HB2616 H GO AM 2-19
Thompson 3192
The Committee on Government Organization moves to amend the bill on page 2, line 2, after the word "authorized" by striking out the period and inserting in lieu thereof a comma and the words "with the following amendments:
On page 13, subdivision 7.10.1, after the first sentence, by striking out the remainder of subdivision 7.10.1 and inserting in lieu thereof the following:
'In arriving at a determination, the Director will consider the following factors, insofar as they are applicable:
(1) The quality, availability, and reliability of the supplies, materials, equipment, or service and their adaptability to the particular use required;
(2) The ability, capacity, and skill of the bidder;
(3) The sufficiency of the bidder's financial resources;
(4) The bidder's ability to provide maintenance, repair parts, and service;
(5) The compatibility with existing equipment;
(6) The need for flexibility in evaluating new products on a large scale before becoming contractually committed for all use; and
(7) Any other relevant factors.';
On page 14, subdivision 7.13.1, at the beginning of the first sentence, by striking out the word 'The' and inserting in lieu thereof the words 'For contracts for commodities and services in the amount of $1 million or less, the';
On page 14, after subdivision 7.13.1, by inserting a new subdivision, designated subdivision 7.13.2, to read as follows:
'7.13.2. For contracts for commodities and services in an amount exceeding $1 million, the following contract management procedures apply:
a. Post Award Conferences.
The agency administrator responsible for administering the contract shall hold a post award conference with the contractor to ensure a clear and mutual understanding of all contract terms and conditions, and the respective responsibilities of all parties. The agenda for the conference shall include, at a minimum, the introduction of all participants and identification of agency and contractor key personnel, and discussion of the following items:
(1) The scope of the contract, including specifications of what the agency is buying;
(2) The contract terms and conditions, particularly any special contract provisions;
(3) The technical and reporting requirements of the contract;
(4) The contract administration procedures, including contract monitoring and progress measurement;
(5) The rights and obligations of both parties and the contractor performance evaluation procedures;
(6) An explanation that the contractor will be evaluated on its performance both during and at the conclusion of the contract and that such information may be considered in the selection of future contracts;
(7) Potential contract problem areas and possible solutions;
(8) Invoicing requirements and payment procedures, with particular attention to whether payment will be made according to milestones achieved by the contractor;
(9) An explanation of the limits of authority of the personnel of both the agency and the contractor.
b. Monitoring.
The agency shall develop a comprehensive and objective monitoring checklist which:
(1) Measures outcomes;
(2) Monitors compliance with contract requirements; and
(3) Assesses contractor performance.
c. Reports.
The agency shall make the following reports to the Director, on a schedule established by the Director, but not less frequently than once each year:
(1) Status Reports. Status reports describe the progress of the work; track the organizational structure of the statement of work in terms of phases, segments, deliverables and products; and describe what work is complete and what work is pending and contrast that status against the contract schedule. If there are any unresolved issues that the agency is contractually obligated to resolve, those issues should be included in the status report and a resolution should be requested.
(2) Activity Reports. Activity reports describe all activity on the project, regardless of whether substantial progress has been made toward completion of the project. If payment is based on the number of completed transactions, these activities must be specifically set out in the report.';
On page 14, after subsection 7.13, by inserting 4 new subsections, designated subsections 7.14, 7.15, 7.16 and 7.17, to read as follows:
'7.14. Inspection.
17.14.1. The agency shall inspect all materials, supplies, and equipment upon delivery to insure compliance with the contract requirements and specifications.
17.14.2. The agency shall report any discrepancies to the Director immediately.
17.14.3. If unlisted shortages are discovered, the vendor and the Director must be notified immediately.
17.14.4. A contractor may be required to pick up any merchandise not conforming to specifications and replace the merchandise immediately.
7.15. Substitutions.
Substitution of items called for in a contract is not permitted without the Director's prior approval. The Director will not approve substitution of items unless the substituted items are of equal quality and are offered at the same or lower price.
7.16. Cancellations.
7.16.1. The director may cancel a purchase or contract under any one of the following conditions including, but not limited to:
(a) The vendor agrees to the cancellation;
(b) The vendor has obtained the contract by fraud, collusion, conspiracy, or in conflict with any statutory or constitutional provision of the state of West Virginia;
(c) Failure to conform to contract requirements or standard commercial practices;
(d) The existence of an organizational conflict of interest is identified; or
(e) Funds are not appropriated or an appropriation is discontinued by the legislature for the acquisition.
17.16.2. Notwithstanding other provisions of this subdivision, the Director may cancel a purchase or contract for any reason or for no reason, upon 30 days' notice to the vendor.
7.17. Damages.
7.17.1. A vendor who fails to perform as required under a contract shall be liable for actual damages and costs incurred by the state.
17.17.2. If any merchandise delivered under a contract has been used or consumed by an agency and on testing is found not to comply with specifications, no payment may be approved by the Director for the merchandise until the amount of actual damages incurred has been determined.
17.17.3. The Director shall seek to collect damages by following the procedures established by the Office of the Attorney General for the collection of delinquent obligations.'; and
On page 17, section §148-1-11, after subsection 11.1, by striking out subsections 11.2, 11.3, 11.4 and 11.5 in their entireties and inserting in lieu thereof 2 new subsections to read as follows:
'11.2. The state spending unit for surplus property may contract with one or more nationally recognized commercial Internet auction sites to coordinate sales of surplus property, pursuant to the provisions of §5A-3-45 of the West Virginia Code and this rule.
11.3. To ensure that organizations eligible under Federal Property Management Regulations (41 CFR Chapter 101) have priority in obtaining surplus property, all surplus property will be listed on the West Virginia State Agency for Surplus Property website for at least five (5) working days prior to being made available on an Internet auction site.'"