H. B. 3207
(By Delegate Fleischauer)
[Introduced March 30, 2001; referred to the
Committee on Finance.]
A BILL to amend and reenact sections one and three, article three,
chapter five-a of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, all relating to permitting
purchasers of commodities, personal computers and related
goods and services from resident small businesses by spending
units of state government to be exempt from the requirement
that purchases of such goods and services be made only through
the division of purchasing; providing definition of small
business; and requiring promulgation of legislative rules to
cover these purchases.
Be it enacted by the Legislature of West Virginia:
That sections one and three, article three, chapter five-a of
the code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted, all to read as follows:
ARTICLE 3. PURCHASING DIVISION.
§5A-3-1. Division created; purpose; director; applicability of
article; continuation.
(a) There is hereby created the purchasing division of the
department of administration for the purpose of establishing
centralized offices to provide purchasing, travel and leasing
services to the various state agencies.
(b) No person shall may be appointed director of the
purchasing division unless that person is, at the time of
appointment, a graduate of an accredited college or university and
shall have who has spent a minimum of ten of the fifteen years
immediately preceding his or her appointment employed in an
executive capacity in purchasing for any unit of government or for
any business, commercial or industrial enterprise.
(c) The provisions of this article shall apply to all of the
spending units of state government, except as is otherwise provided
by this article or by law: Provided, That the provisions of this
article shall do not apply to: (i) The legislative branch, unless
otherwise provided by law, or the Legislature or either house
thereof requests the director to render specific services under the
provisions of this chapter; nor to (ii) purchases of stock made by
the alcohol beverage control commissioner; nor to (iii) purchases
of textbooks for the state board of education; or (iv) purchases by
spending units of state government of commodities including
personal computers and computer-related goods and services from resident small business vendors. For the purposes of this section,
a small business has the same definition as set out in section
seven-a, article thirteen-c, chapter eleven of this code.
(d) Pursuant to the provisions of article ten, chapter four of
this code, the purchasing division within the department of
administration shall continue to exist until the first day of July,
two thousand one.
§5A-3-3. Powers and duties of director of purchasing.
The director, under the direction and supervision of the
secretary, shall be the executive officer of the purchasing
division and shall have the power and duty to:
(1) Direct the activities and employees of the purchasing
division;
(2) Ensure that the purchase of or contract for commodities
and printing shall be based, whenever possible, on competitive bid;
(3) Purchase or contract for, in the name of the state, the
commodities and printing required by the spending units of the
state government;
(4) Apply and enforce standard specifications established in
accordance with section five of this article as hereinafter
provided;
(5) Transfer to or between spending units or sell commodities
that are surplus, obsolete or unused as hereinafter provided;
(6) Have charge of central storerooms for the supply of spending units;
(7) Establish and maintain a laboratory for the testing of
commodities and make use of existing facilities in state
institutions for that purpose as hereinafter provided;
(8) Suspend the right and privilege of a vendor to bid on
state purchases when the director has evidence that such vendor has
violated any of the provisions of the purchasing law or the rules
and regulations of the director;
(9) Examine the provisions and terms of every contract entered
into for and on behalf of the state of West Virginia that impose
any obligation upon the state to pay any sums of money for
commodities or services and approve each such contract as to such
provisions and terms; and the duty of examination and approval
herein set forth does not supersede the responsibility and duty of
the attorney general to approve such contracts as to form:
Provided, That the provisions of this subdivision do not apply in
any respect whatever to construction or repair contracts entered
into by the division of highways of the department of
transportation: Provided, however, That the provisions of this
subdivision do not apply in any respect whatever to contracts
entered into by the university of West Virginia board of trustees
or by the board of directors of the state college system, except to
the extent that such boards request the facilities and services of
the director under the provisions of this subdivision; and
(10) Assure that the specifications and commodity descriptions
in all "requests for quotations" are prepared so as to permit all
potential suppliers-vendors who can meet the requirements of the
state an opportunity to bid and to assure that the specifications
and descriptions do not favor a particular brand or vendor. If the
director determines that any such specifications or descriptions as
written favor a particular brand or vendor or if it is decided,
either before or after the bids are opened, that a commodity having
different specifications or quality or in different quantity can be
bought, the director may rewrite the "requests for quotations" and
the matter shall be rebid; and
(11)
Propose legislative rules for promulgation to implement
and develop the method for spending units of state government to
purchase commodities including personal computers, materials,
supplies, services and equipment necessary for the purchases of
commodities, personal computers and related goods and services from
resident small business vendors. The director shall propose by
rule policies and procedures to ensure that the purchases of
commodities including personal computers and related goods and
services made by the various spending units of state government
from resident small business vendors are, to the extent
practicable, at the lowest possible price while at the same time
ensuring quality of material and timely delivery.
The various spending units of state government may purchase commodities including personal computer goods, supplies, services
and equipment from resident small business vendors for the benefit
of spending units of state government through the division of
purchasing, and is encouraged to do so under circumstances which
are advantageous for the timely delivery of low-cost, high-quality
products; but the spending units are not required to make these
purchases through the division of purchasing nor to comply with
rules of that division in making purchases of personal computers
and related goods and services from resident small business
vendors.
The rules shall further provide that the policy of the state
is for small businesses to be encouraged to bid for contracts, with
a goal of at least twenty-three percent of contract bids going to
state small businesses as is the case in federal government
contract bids. Small businesses may join together to bid on
contracts and may not be limited by contract bundling by the state
when it prevents small businesses from bidding. Small businesses
may also subcontract services on contracts and may not be excluded
from contract bids or being awarded contracts for the sole reason
that the small business cannot comply with performance bond
requirements, financial statement requirements, warranty
specifications or providing any other service, if the small
business can satisfy these requirements and others through
subcontracts or other methods.
NOTE: The purpose of this bill is to exempt the purchase of
personal computers and related goods and services by spending units
of state government from the requirement that these purchases be
made only through the division of purchasing, when the purchases
are made from resident small business vendors. It also requires
the director of the division of purchasing to promulgate
legislative rules governing these purchases and services.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.