H. B. 3117
(By Mr. Speaker, Mr. Kiss, Delegates Staton, Amores,
Michael, Pino, Kuhn and Cann)
[Introduced February 21, 2003; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section one, article twenty-two of
chapter five of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; and the further amend said
article by adding thereto a new section, designated section
two, all relating to bidding on government construction
contracts; inclusion of certain valid bid bonds; designation
of time and place of opening of certain bids; inability to
waive certain bid provisions and requirements; inability to
resubmit certain bids on a project after bid withdrawal.
Be it enacted by the Legislature of West Virginia:
That section one, article twenty-two of chapter five of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; and that said article be
further amended by adding thereto one new section, designated
section two, all to read as follows:
ARTICLE 22. GOVERNMENT CONSTRUCTION CONTRACTS.
§5-22-1. Bidding required; government construction contracts to
go to qualified responsible bidder; debarment; exceptions.
(a) 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) 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.
(c) Following the solicitation of such 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.
(d) The opening of bids shall be governed by the provisions
of section two of this article.
(d) (e) 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 students 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.
§ 5-22-2. Designation of time and place for opening of bids;
right to reject or withdraw bid; bid resubmission
.
(a) The public entity accepting public contract bids shall,
in its resolution providing for the contract or purchase and for
the advertisement for bids, designate the time and place that the
bids will be received and shall at that time and place publicly
open the bids and read them aloud: Provided, that no public
entity shall accept or take any bids, including receiving any
hand delivered bids, after the time advertised to take bids and
on days which are recognized as holidays by the United States
Postal Service. No public entity shall accept or consider any bids that do not contain a valid bid bond.
(b) The provisions and requirements of this section, section
one of article twenty-two of this chapter, the requirements
stated in the advertisement for bids and the requirements on the
bid form shall not be waived by any public entity. Bids
containing patently obvious, unintentional, and substantial
mechanical, clerical, or mathematical errors, or errors of
unintentional omission of a substantial quantity of work, labor,
material, or services made directly in the compilation of the
bid, shall not be considered by the public entity but may be
withdrawn by the contractor if clear and convincing sworn,
written evidence of such errors is furnished to the public entity
within forty-eight hours of the bid opening excluding Saturdays,
Sundays, and legal holidays. Such errors must be clearly shown by
objective evidence drawn from inspection of the original work
papers, documents, or materials used in the preparation of the
bid sought to be withdrawn. If the public entity determines that
the error is a patently obvious mechanical, clerical, or
mathematical error, or unintentional omission of a substantial
quantity of work, labor, material, or services, as opposed to a
judgment error, and that the bid was submitted in good faith it
shall accept the withdrawal and return the bid security to the
contractor.
(c) A contractor who attempts to withdraw a bid under the
provisions of this Section shall not be allowed to resubmit a bid on the project. If the bid withdrawn is the lowest bid, the next
lowest bid may be accepted. If all bids are rejected, no
withdrawal of the bid which would result in the award of the
contract on another bid of the same bidder, his partner, or to a
corporation or business venture owned by or in which he has an
interest shall be permitted. No bidder who is permitted to
withdraw a bid shall supply any material or labor to, or perform
any subcontract work agreement for, any person to whom a contract
or subcontract is awarded in the performance of the contract for
which the withdrawn bid was submitted.
Note: The purpose of this bill is to require contractors
bidding on public works construction projects to submit valid bid
bonds in their proposals and to direct how public bids are
received.
Strike-throughs indicate language that would be
stricken from the present law, and underscoring indicates new
language that would be added.