ENGROSSED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 500
(By Senator Chafin)
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[Originating in the Committee on Government Organization;
reported February 28, 1996.]
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A BILL to amend and reenact section four, article six, chapter
five, of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; and to amend section forty,
article three, chapter five-a of said code, all relating to
purchase, lease, lease purchase, or otherwise, by the state
building commission; acquisition or lease of property by the
secretary of the department of administration; and prior
approval by the joint committee on government and finance.
Be it enacted by the Legislature of West Virginia:
That section four, article six, chapter five of the code of
West Virginia, one thousand nine hundred thirty-one, as amended,
be amended and reenacted; that sections thirty-seven and forty,
article three, chapter five-a of said code be amended and
reenacted, all to read as follows:
CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR;
SECRETARY OF STATE AND ATTORNEY GENERAL; BOARD OF PUBLIC WORKS; MISCELLANEOUS AGENCIES, COMMISSIONS, OFFICES, PROGRAMS, ETC.
ARTICLE 6. STATE BUILDING COMMISSION.
§5-6-4. Powers of commission.
The commission shall have power:
(1) To sue and be sued, plead and be impleaded;
(2) To have a seal and alter the same at pleasure;
(3) To contract to acquire and to acquire, subject to prior
approval of the joint committee on government and finance, in the
name of the commission or of the state, by purchase, lease,
lease-purchase, or otherwise, real property or rights or
easements necessary or convenient for its corporate purposes and
to exercise the power of eminent domain to accomplish such
purposes;
(4) To acquire, hold and dispose of personal property for
its corporate purposes;
(5) To make bylaws for the management and regulation of its
affairs;
(6) With the consent of the attorney general of the state of
West Virginia, to use the facilities of his office, assistants
and employees in all legal matters relating to or pertaining to
the commission;
(7) To appoint officers, agents and employees, and fix their
compensation;
(8) To make contracts, and to execute all instruments
necessary or convenient to effectuate the intent of, and to
exercise the powers granted to it by this article;
(9) To renegotiate all contracts entered into by it
whenever, due to a change in situation, it appears to the
commission that its interests will be best served;
(10) To construct a building or buildings on real property,
which it may acquire, or which may be owned by the state of West
Virginia, in the city of Charleston, as convenient as may be to
the capitol building, together with incidental approaches,
structures and facilities, subject to such consent and approval
of the city of Charleston in any case as may be necessary and in
all cases subject to prior approval of the joint committee on
government and finance; and, in addition, to acquire or construct
a warehouse, including office space therein, in Kanawha county
for the West Virginia alcohol beverage control commissioner, and
equip and furnish the same; and subject to prior approval of the
joint committee on government and finance; to acquire or
construct, through lease, purchase, lease-purchase, or bond
financing, hospitals or other facilities, buildings, or additions
or renovations to buildings as may be necessary for the safety
and care of patients, inmates and guests at facilities under the
jurisdiction of and supervision of the division of health and at
institutions under the jurisdiction of the division of
corrections or the regional jail and correctional facilities
authority; and to formulate and program plans for the orderly and
timely capital improvement of all of said hospitals and
institutions and the state capitol buildings, subject to prior
approval of the joint committee on government and finance; and to construct a building or buildings in Kanawha county to be used as
a general headquarters by the division of public safety state
police to accommodate that division's state police's executive
staff, clerical offices, technical services, supply facilities
and dormitory accommodations; and subject to prior approval of
the joint committee on government and finance; to develop,
improve and expand state parks and recreational facilities to be
operated by the division of commerce division of natural
resources, subject to prior approval of the joint committee on
government and finance; to establish one or more systems or
complexes of buildings and projects under control of the
commission; and subject to prior approval of the joint committee
on government and finance; and, subject to prior agreements with
holders of bonds previously issued, to change the same from time
to time, in order to facilitate the issuance and sale of bonds of
different series on a parity with each other or having such
priorities between series as the commission may determine; and to
acquire by purchase, eminent domain or otherwise all real
property or interests therein necessary or convenient to
accomplish the purposes of this subdivision; subject to prior
approval of the joint committee on government and finance;
(11) To maintain, construct and operate a project authorized
hereunder;
(12) To charge rentals subject to prior approval of the
joint committee on government and finance, for the use of all or
any part of a project or buildings at any time financed, constructed, acquired or improved in whole or in part with the
proceeds of sale of bonds issued pursuant to this article,
subject to and in accordance with such agreements with
bondholders as may be made as hereinafter provided: Provided,
That on and after the effective date of the amendments to this
section, to charge rentals subject to prior approval of the joint
committee on government and finance, for the use of all or any
part of a project or buildings at any time financed, constructed,
acquired, maintained or improved in whole or in part with the
proceeds of sale of bonds issued pursuant to this article,
subject to and in accordance with such agreements with
bondholders as may be made as hereinafter provided, or with any
funds available to the state building commission, including, but
not limited to, all buildings and property owned by the state of
West Virginia or by the state building commission, but no such
rentals shall be charged to the governor, attorney general,
secretary of state, state auditor, state treasurer, the
Legislature and the members thereof, the supreme court of
appeals, nor for their offices, agencies, official functions and
duties;
(13) To issue negotiable bonds and to provide for the rights
of the holders thereof;
(14) To accept and expend any gift, grant or contribution of
money to, or for the benefit of, the commission, from the state
of West Virginia or any other source for any or all of the
purposes specified in this article or for any one or more of such purposes as may be specified in connection with such gift, grant
or contribution;
(15) To enter on any lands and premises for the purpose of
making surveys, soundings and examinations;
(16) To invest in United States government obligations, on a
short-term basis, any surplus funds which the commission may have
on hand pending the completion of any project or projects; and
(17) To do all things necessary or convenient to carry out
the powers given in this article.
The rights and powers set forth in subdivision (10) of this
section shall not be construed as in derogation of any rights and
powers now vested in the West Virginia alcohol beverage control
commissioner, the department of mental health, the commissioner
of public institutions department of health and human resources,
or the department division of natural resources.
CHAPTER 5A. DEPARTMENT OF ADMINISTRATION.
ARTICLE 3. PURCHASING DIVISION.
§5A-3-37. Preference for resident vendors; preference for
vendors employing state resident; exceptions.
(a) Other provisions of this article notwithstanding,
effective the first day of July, one thousand nine hundred ninety,
through the thirtieth day of June, one thousand nine hundred
ninety-four, in any instance involving the purchase of construction
services for the construction, repair or improvement of any
buildings or portions thereof, where the total aggregate cost
thereof, whether one or a series of contracts are awarded in completing the project, is estimated by the director to exceed the
sum of fifty thousand dollars and where the director or any state
department is required under the provisions of this article to make
the purchase, construction, repair or improvement upon competitive
bids, the successful bid shall be determined as provided in this
section. Effective beginning the first day of July, one thousand
nine hundred ninety-two, in any instance that a purchase of
commodities or printing, or any lease or lease purchase agreement,
by the director or by a state department is required under the
provisions of this article to be made 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 and regulations necessary to: (i) Determine that vendors
have met the residence requirements described in this section; (ii)
establish the procedure for vendors 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 and regulations, 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 vendor who has resided in West
Virginia continuously for the four years immediately preceding the
date on which the bid is submitted or from a partnership, association, corporation resident vendor, or from a corporation
nonresident vendor 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 vendor's bid does not
exceed the lowest qualified bid from a nonresident vendor by more
than two and one-half percent of the latter bid, and if the vendor
has made written claim for the preference at the time the bid was
submitted: Provided, That for purposes of this subdivision, any
partnership, association or corporation, resident vendor 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 vendor is held by
another individual, partnership, association or corporation
resident vendor who otherwise meets the requirements of this
subdivision, including the continuous four-year residency
requirement: Provided, however, That the secretary of the
department of tax and revenue shall promulgate rules and
regulations relating to attribution of ownership among several
resident vendors for purposes of determining the eighty percent
ownership requirement; or
(2) From a resident vendor, if, for purposes of producing or
distributing the commodities or completing the project which is the
subject of the vendor's bid and continuously over the entire term of the project, on average at least seventy-five percent of the
vendor's employees are residents of West Virginia who have resided
in the state continuously for the two immediately preceding years
and the vendor's bid does not exceed the lowest qualified bid from
a nonresident vendor by more than two and one-half percent of the
latter bid, and if the vendor has certified the residency
requirements of this subdivision and made written claim for the
preference, at the time the bid was submitted; or
(3) From a nonresident vendor, which employs a minimum of one
hundred state residents or a nonresident vendor which has an
affiliate or subsidiary which maintains its headquarters or
principle place of business within West Virginia and which employs
a minimum of one hundred state residents, if, for purposes of
producing or distributing the commodities or completing the project
which is the subject of the vendor's bid and continuously over the
entire term of the project, on average at least seventy-five
percent of the vendor's employees or the vendor's affiliate's or
subsidiary's employees are residents of West Virginia who have
resided in the state continuously for the two immediately preceding
years and the vendor's bid does not exceed the lowest qualified bid
from a nonresident vendor by more than two and one-half percent of
the latter bid, and if the vendor has certified the residency
requirements of this subdivision and made written claim for the
preference, at the time the bid was submitted; or
(4) From a vendor who meets either the requirements of both
subdivisions (1) and (2) of this subsection or subdivisions (1) and (3) of this subsection, if the bid does not exceed the lowest
qualified bid from a nonresident vendor by more than five percent
of the latter bid, and if the vendor has certified the residency
requirements above and made written claim for the preference at the
time the bid was submitted.
(b) When purchases for which a vendor may claim a preference
under this section are made by evaluation of bids or proposals for
which criteria other than price are used to evaluate such bids or
proposals, such vendor preferences as authorized by this section
are to be applied to all criteria used in evaluating bids and
proposals, in order to accord the appropriate preference to
resident vendors as qualified in subdivisions (1), (2), (3) and
(4), subsection (a) of this section.
(b)(c) If the secretary of the department of tax and revenue
determines under any audit procedure that a vendor who 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 vendor's bid; or (2) assess a penalty against the
vendor of not more than five percent of the vendor's bid on the
project.
(c)(d) Political subdivisions of the state including county
boards of education may grant the same preferences to any vendor of
this state who has made a written claim for the preference at the
time a bid is submitted, but for the purposes of this subsection,
in determining the lowest bid, any political subdivision shall exclude from the bid the amount of business occupation taxes which
must be paid by a resident vendor to any municipality within the
county comprising or located within the political subdivision as a
result of being awarded the contract which is the object of the
bid; in the case of a bid received by a municipality, the
municipality shall exclude only the business and occupation taxes
as will be paid to the municipality: Provided, That prior to
soliciting any competitive bids, any political subdivision may, by
majority vote of all its members in a public meeting where all the
votes are recorded, elect not to exclude from the bid the amount of
business and occupation taxes as provided in this subsection.
(d)(e) If any of the requirements or provisions set forth in
this section jeopardize the receipt of federal funds, then the
requirement or provisions are void and of no force and effect for
that specific project.
(e)(f) If any provision or clause of this section or
application thereof to any person or circumstance is held invalid,
the invalidity shall not affect other provisions or applications of
this section which can be given effect without the invalid
provision or application, and to this end the provisions of this
section are severable.
(f)(g) This section may be cited as the "Jobs for West
Virginia Act of 1990".
§5A-3-40. Selection of grounds, etc.; acquisition by contract or
lease; long-term leases; requiring approval of secretary for
permanent changes.
The secretary shall have sole authority to select and to
acquire by contract or lease, in the name of the state, all
grounds, buildings, office space or other space, the rental of
which is necessarily required by any spending unit, upon a
certificate from the chief executive officer or his designee of
said spending unit that the grounds, buildings, office space or
other space requested is necessarily required for the proper
function of said spending unit, that the spending unit will be
responsible for all rent and other necessary payments in connection
with the contract or lease and that satisfactory grounds,
buildings, office space or other space is not available on grounds
and in buildings now owned or leased by the state and which
decisions of the secretary are subject to the prior approval of the
joint committee on government and finance. The secretary shall,
before executing any rental contract or lease, determine the fair
rental value for the rental of the requested grounds, buildings,
office space or other space, in the condition in which they exist,
and shall contract for or lease said premises at a price not to
exceed the fair rental value thereof.
The secretary is hereby authorized to enter into long-term
agreements for buildings, land and space for periods longer than
one fiscal year: Provided, That such decision of the secretary
shall be subject to the prior approval of the joint committee on
government and finance: Provided, however, That such long-term
lease agreements shall not be for periods in excess of forty years,
except that the secretary may, in the case of the adjutant general's department, enter into lease agreements for a term of
fifty years or a specific term of more than fifty years so as to
comply with federal regulatory requirements, and shall contain, in
substance, all the following provisions: (1) That the department
of administration, as lessee, shall have the right to cancel the
lease without further obligation on the part of the lessee upon
giving thirty days' written notice to the lessor, such notice being
given at least thirty days prior to the last day of the succeeding
month; (2) that the lease shall be considered canceled without
further obligation on the part of the lessee if the state
Legislature or the federal government should fail to appropriate
sufficient funds therefor or should otherwise act to impair the
lease or cause it to be canceled; and (3) that the lease shall be
considered renewed for each ensuing fiscal year during the term of
the lease unless it is canceled by the department of administration
before the end of the then current fiscal year.
A spending unit which is granted any grounds, buildings,
office space or other space leased in accordance with this section
may not order or make permanent changes of any type thereto, unless
the secretary has first determined that the change is necessary for
the proper, efficient and economically sound operation of the
spending unit. For purposes of this section, a "permanent change"
means any addition, alteration, improvement, remodeling, repair or
other change involving the expenditure of state funds for the
installation of any tangible thing which cannot be economically
removed from the grounds, buildings, office space or other space when vacated by the spending unit.