SB478 H GO AM 3-9
CR 3338

The Committee on Government Organization moves to amend the bill on page two, by striking out everything after the enacting section and inserting in lieu thereof the following:
" That §5A-3-14, §5A-3-21, §5A-3-22, §5A-3-23, §5A-3-24, §5A-3-25, §5A-3-26, §5A-3-37a, §5A-3-38, §5A-3-39, §5A-3-40, §5A-3-41, §5A-3-42, §5A-3-54, §5A-3-55 and §5A-3-55a of the Code of West Virginia, 1931, as amended, be repealed; and that §5A-3-1, §5A-3-2, §5A-3-3, §5A-3-4, §5A-3-18, §5A-3-36 and §5A-3-37 of said code be amended and reenacted, all to read as follows: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) The Purchasing Division of within the Department of Administration is continued for the purpose of establishing centralized offices to provide purchasing, and travel services to the various state agencies.
(b) No person may be appointed The director of the Purchasing Division shall unless that person is, at the time of appointment:
(1) Be a graduate of an accredited college or university; and
(2) has Have 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 apply to all of the spending units of state government, except as otherwise provided by this article or by law.
(b) (d) The provisions of this article do not apply to the judicial branch, the legislative branch, unless otherwise provided or the Legislature or either house requests the director to render specific services under the provisions of the chapter nor to purchases of stock made by the Alcohol Beverage Control Commissioner, nor and to purchases of textbooks for the State Board of Education.
§5A-3-2. Books and records of director.
The director shall keep in his offices accurate books, accounts and records of all transactions of his or her division, and such books, accounts and records shall be public records, and shall at all proper times be available for inspection by any taxpayer of the state.
§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 shall be based, whenever possible, on competitive bid;
(3) Purchasing 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, as the director deems advisable;
(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, as the director deems advisable;
(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 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.
§5A-3-4. Rules of director.
(a) The director shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to:
(1) Authorize a spending unit to purchase specified commodities directly and prescribe the manner in which such purchases shall be made;
(2) Authorize, in writing, a spending unit to purchase commodities in the open market for immediate delivery in emergencies, define such an emergencies and prescribe the manner in which such purchases shall be made and reported to the director; and for the purposes mentioned in subdivision (1) and this subdivision (2), the head of any spending unit, or the financial governing board of any institution, may, with the approval of the director, make requisitions upon the Auditor for a sum to be known as an advance allowance account, in no case to exceed five percent of the total of the appropriations for any such spending unit, and the Auditor shall draw his or her warrant upon the Treasurer for such accounts; and all such advance allowance accounts shall be accounted for by the head of the spending unit or institution once every thirty days or more frequently if required by the State Auditor or director
(3) Prescribe the manner in which commodities shall be purchased, delivered, stored and distributed;
(4) Prescribe the time for making requisitions and estimates of commodities, the future period which they are to cover, the form in which they shall be submitted and the manner of their authentication;
(5) Prescribe the manner of inspecting all deliveries of commodities, and making chemical and physical tests of samples submitted with bids and samples of deliveries to determine compliance with specifications;
(6) Prescribe the amount and type of deposit or bond to be submitted with a bid or contract and the amount of deposit or bond to be given for the faithful performance of a contract;
(7) Prescribe a system whereby the director shall be required, upon the payment by a vendor of an annual fee established by the director, to give notice to such vendor of all bid solicitations for commodities of the type with respect to which such vendor specified notice was to be given, but no such fee shall exceed the cost of giving the notice to such vendor, nor shall such fee exceed the sum of $125 per fiscal year nor shall such fee be charged to persons seeking only reimbursement from a spending unit;
(8) Prescribe that each state contract entered into by the Purchasing Division shall contain provisions for liquidated damages, remedies or provisions for the determination of the amount or amounts which the vendor shall owe as damages, in the event of default under such contract by such vendor, as determined by the director;
(9) Prescribe contract management procedures for all state contracts except government construction contracts including, but not limited to, those set forth in article twenty-two, chapter five of this code;
(10) Prescribe procedures by which oversight is provided to actively monitor spending unit purchases, including, but not limited to, all technology and software commodities and contractual services exceeding $1 million, approval of change orders and final acceptance by the spending units;
(11) Prescribe that each state contract entered into by the Purchasing Division contain provisions for the cancellation of the contract upon thirty days' notice to the vendor;
(12) Prescribe procedures for selling surplus commodities to the highest bidder by means of an Internet auction site; and
(13) Provide for such other matters as may be necessary to give effect to the foregoing rules and the provisions of this article; and
(14) Prescribe procedures for encumbering purchase orders to ensure that the proper account may be encumbered before sending purchase orders to vendors.
(b) The director shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty- nine-a of this code to prescribe qualifications to be met by any person who on and after the effective date of this section is to be employed in the Purchasing Division as a state buyer. The rules must provide that a person may not be employed as a state buyer unless he or she at the time of employment either is:
(1) A graduate of an accredited college or university; or
(2) Has at least four years' experience in purchasing for any unit of government or for any business, commercial or industrial enterprise.
Persons serving as state buyers are subject to the provisions of article six, chapter twenty-nine of this code.
§5A-3-12. Prequalification disclosure and payment of annual fee by vendors required; form and contents; register of vendors; false certificates; penalties.

(a) The director may not accept any bid received from any vendor unless the vendor has paid the annual fee specified in section four of this article and has filed with the director an affidavit a certificate of the vendor or the affidavit certificate of a member of the vendor's firm or, if the vendor is a corporation, the affidavit certificate of an officer, director or managing agent of the corporation, disclosing the following information:
(1) If the vendor is an individual, his or her name and city and state of residence and business address, and, if he or she has associates or partners sharing in his business, their names and city and state of residence and business addresses;
(2) If the vendor is a firm, the name and city and state of residence and business address of each member, partner or associate of the firm;
(3) If the vendor is a corporation created under the laws of this state or authorized to do business in this state, the name and business address of the corporation; the names and city and state of residence and business addresses of the president, vice president, secretary, treasurer and general manager, if any, of the corporation; and the names and city and state of residence and business addresses of each stockholder of the corporation owning or holding at least ten percent of the capital stock thereof;
(4) A statement of whether the vendor is acting as agent for some other individual, firm or corporation, and if so, a statement of the principal authorizing the representation shall be attached to the affidavit certificate or whether the vendor is doing business as another entity;
(5) The vendor's latest Dun & Bradstreet number and rating, if there is any rating as to the vendor; and
(6) A list of one or more banking institutions, if such institution is available, to serve as references for the vendor; and
(7) The vendor's tax identification number.
(b) Whenever a change occurs in the information submitted as required, the change shall be reported immediately in the same manner as required in the original disclosure affidavit certificate.
(c) The affidavit certificate and information received by the director shall be kept in a register of vendors which shall be made a public record. and open to public inspection during regular business hours in the director's office and made readily available to the public
(d) The director may waive the above requirements in the case of any corporation listed on any nationally recognized stock exchange and in the case of any vendor who or which is the sole source for the commodity in question.
(e) Any person who makes an affidavit falsely submits a false certificate or who knowingly files or causes to be filed with the director, an affidavit a certificate containing a false statement of a material fact or omitting any material fact, is guilty of a misdemeanor and, upon conviction, shall be fined not more than $1,000, and, in the discretion of the court, confined in jail not more than one year. An individual convicted of a misdemeanor under this subsection may never hold an office of honor, trust or profit in this state, or serve as a juror.
§5A-3-18. Substituting for commodity bearing particular trade name or brand.

If a spending unit requests the purchase of a commodity bearing a particular trade name or brand, and if the commodity is covered by standard specifications adopted as provided by section five of this article the director may substitute a commodity bearing a different trade name or brand, if the substituted commodity reasonably conforms to the adopted standard specifications and can be obtained at an equal or lower price.
§5A-3-36. Inventory of removable property.
The director shall have has the power and duty to (1) make and keep current an inventory of all removable property belonging to the state. Such inventory shall be kept on file in the office of the director as a public record. The inventory shall disclose the name and address of the vendor, the date of purchase, the price paid for the property therein described and the disposition thereof.
(2) Provide for the maintenance and repair of all office furniture, machinery and equipment belonging to the state, either by employing personnel and facilities under his director or by contract with state agencies or private parties.
§5A-3-37. Preference for resident vendors; preference for veteran residents; exceptions.

 (a) In any instance where a purchase of commodities or printing by the director or by a state spending unit is required under the provisions of this article to be made upon competitive bids, preference shall be given to vendors resident in West Virginia as against vendors resident in any other state. If the resident vendor's bid does not exceed the lowest qualified bid from a nonresident vendor by more than six percent of the latter bid, and if the vendor has made written claim for the preference at the time the bid was submitted, the award shall be made to the resident vendor. This preference is only applicable to the cost portion of a vendor's bid submission.
(b) A resident vendor preference of six percent is available to a vendor successfully certifying that the vendor:
(1) Is registered to transact business within the state of West Virginia in accordance with article twelve, chapter eleven of this code;
(2) Maintains its headquarters or principal place of business within the state;
(3) Has paid personal property taxes pursuant to article five, chapter eleven of this code on equipment used in the regular course of supplying services of the general type offered; and
(4)Has actually paid, and not just applied to pay, all required business taxes imposed by chapter eleven of this code. In addition, in the case of a vendor selling tangible personal property, a resident vendor is one who has a stock of materials held in West Virginia for sale in the ordinary course of business, which stock is of the general type offered, and which is reasonably sufficient in quantity to meet the ordinary requirements of customers.
(b) Nonresident vendors that are ineligible to qualify for the six percent resident vendor preference are eligible to qualify for a three percent preference if the nonresident vendor maintains a valid business location within the state and employs a minimum of one hundred state residents.
(c)In addition to the preferences listed above, vendors who qualify for the six percent preference are entitled to an additional two percent should they be capable of proving that:
(1)The vendor is a veteran of the United States armed forces, the reserves or the National Guard; or
(2) The vendor uses products manufactured in West Virginia, and such products comprise at least fifty percent of the products offered in the bid and utilized to fulfill the contract.
(d) No resident vendor shall receive more than an eight percent preference unless that vendor is competing against a nonresident vendor from a state that offers a preference in excess of the percentage offered by this section.
(e) 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.
(f) 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."