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:

§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. B
ids 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.