ENROLLED
H. B. 4283
(By Mr. Speaker, (Mr. Kiss) and Delegates DeLong,
Argento, Amores, Caputo, Beach, Perry and Michael)
[Passed March 11, 2006; in effect ninety days from passage.]
AN ACT to amend and reenact §5A-3-37 of the Code of West Virginia,
1931, as amended, relating to providing a preference to West
Virginia veterans in the awarding of state contracts in the
competitive bidding process.
Be it enacted by the Legislature of West Virginia:
That §5A-3-37 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 3. PURCHASING DIVISION.
§5A-3-37. Preference for resident vendors; preference for vendors
employing state residents; preference for veteran
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 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
Revenue shall promulgate any rules 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, 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 Revenue shall promulgate rules 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; or
(5) From an individual resident vendor who is a veteran of the
United States armed forces, the reserves or the National Guard and
has resided in West Virginia continuously for the 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 three 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; or
(6) From a resident vendor who is a veteran of the United
States armed forces, the reserves or the National Guard, 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 three 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.
(b) If the Secretary of the Department of 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) 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) 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) 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) This section may be cited as the "Jobs for West Virginians
Act of 1990."