HB2716 H JUD AM 3-5 #1
The Committee on the Judiciary moves to amend the bill on page
one, following the enacting section, by striking out the remainder
of the bill and inserting in lieu thereof the following language:
"ARTICLE 22. GOVERNMENT CONSTRUCTION CONTRACTS.
§5-22-1. Bidding required; government construction contracts to go
to lowest qualified responsible bidder; procedures to
be followed in awarding government construction
projects; penalties for violation of procedures and
requirements debarment; exceptions.
(a) This section and the requirements
set forth in this
section may be referred to as the West Virginia Fairness In
Competitive Bidding Act.
(b) As used in this section:
(1) "Lowest qualified responsible bidder" means the bidder
that bids the lowest price and that meets, as a minimum, all the
following requirements in connection with the bidder?s response to
the bid solicitation. The bidder must certify that it:
(A) Is ready, able and willing to timely furnish the labor and
materials required to complete the contract;
(B) Is in compliance with all applicable laws of the State of
West Virginia; and
(C) Has supplied a valid bid bond or other surety authorized
or approved by the contracting public entity.
(2) "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.
_____(3) "State spending unit" means a department, agency or
institution of the state government for which an appropriation is
requested, or to which an appropriation is made by the Legislature.
(c) The state and its subdivisions shall, except as provided
in this section, solicit competitive bids for every construction
project exceeding $25,000 in total cost.
Provided, That A vendor
who has been debarred pursuant to the provisions of sections
thirty-three-a through thirty-three-f, inclusive, 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 or other surety as approved by the
State of West Virginia or its subdivisions.
(d) Following the solicitation of bids, the construction
contract shall be awarded to the lowest qualified responsible
bidder who shall furnish a sufficient performance and payment bond.
The state and its subdivisions may reject all bids and solicit new
bids on the project.
(e) The apparent low bidder on a contract for the
construction, alteration, decoration, painting or improvement of a
new or existing building or structure with a state spending unit
the Department of Administration, Division of Purchasing, valued at
more than $500,000.00 $250,000 shall submit a list of all
subcontractors who will perform more than $25,000 of work on the project including labor and materials. Provided , That this section
shall not apply to any other construction projects, such as This
section does not apply to other construction projects such as
highway, mine reclamation, water or sewer projects. The list shall
include the names of the bidders and the license numbers as
required by article eleven, chapter twenty-one of this code. This
information shall be provided to the Division of Purchasing state
spending unit within one business day of the opening of bids for
review prior to the awarding of a construction contract. If no
subcontractors who will perform more than $25,000 of work are to
be used to complete the project, it will be so noted on the
subcontractor list. Failure to submit the subcontractor list
within one business day after the deadline for submitting bids
shall result in disqualification of the bid.
(f) Written approval must be obtained from the
Purchasing state spending unit before any subcontractor
substitution is permitted. Substitutions are not permitted unless:
(1) The subcontractor listed in the original bid has filed for
Division of Purchasing state spending unit refuses to
approve a subcontractor in the original bid because the
subcontractor is under a debarment pursuant to section
thirty-three-d, article three, chapter five-a of this code or a
suspension under section thirty-two, article three, chapter five-a
of this code; or
(3) The contractor certifies in writing that the subcontractor listed in the original bill fails, is unable or refuses to perform
(g) The amendments to this section made during the 2012
regular session of the Legislature shall expire one year from the
effective date of the amendments absent further action of the
(h) (g) The contracting public entity may not award the
contract to a bidder which fails to meet the minimum requirements
set out in this section. As to any a prospective low bidder which
the contracting public entity determines not to have met any one or
more of the requirements of this section or other requirements as
determined by the public entity in the written bid solicitation,
prior to the time a contract award is made, the contracting public
entity shall document in writing and in reasonable detail the basis
for the determination and shall place the writing in the bid file.
After the award of a bid under this section, the bid file of the
contracting public agency and all bids submitted in response to the
bid solicitation shall be open and available for public inspection.
(i) (h) Any A public official or other person who individually
or together with others knowingly makes an award of a contract
under this section in violation of the procedures and requirements
of this section is subject to the penalties set forth in section
twenty-nine, article three, chapter five-a of the Code of West
(j) (i) No officer or employee of this state or of any a
public agency, public authority, public corporation or other public entity and no person acting or purporting to act on behalf of such
an officer or employee or public entity shall require that any a
performance bond, payment bond or surety bond required or permitted
by this section be obtained from any a particular surety company,
agent, broker or producer.
(k) (j) All bids shall be open in accordance with the
provisions of section two of this article except design-build
projects which are governed by article twenty-two-a of this chapter
and are exempt from these provisions.
(l) Nothing in this section
shall apply applies 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
the use is a part of the student?s training program;
(3) Emergency repairs to building components and systems. For
the purpose of this subdivision, the term emergency repairs means
repairs that if not made immediately will seriously impair the use
of building components and systems or cause danger to
using the building components and systems; and
Any A situation where the state or a subdivision thereof
subdivision reaches an agreement with volunteers or a volunteer
group whereby in which 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."