COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 78
(By Senator Chafin)
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[Originating in the Committee on Government Organization;
reported March 5, 1999.]
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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 and reenact sections
thirty-seven and forty, article three, chapter five-a of
said code, all relating to purchase, lease, lease-purchase
or otherwise, of property valued at two million dollars or
greater and to any leases of property in the aggregate of
two million dollars or greater, by the state building
commission; acquisition or lease of property by the
secretary of the department of administration; oversight and
review by the joint committee on government and finance; and
vendors' preferences.
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; and 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.
(a) The commission has the 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
oversight and review 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 those 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 or her 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 the consent and approval of
the city of Charleston in any case as may be necessary and in all
cases subject to prior oversight and review of the joint
committee on government and finance; and, in addition, to acquire
or construct a warehouse, including office space in the
warehouse, in Kanawha County for the West Virginia alcohol
beverage control commissioner, and equip and furnish the office
space; and subject to prior oversight and review 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
facility authority; and to formulate and program plans for the
orderly and timely capital improvement of all of the hospitals
and institutions and the state capitol buildings, subject to
prior oversight and review 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 the
executive staff of the state police, clerical offices, technical
services, supply facilities and dormitory accommodations, subject
to prior oversight and review of the joint committee on
government and finance; and to develop, improve and expand state
parks and recreational facilities to be operated by the division
of natural resources, subject to prior oversight and review of
the joint committee on government and finance; and to establish
one or more systems or complexes of buildings and projects under
control of the commission, subject to prior oversight and review
of the joint committee on government and finance; and, subject to
prior agreements with holders of bonds previously issued, to
change the systems, complexes of buildings and projects 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 in the real property necessary or
convenient to accomplish the purposes of this subdivision, subject to prior oversight and review of the joint committee on
government and finance. The rights and powers set forth in this
subdivision shall may not be construed as in derogation of any
rights and powers now vested in the West Virginia alcohol
beverage control commissioner, the department of health and human
resources, the division of corrections, the regional jail and
correctional facility authority or the division of natural
resources;
(11) To maintain, construct and operate a project authorized
under this article;
(12) To charge rentals, subject to prior oversight and
review 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 the agreements
with bondholders as may be made as provided in this article:
Provided, That on and after the effective date of the amendments
to this section, to charge rentals, subject to prior oversight
and review 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 in this section 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 rentals shall may be charged to the governor,
attorney general, secretary of state, state auditor, state
treasurer, the Legislature and the members of the Legislature,
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 of the negotiable bonds;
(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 the 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;
(17) To issue revenue bonds in accordance with the
applicable provisions of this article for the purposes set forth
in section eleven-a of this article; and
(18) To do all things necessary or convenient to carry out
the powers given in this article.
(b) Prior oversight and review by the joint committee on
government and finance, under subsection (a) of this section,
shall be required only for purchases, lease purchases, or
otherwise of property valued at two million dollars or greater
and to leases of property in the aggregate of two million dollars
or greater.
CHAPTER 5A. DEPARTMENT OF ADMINISTRATION
.
ARTICLE 3. PURCHASING DIVISION.
§5A-3-37. Preference for resident vendors; preference for
vendors employing state residents; 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 in the aggregate of two million dollars or
greater, 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;
(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;
(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 principal 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 does 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
Virginians 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 has 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 or her
designee of said spending unit that the grounds, buildings,
office space or other space requested is necessarily required for
the proper function of said the 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 then owned or
leased by the state: Provided, That prior oversight and review
by the joint committee on government and finance shall be
required for purchases, lease purchases, or otherwise of property
valued at two million dollars or greater and to leases of
property in the aggregate of two million dollars or greater. 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 those
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 prior oversight and review by
the joint committee on government and finance shall be required
for purchases, lease purchases, or otherwise of property valued
at two million dollars or greater and to leases of property in
the aggregate of two million dollars or greater: Provided, however, That such long-term lease agreements shall may 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 of the
following provisions: (1) That the department of administration,
as lessee, shall have has 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 is to be considered canceled without
further obligation on the part of the lessee if the state
Legislature or the federal government should fail to does not
appropriate sufficient funds therefor or should otherwise act
otherwise acts to impair the lease or cause it to be canceled;
and (3) that the lease shall is to 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.
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(NOTE: Strike-throughs indicate language that would be
stricken from the present law, and underscoring indicates new
language that would be added.
)