is new; therefore, strike-throughs and underscoring have been omitted.