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WEST VIRGINIA CODE
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WVC 5A- CHAPTER 5A. DEPARTMENT OF ADMINISTRATION.

WVC -1- ARTICLE 1. DEPARTMENT OF ADMINISTRATION.


WVC 5 A- 1 - 1 §5A-1-1. Definitions.

     For the purpose of this chapter:

     (1) "Commodities" means supplies, material, equipment and any other articles or things used by or furnished to a department, agency or institution of state government.

     (2) "Contract" means an agreement between a state spending unit and a vendor relating to the procurement of commodities or services, or both.

     (3) "Debarment" means the exclusion of a vendor from the right to bid on contracts to sell goods or supply services to the state or its subdivisions for a specified period of time.

     (4) "Director" means the director of the division referred to in the heading of the article in which the word appears.

     (5) "Electronic" means electrical, digital, magnetic, optical, electromagnetic or any other similar technology.

     (6) "Electronic transmission" or "electronically transmitted" means any process of communication not directly involving the physical transfer of paper that is suitable for the retention, retrieval and reproduction of information by the recipient.

     (7) "Expendable commodities" means those commodities which, when used in the ordinary course of business, will become consumed or of no market value within the period of one year or less.

     (8) "Grant" means the furnishing of assistance, financial or otherwise, to any person or entity to support a program authorized by law.

     (9) "Nonprofit workshops" means an establishment: (A) Where any manufacture or handiwork is carried on; (B) which is operated either by a public agency or by a cooperative or by a nonprofit private corporation or nonprofit association in which no part of the net earnings thereof inures, or may lawfully inure, to the benefit of any private shareholder or individual; (C) which is operated for the primary purpose of providing remunerative employment to blind or severely disabled persons who cannot be absorbed into the competitive labor market; and (D) which shall be approved, as evidenced by a certificate of approval, by the State Board of Vocational Education, Division of Vocational Rehabilitation.

     (10) "Printing" means printing, binding, ruling, lithographing, engraving and other similar services.

     (11) "Procurement" means the buying, purchasing, renting, leasing or otherwise obtaining of commodities or services.

     (12) "Public funds" means funds of any character, including federal moneys, belonging to or in the custody of any state spending unit.

     (13) "Record" means information that is inscribed on a read-only tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

     (14) "Removable property" means any personal property not permanently affixed to or forming a part of real estate.

     (15) "Request for quotations" means a solicitation for a bid where cost is the primary factor in determining the award.

     (16) "Responsible bidder" means a vendor who has the capability to fully perform the contract requirements, and the integrity and reliability which will assure good-faith performance.

     (17) "Responsive bidder" means a vendor who has submitted a bid which conforms in all material respects to the bid solicitation.

     (18) "Secretary" means the Secretary of Administration.

     (19) "Services" means the furnishing of labor, time, expertise or effort, not involving the delivery of a specific end commodity or product other than one that may be incidental to the required performance.

     (20) "Spending officer" means the executive head of a spending unit, or a person designated by him or her.

     (21) "Spending unit" means a department, bureau, department, division, office, board commission, authority, agency or institution of the state government for which an appropriation is requested of the Governor, or to which an appropriation is made by the Legislature, unless a specific exemption from this chapter is provided in this code.

     (22) "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.

     (23) "Vendor" means any person or entity that may, through contract or other means, supply the state or its subdivisions with commodities or services, and lessors of real property.
WVC 5 A- 1 - 2 §5A-1-2. Department of Administration and Office of Secretary; secretary; divisions; directors.
(a) The Department of Administration and the Office of Secretary of Administration are continued in the executive branch of state government. The secretary is the Chief Executive Officer of the department and shall be appointed by the Governor, by and with the advice and consent of the Senate, for a term not exceeding the term of the Governor.

(b) The Department of Administration may receive federal funds.

(c) The secretary serves at the will and pleasure of the Governor. The annual compensation of the secretary shall be as specified in section two-a, article seven, chapter six of this code.

(d) There shall be in the Department of Administration a Finance Division, a General Services Division, an Information Services and Communications Division, Division of Personnel and a Purchasing Division. Each division shall be headed by a director who may also head any and all sections within that division and who shall be appointed by the secretary.

(e) There shall also be in the Department of Administration those agencies, boards, commissions and councils specified in section one, article two, chapter five-f of this code.

(f) The secretary may establish a Fleet Management Office within the Department of Administration to:

(1) Manage all motor vehicles and aircraft owned or possessed by the State of West Virginia or any of its departments, divisions, agencies, bureaus, boards, commissions, offices or authorities: Provided, That, such vehicles and aircraft shall not be used for personal purposes, other than for de minimis personal use;

(2) Administer the rules, including emergency rules, promulgated under the provisions of sections forty-eight and forty-nine, article three of this chapter; and

(3) Perform any duties relating to motor vehicles and aircraft owned or possessed by the State of West Virginia assigned by the secretary, which duties may include those set out in sections fifty through fifty-three, article three of this chapter.


WVC 5A-1-2a §5A-1-2a.
Repealed.

Acts, 1990 Reg. Sess., Ch. 2.


WVC 5A-1-2b §5A-1-2b.
Repealed.

Acts, 1990 Reg. Sess., Ch. 2.


WVC 5A-1-2c §5A-1-2c.
Repealed.

Acts, 1990 Reg. Sess., Ch. 2.


WVC 5A-1-3 §5A-1-3. Powers and duties of secretary, division heads and employees.
The secretary shall have control and supervision of the department of administration and shall be responsible for the work of each of its employees. The secretary shall have such power and authority as specified in section two, article two, chapter five-f of this code. The secretary shall also have the authority to employ such assistants and attorneys as may be necessary for the efficient operation of the department. The secretary, the division heads and the employees of the department shall perform the duties herein specified and shall also perform such other duties as the governor may prescribe.


WVC 5 A- 1 - 4 §5A-1-4. Council of finance and administration.
(a) The council of finance and administration is hereby created and shall be composed of eleven members, five of whom shall serve ex officio and six of whom shall be appointed as herein provided. The ex officio members shall be the secretary of the department of administration, the secretary of revenue, the attorney general or his or her designee, the state treasurer or his or her designee and the state auditor or his or her designee; such designees being authorized voting ones. From the membership of the Legislature, the president of the Senate shall appoint three senators as members of the council, not more than two of whom shall be members of the same political party, and the speaker of the House of Delegates shall appoint three delegates as members of the council, not more than two of whom shall be members of the same political party. Members of the council appointed by the president of the Senate and the speaker of the House of Delegates shall serve at the will and pleasure of the officer making their appointment. The secretary of administration shall serve as chairman of the council. Meetings of the council shall be upon call of the chairman or a majority of the members thereof. It shall be the duty of the chairman to call no less than four meetings in each fiscal year, one in each quarter, or more often as necessary, and all meetings shall be open to the public. All meetings of the council shall be held at the capitol building in a suitable committee room which shall be made available by the Legislature for such purpose: Provided, That the second quarterly meeting in each fiscal year shall be held in November and shall be a joint meeting with the joint committee on government and finance of the Legislature called jointly by the president of the Senate, speaker of the House of Delegates and secretary of administration.

(b) The council shall serve the department of administration and the director of the budget in an advisory capacity for purposes of reviewing the performance of the administrative and fiscal procedures of the state, including the oversight of all federal funds, and shall have the following duties:

(1) To advise with the director of the budget in respect to matters of budgetary intent and efficiency, including the budget bill and budget document detail and format;

(2) To advise with the secretary and the director of the budget concerning studies of government and administration concerning fiscal policy as it considers appropriate;

(3) To advise with the secretary and the director of the budget in the preparation of studies designed to provide long-term capital planning and finance for state institutions and agencies; and

(4) To advise with the secretary and the director of the budget in respect to the application for, and receipt and expenditure of, anticipated or unanticipated federal funds.

(c) The appointed, nonex officio members of the council shall be entitled to receive compensation and reimbursement for expenses in connection with performance of their duties, during interim periods, if not otherwise receiving the same for identical periods, as is authorized by the applicable sections of article two-a, chapter four of the code in respect to performance of duties either within the state or, if necessary, out of state. Compensation and expenses shall be incurred and paid only after approval by the joint committee on government and finance.


WVC 5 A- 1 - 5 §5A-1-5. Reports by secretary.
The secretary shall make an annual report to the governor concerning the conduct of the department and the administration of the state finances as they pertain to programs administered by the department of administration. The secretary shall also make other reports as the governor may require.


WVC 5A-1-6 §5A-1-6. Oath and bond of secretary; bond required for director of the purchasing division; bonds for other directors and employees; cost of bonds.
The secretary, before entering upon the duties of his office, shall take and subscribe to the oath prescribed by Section 5, Article IV of the constitution of West Virginia. Notwithstanding any other provisions to the contrary, the secretary shall execute a bond in the penalty of one hundred thousand dollars, payable to the state of West Virginia, with a corporate bonding or surety company authorized to do business in this state as surety thereon, approved by the governor, in form prescribed by the attorney general and conditioned upon the faithful performance of his duties and the accounting for all money and property coming into his hands by virtue of his office. The oath and bond shall be filed with the secretary of state.

The director of the purchasing division shall execute a bond in the penalty of one hundred thousand dollars and any person employed as a state buyer in accordance with article three of this chapter shall execute a bond in the penalty of fifty thousand dollars, payable to the state of West Virginia, with a corporate bonding or surety company authorized to do business in this state as surety thereon, approved by the governor, in form prescribed by the attorney general and conditioned upon the faithful performance of his duties under the provisions of this chapter and all rules and regulations promulgated pursuant to such chapter and the accounting for all money and property coming into his hands by virtue of his office or position. The bonds shall be filed with the secretary of state. In lieu of separate bonds for state buyers, a blanket surety bond may be obtained. The other division directors and all other employees of the department shall be covered by bonds in cases where the secretary thinks it necessary, which bonds shall be in the penalty prescribed by the secretary and shall be filed with the secretary of state.

The cost of all such surety bonds shall be paid from funds appropriated to the department of administration.


WVC 5A-1-7 §5A-1-7. Delegation of powers and duties by secretary.
The powers and duties vested in the secretary may be delegated by him to his assistants and employees, but the secretary shall be responsible for all official acts of the department.


WVC 5A-1-8 §5A-1-8. Right of appeal from interference with functioning of agency.
Upon occasion of a showing that the application of the authority vested under the provisions of this chapter may interfere with the successful functioning of any department, institution or agency of the government, such department, institution or agency may have the right of appeal to the governor for review of the case and the decision or conclusion of the governor shall govern in such cases.


WVC 5A-1-9 §5A-1-9. Reporting of state assets held to secretary and state treasurer.
On or before the first day of July, one thousand nine hundred ninety, the secretary of administration shall, pursuant to chapter twenty-nine-a of this code, promulgate rules requiring any and all banks, savings and loans or other financial institutions in possession of property or other assets belonging to the state of West Virginia to report on at least an annual basis, to the secretary and state treasurer, the nature and value of said property.


WVC 5 A- 1 - 10 §5A-1-10. General procurement provisions for state spending units.

     (a) Unless this code specifically provides to the contrary, all spending units, whenever possible, shall base purchases for commodities and services on a competitive process and utilize available statewide contracts.

     (b) The secretary shall issue a notice to cease and desist to any spending unit when the secretary has credible evidence that a spending unit has failed, whenever possible, to purchase commodities and services on a competitive basis or to use available statewide contracts. Failure to abide by such notice may result in penalties set forth in section seventeen, article three of this chapter.
WVC 5 A- 1 - 11 §5A-1-11. State Americans with disabilities coordinator.

     (a) There is continued within the Department of Administration the position of the State Americans with Disabilities Coordinator, who shall be appointed by the Secretary of the Department of Administration with input from the chairperson from each of the following four councils:

     (1) The Developmental Disabilities Council;

     (2) The Statewide Independent Living Council;

     (3) The Mental Health Planning Council; and

     (4) The State Rehabilitation Council.

     (b) The coordinator shall be a full-time employee, and shall have an in-depth working knowledge of the challenges facing persons with disabilities. The coordinator may be a current employee of the Department of Administration or other state agency employee.

     (c) The coordinator shall:

     (1) Advise the Director of Personnel in the development of comprehensive policies and programs for the development, implementation and monitoring of a statewide program to assure compliance with 42 U.S.C. §12101, et seq., the federal Americans with Disabilities Act;

     (2) Assist in the formulation of rules and standards relating to the review, investigation and resolution of complaints of discrimination in employment, education, housing and public accommodation;

     (3) Consult and collaborate with state and federal agency officials in the state plan development;

     (4) Consult and collaborate with agency Americans with disabilities officers on the appropriate training for managers and supervisors on regulations and issues;

     (5) Represent the state on local, state and national committees and panels related to Americans with disabilities;

     (6) Advise the Governor and agency heads on Americans with disabilities issues;

     (7) Consult with state equal employment opportunity officers on the hiring of persons with disabilities; and

     (8) Be available to inspect and advise the leasing section of the Division of Purchasing on all physical properties owned or leased by the State of West Virginia for compliance with 42 U.S.C. §12101, et seq., the federal Americans with Disabilities Act.

     (d) (1) The Secretary of the Department of Administration may assess, charge and collect fees from each state spending unit which utilizes the services of the coordinator, for the direct costs and expenses incurred by the coordinator in providing those services. Costs and expenses include travel, materials, equipment and supplies. Moneys shall be collected through the Division of Finance.

     (2) A state spending unit shall agree in writing to all costs and expenses before the services by the Americans with Disabilities coordinator are rendered.

     (e) There is continued in the Department of Administration a special fund to be named the "Americans with Disabilities Coordinator Fund", which shall be an interest-bearing account and may be invested in accordance with the provisions of article six, chapter twelve of this code, with the interest income a proper credit to the fund. Funds paid into the account may be derived from the following sources:

     (1) All moneys received from state spending units for the costs and expenses incurred by the state Americans with Disabilities Coordinator for providing services related to the state's implementation and compliance with 42 U.S.C. §12101, et seq., the federal Americans with Disabilities Act;

     (2) Any gifts, grants, bequests, transfers or donations which may be received from any governmental entity or unit or any person, firm, foundation or corporation; and

     (3) All interest or return on investment accruing to the fund.

     (f) Moneys in the fund are to be used for the costs and expenses incurred pursuant to this section. Any balance including accrued interest in this special fund at the end of any fiscal year shall not revert to the General Revenue Fund, but shall remain in the fund for use by the Secretary of the Department of Administration for providing additional Americans with Disabilities Coordinator services within the State of West Virginia in the ensuing fiscal years.

     (g) The Secretary of the Department of Administration shall report annually on the fund to the Governor, President of the Senate and Speaker of the House of Delegates. The report must be on CD ROM or other electronic media and shall not be in print format.
WVC 5 A- 1 A- ARTICLE 1A. EMPLOYEE SUGGESTION AWARD BOARD.

WVC 5A-1A-1 §5A-1A-1. Employee suggestion award program continued.

     There is hereby continued an employee suggestion award program within the department of administration for employees of state government. Under this program cash or honorary awards may be made to state employees whose adopted suggestions will result in substantial savings or improvement in state operations.


WVC 5 A- 1 A- 2 §5A-1A-2. Board created; term of members.
There is hereby continued an employee suggestion award board which shall be composed of the secretary of administration or his or her designee, governor's chief technology officer or his or her designee, the president of the Senate or his or her designee, the speaker of the House of Delegates or his or her designee, two members of the House of Delegates from different political parties to be appointed by the speaker of the House of Delegates, two members of the Senate from different political parties to be appointed by the president of the Senate, and the secretary of the department of health and human resources or his or her designee. The terms of the members of the board shall be consistent with the terms of the offices to which they have been elected or appointed.


WVC 5A-1A-3 §5A-1A-3. Duties of board; excluded employees.
It shall be the duty of the board to adopt rules governing its proceedings, to elect a chairman and secretary, to keep permanent and accurate records of its proceedings, to establish criteria for making awards, to adopt rules and regulations to carry out the provisions of this article, and to approve each award made.

In establishing criteria for making awards, the board may exclude certain levels of positions from participation in the program, but in no event shall:

(1) The following levels of management, within the spending unit where the adopted suggestion will result in substantial savings, be eligible to receive cash awards under the program:

(a) Governor's staff, departmental secretaries and their equivalent; and

(b) Assistant or deputy secretary, assistant to secretary, commissioner, assistant or deputy commissioner, major fiscal and administrative policy departmental staff or their equivalent.

(c) Director or division chief, including the division chief or director of a statewide program, and which includes a chief of a division supervising several service units or their equivalent.

(d) Assistant to director or division chief, section chief or head of major departmental function or their equivalent; and

(2) The following levels of management, not within the spending unit where the adopted suggestion will result in substantial savings, be eligible to receive cash awards under the program:

(a) Governor's staff, departmental secretaries and their equivalent;

(b) Assistant or deputy secretary, assistant to secretary, commissioner, assistant or deputy commissioner.


WVC 5 A- 1 A- 4 §5A-1A-4. Awards.

     (a) The maximum cash award approved is limited to twenty percent of the first year's estimated savings, as established by the head of the affected spending unit, or $16,000, whichever is less. A cash award approved by the board shall be charged by the head of the affected spending unit against the appropriation item or items to which the estimated savings apply.

     (b) Commencing December 2015, and every five years thereafter, the board shall submit a report to the Joint Committee on Government and Finance, including:

     (1) Recommendations for the maximum award amount adjusted for inflation; and

     (2) Any other information concerning the maximum award amount.

     (c) After the board has made an award, the Governor may make one secondary award of up to twenty percent of the additional savings realized by implementing the suggestion in other state agencies, not to exceed $5,000. The Governor shall pay the secondary awards from funds appropriated by the Legislature for secondary awards.
WVC 5A-1A-5 §5A-1A-5. State ownership of suggestions.
The state shall become the sole owner of all suggestions accepted by the employee suggestion award board. The acceptance of a suggestion by the board shall constitute an agreement by the employee and the state that all claims pertaining to the suggestion, immediate and future, on the state of West Virginia are waived.


WVC -2- ARTICLE 2. FINANCE DIVISION.


WVC 5 A- 2 - 1 §5A-2-1. Finance division created; director; sections; powers and duties.
(a) The finance division of the department of administration is hereby continued except that the budget section is transferred to and shall become a part of the department of revenue on the effective date of this section as amended in the year two thousand four. The finance division shall be under the supervision and control of a director, who shall be appointed by the secretary. There shall be in the finance division an accounting section and a financial accounting and reporting section.

(b) The accounting section shall have the duties conferred upon it by this article and by the secretary, including, but not limited to, general financial accounting, payroll, accounts payable and accounts receivable for the department of administration.

(c) The financial accounting and reporting section shall establish and maintain the centralized accounting system required by section twenty-four of this article and issue annual general purpose financial statements in accordance with generally accepted accounting principles and with this article.


WVC 5 A- 2 - 2 §5A-2-2.
Repealed.

Acts, 2004 Reg. Sess., Ch. 239.
WVC 5 A- 2 - 3 §5A-2-3.
Repealed.

Acts, 2004 Reg. Sess., Ch. 239.
WVC 5 A- 2 - 4 §5A-2-4.
Repealed.

Acts, 2004 Reg. Sess., Ch. 239.
WVC 5 A- 2 - 5 §5A-2-5.
Repealed.

Acts, 2004 Reg. Sess., Ch. 239.
WVC 5 A- 2 - 6 §5A-2-6.
Repealed.

Acts, 2004 Reg. Sess., Ch. 239.
WVC 5 A- 2 - 7 §5A-2-7.
Repealed.

Acts, 2004 Reg. Sess., Ch. 239.
WVC 5 A- 2 - 8 §5A-2-8.
Repealed.

Acts, 2004 Reg. Sess., Ch. 239.
WVC 5 A- 2 - 9 §5A-2-9.
Repealed.

Acts, 2004 Reg. Sess., Ch. 239.
WVC 5 A- 2 - 10 §5A-2-10.
Repealed.

Acts, 2004 Reg. Sess., Ch. 239.
WVC 5 A- 2 - 11 §5A-2-11.
Repealed.

Acts, 2004 Reg. Sess., Ch. 239.
WVC 5 A- 2 - 12 §5A-2-12.
Repealed.

Acts, 2004 Reg. Sess., Ch. 239.
WVC 5 A- 2 - 13 §5A-2-13.
Repealed.

Acts, 2004 Reg. Sess., Ch. 239.
WVC 5 A- 2 - 14 §5A-2-14.
Repealed.

Acts, 2004 Reg. Sess., Ch. 239.
WVC 5 A- 2 - 14 A §5A-2-14a.
Repealed.

Acts, 2004 Reg. Sess., Ch. 239.
WVC 5 A- 2 - 15 §5A-2-15.
Repealed.

Acts, 2004 Reg. Sess., Ch. 239.
WVC 5 A- 2 - 16 §5A-2-16.
Repealed.

Acts, 2004 Reg. Sess., Ch. 239.
WVC 5 A- 2 - 17 §5A-2-17.
Repealed.

Acts, 2004 Reg. Sess., Ch. 239.
WVC 5 A- 2 - 18 §5A-2-18.
Repealed.

Acts, 2004 Reg. Sess., Ch. 239.
WVC 5 A- 2 - 19 §5A-2-19.
Repealed.

Acts, 2004 Reg. Sess., Ch. 239.
WVC 5A-2-19A §5A-2-19a. Special reports by spending units; notification of pending matters having impact on future expenditure requirements.
(a) Within ninety days following the end of each fiscal year, each spending unit within state government shall submit a detailed report and accounting of all substantial unbudgeted contingent liabilities that may have a substantial and material impact on spending obligations in subsequent fiscal years. Each report is to include, but not be limited to, pending legal actions, unresolved audit findings and any other activities that are reasonably predicted to have an impact on future expenditures by the state.

(b) All reports are to be submitted to the secretary on forms and in the manner prescribed by the secretary. Within thirty days of receipt of each final report, the secretary shall forward a copy to the joint committee on government and finance.

(c) The secretary shall propose for promulgation all rules required for the implementation of this section in accordance with the provisions of article three, chapter twenty-nine-a of this code. The rules are to include, but not be limited to, definitions of the types of substantial unbudgeted contingent liabilities that are reportable under the provisions of this section.


WVC 5 A- 2 - 20 §5A-2-20.
Repealed.

Acts, 2004 Reg. Sess., Ch. 239.
WVC 5 A- 2 - 21 §5A-2-21.
Repealed.

Acts, 2004 Reg. Sess., Ch. 239.
WVC 5 A- 2 - 22 §5A-2-22.
Repealed.

Acts, 2004 Reg. Sess., Ch. 239.
WVC 5 A- 2 - 23 §5A-2-23.
Repealed.

Acts, 2004 Reg. Sess., Ch. 239.
WVC 5 A- 2 - 24 §5A-2-24. Management accounting.
(a) It is the intent of this section to establish a centralized accounting system for the offices of the auditor, treasurer, board of investments, secretary of administration and each spending unit of state government to provide more accurate and timely financial data and increase public accountability.

(b) Notwithstanding any provision of this code to the contrary, the secretary of administration shall develop and implement a new centralized accounting system for the planning, reporting and control of state expenditures in accordance with generally accepted accounting principles to be used by the auditor, treasurer, board of investments, secretary and all spending units. The accounting system shall provide for adequate internal controls, accounting procedures, recording income collections, systems operation procedures and manuals, and periodic and annual general purpose financial statements, as well as provide for the daily exchange of needed information among users.

(c) The financial statements shall be audited annually by outside independent certified public accountants, who shall also issue an annual report on federal funds in compliance with federal requirements.

(d) The secretary shall implement the centralized accounting system no later than the thirty-first day of December, one thousand nine hundred ninety-three, and, after approval of the system by the governor, shall require its use by all spending units. The auditor, treasurer, board of investments, secretary and every spending unit shall maintain their computer systems and data files in a standard format in conformity with the requirements of the centralized accounting system. Any system changes must be approved in advance of the change by the secretary. The auditor, treasurer, board of investments, budget director and secretary of administration shall provide on-line interactive access to the daily records maintained by their offices.


WVC 5A-2-25 §5A-2-25. System of accounting to be certified to legislative auditor.
The secretary shall certify the system of accounting and reporting installed pursuant to the provisions of this article, and any changes made therein, to the legislative auditor.


WVC 5 A- 2 - 26 §5A-2-26.
Repealed.

Acts, 2004 Reg. Sess., Ch. 239.
WVC 5 A- 2 - 27 §5A-2-27.
Repealed.

Acts, 2004 Reg. Sess., Ch. 239.
WVC 5 A- 2 - 28 §5A-2-28.
Repealed.

Acts, 2004 Reg. Sess., Ch. 239.
WVC 5 A- 2 - 29 §5A-2-29.
Repealed.

Acts, 2004 Reg. Sess., Ch. 239.
WVC 5 A- 2 - 30 §5A-2-30.
Repealed.

Acts, 2004 Reg. Sess., Ch. 239.
WVC 5 A- 2 - 31 §5A-2-31.
Repealed.

Acts, 2004 Reg. Sess., Ch. 239.
WVC 5 A- 2 - 32 §5A-2-32. Submission of requests, amendments, reports, etc., to legislative auditor; misdemeanor penalty for noncompliance.
(a) The provisions of section twenty-five of this article requiring the secretary to supply copies of the documents specified therein to the legislative auditor shall be strictly adhered to by the secretary.

(b) Any failure by a secretary to comply with the provisions of subsection (a) of this section shall be a misdemeanor and, upon conviction thereof, the secretary shall be fined the sum of one thousand dollars. This penalty shall be in addition to other penalties provided elsewhere in this article and other remedies provided by law.


WVC 5A-2-33 §5A-2-33. Financial accounting and reporting section; comptroller; powers and responsibilities.
The financial accounting and reporting section created under section one of this article shall be under the control and supervision of a comptroller. The provisions of this section shall apply to all component units of state government, as defined by generally accepted accounting principles.

The comptroller, under the direction and supervision of the director of the finance division, has the power and responsibility to:

(1) Maintain financial records supporting the comprehensive annual financial report required under subsection (8) of this section, in accordance with generally accepted accounting principles;

(2) Maintain the official chart of accounts of the state;

(3) Maintain the centralized accounting system;

(4) Maintain the statewide accounting policies and procedures;

(5) Direct the establishment and maintenance of an adequate internal control structure by the various component units of state government;

(6) Verify the periodic reconciliation of assets as reported by the board of investments and budgetary fund balances as reported by the state auditor;

(7) Issue management financial reports by component unit and department, as well as consolidated management financial reports, as follows:

(a) Monthly budgetary basis reports by revenue and expense, budget compared to actual, and encumbrances; and

(b) Financial position reports, including, but not limited to, cash, investments, indebtedness, obligations and accounts payable.

(8) Issue a comprehensive annual financial report in accordance with generally accepted accounting principles;

(9) Have the general purpose financial statements of the state audited annually by independent certified public accountants;

(10) Require the state pension systems, workers' compensation commission, public employees insurance agency, board of risk and insurance management and the various other component units of the state to prepare financial statements audited by independent certified public accountants and submit the audited financial statements to the financial accounting and reporting section in the form and within the time frames established by the financial accounting and reporting section;

(11) Maintain controls over access to the centralized accounting system and the required modifications, as well as edits, controls and tables;

(12) Promulgate legislative rules in accordance with article three, chapter twenty-nine-a of this code to effectuate the intent and purpose of this section: Provided, That such rules may initially be implemented by emergency rule; and

(13) Do all things necessary and convenient to maintain the centralized accounting system, to issue financial reports of the state and to carry out its powers and responsibilities.


WVC 5 A- 2 - 34 §5A-2-34. Study of centralized accounting system.
(a) The Legislature finds an examination of administration of the state's centralized accounting system is warranted to determine whether improvements are necessary to obtain optimal function and economical operation of the system, including, but not limited to, whether a transfer of responsibility for administration of the system is warranted or indicated to reach those ends. It is, therefore, the intent of the Legislature that appropriate public officials conduct a study of the centralized accounting system and provide the results of the study and any recommendations indicated for the improvement of the system to the Legislature for its consideration.

(b) The Secretary of the Department of Administration, the Secretary of the Department of Revenue, the Secretary of the Department of Health and Human Resources, the Secretary of the Department of Transportation, the West Virginia Higher Education Policy Commission, the State Treasurer and the Auditor of the state shall conduct a study of the centralized accounting system for the purposes specified in subsection (a) of this section and for such other related purposes as they may agree are advisable. The study shall include the examination of the centralized accounting system by an independent consultant agreed upon by the Secretary of the Department of Administration and the Secretary of the Department of Revenue after consultation with the remainder of the public officials designated in this section to conduct the study. A report of the study and any resulting recommendations made by the public officials designated by this section to conduct the study shall be submitted to the Joint Committee on Government and Finance on or before the first day of December, two thousand five, and shall include the written report and any recommendations of the independent consultant.


WVC 5A-2-35 §5A-2-35.
Repealed.

Acts, 1990 Reg. Sess., Ch. 2.


WVC 5A-2-36 §5A-2-36.
Repealed.

Acts, 1990 Reg. Sess., Ch. 2.


WVC 5A-2-37 §5A-2-37.
Repealed.

Acts, 1965 Reg. Sess., Ch. 51.


WVC 5A-2-38 §5A-2-38.
Repealed.

Acts, 1965 Reg. Sess., Ch. 51.


WVC -2A- ARTICLE 2A. USE OF ALTERNATIVE FUELS IN STATE-OWNED VEHICLES.


WVC 5A-2A-1 §5A-2A-1. Definitions.
As used in this article, the following words and phrases shall have the meanings hereinafter ascribed to them:

(1) "Alternative fuels" include compressed natural gas, liquefied natural gas, liquefied petroleum gas, methanol, ethanol, fuel mixtures containing eighty-five percent or more by volume of methanol, ethanol and other alcohols with gasoline or other fuels, coal-derived liquid fuels and electricity (including electricity from solar energy).

(2) "Alternative fuel vehicle" means a motor vehicle that operates solely on one alternative fuel, a motor vehicle that is capable of operating on one or more alternative fuels, or a motor vehicle that is capable of operating on an alternative fuel and is capable of operating on gasoline or diesel fuel.

(3) "Compression and conversion equipment" means all equipment used in the compression, storage, transmission and decompression of natural gas for the purpose of powering motor vehicles.

(4) "Fleet" means fifteen or more motor vehicles that are centrally fueled or capable of being centrally fueled and are owned, operated, leased or otherwise controlled by or assigned to a state agency.

(5) "Secretary" means the secretary of administration.


WVC 5 A- 2 A- 2 §5A-2A-2. Purchase or lease of fleet vehicles; use of alternative fuels.
(a) After the first day of September, one thousand nine hundred ninety-three, the secretary may purchase or lease alternative fuel vehicles for use by any state agency.

(b) The secretary may acquire or be provided with equipment or refueling facilities necessary to operate alternative fuel vehicles by any of the following methods:

(1) Purchase or lease as authorized by law;

(2) Gift or loan of the equipment or facilities; or

(3) Gift or loan of the equipment or facilities or other arrangement pursuant to a service contract for the supply of alternative fuels.

(c) If such equipment or facilities are donated, loaned or provided through other arrangement with the supplier of alternative fuels, the supplier shall be entitled to recoup its actual cost of donating, loaning or providing the equipment or facilities through its fuel charges under the fuel supply contract.

(d) Of the total number of vehicles acquired or caused to be acquired by the secretary for use by any state agency vehicle fleet:

(1) Twenty percent in fiscal year one thousand nine hundred ninety-five;

(2) Thirty percent in fiscal year one thousand nine hundred ninety-six;

(3) Fifty percent in fiscal year one thousand nine hundred ninety-seven, shall be alternative fuel vehicles.

(e) The secretary shall review this alternative fuel use program on or before the thirty-first day of December, one thousand nine hundred ninety-seven, and if the secretary determines that the program is effective in reducing costs to the state, taking into consideration the cost of operating alternative fuel vehicles over the expected useful life of the vehicles, the secretary shall, of the total number of vehicles acquired in each fiscal year, acquire at least seventy-five percent alternative fuel vehicles for state agency fleets beginning the first day of September, one thousand nine hundred ninety-eight, and thereafter.

(f) The secretary shall, in the annual fiscal report to the Legislature, show the progress in achieving these percentage requirements by itemizing purchases, leases and conversions of motor vehicles and usage of alternative fuels.

(g) The secretary, in the development of the alternative fuel use program, shall consult with state agency fleet operators, vehicle manufacturers and converters, fuel distributors and others to delineate the vehicles to be covered, taking into consideration range, specialty uses, fuel availability, vehicle manufacturing and conversion capability, safety, resale values and other relevant factors. In order to maximize the savings to the state, the secretary shall attempt to the extent possible to convert first those vehicles that are used the most often for the most miles. The secretary may meet the percentage requirements of this section through purchase or lease of new vehicles, purchase or lease of used alternative fuel vehicles or the conversion of existing vehicles, in accordance with federal and state requirements and applicable safety laws and standards, to use alternative fuels.

(h) The secretary may reduce any percentage specified or waive the requirements of subsection (d) of this section for any state agency upon a determination by the secretary that either of the following situations apply:

(1) The agency's vehicles will be operating primarily in an area in which neither the agency nor a supplier has or can reasonably be expected to establish a central refueling station for alternative fuels.

(2) The agency is unable to acquire or be provided equipment or refueling facilities necessary to operate alternative fuel vehicles at a projected cost that is reasonably expected to result in no greater net costs than the continued use of traditional gasoline or diesel fuels measured over the expected useful life of the equipment or facilities supplied.

(i) The provisions of this section do not apply to:

(1) Vehicles operated by law-enforcement agencies;

(2) Emergency vehicles;

(3) Vehicles operated by public transit authorities;

(4) School buses;

(5) Vehicles operated by the state rail authority; or

(6) Nonroad vehicles, including farm and construction vehicles.


WVC 5A-2A-3 §5A-2A-3. Regulation of compressed natural gas.
The secretary of commerce, labor and environmental resources has the authority to regulate all activities related to the safety of compressed natural gas and shall establish by regulation minimum safety standards, in conformity with federal and industry standards, for compressed natural gas compression and conversion equipment including the installation of such equipment.


WVC 5A-2A-4 §5A-2A-4. Prohibition of subsidies or incentive payments.
Except as provided by section three-d, article thirteen-d, chapter eleven of this code, the state may not enter into any program providing subsidies or incentive payments for the production of compressed natural gas, liquefied natural gas, liquefied petroleum gas, methanol, ethanol or coal-derived liquid fuels.


WVC -3- ARTICLE 3. PURCHASING DIVISION.


WVC 5 A- 3 - 1 §5A-3-1. Division created; purpose; director; applicability of article; continuation.

     (a) The Purchasing Division within the Department of Administration is continued. The underlying purposes and policies of the Purchasing Division are:

     (1) To establish centralized offices to provide purchasing and travel services to the various state agencies;

     (2) To simplify, clarify and modernize the law governing procurement by this state;

     (3) To permit the continued development of procurement policies and practices;

     (4) To make as consistent as possible the procurement rules and practices among the various spending units;

     (5) To provide for increased public confidence in the procedures followed in public procurement;

     (6) To ensure the fair and equitable treatment of all persons who deal with the procurement system of this state;

     (7) To provide increased economy in procurement activities and to maximize to the fullest extent practicable the purchasing value of public funds;

     (8) To foster effective broad-based competition within the free enterprise system;

     (9) To provide safeguards for the maintenance of a procurement system of quality and integrity; and

     (10) To obtain in a cost-effective and responsive manner the commodities and services required by spending units in order for those spending units to better serve this state's businesses and residents.

     (b) The Director of the Purchasing Division shall, at the time of appointment:

     (1) Be a graduate of an accredited college or university; and

     (2) 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.

     (d) The provisions of this article do not apply to the judicial branch, the legislative branch, to purchases of stock made by the Alcohol Beverage Control Commissioner and to purchases of textbooks for the State Board of Education.

     (e) The provisions of this article apply to every expenditure of public funds by a spending unit for commodities and services irrespective of the source of the funds.
WVC 5A-3-1a §5A-3-1a. Prescription drug products.
In addition to other provisions of this article, the division is authorized, on behalf of the public employees insurance agency, the schools of medicine of the state colleges and universities, the department of vocational rehabilitation and the department of health and human resources, to negotiate and enter into agreements directly with manufacturers and distributors whose prescription drug products are sold in the state for sole-source and multiple-source drugs to be paid for under a state program for eligible recipients. Such agreements shall provide for a rebate of a negotiated percentage of the total product cost to be paid by the manufacturer or distributor of a specific product. Each agency is authorized to establish, either singularly or together with other agencies, a drug formulary.

Prescription drug products are included in the drug formulary only upon completion of the application to and approval of the division. Those products for which a rebate is successfully negotiated are automatically included in the drug formulary for a period of time coterminous with the negotiated rebate.

If there has been a failure to negotiate or renew a rebate agreement for a specific prescription drug product, the pharmaceutical manufacturer of that product shall disclose to the division its most favorable pricing arrangements available to state and nonstate government purchasers. If the division determines that the product needs to be included in the drug formulary, with the approval of the agency the division shall establish the amount to be reimbursed for the product based upon the price information provided by the manufacturer. The determination as to whether a product should be included in the drug formulary is based on the product's efficiency, cost, medical necessity and safety. Any rebate returns, as a result of the provisions of this section regarding prescription drugs, shall be deposited in the general revenue fund.

It is expressly recognized that no other entity may interfere with the discretion and judgment given to the single state agency that administers the state's medicaid program. Therefore, the department of health and human resources is authorized to negotiate rebates as provided for in this section.


WVC 5 A- 3 - 2 §5A-3-2. Books and records of director.
The director shall keep 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.


WVC 5 A- 3 - 3 §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 and services shall be based, whenever possible, on competitive bid;

     (3) Purchase or contract for, in the name of the state, the commodities, services 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;

     (10) Assure that the specifications and descriptions in all solicitations are prepared so as to provide all potential suppliers-vendors who can meet the requirements of the state an opportunity to bid and to assure that the specifications and descriptions do not favor a particular brand or vendor. If the director determines that any such 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 or service having different specifications or quality or in different quantity can be bought, the director may rewrite the solicitation and the matter shall be rebid; and

     (11) Issue a notice to cease and desist to a spending unit when the director has credible evidence that a spending unit has violated competitive bidding or other requirements established by this article and the rules promulgated hereunder. Failure to abide by such notice may result in penalties set forth in section seventeen of this article.
WVC 5 A- 3 - 4 §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 and services directly and prescribe the manner in which such purchases shall be made;

     (2) Authorize, in writing, a spending unit to purchase commodities and services in the open market for immediate delivery in emergencies, define emergencies and prescribe the manner in which such purchases shall be made and reported to the director;

     (3) Prescribe the manner in which commodities and services shall be purchased, delivered, stored and distributed;

     (4) Prescribe the time for making requisitions and estimates of commodities and services, 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 and services 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 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;

     (13) Provide 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 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.
WVC 5 A- 3 - 5 §5A-3-5. Purchasing section standard specifications -- Promulgation and adoption by director; applicable to all purchases.

     (a) The director shall promulgate and adopt standard specifications based on scientific and technical data for appropriate commodities and services, which shall establish the quality to which commodities to be purchased and services to be contracted for by the state must conform.

     (b) Standard specifications shall apply to every future purchase of or contract for the commodities or services described in the specifications and shall include information relating to the cost of maintenance and expected life of the commodity if the director determines there are nationally accepted industry standards for the commodity.

     (c) No purchases by any spending unit may be exempt from compliance with the standard specifications so established, but the director may exempt the purchase of particular items from the standard specifications if it is considered necessary and advisable.

     (d) The director shall update the standard specifications, as necessary.
WVC 5A-3-6 §5A-3-6. Purchasing section standard specifications -- Advisers from spending units.
The secretary may from time to time request any official or employee of any spending unit to aid and advise the director in formulating, revising or amending the schedule of standard specifications provided for in section five of this article. Such official or employee shall act at the request of the secretary and shall be entitled to receive his necessary expenses incurred in compliance therewith, but shall receive no additional compensation therefor.


WVC 5A-3-7 §5A-3-7. Director to advise with heads of state and other institutions producing commodities, services and printing.
The director shall advise with the heads of the various state and other institutions producing commodities, services and printing, with the view to making these articles suitable for the needs of state spending units. Notwithstanding any provision of this code to the contrary, in the event of conflict between state and other institutions producing commodities, services and printing with preference in accordance with the code, the director shall determine which institution shall provide a commodity, service or printing, basing such determination on quality, price and the efficient and economical operation of state government.


WVC 5A-3-8 §5A-3-8. Facilities of division available to local governmental bodies.
The director shall make available the facilities and services of his division to counties, county schools, municipalities, urban mass transportation authorities, created pursuant to article twenty-seven, chapter eight of this code, mass transportation divisions of county and municipal governments, volunteer fire departments, and other local governmental bodies within this state. The actual expenses incurred thereby shall be paid by the local governmental body.


WVC 5A-3-9 §5A-3-9. Examination and testing of purchases; report required.
Within the limit of funds available, the director, or some person appointed by the director, shall determine whether commodities delivered or services performed conform to contractual requirements. Nonconformity shall be reported to the director and chief officer of the spending unit purchasing such commodities or services for remedial action.


WVC 5 A- 3 - 9 A §5A-3-9a. Creation of a fund.
The "Vendor Registration Payment Fund" is hereby redesignated and continued as the "Vendor Fee Fund," and the balance remaining upon the effective date of this section shall remain upon redesignation. Moneys deposited in this fund shall be administered by the purchasing division and used for the purposes established in this article. Expenditures are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of article three, chapter twelve of this code and upon the fulfillment of the provisions of article two, chapter eleven-b of this code: Provided, That for the fiscal year beginning the first day of July, two thousand six, expenditures are authorized from deposits rather than pursuant to appropriations by the Legislature.

Amounts collected which are found from time to time to exceed the funds needed for purposes set forth in this article may be transferred to other accounts or funds and used for other purposes by appropriation of the Legislature.


WVC 5 A- 3 - 10 §5A-3-10. Competitive bids; publication of solicitations for sealed bids; purchase of products of nonprofit workshops; employee to assist in dealings with nonprofit workshops.
(a) A purchase of and contract for commodities, printing and services shall be based, whenever possible, on competitive bids.

(b) The director shall solicit sealed bids for the purchase of commodities and printing which is estimated to exceed twenty-five thousand dollars. No spending unit shall issue a series of requisitions or divide or plan procurements to circumvent this twenty-five thousand dollar threshold or otherwise avoid the use of sealed bids. Any spending unit which awards multiple contracts for the same or similar commodity or service to an individual vendor over any twelve-month period, the total value of which exceeds twenty-five thousand dollars, shall file copies of all contracts awarded to the vendor within the twelve preceding months with the director immediately upon exceeding the twenty-five thousand dollar limit, along with a statement explaining how the multiple contract awards do not circumvent the twenty-five thousand dollar threshold. If the spending unit does not immediately report to the director, the director may suspend the purchasing authority of the spending unit until the spending unit complies with the reporting requirement of this subsection. The director may conduct a review of any spending unit to ensure compliance with this subsection. Following a review, the director shall complete a report summarizing his or her findings and forward the report to the spending unit. In addition, the director shall report to the Joint Committee on Government and Finance on the first day of January and July of each year the spending units which have reported under this subsection and the findings of the director.

(c) The director may permit bids by electronic transmission to be accepted in lieu of sealed bids.

(d) Bids shall be solicited by public notice. The notice may be published by any advertising medium the director deems advisable. The director may also solicit sealed bids by sending requests by mail or electronic transmission to prospective vendors.

(e) The director shall, without competitive bidding, purchase commodities and services produced and offered for sale by nonprofit workshops, as defined in section one, article one of this chapter, which are located in this state: Provided, That such commodities and services shall be of a fair market price and of like quality comparable to other commodities and services otherwise available as determined by the director with the advice of the committee on the purchase of commodities and services from the handicapped.

To encourage contracts for commodities and services with nonprofit workshops, the director shall employ a person whose responsibilities in addition to other duties shall be to identify all commodities and services available for purchase from nonprofit workshops, to evaluate the need of the state for commodities and services to coordinate the various nonprofit workshops in their production efforts and to make available to such workshops information about available opportunities within state government for purchase of commodities or services which might be produced and sold by such workshops. Funds to employ such a person shall be included annually in the budget.


WVC 5 A- 3 - 10 A §5A-3-10a. Prohibition for awarding contracts to vendors which owe a debt to the state or its political subdivisions.
(a) Unless the context clearly requires a different meaning, for the purposes of this section, the terms:

(1) "Debt" means any assessment, premium, penalty, fine, tax or other amount of money owed to the state or any of its political subdivisions because of a judgment, fine, permit violation, license assessment, amounts owed to the Workers' Compensation Funds as defined in article two-c, chapter twenty-three of this code, penalty or other assessment or surcharge presently delinquent or due and required to be paid to the state or any of its political subdivisions, including any interest or additional penalties accrued thereon.

(2) "Debtor" means any individual, corporation, partnership, association, limited liability company or any other form or business association owing a debt to the state or any of its political subdivisions, and includes any person or entity that is in employer default.

(3) "Employer default" means having an outstanding balance or liability to the old fund or to the uninsured employers' fund or being in policy default, as defined in section two, article two-c, chapter twenty-three, of this code, failure to maintain mandatory workers' compensation coverage, or failure to fully meet its obligations as a workers' compensation self-insured employer. An employer is not in employer default if it has entered into a repayment agreement with the Insurance Commissioner and remains in compliance with the obligations under the repayment agreement.

(4) "Political subdivision" means any county commission; municipality; county board of education; any instrumentality established by a county or municipality; any separate corporation or instrumentality established by one or more counties or municipalities, as permitted by law; or any public body charged by law with the performance of a government function and whose jurisdiction is coextensive with one or more counties or municipalities.

(5) "Related party" means a party, whether an individual, corporation, partnership, association, limited liability company or any other form or business association or other entity whatsoever, related to any vendor by blood, marriage, ownership or contract through which the party has a relationship of ownership or other interest with the vendor so that the party will actually or by effect receive or control a portion of the benefit, profit or other consideration from performance of a vendor contract with the party receiving an amount that meets or exceeds five percent of the total contract amount.

(b) No contract or renewal of any contract may be awarded by the state or any of its political subdivisions to any vendor or prospective vendor when the vendor or prospective vendor or a related party to the vendor or prospective vendor is a debtor and:

(1) The debt owed is an amount greater than one thousand dollars in the aggregate; or

(2) The debtor is in employer default.

(c) The prohibition of this section does not apply where a vendor has contested any tax administered pursuant to chapter eleven of this code, amount owed to the Workers' Compensation Funds as defined in article two-c, chapter twenty-three of this code, permit fee or environmental fee or assessment and the matter has not become final or where the vendor has entered into a payment plan or agreement and the vendor is not in default of any of the provisions of such plan or agreement.

(d) All bids, contract proposals or contracts with the state or any of its political subdivisions submitted or approved under the provisions of this code shall include an affidavit that the vendor, prospective vendor or a related party to the vendor or prospective vendor is not in employer default and does not owe any debt in an amount in excess of one thousand dollars or, if a debt is owed, that the provisions of subsection (c) of this section apply.


WVC 5 A- 3 - 10 B §5A-3-10b. Best value procurement.
(a) The director may utilize best value procurement to enter into a contract when he or she determines in writing that it is advantageous to the state.

(b) A solicitation for bids under best value procurement shall be made in the same manner as provided in section ten of this article.

(c) Best value procurement awards shall be based on criteria set forth in the solicitation including, but not limited to, price, the total cost of acquiring, operating, maintaining and supporting a commodity or service over its projected lifetime, the evaluated technical merit of the bidder's bid or proposal, the bidder's past performance, and the evaluated probability of performing the requirements stated in the solicitation on time, with high quality, and in a manner that accomplishes the business objectives set forth in the solicitation.

(d) The award must be made to the highest scoring responsive and responsible bidder whose bid is determined, in writing, to be most advantageous to the state, taking into consideration all evaluation factors set forth in the best value solicitation.

(e) The director may not use best value procurement to enter into government construction contracts, including, but not limited to, those set forth in article twenty-two, chapter five of this code.


WVC 5 A- 3 - 10 C §5A-3-10c. Sole source procurement.
The director may award a contract without advertisement or competition if he or she determines in writing that there is only one source for the required commodity or service. The director may require the submission of cost or pricing data in connection with an award under this section. Prior to an award under this section, the spending unit requesting the procurement shall provide written documentation to the director setting forth the basis for the sole source procurement and the specific efforts made to determine the availability of other sources. Prior to a final determination by the director, the registered vendors will be notified of the commodity or service being sought and the vendors will be provided an opportunity to indicate an interest in bidding on such a commodity or service, to establish whether the commodity or service is, in fact, available only from a sole source. On an annual basis, the director shall report the spending units who have determined a sole source for their commodities or services, the type of commodity or service and the determination made by the director.


WVC 5 A- 3 - 10 D §5A-3-10d. Reverse auctions.

     (a) Notwithstanding any other provision of this code, the director is hereby authorized to initiate reverse auctions to procure commodities. The director may not use reverse auctions for the procurement of services under any circumstances.

     (b) Reverse auctions may be utilized if the director determines their use would be fair, economical and in the best interests of the state, and the commodities to be procured:

     (1) Are subject to low price volatility;

     (2) Have specifications that are common and not complex;

     (3) Vary little between suppliers;

     (4) Are sourced primarily based on price, with limited ancillary considerations;

     (5) Require little collaboration from suppliers; and

     (6) Are sold by a large, competitive supply base.

     (c) For purposes of this section, "reverse auction" means a process by which bidders compete to provide commodities in an open and interactive market, including but not limited to the Internet. Reverse auction bids are opened and made public upon receipt by the director, and then bidders are given the opportunity to submit revised bids until the bidding process is complete. The contract is awarded to the lowest responsible bidder.

     (d) The director may contract with qualified, industry-recognized third-party vendors to conduct reverse auctions on behalf of the director.

     (e) The director shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to establish the procedures for conducting reverse auctions. The rules shall include procedures for contracting with qualified, industry-recognized third-party vendors.
WVC 5 A- 3 - 10 E §5A-3-10e. Master contracts; direct ordering process.

     (a) Subject to the limitations of this section, the director may permit spending units to procure commodities directly from a preapproved vendor through a master contract direct ordering process if the director determines the process is fair, economical and in the best interests of the state.

     (b) Definitions. -- For purposes of this section:

     (1) "Information technology" means hardware and software related to electronic processing, and storage, retrieval, transmittal and manipulation of data.

     (2) "Master contract" means an agreement, having a term of no more than one year, between the Purchasing Division and at least two preapproved vendors authorizing a spending unit to purchase a commodity directly and on a recurrent basis through the direct ordering process.

     (3) "Preapproved vendor" means a "vendor", as that term is defined in section one, article one, chapter five-a of this code, that has entered into a master contract with the Purchasing Division and may participate in the direct ordering process subject to the terms and conditions of the master contract.

     (4) "Direct ordering process" means the competitive bidding process whereby the preapproved vendors that are parties to a master contract may submit sealed bids directly to spending units to provide a commodity identified in the master contract subject to the limitations set forth in this section.

     (c) Master contract procedures. --

     (1) For each master contract, the director shall set forth the requirements, technical or otherwise, under which a vendor may be qualified to supply a commodity through the direct ordering process. For each master contract, the director shall follow the notice and advertising requirements set forth in section ten, article three, chapter five-a of this code.

     (2) A master contract may authorize the direct ordering process for only one type of commodity.

     (3) A vendor may submit information to the director to establish that it meets the requirements set forth in the master contract.

     (4) If the director determines that a vendor meets the requirements set forth in the master contract, the vendor may enter into the master contract as a preapproved vendor.

     (d) Direct ordering procedures. --

     (1) A spending unit may commence the direct ordering process by issuing a request for a commodity identified in the master contract, stating in the request the quantity of the commodity to be procured in that particular instance.

     (2) The preapproved vendor that submits the lowest bid in response to the request shall be awarded the procurement in that particular instance.

     (3) The direct ordering process may not be utilized for any request for commodities, other than information technology, anticipated to cost more than $50,000, unless approved in writing by the Director of Purchasing. The state may not issue a series of orders each anticipated to cost less than $50,000 to circumvent the monetary limitation in this subsection.

     (4) The direct ordering process may not be utilized for any request for information technology anticipated to cost more than $1 million, unless approved in writing by the Director of Purchasing. The state may not issue a series of orders each anticipated to cost less than $1 million to circumvent the monetary limitation in this subsection.

     (e) Rule-making authority. -- The Director of the Purchasing Division shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to implement this section, including but not limited to provisions to establish procedures for the solicitation and authorization of master contracts, preapproval of vendors and implementation of direct ordering.
WVC 5 A- 3 - 11 §5A-3-11. Purchasing in open market on competitive bids; debarment; bids to be based on written specifications; period for alteration or withdrawal of bids; awards to lowest responsible bidder; uniform bids; record of bids; requirements of vendors to pay taxes, fees and debts; exception; grant exemption.

     (a) The director may make a purchase of commodities, printing and services of $25,000 or less in amount in the open market, but the purchase shall, wherever possible, be based on at least three competitive bids, and shall include the cost of maintenance and expected life of the commodities if the director determines there are nationally accepted industry standards for the commodities being purchased.

     (b) The director may authorize spending units to purchase commodities, printing and services in the amount of $2,500 or less in the open market without competitive bids: Provided, That the cost of maintenance and expected life of the commodities must be taken into consideration if the director determines there are nationally accepted industry standards for the commodities being purchased.

     (c) Bids shall be based on the written specifications in the advertised bid request and may not be altered or withdrawn after the appointed hour for the opening of the bids.

     (d) A vendor who has been debarred pursuant to the provisions of sections thirty-three-b through thirty-three-f of this article may not bid on or be awarded a contract under this section.

     (e) All open market orders, purchases based on advertised bid requests or contracts made by the director or by a state department shall be awarded to the lowest responsible bidder or bidders, taking into consideration the qualities of the commodities or services to be supplied, their conformity with specifications, their suitability to the requirements of the government, the delivery terms and, if the director determines there are nationally accepted industry standards, cost of maintenance and the expected life of the commodities: Provided, That state bids on school buses shall be accepted from all bidders who shall then be awarded contracts if they meet the state board's Minimum Standards for Design and Equipment of School Buses. County boards of education may select from those bidders who have been awarded contracts and shall pay the difference between the state aid formula amount and the actual cost of bus replacement. Any or all bids may be rejected.

     (f) If all bids received on a pending contract are for the same unit price or total amount, the director has the authority to reject all bids, and to purchase the required commodities, printing and services in the open market, if the price paid in the open market does not exceed the bid prices.

     (g) The bid must be received by the Purchasing Division prior to the specified date and time of the bid opening. The failure to deliver or the nonreceipt of the bid by the Purchasing Division prior to the appointed date and hour shall result in the rejection of the bid. The vendor is solely responsible for the receipt of bid by the Purchasing Division prior to the appointed date and hour of the bid opening. All bids will be opened publicly by two or more persons from the Purchasing Division. Vendors will be given notice of the day, time and place of the public bid opening. Bids may be viewed immediately after being opened.

     (h) After the award of the order or contract, the director, or someone appointed by him or her for that purpose, shall indicate upon the successful bid that it was the successful bid. Thereafter, the copy of each bid in the possession of the director shall be maintained as a public record, shall be open to public inspection in the office of the director and may not be destroyed without the written consent of the Legislative Auditor.

     (i)(1) A grant awarded by the state is exempt from the competitive bidding requirements set forth in this chapter, unless the grant is used to procure commodities or services that directly benefit a spending unit.

     (2) If a grant awarded to the state requires the procurement of commodities or services that will directly benefit a spending unit, the procurement is not exempt from the competitive bidding requirements set forth in this chapter.

     (3) If a grant awarded to the state requires the state to transfer some or all of the grant to an individual, entity or vendor as a subgrant to accomplish a public purpose, and no contract for commodities or services directly benefitting a spending unit will result, the subgrant is not subject to the competitive bidding requirements set forth in this chapter.
WVC 5 A- 3 - 11 A §5A-3-11a. Negotiation when all bids exceed budget in requisition.
(a) Spending units shall include the maximum budgeted amount available for each purchase in a requisition submitted to the Purchasing Division. No person may disclose this maximum budgeted amount to any vendor prior to the award of a contract. If all bids submitted pursuant to a solicitation exceed the funds available for the purchase, then a negotiated award may be made as set forth in this section.

(1) If the director determines in writing that there is only one responsive and responsible bidder, he or she may negotiate the price for a noncompetitive award or the specifications for a noncompetitive award based solely on the original purpose of the solicitation.

(2) If the Purchasing Division solicits bids with a request for quotation and there is more than one bidder, the director may negotiate with bidders determined in writing to be responsive and responsible, based on criteria contained in the bid invitation: Provided, That the director must negotiate first with the lowest bidder. If the director does not award the bid to the lowest bidder, he or she may close negotiations with that bidder and enter into negotiations with the next lowest bidder, and may continue to do so in like manner with the remaining responsive and responsible bidders. The director may not extend an offer to any bidder that is not first extended to the prior bidders in order of rank.

(3) If the Purchasing Division solicits bids utilizing a best value procurement, as set forth in section ten-b of this section, and there is more than one bidder, the director may negotiate with bidders determined in writing to be responsive and responsible, based on criteria contained in the bid invitation: Provided, That the director must negotiate first with the highest scoring bidder. If the director does not award the bid to the highest scoring bidder, he or she may close negotiations with that bidder and enter into negotiations with the next highest scoring bidder, and may continue to do so in like manner with the remaining responsive and responsible bidders. The director may not extend an offer to any bidder that is not first extended to the prior bidders in order of rank.

(b) After negotiations occur pursuant to subsection (a) of this section, if the director determines that more than fifteen percent of the value of the bid must be renegotiated by revising the specifications of the original solicitation, only a resolicitation may be initiated or the solicitation may be withdrawn.

(c) The director may not renegotiate with any bidder after closing negotiations with that bidder and entering into negotiations with the next bidder.


WVC 5 A- 3 - 11 B §5A-3-11b. Discussion and final offers.
(a) As provided in the bid solicitation, the director may conduct discussions with, and obtain best and final offers from, responsive and responsible bidders who submit proposals determined to be reasonably susceptible of being selected for award for the purpose of clarification to assure full understanding of, and responsiveness to, the solicitation requirements. Bidders must be accorded fair and equal treatment with respect to any opportunity for discussion and revision of proposals, and revisions may be permitted after submissions and prior to award for the purpose of obtaining best and final offers. In conducting discussions, there may be no disclosure of any information derived from proposals submitted by competing bidders.

(b) The following contracts are exempt from this section:

(1) Government construction contracts, including, but not limited to, those set forth in article twenty-two, chapter five of this code; and

(2) The purchase of supplies and material.


WVC 5 A- 3 - 11 C §5A-3-11c. Multiple awards.
The director may elect to award a contract to one or more responsive and responsible bidders if the director determines in writing that a single award to an individual bidder would be insufficient: Provided, That the basis for the selection among multiple contracts at the time of purchase shall be the most practical and economical alternative and shall be in the best interests of the state.


WVC 5 A- 3 - 12 §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 a certificate of the vendor or the certificate of a member of the vendor's firm or, if the vendor is a corporation, the 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 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;

(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 certificate.

(c) The certificate and information received by the director shall be public record.

(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 submits a false certificate or who knowingly files or causes to be filed with the director, 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.


WVC 5A-3-13 §5A-3-13. Contracts to be approved as to form; filing.
Contracts shall be approved as to form by the attorney general. A contract that requires more than six months for its fulfillment shall be filed with the state auditor.


WVC 5 A- 3 - 14 §5A-3-14.
Repealed.

Acts, 2010 Reg. Sess., Ch 169.
WVC 5A-3-14a §5A-3-14a.
Repealed.

Acts, 1990 Reg. Sess., Ch. 2.


WVC 5A-3-15 §5A-3-15. Emergency purchases in open market.
The director may authorize, in writing, a state spending unit to purchase in the open market, without filing requisition or estimate, specific commodities for immediate delivery to meet bona fide emergencies arising from unforeseen causes, including delays by contractors, delays in transportation and unanticipated volume of work. A report of any such purchase, together with a record of the competitive bids upon which it was based, shall be submitted at once to the director by the head of the state spending unit concerned, together with a full account of the circumstances of the emergency: Provided, That the director may waive the need for the record of competitive bids. Such report shall be entered on a record and shall be open to public inspection.


WVC 5A-3-16 §5A-3-16. Special fund; purposes; how composed.
There is hereby created a special revenue fund to be administered by the director to facilitate the following functions of the director:

(1) Purchase commodities in volume and maintain stocks to supply the needs of state spending units; and

(2) Performance of mimeographing, photostating, microfilming, multilithing, multigraphing and other work needed by spending units as provided by section twenty-seven of this article.

The amount of the fund may be fixed and changed by the governor upon the recommendation of the secretary. If at the end of each fiscal year the cash balance plus value of commodity inventories on hand exceeds the amount so fixed, the excess in cash shall be transferred by the governor upon recommendation of the secretary to the general revenue fund and become a part of the general revenue of the state. The fund shall be composed of the following:

(1) The cash balance and inventories of the fund heretofore established by this section; and

(2) Charges made by the director for commodities sold and services rendered to the state spending units as herein described: Provided, That charges shall not exceed total cost to the fund, which total cost shall include storage, supplies, equipment and salaries and wages of employees necessary to supply commodities and services in addition to purchase price of commodities.


WVC 5 A- 3 - 17 §5A-3-17. Purchases or contracts violating article void; personal liability.

     If a spending unit purchases or contracts for commodities or services contrary to the provisions of this article or the rules and regulations made thereunder, such purchase or contract shall be void and of no effect. The spending officer of such spending unit, or any other individual charged with responsibility for the purchase or contract, shall be personally liable for the costs of such purchase or contract and, if already paid out of state funds, the amount thereof may be recovered in the name of the state in an appropriate action instituted therefor: Provided, That the state establishes by a preponderance of the evidence that the individual acted knowingly and willfully.
WVC 5 A- 3 - 18 §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, 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.


WVC 5 A- 3 - 19 §5A-3-19. Purchases from federal government and other sources.
(a) Notwithstanding any other provision of this article, the director may, upon the recommendation of a state spending unit, participate in, sponsor, conduct, or administer a cooperative purchasing agreement or consortium for the purchase of commodities or services with agencies of the federal government, agencies of other states, other public bodies or other state agencies, if available and financially advantageous. At the discretion of the director, bids may be solicited to determine whether participation in such a cooperative purchasing agreement or consortium is financially advantageous.

(b) The Department of Administration may approve administrative fees, not to exceed the amount of fifty thousand dollars, necessary to participate in a cooperative purchasing agreement. Fees which exceed fifty thousand dollars are subject to the competitive bid requirements of this article.


WVC 5A-3-20 §5A-3-20. Spending units to submit lists of expendable commodities.
The head of every spending unit shall submit a list of expendable commodities such spending unit has on hand whenever requested to do so by the director.


WVC 5 A- 3 - 21 §5A-3-21.
Repealed.

Acts, 2010 Reg. Sess., Ch. 169.
WVC 5 A- 3 - 22 §5A-3-22.
Repealed.

Acts, 2010 Reg. Sess., Ch. 169.
WVC 5 A- 3 - 23 §5A-3-23.
Repealed.

Acts, 2010 Reg. Sess., Ch. 169.
WVC 5 A- 3 - 24 §5A-3-24.
Repealed.

Acts, 2010 Reg. Sess., Ch. 169.
WVC 5 A- 3 - 25 §5A-3-25.
Repealed.

Acts, 2010 Reg. Sess., Ch. 169.
WVC 5 A- 3 - 26 §5A-3-26.
Repealed.

Acts, 2010 Reg. Sess., Ch. 132.
WVC 5 A- 3 - 27 §5A-3-27.
Repealed.

Acts, 2008 Reg. Sess., Ch. 4.


WVC 5 A- 3 - 28 §5A-3-28. Financial interest of secretary, etc.; receiving reward from interested party; penalty; application of bribery statute.

     (a) Neither the secretary, nor the director nor any employee of the Division of Purchasing, shall be financially interested, or have any beneficial personal interest, directly or indirectly, in the purchase of any commodities, services or printing, nor in any firm, partnership, corporation or association furnishing them. Neither the secretary, nor the director nor any employee of the Division of Purchasing, shall accept or receive directly or indirectly from any person, firm or corporation, known by such secretary, director or employee to be interested in any bid, contract or purchase, by rebate, gift or otherwise, any money or other thing of value whatsoever, or any promise, obligation or contract for future reward or compensation.

     (b) A person who violates this section shall be guilty of a misdemeanor, and, upon conviction thereof, shall be confined in jail not less than three months nor more than one year, or fined not less than $50 nor more than $1,000, or both, in the discretion of the court: Provided, That any person who violates any of the provisions of the last sentence of the first paragraph of this section under circumstances constituting the crime of bribery under the provisions of section three, article five-a, chapter sixty-one of this code, shall, upon conviction of bribery, be punished as provided in said article five-a.
WVC 5A-3-29 §5A-3-29. Penalty for violation of article.
Any person who violates a provision of this article, except where another penalty is prescribed, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be confined in jail not less than ten days nor more than one year, or fined not less than ten nor more than five hundred dollars, or both, in the discretion of the court.


WVC 5 A- 3 - 30 §5A-3-30. Statement of purpose; obtaining money and property under false pretenses or by fraud from the state; penalties; definition.

 (a) The Legislature of the State of West Virginia hereby declares that the purpose of this statute is to promote equal and fair bidding for the purchase of commodities and services by the state, to eliminate fraud in the procurement of commodities and services by the state.

 (b) It is unlawful for any person to obtain any services, money, goods or other property from the state under any contract made under the provisions of this article, by false pretense, token or representation, or by delivery of inferior commodities, with intent to defraud. A person who violates this subsection is guilty of a felony and, upon conviction thereof, shall be confined in a state correctional facility for not less than one year nor more than five years, and shall be fined not exceeding $10,000.

 (c) It shall not be a defense to a charge under this section that: (1) The commodities or services purchased were accepted and used, or are being used, by the state; or (2) the commodities or services are functional or suitable for the purpose for which the commodities or services were purchased by the state notwithstanding the standard or specification issued by the purchasing agency or the division of purchasing.

 (d) For the purpose of this section, "inferior commodities" includes, but shall not be limited to: (1) Any commodity which does not meet the specification or standard issued by the purchasing agency and the Division of Purchasing, or any change order approved by both the purchasing agency and Division of Purchasing; and (2) any commodity which is of a lesser quality, quantity or measure of any kind set forth within the specification or standard issued by the purchasing agency and the Division of Purchasing.
WVC 5 A- 3 - 31 §5A-3-31. Corrupt actions, combinations, collusions or conspiracies prohibited; penalties.

     (a) It shall be unlawful for any person to corruptly act alone or combine, collude or conspire with one or more other persons with respect to the purchasing or supplying of services, commodities or printing to the state under the provisions of this article if the purpose or effect of such action, combination, collusion or conspiracy is either to: (1) Lessen competition among prospective vendors; or (2) cause the state to pay a higher price for such services, commodities or printing than would be or would have been paid in the absence of such action, combination, collusion or conspiracy; or (3) cause one prospective vendor or vendors to be preferred over one or more other prospective vendor or vendors.

     (b) Any person who violates any provision of this section is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility not less than one nor more than five years, and be fined not exceeding $10,000.
WVC 5A-3-32 §5A-3-32. Power of director to suspend right to bid; notice of suspension.
The director shall have the power and authority to suspend, for a period not to exceed one year, the right and privilege of a vendor to bid on state purchases when the director has reason to believe that such vendor has violated any of the provisions of the purchasing law or the rules and regulations of the director. Every vendor whose right to bid has been so suspended shall be notified thereof by a letter posted by certified mail containing the reason for such suspension.


WVC 5A-3-33 §5A-3-33. Review of suspension by secretary.
Any vendor whose right to bid on state purchases has been suspended by the director under the authority of the preceding section shall have the right to have the director's action reviewed by the secretary, who shall have the power and authority to set aside such suspension.


WVC 5 A- 3 - 33 A §5A-3-33a.
Repealed.

Acts, 2006 Reg. Sess., Ch. 2.


WVC 5 A- 3 - 33 B §5A-3-33b. Scope.
The provisions of sections thirty-three-a through thirty-three-f of this article govern the debarment of vendors with regard to bids under the following provisions of this code:

(a) Section one, article twenty-two, chapter five, relating to bids for construction contracts by the state and its subdivisions;

(b) Section eleven, article three, chapter five-a, relating to the purchase of supplies and printing by the state;

(c) Section eleven, article one, chapter seven, relating to bids for the purchase of commodities and printing by county commissions;

(d) Sections nineteen and twenty, article four, chapter seventeen, relating to bids for construction and reconstruction of state roads and bridges and the furnishing of materials and supplies therefor;

(e) Article nine-d, chapter eighteen, relating to the awarding of contracts by the school building authority; and

(f) Sections four and five, article five, chapter eighteen-b, relating to expenditures by the governing boards for higher education.


WVC 5 A- 3 - 33 C §5A-3-33c. Duties.
The director has primary responsibility for administering the debarment process. The director's duties include:

(a) Obtaining lists of vendors declared ineligible under federal laws and regulations;

(b) Notification of all contracting officials for the state and its subdivisions regarding debarred vendors;

(c) Compiling and maintaining a current, consolidated list of all vendors that have been debarred or declared ineligible, the period of such debarment, and the reasons therefor;

(d) Investigating complaints about vendors from the officials of the state and its subdivisions responsible for contracting with vendors for supplies and services;

(e) Initiating and conducting debarment procedures;

(f) Proposing rules for legislative approval, pursuant to the provisions of article three, chapter twenty-nine-a of this code, for the operation of the debarment process described in the provisions of sections thirty-three-a through thirty-three-f of this article.


WVC 5 A- 3 - 33 D §5A-3-33d. Grounds for debarment.
Grounds for debarment are:

(1) Conviction of an offense involving fraud or a felony offense in connection with obtaining or attempting to obtain a public contract or subcontract;

(2) Conviction of any federal or state antitrust statute relating to the submission of offers;

(3) Conviction of an offense involving embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements or receiving stolen property in connection with the performance of a contract;

(4) Conviction of a felony offense demonstrating a lack of business integrity or business honesty that affects the present responsibility of the vendor or subcontractor;

(5) Default on obligations owed to the state, including, but not limited to, obligations owed to the workers' compensation funds, as defined in article two-c of chapter twenty-three of this code, and obligations under the West Virginia Unemployment Compensation Act and West Virginia state tax and revenue laws. For purposes of this subsection, a vendor is in default when, after due notice, the vendor fails to submit a required payment, interest thereon or penalty, and has not entered into a repayment agreement with the appropriate agency of the state or has entered into a repayment agreement but does not remain in compliance with its obligations under the repayment agreement. In the case of a vendor granted protection by order of a federal bankruptcy court or a vendor granted an exemption under any rule of the bureau of employment programs or the Insurance Commission, the director may waive debarment under section thirty-three-f of this article: Provided, That in no event may debarment be waived with respect to any vendor who has not paid all current state obligations for at least the four most recent calendar quarters, excluding the current calendar quarter, or with respect to any vendor who is in default on a repayment agreement with an agency of the state;

(6) The vendor is not in good standing with a licensing board, in that the vendor is not licensed when licensure is required by the law of this state, or the vendor has been found to be in violation of an applicable licensing law after notice, opportunity to be heard and other due process required by law;

(7) The vendor is an active and knowing participant in dividing or planning procurements to circumvent the twenty-five thousand dollar threshold requiring a sealed bid or otherwise avoid the use of a sealed bid; or

(8) Violation of the terms of a public contract or subcontract for:

(A) Willful failure to substantially perform in accordance with the terms of one or more public contracts;

(B) Performance in violation of standards established by law or generally accepted standards of the trade or profession amounting to intentionally deficient or grossly negligent performance on one or more public contracts;

(C) Use of substandard materials on one or more public contracts or defects in construction in one or more public construction projects amounting to intentionally deficient or grossly negligent performance, even if discovery of the defect is subsequent to acceptance of a construction project and expiration of any warranty thereunder;

(D) A repeated pattern or practice of failure to perform so serious and compelling as to justify debarment; or

(E) Any other cause of a serious and compelling nature amounting to knowing and willful misconduct of the vendor that demonstrates a wanton indifference to the interests of the public and that caused, or that had a substantial likelihood of causing, serious harm to the public.


WVC 5 A- 3 - 33 E §5A-3-33e. Debarment procedure.
(a) The director shall obtain lists of vendors declared ineligible under federal laws and regulation and lists of vendors who are in default on state obligations, and shall initiate debarment proceedings with respect to such vendors, except when good cause is shown which includes evidence that the vendor has become responsible.

(1) In the case of federal ineligibility restrictions applicable to state agencies, the director shall also notify the appropriate agencies of any ineligibility determined under federal authority.

(2) The director may also initiate debarment proceedings if he or she finds probable cause for debarment for any ground set forth in section thirty-three-d of this article.

(3) The director shall initiate debarment proceedings when any state agency requests debarment of a vendor and the director finds that probable cause for debarment exists.

(b) The director shall notify the vendor by certified mail, return receipt requested, of the following:

(1) The reasons for the proposed debarment in sufficient detail to put the vendor on notice of the conduct or transactions upon which the proposed debarment is based;

(2) The causes relied upon for the proposed debarment;

(3) That within thirty working days after receipt of the notice, the vendor may submit in writing information and argument in opposition to the proposed debarment;

(4) The procedures governing debarment decision-making; and

(5) The potential effect of the proposed debarment.

(c) In the event a vendor wishes to contest the debarment decision, the director shall decide the matter in accordance with the provisions of article five, chapter twenty-nine-a of this code.

(d) In any debarment decision, the director shall make a specific finding, based on the substantial record, whether the public interest requires that the debarment decision extend to all commodities and services of the vendor, or whether the public interest allows the debarment decision to be limited to specific commodities or services.

(e) In any debarment decision, the director shall specify the length of the debarment period. The debarment period must be for the period of time that the director finds necessary and proper to protect the public from an irresponsible vendor.

(f) Proof of grounds for debarment must be clear and convincing.


WVC 5 A- 3 - 33 F §5A-3-33f. Effects of debarment.
(a) Unless the director determines in writing that there is a compelling reason to do otherwise, the state and its subdivisions may not solicit offers from, award contracts to, or consent to subcontract with a debarred vendor during the debarment period.

(b) The contracting officer may not exercise an option to renew or otherwise extend a current contract with a debarred vendor, or a contract which is being performed in any part by a debarred subcontractor, unless the director approves the action in writing, based on compelling reasons for exercise of the option or extension.

(c) The debarment decision may extend to all commodities and services of the vendor, or may be limited to specific commodities or services, as the director specifically finds, in the debarment procedure under section thirty-three-e of this article, to be in the public interest based on the substantial record.

(d) The director may extend the debarment to include an affiliate of the vendor upon proof necessary to pierce the corporate veil at common law. The director shall follow the same procedure, and afford the affiliate like notice, hearing and other rights, for extending the debarment to the affiliate as provided for under section thirty-three-e for the debarment of the vendor.

(e) The director may reduce the period or extent of debarment, upon the vendor's request supported by documentation, for the following reasons:

(1) Newly discovered material evidence;

(2) Reversal of the conviction or judgment upon which debarment was based;

(3) Elimination of the causes for which the debarment was imposed; or

(4) Other good cause shown, including evidence that the vendor has become responsible.

(f) The director may extend the debarment period for an additional period if the director determines that the extension is necessary to protect the interests of the state. Upon the expiration of a debarment period, the director shall extend the debarment period for any vendor who has not paid all current state obligations for at least the four most recent calendar quarters, exempting the current calendar quarter, and for any vendor who is in default on a repayment agreement with an agency of the state, until such time as the cause for the extended debarment is removed. If the director extends the debarment period, the director shall follow the same procedures, and afford the vendor like notice, hearing and other rights for extending the debarment, as provided for debarment under section thirty-three-e of this article.

(g) A debarment under this article may be waived by the director with respect to a particular contract if the director determines the debarment of the vendor would severely disrupt the operation of a governmental entity to the detriment of the general public or would not be in the public interest.


WVC 5A-3-34 §5A-3-34. Authority over inventories and property.
The director shall, under the direction and supervision of the secretary, have full authority over inventories and property.


WVC 5A-3-35 §5A-3-35. Submission of annual inventories.
The head of every spending unit of state government shall, on or before the fifteenth day of July of each year, file with the director an inventory of all real and personal property, and of all equipment, supplies and commodities in its possession as of the close of the last fiscal year, as directed by the director.


WVC 5 A- 3 - 36 §5A-3-36. Inventory of removable property.
The director has the power and duty to 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.


WVC 5 A- 3 - 37 §5A-3-37. Preference for resident vendors; preference for vendors employing state residents; preference for veteran residents; exceptions.
(a) Effective beginning July 1, 1992, 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 principal 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; or

(7) Notwithstanding any provisions of subdivisions (1), (2), (3), (4), (5) or (6) of this subsection to the contrary, if any nonresident vendor that is bidding on the purchase of commodities or printing by the director or by a state department is also certified as a small, women or minority-owned business pursuant to section fifty-nine of this article, the nonresident vendor shall be provided the same preference made available to any resident vendor under the provisions of this subsection.

(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."


WVC 5 A- 3 - 37 A §5A-3-37a.
Repealed.

Acts, 2010 Reg. Sess., Ch. 169.
WVC 5 A- 3 - 38 §5A-3-38.
Repealed.

Acts, 2010 Reg. Sess., Ch. 169.
WVC 5 A- 3 - 39 §5A-3-39.
Repealed.

Acts, 2010 Reg. Sess., Ch. 169.
WVC 5 A- 3 - 40 §5A-3-40.
Repealed.

Acts, 2010 Reg. Sess., Ch. 169.
WVC 5 A- 3 - 40 A §5A-3-40a.
Repealed.

Acts, 2007 Reg. Sess., Ch. 214.


WVC 5 A- 3 - 41 §5A-3-41.
Repealed.

Acts, 2010 Reg. Sess., Ch. 169.
WVC 5 A- 3 - 42 §5A-3-42.
Repealed.

Acts, 2010 Reg. Sess., Ch. 169.
WVC 5A-3-43 §5A-3-43. State agency for surplus property created.
There is hereby established within the purchasing division and under the supervision of the director of the purchasing division the state agency for surplus property.


WVC 5A-3-44 §5A-3-44. Authority and duties of state agency for surplus property.
(a) The state agency for surplus property is hereby authorized and empowered (1) to acquire from the United States of America such property, including equipment, materials, books or other supplies under the control of any department or agency of the United States of America as may be usable and necessary for educational, fire protection and prevention, rescue, or public health purposes, including research; (2) to warehouse property acquired; and (3) to distribute the property to tax-supported medical institutions, hospitals, clinics, fire departments, rescue squads, health centers, school systems, schools, colleges and universities within the state, and to other nonprofit medical institutions, hospitals, clinics, volunteer fire departments, volunteer rescue squads, health centers, schools, colleges and universities within the state which have been held exempt from taxation under the Internal Revenue Code of 1986, as amended.

(b) For the purpose of executing its authority under this article, the state agency for surplus property is authorized and empowered to adopt, amend or rescind rules and regulations as may be deemed necessary, and take other action necessary and suitable in the administration of this article, including the enactment and promulgation of rules and regulations necessary to bring this article and its administration into conformity with any federal statutes or rules and regulations promulgated under federal statutes for the acquisition and disposition of surplus property.

(c) The state agency for surplus property is authorized and empowered to appoint advisory boards or committees necessary to the end that this article and the rules and regulations promulgated hereunder conform with federal statutes and rules and regulations promulgated under federal statutes for the acquisition and disposition of surplus property.

(d) The state agency for surplus property is authorized and empowered to take action, make expenditures and enter into contracts, agreements and undertakings for and in the name of the state, require reports, and make investigations as may be required by law or regulation of the United States of America in connection with the receipt, warehousing and distribution of property received by the state agency for surplus property from the United States of America.

(e) The state agency for surplus property is authorized and empowered to act as a clearinghouse of information for the public and private nonprofit institutions and agencies referred to in subsection (a) of this section, to locate property available for acquisition from the United States of America, to ascertain the terms and conditions under which the property may be obtained, to receive requests from the above-mentioned institutions and agencies and to transmit to them all available information in reference to the property, and to aid and assist the institutions and agencies in every way possible in the consummation or acquisition of transactions hereunder.

(f) The state agency for surplus property shall cooperate to the fullest extent consistent with the provisions of this article, with the departments or agencies of the United States of America and shall make reports in the form and containing the information the United States of America or any of its departments or agencies may from time to time require, and it shall comply with the laws of the United States of America and the rules and regulations of any of the departments or agencies of the United States of America governing the allocation, transfer, use or accounting for property donable or donated to the state.


WVC 5 A- 3 - 45 §5A-3-45. Disposition of surplus state property; semiannual report; application of proceeds from sale.
(a) The state agency for surplus property has the exclusive power and authority to make disposition of commodities or expendable commodities now owned or in the future acquired by the state when the commodities are or become obsolete or unusable or are not being used or should be replaced.

(b) The agency shall determine what commodities or expendable commodities should be disposed of and make disposition in the manner which will be most advantageous to the state. The disposition may include:

(1) Transferring the particular commodities or expendable commodities between departments;

(2) Selling the commodities to county commissions, county boards of education, municipalities, public service districts, county building commissions, airport authorities, parks and recreation commissions, nonprofit domestic corporations qualified as tax exempt under Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, or volunteer fire departments in this state when the volunteer fire departments have been held exempt from taxation under Section 501(c) of the Internal Revenue Code;

(3) Trading in the commodities as a part payment on the purchase of new commodities;

(4) Cannibalizing the commodities pursuant to procedures established under subsection (g) of this section;

(5) Properly disposing of the commodities as waste;

(6) Selling the commodities to the general public at the posted price or to the highest bidder by means of public auctions or sealed bids, after having first advertised the time, terms and place of the sale as a Class II legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code. The publication area for the publication is the county in which the sale is to be conducted. The sale may also be advertised in other advertising media that the agency considers advisable. The agency may sell to the highest bidder or to any one or more of the highest bidders, if there is more than one, or, if the best interest of the state will be served, reject all bids; or

(7) Selling the commodities to the highest bidder by means of an Internet auction site approved by the director, as set forth in an emergency rule pursuant to the provisions of chapter twenty-nine-a of this code.

(c) Upon the sale to the general public or transfer of commodities or expendable commodities between departments, or upon the sale of commodities or expendable commodities to an eligible organization, the agency shall set the price to be paid by the receiving eligible organization, with due consideration given to current market prices.

(d) The agency may sell expendable, obsolete or unused motor vehicles owned by the state to an eligible organization, other than volunteer fire departments. In addition, the agency may sell expendable, obsolete or unused motor vehicles owned by the state with a gross weight in excess of four thousand pounds to an eligible volunteer fire department. The agency, with due consideration given to current market prices, shall set the price to be paid by the receiving eligible organization for motor vehicles sold pursuant to this provision: Provided, That the sale price of any motor vehicle sold to an eligible organization may not be less than the "average loan" value, as published in the most recent available eastern edition of the National Automobile Dealer's Association (N.A.D.A.) Official Used Car Guide, if the value is available, unless the fair market value of the vehicle is less than the N.A.D.A. "average loan" value, in which case the vehicle may be sold for less than the "average loan" value. The fair market value shall be based on a thorough inspection of the vehicle by an employee of the agency who shall consider the mileage of the vehicle and the condition of the body, engine and tires as indicators of its fair market value. If no fair market value is available, the agency shall set the price to be paid by the receiving eligible organization with due consideration given to current market prices. The duly authorized representative of the eligible organization, for whom the motor vehicle or other similar surplus equipment is purchased or otherwise obtained, shall cause ownership and proper title to the motor vehicle to be vested only in the official name of the authorized governing body for whom the purchase or transfer was made. The ownership or title, or both, shall remain in the possession of that governing body and be nontransferable for a period of not less than one year from the date of the purchase or transfer. Resale or transfer of ownership of the motor vehicle or equipment prior to an elapsed period of one year may be made only by reason of certified unserviceability.

(e) The agency shall report to the Legislative Auditor, semiannually, all sales of commodities or expendable commodities made during the preceding six months to eligible organizations. The report shall include a description of the commodities sold, the price paid by the eligible organization which received the commodities and to whom each commodity was sold.

(f) The proceeds of the sales or transfers shall be deposited in the State Treasury to the credit on a pro rata basis of the fund or funds out of which the purchase of the particular commodities or expendable commodities was made: Provided, That the agency may charge and assess fees reasonably related to the costs of care and handling with respect to the transfer, warehousing, sale and distribution of state property disposed of or sold pursuant to the provisions of this section.

(g)(1) For purposes of this section, "cannibalization" means the removal of parts from one commodity to use in the creation or repair of another commodity.

(2) The director of the Purchasing Division shall propose for promulgation legislative rules to establish procedures that permit the cannibalization of a commodity when it is in the best interests of the state. The procedures shall require the approval of the director prior to the cannibalization of the commodity under such circumstances as the procedures may prescribe.

(3) (A) Under circumstances prescribed by the procedures, state agencies shall be required to submit a form, in writing or electronically, that, at a minimum, elicits the following information for the commodity the agency is requesting to cannibalize:

(i) The commodity identification number; (ii) the commodity's acquisition date; (iii) the commodity's acquisition cost; (iv) a description of the commodity; (v) whether the commodity is operable and, if so, how well it operates; (vi) how the agency will dispose of the remaining parts of the commodity; and (vii) who will cannibalize the commodity and how the person is qualified to remove and reinstall the parts.

(B) If the agency has immediate plans to use the cannibalized parts, the form shall elicit the following information for the commodity or commodities that will receive the cannibalized part or parts: (i) The commodity identification number; (ii) the commodity's acquisition date; (iii) the commodity's acquisition cost; (iv) a description of the commodity; (v) whether the commodity is operable; (vi) whether the part restores the commodity to an operable condition; and (vii) the cost of the parts and labor to restore the commodity to an operable condition without cannibalization.

(C) If the agency intends to retain the cannibalized parts for future use, it shall provide information justifying its request.

(D) The procedures shall provide for the disposal of the residual components of cannibalized property.

(h) (1) The director of the Purchasing Division shall propose for promulgation legislative rules to establish procedures that allow state agencies to dispose of commodities in a landfill, or by other lawful means of waste disposal, if the value of the commodity is less than the benefit that may be realized by the state by disposing of the commodity using another method authorized in this section. The procedures shall specify circumstances where the state agency for surplus property shall inspect the condition of the commodity prior to authorizing the disposal and those circumstances when the inspection is not necessary prior to the authorization.

(2) Whenever a state agency requests permission to dispose of a commodity in a landfill, or by other lawful means of waste disposal, the state agency for surplus property has the right to take possession of the commodity and to dispose of the commodity using any other method authorized in this section.

(3) If the state agency for surplus property determines, within fifteen days of receiving a commodity, that disposing of the commodity in a landfill or by other lawful means of waste disposal would be more beneficial to the state than disposing of the commodity using any other method authorized in this section, the cost of the disposal is the responsibility of the agency from which it received the commodity.


WVC 5A-3-46 §5A-3-46. Warehousing, transfer, etc., charges.
Any charges made or fees assessed by the state agency for surplus property for the acquisition, warehousing, distribution or transfer of any property acquired by donation from the United States of America for educational purposes or public health purposes, including research, shall be limited to those reasonably related to the costs of care and handling in respect to its acquisition, receipts, warehousing, distribution or transfer by the state agency for surplus property. All charges designated herein shall be used by the state agency for surplus property to defray the general operating expenses of the state agency for surplus property.


WVC 5A-3-47 §5A-3-47. Department of agriculture and other agencies exempted.
Notwithstanding any provisions or limitations of this article, the state department of agriculture and any other state departments or agencies hereafter so designated are authorized and empowered to distribute food, food stamps, surplus commodities and agricultural products under contracts and agreements with the federal government or any of its departments or agencies, and the state department of agriculture and any other state departments or agencies hereafter so designated are authorized and empowered to adopt rules and regulations in order to conform with federal requirements and standards for such distribution and also for the proper distribution of such food, food stamps, commodities and agricultural products. To the extent set forth in this section, the provisions of this article shall not apply to the state department of agriculture and any other state departments or agencies hereafter so designated for the purposes set forth in this section.


WVC 5 A- 3 - 48 §5A-3-48. Travel rules; exceptions.
(a) The Secretary of Administration shall promulgate rules, including emergency rules, relating to the ownership, purchase, use, storage, maintenance and repair of all motor vehicles and aircraft owned or possessed by the State of West Virginia or any of its departments, divisions, agencies, bureaus, boards, commissions, offices or authorities.

(b) If, in the judgment of the Secretary of Administration, economy or convenience indicate the expediency thereof, the secretary may require all vehicles and the aircraft subject to regulation by this article, or those he or she may designate, to be kept in garages and other places of storage and to be made available in a manner and under the terms necessary for the official use of any departments, institutions, agencies, officers, agents and employees of the state as designated by the secretary in rules promulgated pursuant to this section.

(c) The secretary may administer the travel regulations promulgated by the Governor in accordance with section eleven, article three, chapter twelve of this code, unless otherwise determined by the Governor.


WVC 5 A- 3 - 49 §5A-3-49. Central motor pool for state-owned vehicles and aircraft.
The secretary may establish a central motor pool, which shall be maintained and administered by the Department of Administration, subject to such rules as the secretary may promulgate. The Department of Administration is responsible for the storage, maintenance, and repairs of all vehicles and aircraft assigned to the central motor pool.


WVC 5A-3-50 §5A-3-50. Acquiring and disposing of vehicles and aircraft.
The secretary shall be empowered to purchase new vehicles and aircraft and dispose of old vehicles and aircraft as is practical from time to time.


WVC 5A-3-51 §5A-3-51. Maintenance and service to vehicles and aircraft.
The secretary may utilize any building or land owned by the state, any department, institution or agency thereof, for the storing, garaging, and repairing of such motor vehicles and aircraft. The secretary shall provide for the employment of personnel needed to manage said motor pool and to repair and service such vehicles and aircraft and for the purchase of gasoline, oil, and other supplies for use in connection therewith, and may utilize the facilities, services and employees of any department, institution or agency of the state to effectuate the purposes thereof.


WVC 5 A- 3 - 52 §5A-3-52. Special funds for travel management created.

     (a) The travel management special fund is terminated. All deposits currently in this special fund from aviation fees shall be transferred into the Aviation Fund created in subsection c of this section. All funds in this special fund from the monthly fee for vehicles shall be transferred into the Fleet Management Office Fund created in subsection (b) of this section.

     (b) There is created in the State Treasury a special revenue account, to be known as the Fleet Management Office Fund. Expenditures are authorized from collections, but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of article three, chapter twelve of this code and upon fulfillment of the provisions of article two, chapter eleven-b of this code. Any balance remaining in the special revenue account at the end of any state fiscal year does not revert to the General Revenue Fund but remains in the special revenue account and shall be used solely in a manner consistent with this article. All costs and expenses incurred pursuant to this section, including administrative, shall be paid from those funds. Charges for operating, repairing and servicing motor vehicles made against any institution, agency or department shall be paid into the Fleet Management Office Fund by that institution, department or agency.

     (c) There is created in the State Treasury a special revenue account, to be known as the Aviation Fund. Expenditures from this fund are authorized from collections but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of article three, chapter twelve of this code and upon fulfillment of the provisions of article two, chapter eleven-b of this code. Any balance remaining in the special revenue account at the end of any state fiscal year does not revert to the General Revenue Fund but remains in the special revenue account and shall be used solely in a manner consistent with this article. All costs and expenses incurred pursuant to this section, including administrative, shall be paid from those funds. Charges for operating, repairing and servicing aircraft made against any institution, agency or department shall be paid into the Aviation Fund by that institution, department or agency.
WVC 5A-3-53 §5A-3-53. Enforcement of travel management regulations.
If any state officer, agent or employee fails to comply with any rule or regulation of the secretary made pursuant to section forty-eight of this article, the state auditor shall, upon order of the secretary, refuse to issue any warrant or warrants on account of expenses incurred, or to be incurred, in the purchase, operation, maintenance, or repairs of any motor vehicle or aircraft now or to be in the possession or under the control of such officer, agent or employee. The secretary may take possession of any state-owned vehicle or aircraft and transfer it to the central motor pool or to make such other disposition thereof as the secretary may direct.


WVC 5 A- 3 - 54 §5A-3-54.
Repealed.

Acts, 2010 Reg. Sess., Ch. 169.
WVC 5 A- 3 - 55 §5A-3-55.
Repealed.

Acts, 2010 Reg. Sess., Ch. 169.
WVC 5 A- 3 - 55 A §5A-3-55a.
Repealed.

Acts, 2010 Reg. Sess., Ch. 169.
WVC 5 A- 3 - 56 §5A-3-56. Preference for the use of domestic steel products in state contract projects; exceptions; civil penalties.
(a)(1) Except when authorized pursuant to the provisions of subsection (b) of this section, no contractor may use or supply steel products for a state contract project other than those steel products made in the United States.

(2) As used in this section:

(A) "State contract project" means any erection or construction of, or any addition to, alteration of or other improvement to any building or structure, including, but not limited to, roads or highways, or the installation of any heating or cooling or ventilating plants or other equipment, or the supply of any materials for such projects, pursuant to a contract with the state of West Virginia for which bids were solicited on or after the effective date of this section.

(B) "Steel products" means products rolled, formed, shaped, drawn, extruded, forged, cast, fabricated or otherwise similarly processed, or processed by a combination of two or more of such operations, from steel made by the open hearth, basic oxygen, electric furnace, bessemer or other steel making process.

(C) "United States" means the United States of America and includes all territory, continental or insular, subject to the jurisdiction of the United States.

(b) Notwithstanding any provision of subsection (a) of this section to the contrary, the director of the purchasing division may, in writing, authorize the use of foreign steel products if:

(1) The cost for each contract item used does not exceed one tenth of one percent of the total contract cost or two thousand five hundred dollars, whichever is greater. For the purposes of this section, the cost is the value of the steel product as delivered to the project; or

(2) The director of the purchasing division determines that specified steel materials are not produced in the United States in sufficient quantity or otherwise are not reasonably available to meet contract requirements.

(c) A contractor who uses steel products in violation of subsection (a) of this section shall pay a civil penalty equal to one and one-half times the cost of the steel products used in violation of said subsection: Provided, That any contractor in violation of this section who relied in good faith upon documents of title and origin indicating that the steel products were made in the United States shall not be subject to the civil penalty. All civil penalties paid pursuant to this section shall be collected by the director and deposited in the general revenue fund of the state.

(d) When the director of the purchasing division has reasonable cause to believe that a contractor has used or is using steel products in violation of subsection (a) of this section, the director shall conduct an investigation to determine whether the contractor has used or is using steel products in violation of said subsection. Upon a finding by the director pursuant to the investigation that the contractor has used or is using steel products in violation of subsection (a) of this section, the director shall request the attorney general to commence an action under this section against the contractor for the violation. Any action under this section is a civil action.

(e) If any of the requirements or provisions set forth in this section jeopardize the receipt of federal funds, then such requirement or provision shall be void and of no force and effect.

(f) It is the intent of the Legislature that the provisions of article nineteen, chapter five of this code continue in force, except to the extent that if any provision of said article is construed to conflict with a provision of this section, the conflict shall be resolved in favor of the provisions of this section.

(g) This section may be cited as the "West Virginia American Steel Act of 2001."


WVC 5 A- 3 - 57 §5A-3-57. Buy American task force; study; report.

     (a) Findings. -- The Legislature finds that:

     (1) The production of iron, steel, manufactured goods, coal and timber provides jobs and family income to many individuals in this state and, in turn, the jobs and family incomes of millions of persons in the United States;

     (2) The taxes paid to the state and its political subdivisions by employers and employees engaged in the production and sale of iron, steel, manufactured goods, coal and timber are a large source of public revenues for West Virginia;

     (3) The economy and general welfare of West Virginia and its people and the economy and general welfare of the United States are inseparably linked to the preservation and development of manufacturing, harvesting and mineral extraction industries in this state, as well as all the other states of this nation;

     (4) The state's taxpayer dollars are better spent if reinvested with its individual and employer taxpayers in order to foster job retention and growth, particularly within the manufacturing, harvesting and mineral extraction sectors, and to ensure a broad and healthy tax base for future investments vital to the state's infrastructure; and

     (5) West Virginia's procurement policies should reflect the state's and the nation's principles ensuring that the products of those companies and workers who abide by workplace safety and environmental laws, rules and regulations should be rewarded with a commonsense preference in government contracting.

     (b) Declaration of policy. -- It is the policy of West Virginia that the state and its political subdivisions should aid and promote the economy of this state and the United States by requiring a preference for the procurement of iron, steel, manufactured goods, coal and timber produced in the United States in all contracts for the construction, reconstruction, repair, improvement or maintenance of public buildings and public works projects.

     (c) The Purchasing Division and the Division of Labor shall jointly convene the task force created in subsection (d) of this section to study the use of American-made construction materials and manufactured goods in the various aspects of the construction and maintenance of public buildings and public works projects of the state and its political subdivisions which are funded in part by state grants, state loans or state appropriations.

     (d) A task force is hereby created to assist the divisions with this study. The task force shall consist of:

     (1) An architect, an engineer and a contractor, each designated by his or her respective licensing board;

     (2) One representative of the largest organization representing West Virginia manufacturers;

     (3) One representative each from the Division of Highways, the School Building Authority, the Water Development Authority, the General Services Division and the Higher Education Policy Commission; and

     (4) Four labor representatives chosen by the largest labor organization in the state.

     (e) The study shall include, but not be limited to:

     (1) The need to maintain a list of all suppliers qualified to provide construction materials and manufactured goods produced in the United States;

     (2) The percentage of domestically produced construction materials and manufactured goods to be included in a construction project to qualify it as built with American made construction materials and manufactured goods; and

     (3) Possible changes to the bid process, including waiver requirements.

     (f) The directors of the Purchasing Division and the Division of Labor shall report the Joint Committee on Government and Finance, by December 31, 2012, on the task force's findings on the best methods of promoting the American production of iron, steel, manufactured goods, coal and timber and creating jobs through a buy American mandate, as well as the burdens and benefits of such mandate on the construction industry in West Virginia and the state's public building and public works projects.
WVC 5 A- 3 - 58 §5A-3-58. Creation of the Purchasing Improvement Fund.
There is hereby created in the State Treasury a special revenue account to be known as the Purchasing Improvement Fund. The Purchasing Improvement Fund shall receive funds transferred from the Purchasing Card Administration Fund by the Auditor pursuant to section ten-d, article three, chapter twelve of this code and shall be administered by the secretary. Expenditures from the fund shall be for the purposes set forth in this article and are not authorized from collections but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of article three, chapter twelve of this code and upon fulfillment of the provisions of article two, chapter eleven-b of this code: Provided, That for the fiscal year ending the thirtieth day of June, two thousand eight, expenditures are authorized from collections rather than pursuant to appropriation by the Legislature.


WVC 5 A- 3 - 59 §5A-3-59. Small, women and minority-owned businesses.
(a) As used in this section:

(1) "Minority individual" means an individual who is a citizen of the United States or a noncitizen who is in full compliance with United States immigration law and who satisfies one or more of the following definitions:

(A) "African American" means a person having origins in any of the original peoples of Africa and who is regarded as such by the community of which this person claims to be a part.

(B) "Asian American" means a person having origins in any of the original peoples of the Far East, Southeast Asia, the Indian subcontinent or the Pacific Islands, including, but not limited to, Japan, China, Vietnam, Samoa, Laos, Cambodia, Taiwan, Northern Mariana, the Philippines, a U.S. territory of the Pacific, India, Pakistan, Bangladesh, or Sri Lanka and who is regarded as such by the community of which this person claims to be a part.

(C) "Hispanic American" means a person having origins in any of the Spanish-speaking peoples of Mexico, South or Central America, or the Caribbean Islands or other Spanish or Portuguese cultures and who is regarded as such by the community of which this person claims to be a part.

(D) "Native American" means a person having origins in any of the original peoples of North America and who is regarded as such by the community of which this person claims to be a part or who is recognized by a tribal organization.

(2) "Minority-owned business" means a business concern that is at least fifty-one percent owned by one or more minority individuals or in the case of a corporation, partnership, or limited liability company or other entity, at least fifty-one percent of the equity ownership interest in the corporation, partnership, or limited liability company or other entity is owned by one or more minority individuals and both the management and daily business operations are controlled by one or more minority individuals.

(3) "Small business" means a business, independently owned or operated by one or more persons who are citizens of the United States or noncitizens who are in full compliance with United States immigration law, which, together with affiliates, has two hundred fifty or fewer employees, or average annual gross receipts of $10 million or less averaged over the previous three years.

(4) "State agency" means any authority, board, department, instrumentality, institution, agency, or other unit of state government. "State agency" does not include any county, city or town.

(5) "Women-owned business" means a business concern that is at least fifty-one percent owned by one or more women who are citizens of the United States or noncitizens who are in full compliance with United States immigration law, or in the case of a corporation, partnership or limited liability company or other entity, at least fifty-one percent of the equity ownership interest is owned by one or more women who are citizens of the United States or noncitizens who are in full compliance with United States immigration law, and both the management and daily business operations are controlled by one or more women who are citizens of the United States or noncitizens who are in full compliance with United States immigration law.

(b) State agencies shall submit annual progress reports on small, women and minority-owned business procurement to the Department of Administration in a form specified by the Department of Administration.

(c) The Department of Administration shall propose rules, for legislative approval pursuant to article three, chapter twenty-nine-a, to implement certification programs for small, women and minority-owned businesses. These certification programs shall deny certification to vendors from states that deny like certifications to West Virginia-based small, women or minority-owned businesses or that provide a preference for small, women or minority-owned businesses based in that state that is not available to West Virginia-based businesses. The rules shall:

(1) Establish minimum requirements for certification of small, women and minority-owned businesses;

(2) Provide a process for evaluating existing local, state, private sector and federal certification programs that meet the minimum requirements; and

(3) Mandate certification, without any additional paperwork or fee, of any prospective state vendor that has obtained certification under any certification program that is determined to meet the minimum requirements established in the regulations.


WVC 5 A- 3 - 60 §5A-3-60. Annual purchasing training.

     (a) All executive department secretaries, commissioners, deputy commissioners, assistant commissioners, directors, deputy directors, assistant directors, department heads, deputy department heads and assistant department heads are hereby required to take two hours of training on purchasing procedures and purchasing cards annually.

     (b) The Director of the Purchasing Division and the Auditor shall offer the two-hour training required by this section at least two times per year and shall develop its substance in accordance with the requirements of this article and other relevant provisions of this code. The training shall be recorded by audio and visual means and shall be made available to the individuals listed in subsection (a) of this section in the event they are unable to attend the training in person.

     (c) All individuals listed in subsection (a) of this section shall certify, in writing and on a form developed by the Director of the Purchasing Division, the date, time, location and manner in which they took the training. Completed forms shall be returned to the director and maintained in his or her office.
WVC -3A- ARTICLE 3A. CENTRAL NONPROFIT COORDINATING AGENCY AND COMMITTEE FOR THE PURCHASE OF COMMODITIES AND SERVICES FROM THE HANDICAPPED.


WVC 5A-3A-1 §5A-3A-1. Purpose.
The purpose of this article is to further the state's policy of encouraging disabled persons to achieve maximum personal independence by engaging in productive activities and in addition to provide state agencies, institutions and political subdivisions with a method for achieving conformity with purchasing procedures and requirements of nondiscrimination, affirmative action, in employment matters related to disabled persons.


WVC 5A-3A-2 §5A-3A-2. Central nonprofit agency.
A central nonprofit agency approved by the director of the division of rehabilitation services is established for the purpose of coordinating purchases under the provisions of section ten, article three of this chapter, between various "spending units" of the state and "nonprofit workshops." This agency shall have the following responsibilities:

(a) Represent qualified nonprofit workshops in dealing with state purchasing agents and the other bodies charged with purchasing responsibilities;

(b) Evaluating the qualifications and capabilities of workshops and entering, as necessary, into contracts with government procuring entities for the furnishing of the commodities or services provided by the workshops;

(c) Overseeing workshops to ensure compliance with contract performance and quality standards; list the commodities and services of participating workshops, research and assist the workshops in developing new products and upgrading existing ones, and shall survey applicable private industry to provide input on fair market prices; and

(d) Present an annual report for each fiscal year concerning the operations of its nonprofit workshops to the director of the division of rehabilitation services.


WVC 5A-3A-3 §5A-3A-3. Committee for the purchase of commodities and services from the handicapped.
(a) The committee for the purchase of commodities and services from the handicapped is hereby created as a part of the department of administration and shall be composed of the following six members who are to be appointed by the governor with the advice and consent of the Senate: A private citizen who is conversant with the problems incidental to the employment of handicapped persons; a representative of a producing nonprofit workshop; a representative of the division of rehabilitation services; a representative of the department of administration who is knowledgeable in the purchasing requirements of the state; a representative of private business who is knowledgeable in the activities involved in the sale of commodities or services to governmental entities; and a representative of organized labor who is knowledgeable in matters relating to employment of the disabled. The governor shall appoint one member to serve as chairperson.

(b) Members of the committee are appointed to serve two-year terms expiring on the thirty-first day of January of odd-numbered years. Members who are not state employees shall receive compensation for their service of fifty dollars per day for each day actually engaged in the work of the committee and all members shall receive reimbursement by the state for expenses incurred in performing their duties as members.

(c) The committee shall have as an executive secretary the person charged with program management in section ten, article three of this chapter. The executive secretary shall be responsible for the day-to-day management of the committee and shall coordinate with the central nonprofit agency to perform the duties outlined in section ten, article three of this chapter.


WVC 5A-3A-4 §5A-3A-4. Responsibilities of the committee for the purchase of commodities and services from the handicapped.
The committee shall have the following duties and responsibilities:

(a) Determining the fair market price of all commodities, printing and services produced by nonprofit workshops and offered for sale by the central nonprofit agency to the various departments and political subdivisions of the state. Prices shall be revised periodically to reflect changing market conditions.

(b) Monitoring the activities of the central nonprofit agency to assure that the interests of the state's handicapped citizens are advanced by the agency. The committee shall make rules necessary to monitor the agency as well as matters related to the state's use of the products and services produced by the handicapped. Except as stated in section ten, article three of this chapter, rules shall reflect agreement with the policies and procedures established by the state's purchasing units.

(c) Monitoring the performance of the central nonprofit agency to see that the commodities and services produced meet state specifications (or in the absence of specifications meet standards in use by the federal government or industry) as to quality and delivery. The committee shall provide procedures for formal and informal resolution of provider and consumer grievances or complaints.

(d) Maintaining records pertaining to its activities under the act including records of sales, formal grievances, number of handicapped workers employed, a summary of disabilities for workers providing services, a list of workshop products and services, and the geographic distribution of provider workshops. On or before the first day of January of each year the committee shall file with the governor and the presiding officer of each house of the Legislature a written report summarizing the above records and giving a detailed accounting for all funds received and disbursed by the committee during the preceding year.


WVC 5A-3A-5 §5A-3A-5. Rules.
The committee may adopt rules for the implementation, extension, administration, or improvement of the program authorized by this article.


WVC 5 A- 3 A- 6 §5A-3A-6. Exceptions.
The purchasing unit is exempt from the operation of the mandatory provisions of section ten, article three of this chapter when:

(1) The director of purchasing determines that the commodity or service so produced or provided does not meet the reasonable requirements of the purchasing unit;

(2) The committee or central nonprofit agency determines that a nonprofit workshop cannot reasonably provide the commodity or service;

(3) The purchasing director determines, after considering any recommendation of the committee or bids which may have been offered, that the commodity or service is not of a fair market price; or

(4) The purchasing director determines, after consulting with the committee, that the commodity or service is not of like quality to other commodities or services available.

No purchasing unit may evade the intent of this section when required goods or services are reasonably available from nonprofit workshops: Provided, That if a purchasing unit is required or may be required by federal statute or regulations to purchase commodities or services with competitive bidding, or may otherwise be disqualified from federal funding or assistance if it fails to purchase commodities or services with competitive bidding, the purchasing unit shall not be required to purchase commodities or services from nonprofit workshops. Such purchasing units not required to purchase commodities or services from nonprofit workshops include military installations of the national guard.


WVC 5 A- 3 B- ARTICLE 3B. ENERGY-SAVINGS CONTRACTS.


WVC 5 A- 3 B- 1 §5A-3B-1. Definitions.
As used in this article:

(a) "Agency" means any state department, division, office, commission, authority, board or other unit authorized by law to enter into contracts for the provision of goods or services;

(b) "Energy-conservation measures" means goods or services, or both, to reduce energy consumption operating costs of agency facilities. They include, but are not limited to, installation of one or more of the following:

(1) Insulation of a building structure and systems within a building;

(2) Storm windows or doors, caulking or weather stripping, multiglazed windows or doors, heat-absorbing or heat-reflective glazed and coated window or door systems, or other window or door modifications that reduce energy consumption;

(3) Automatic energy control systems;

(4) Heating, ventilating or air conditioning systems, including modifications or replacements;

(5) Replacement or modification of lighting fixtures to increase energy efficiency;

(6) Energy recovery systems;

(7) Cogeneration systems that produce steam or another form of energy for use by any agency in a building or complex of buildings owned by the agency; or

(8) Energy-conservation maintenance measures that provide long-term operating cost reductions of the building's present cost of operation.

(c) "Energy-savings contract" means a performance-based contract for the evaluation and recommendation of energy operations conservation measures and for implementation of one or more measures.

(d) "Qualified provider" means a person, firm or corporation experienced in the design, implementation and installation of energy-conservation measures.


WVC 5 A- 3 B- 2 §5A-3B-2. Contracts for energy-savings contracts.
(a) Agencies are authorized to enter into performance-based contracts with qualified providers of energy-conservation measures for the purpose of significantly reducing energy operating costs of agency owned buildings, subject to the requirements of this section.

(b) Before entering into a contract or before the installation of equipment, modifications or remodeling to be furnished under a contract, the qualified provider shall first issue a proposal summarizing the scope of work to be performed. A proposal must contain estimates of all costs of installation, modifications or remodeling, including the costs of design, engineering, installation, maintenance, repairs or debt service, as well as estimates of the amounts by which energy operating costs will be reduced. If the agency finds, after receiving the proposal, that the proposal includes one or more energy-conservation measures, the installation of which is guaranteed to result in a net savings of a minimum of five percent of the then current energy operating costs which savings will, at a minimum, satisfy any debt service required, the agency may enter into a contract with the provider pursuant to this section.

(c) An energy-savings contract must include the following:

(1) A guarantee of a specific minimum net percentage amount of at least five percent of energy operating costs each year over the term of the contract that the agency will save;

(2) A statement of all costs of energy-conservation measures, including the costs of design, engineering, installation, maintenance, repairs and operations; and

(3) A provision that payments, except obligations upon termination of the contract before its expiration, are to be made over time.

(d) An agency may supplement its payments with federal, state or local funds to reduce the annual cost or to lower the initial amount to be financed.

(e) An energy-savings contract is subject to competitive bidding requirements and other requirements of article three of this chapter.

(f) An energy-savings contract may extend beyond the fiscal year in which it first becomes effective: Provided, That such a contract may not exceed a fifteen-year term: Provided, however, That the long term contract will be void unless the agreement provides that the agency shall have the option during each fiscal year of the contract to terminate the agreement.

(g) Agencies may enter into a "lease with an option to purchase" contract for the purchase and installation of energy-conservation measures if the term of the lease does not exceed fifteen years and the lease contract includes the provisions contained in subsection (f) of this section and meets federal tax requirements for tax-exempt municipal leasing or long-term financing.

(h) The agency may include in its annual budget for each fiscal year any amounts payable under long-term energy-savings contracts during that fiscal year.

(i) Upon the issuance of a request for proposals or request for quotations for an energy-savings contract, the agency shall provide a copy thereof to the joint committee on government and finance.

(j) Before signing an energy-savings contract or extending an existing energy-savings contract, the agency shall give thirty days' written notice, which notice shall include a copy of the proposal containing the information required by subsection (b) of this section, to the joint committee on government and finance.


WVC 5 A- 3 C- ARTICLE 3C. PHARMACEUTICAL AVAILABILITY AND AFFORDABILITY ACT OF 2004.


WVC 5 A- 3 C- 1 §§5A-3C-1 to 5A-3C-17.
Repealed.

Acts, 2009 Reg. Sess., Ch. 108.


WVC 5 A- 3 C- 2 §5A-3C-2. Purpose.
(a) The Legislature finds:

(1) That the rising cost of prescription drugs has imposed a significant hardship on individuals who have limited budgets, are uninsured or who have prescription coverage that is unable to control costs successfully due to cost shifting and disparate pricing policies;

(2) That the average cost per prescription for seniors rose significantly between one thousand nine hundred ninety-two and two thousand, and is expected to continue increasing significantly through two thousand ten;

(3) That there is an increasing need for citizens of West Virginia to have affordable access to prescription drugs; and

(4) That the Legislature does not intend the imposition of the programs under this article to penalize or otherwise jeopardize the benefits of veterans and other recipients of federal supply schedule drug prices.

(b) In an effort to promote healthy communities and to protect the public health and welfare of West Virginia residents, the Legislature finds that it is its responsibility to make every effort to provide affordable prescription drugs for all residents of West Virginia.


WVC 5 A- 3 C- 3 §5A-3C-3. Definitions.
In this article:

(1) "Advertising or marketing" means any manner of communication of information, either directly or indirectly, that is paid for and usually persuasive in nature about products, services or ideas related to pharmaceuticals by identified sponsors through various media, persons or other forms as further defined by legislative rule.

(2) "AWP" or "average wholesale price" means the amount determined from the latest publication of the blue book, a universally subscribed pharmacist reference guide annually published by the Hearst Corporation. "AWP" or "average wholesale price" may also be derived electronically from the drug pricing database synonymous with the latest publication of the blue book and furnished in the national drug data file (NDDF) by first data bank (FDB), a service of the Hearst Corporation.

(3) "Dispensing fee" means the fee charged by a pharmacy to dispense pharmaceuticals.

(4) "Drug manufacturer" or "pharmaceutical manufacturer" means any entity which is engaged in: (A) The production, preparation, propagation, compounding, conversion or processing of prescription drug products, either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis; or (B) in the packaging, repackaging, labeling, relabeling or distribution of prescription drug products. "Drug manufacturer" or "pharmaceutical manufacturer" does not include a wholesale distributor of drugs or a retail pharmacy licensed under state law.

(5) "Federal supply schedule" or "FSS" means the price available to all federal agencies for the purchase of pharmaceuticals authorized in the Veterans Health Care Act of 1992, PL 102-585. FSS prices are intended to equal or better the prices manufacturers charge their "most-favored" non-federal customers under comparable terms and conditions.

(6) "Multiple-source drug", "innovator drug" and "noninnovator drug" mean the following:

(A) The term "multiple-source drug" means, for which there are two or more drug products which are: Rated as therapeutically equivalent (under the food and drug administration's most recent publication of "Approved Drug Products with Therapeutic Equivalence Evaluations"), except as provided in paragraph (B) of this subdivision, are pharmaceutically equivalent and bioequivalent, as determined by the food and drug administration, and the term "innovator drug" shall hereinafter be referred to as "brand". The term "innovator drug" means a drug which is produced or distributed under an original new drug application approved by the food and drug administration, including a drug product marketed by any cross-licensed producers or distributors operating under the new drug application and any multiple-source drug that was originally marketed under an original new drug application approved by the food and drug administration. The term "noninnovator drug" shall hereinafter be referred to as "generic". The term "noninnovator drug" means a multiple-source drug that is not an "innovator drug".

(B) Paragraph (A) of this subdivision shall not apply if the food and drug administration changes by regulation the requirement that, for purposes of the publication described in paragraph (A) of this subdivision, in order for drug products to be rated as therapeutically equivalent, they must be pharmaceutically equivalent and bioequivalent.

(7) "Labeler" means an entity or person that receives prescription drugs from a manufacturer or wholesaler and repackages those drugs for later retail sale and that has a labeler code from the federal food and drug administration pursuant to 21 C.F.R. §207.20 (1999).

(8) "Person" means any natural person or persons or any corporation, partnership, company, trust or association of persons.

(9) "Pharmaceutical drug detailing" or "detailing" means the function performed by a sales representative who is employed by a pharmaceutical manufacturer for the purpose of: Promotion of pharmaceutical drugs or related products; education about pharmaceutical drugs or related products; or to provide samples of pharmaceutical drugs, related products or related materials, gifts, food or meals.

(10) "Savings" means the difference between the previous price of a prescription drug including any discounts, rebates or price containments and the current price after the effective date of this article for the public employees insurance agency, children's health insurance program, medicaid and workers' compensation programs or other programs which are payors for prescription drugs.

(11) "Sole source" means a pharmaceutical that provides a unique and powerful advantage available in the market to a broad group of patients established under federal law.

(12) "West Virginia Pharmaceutical Cost Management Council" or "council" means the council created pursuant to section eight of this article.


WVC 5 A- 3 C- 4 §5A-3C-4. Creation of clearinghouse program.
(a) There is hereby created the state prescription drug assistance clearinghouse program. The brand pharmaceutical manufacturers shall create and implement a program to assist state residents who are low income or uninsured to gain access to prescription medications through existing private and public sector programs and prescription drug assistance programs offered by manufacturers, including discount and coverage programs. The brand pharmaceutical manufacturers shall use available computer software programs that access an eligible individual with the appropriate private or public programs relating to the individual's medically necessary drugs. The brand pharmaceutical manufacturers shall provide education to individuals and providers to promote the program and to expand enrollment and access to necessary medications for low-income or uninsured individuals qualifying for the programs. The participating brand pharmaceutical manufacturers shall be responsible for the cost of the establishment of the program, and be responsible for running the program, regardless of the date of transfer of the program to the state, for the period of time until a date no earlier than the thirtieth day of June, two thousand five, and ownership of the technology, website and other program features shall be transferred to the state on the same date. The secretary of the department of health and human resources and the director of the public employees insurance agency shall provide joint oversight over the establishment and construction of the program and program features for the period of time prior to the transfer of ownership to the state. The pharmaceutical council shall recommend the state agency to own, control and operate the program, technology and program features, and shall include such recommendation in its report on or before the first day of September, two thousand four, to the joint committee on government and finance, as provided for in section eight of this article. In addition, the pharmaceutical manufacturers shall report to the Joint Committee on Government and Finance on a monthly basis all activities related to the implementation of this program including the number of citizens serviced and the services provided.

(b) The participating brand pharmaceutical manufacturers shall contribute the funding for the promotion of the public relations program attendant to the establishment of the program. The participating brand pharmaceutical manufacturers shall be responsible for the cost of the establishment of the program and the cost of the ongoing program, regardless of the date of transfer of ownership of the program to the state, for the period of time until the thirty-first day of December, two thousand four.


WVC 5 A- 3 C- 5 §5A-3C-5. Pharmaceutical discount program; establishment; eligible individuals; discount pass through; terms.
There is hereby established a discount drug program to provide low-income, uninsured individuals with access to prescription drugs from participating brand pharmaceutical companies and pharmacists through either a state-sponsored discount card program or a program that extends current brand pharmaceutical manufacturer prescription drug assistance programs:

(a) The state hereby establishes a state-sponsored prescription drug discount card program for certain eligible residents of West Virginia:

(1) Eligible individuals include uninsured residents of West Virginia up to two hundred per cent of the federal poverty guideline who have not been covered by a prescription drug program, whether public or private, at least six months prior to applying to the discount card program;

(2) The state may negotiate voluntary discounts with brand pharmaceutical manufacturers and pharmacists: Provided, That the total discount received from the manufacturer shall pass through to the eligible resident;

(3) Failure of a brand pharmaceutical manufacturer to participate in the voluntary discount card program will not result in prior authorization on drugs in the medicaid program which would not otherwise be subject to prior authorization but for the failure of the manufacturer to participate in this program; and

(4) The state shall not establish a formulary or preferred drug list as part of the discount card program.

(b) The brand pharmaceutical manufacturers may extend existing prescription drug assistance programs to eligible residents of West Virginia. Eligible individuals include uninsured residents of West Virginia up to two hundred percent of the federal poverty level who have not been covered by a prescription drug program, whether public or private, at least six months prior to applying to the program.

(c) The program established under this section shall be structured so that a member presenting a discount card at a participating pharmacy will receive the full benefit of the pharmacy discount, as well as the manufacturer's discount, at a point of sale transaction. The program, or the pharmacy benefit manager contracted by the program, shall coordinate the drug discount information provided by participating pharmacies and manufacturers so that the available drug discounts are provided to the member at the point of sale.

(d) Manufacturers participating in the voluntary program established under this section shall cooperate with the program, or the pharmacy benefit manager contracted by the program, to provide the current list of drugs and the percentage of discount from the AWP for such drugs, or the rebates that the manufacturer will provide under the program. It is the intent of this program that adequate drug price and discount or rebate information be provided by the manufacturer, such that the program and participating pharmacies will have available such drug prices and discounts or rebates at a point of sale pharmaceutical drug transaction. Retail pharmacies will be responsible for no more than fifty percent of the discount offered by the manufacturer to the participant.

(1) Pharmacies participating in the voluntary program(s) established under this section will be responsible for no more than fifty percent of the discount offered by the manufacturer to the participant, and be paid a dispensing fee of no more than three dollars and fifty cents per prescription with regard to prescriptions filled under the program(s).

(2) Upon the presentation of a valid discount card, payment for the prescription and otherwise meeting appropriate criteria to have their prescription filled, the cardholder will have their prescription filled by a participating pharmacy. To accomplish the transaction, the participating pharmacy shall electronically transmit the transaction to the program or pharmacy benefit manager contracted by the program for processing. The program, or the program's pharmacy benefit manager, shall determine the discounted cost of the drug, including the discount provided, the discount provided by the pharmacy, the discount or rebate provided by the manufacturer, the pharmacy dispensing fee, and any pharmacy benefit manager transaction fee. The program, or the program's pharmacy benefit manager, shall then transmit to the manufacturer an electronic statement of the amount the manufacturer owes on the transaction to cover the manufacturer's discount or rebate and the program's or the pharmacy benefit manager's processing fee. The manufacturer shall, in turn, at least every fourteen days, transmit such monetary amounts for the transaction to the program, or the program's pharmacy benefit manager, and the program, or the program's pharmacy benefit manager, shall pass such discount or rebate amounts back to the participating pharmacy which originated the transaction immediately.

(e) The pharmaceutical manufacturers shall report to the Joint Committee on Government and Finance on a monthly basis all activities related to the implementation of this program including the number of citizens serviced and the services provided, as well as, the benefits, the costs and the discounts obtained.


WVC 5 A- 3 C- 6 §5A-3C-6. Creation of program; administrative support; medicaid and chip program.
(a) There is hereby created in the state a program to obtain favorable pharmaceutical prices for state agencies and other qualified entities pursuant to this article.

(b) The medicaid program and the West Virginia children's health insurance program may be exempt from participation in this program until approval by the center for medicare and medicaid services has been granted if it is determined to be required by the council.

(c) Administrative staff support for the council created by this article shall be provided by the departments represented on the council.

(d) The council shall establish a pricing schedule using or referencing the FSS prices, or using or referencing to the price, as adjusted for currency valuations, set by Canada patented medicine prices review board (PMPRB) or any other appropriate referenced price that will maximize savings to the broadest percentage of the population of this state.

(e) By September fifteenth of two thousand four, the council shall report back to the Legislature the pricing schedule developed and a strategic plan for implementation. The council shall implement the proposed pricing schedule and strategic plan upon concurrent resolution of the Legislature. If, at the time of the acceptance or rejection of the concurrent resolution to implement the proposed pricing schedule and strategy, the concurrent resolution is not passed due to the Legislature's lack of acceptance of the same, the Legislature shall accept or reject a concurrent resolution to implement the pricing schedule and strategy using or referencing the FSS: Provided, That acceptance or rejection of the above referenced resolutions shall occur prior to the end of the regular session of the Legislature in two thousand five.

(f) If neither of the above referenced resolutions pass during the regular session of the Legislature in two thousand five, the Legislature may, at any time in the future, pass a concurrent resolution to implement the above referenced pricing schedule and strategy or any subsequent recommendation of the council to the Legislature and the Legislature determines that the proposed pricing schedule and strategy are the most effective method of reducing pharmaceutical prices for the citizens of the state.

(g) Qualified entities including, but not limited to, licensed private insurers, self insured employers, free clinics and other entities who provide pharmaceuticals either directly or through some form of coverage to the citizens of West Virginia shall have an option to apply for participation in the program established by this article in the form and manner established by the council. The council, in its sole discretion, shall approve or deny participation through review of documentation determined to be necessary for full consideration and as established by rule. The council shall consider, but not be limited to, the fiscal stability and the size of each applicant.

(h) Pharmaceutical manufacturers may request a waiver from the pricing schedule to be granted by the council for a particular drug in which the development, production, distribution costs, other reasonable costs and reasonable profits, but exclusive of all marketing and advertising costs as determined by the council, is more than the pricing schedule rate of the pharmaceutical or in those cases in which the pharmaceutical in question has a sole source. The determination of reasonable costs and reasonable profits may fluctuate between different pharmaceuticals under consideration by the council. The council shall determine by legislative rule fees to be paid by the applicant at the time a waiver request is made and documentation required to be submitted at the time of the waiver request.


WVC 5 A- 3 C- 7 §5A-3C-7. Multistate discussion group.
For the purposes of reviewing or amending the program establishing the process for making pharmaceuticals more available and affordable to the citizens of West Virginia, the state may continue to enter into multistate discussions and agreements. For purposes of participating in these discussions, the state shall be represented by members of the council created in section eight of this article.


WVC 5 A- 3 C- 8 §5A-3C-8. West Virginia pharmaceutical cost management council.
(a) There is hereby created the West Virginia pharmaceutical cost management council which consists of the secretary of the department of administration or his or her designee, the director of the public employees insurance agency or his or her designee, the commissioner of the bureau of medical services of the department of health and human resources or his or her designee, the secretary of the department of health and human resources or his or her designee, the executive director of the workers' compensation commission or his or her designee, bureau of senior services or his or her designee and five members from the public who shall be appointed by the governor with the advice and consent of the Senate. One public member shall be a licensed pharmacist employed by a community retail pharmacy, one public member shall be a representative of a pharmaceutical manufacturer with substantial operations located in the state of West Virginia that has at least seven hundred fifty employees, one public member shall be a primary care physician, one public member shall represent those who will receive benefit from the establishment of this program and one public member shall have experience in the financing, development or management of a health insurance company which provides pharmaceutical coverage. Each public member shall serve for a term of four years. Of the public members of the council first appointed, one shall be appointed for a term ending the thirtieth day of June, two thousand six, and two each for terms of three and four years. Each public member shall serve until his or her successor is appointed and has qualified. A member of the council may be removed by the governor for cause.

(b) The secretary of the department of administration shall serve as chairperson of the council, which shall meet at times and places specified by the chairperson or upon the request of two members of the council.

(c) Authority members shall not be compensated in their capacity as members but shall be reimbursed for reasonable expenses incurred in the performance of their duties.

(d) The council has the power and authority to:

(1) Contract for the purpose of implementing the cost containment provisions of this article;

(2) File suit;

(3) Execute as permitted by applicable federal law, prescription drug purchasing agreements with:

(A) All departments, agencies, authorities, institutions, programs, any agencies or programs of the federal government, quasi-public corporations and political subdivisions of this state, including, but not limited to, the children's health insurance program, the division of corrections, the division of juvenile services, the regional jail and correctional facility authority, the workers' compensation fund, state colleges and universities, public hospitals, state or local institutions, such as nursing homes, veterans' homes, the division of rehabilitation, public health departments, state programs, including, but not limited to, programs established in sections four and five of this article, and the bureau of medical services: Provided, That any contract or agreement executed with or on behalf of the bureau of medical services shall contain all necessary provisions to comply with the provisions of Title XIX of the Social Security Act, 42 U.S.C. §1396 et seq., dealing with pharmacy services offered to recipients under the medical assistance plan of West Virginia;

(B) Governments of other states and jurisdictions and their individual departments, agencies, authorities, institutions, programs, quasi-public corporations and political subdivisions; and (C) Regional or multi-state purchasing alliances or consortia, formed for the purpose of pooling the combined purchasing power of the individual members in order to increase bargaining power; and

(4) Consider strategies by which West Virginia may manage the increasing costs of prescription drugs and increase access to prescription drugs for all of the state's citizens, including the authority to:

(A) Explore the enactment of fair prescription drug pricing policies;

(B) Explore discount prices or rebate programs for seniors and persons without prescription drug coverage;

(C) Explore programs offered by pharmaceutical manufacturers that provide prescription drugs for free or at reduced prices;

(D) Explore requirements and criteria, including the level of detail, for prescription drug manufacturers to disclose to the council expenditures for advertising, marketing and promotion, based on aggregate national data;

(E) Explore the establishment of counter-detailing programs aimed at educating health care practitioners authorized to prescribe prescription drugs about the relative costs and benefits of various prescription drugs, with an emphasis on generic substitution for brand name drugs when available and appropriate; prescribing older, less costly drugs instead of newer, more expensive drugs, when appropriate; and prescribing lower dosages of prescription drugs, when available and appropriate;

(F) Explore disease state management programs aimed at enhancing the effectiveness of treating certain diseases identified as prevalent among this state's population with prescription drugs; (G) Explore prescription drug purchasing agreements with large private sector purchasers of prescription drugs and including those private entities in pharmacy benefit management contracts: Provided, That no private entity may be compelled to participate in a purchasing agreement;

(H) Explore the feasibility of using or referencing, the federal supply schedule or referencing to the price, as adjusted for currency valuations, set by the Canada patented medicine prices review board ("PMPRB"), or any other appropriate referenced price to establish prescription drug pricing for brand name drugs in the state; and to review and determine the dispensing fees for pharmacies in such as established in section six of this article;

(I) Explore, if possible, joint negotiations for drug purchasing and a shared prescription drug pricing schedule and shared preferred drug list for use by the public employees insurance agency, the medicaid program, other state payors and private insurers;

(J) Explore coordination between the medicaid program, the public employees insurance agency and, to the extent possible, in-state hospitals and private insurers toward the development of a uniform preferred prescription drug list which is clinically appropriate and which leverages retail prices;

(K) Explore policies which promote the use of generic drugs, where appropriate;

(L) Explore a policy that precludes a drug manufacturer from reducing the amounts of drug rebates or otherwise penalize an insurer, health plan or other entity which pays for prescription drugs based upon the fact that the entity uses step therapy or other clinical programs before a drug is covered or otherwise authorized for payment;

(M) Explore arrangements with entities in the private sector, including self-funded benefit plans and nonprofit corporations, toward combined purchasing of health care services, health care management services, pharmacy benefits management services or pharmaceutical products on the condition that no private entity be compelled to participate in the prescription drug purchasing pool; and

(N) Explore other strategies, as permitted under state and federal law, aimed at managing escalating prescription drug prices and increasing affordable access to prescription drugs for all West Virginia citizens;

(5) Contract with appropriate legal, actuarial and other service providers required to accomplish any function within the powers of the council;

(6) Develop other strategies, as permitted under state and federal law, aimed at managing escalating prescription drug prices and increasing affordable access to prescription drugs for all West Virginia citizens;

(7) Explore the licensing and regulation of pharmaceutical detailers, including the requirement of continuing professional education, the imposition of fees for licensing and continuing education, the establishment of a special revenue account for deposit of the fees and the imposition of penalties for noncompliance with licensing and continuing education requirements, and rules to establish procedures to implement the provisions of the subdivision;

(8) The council shall report to the Legislature's joint committee on government and finance on or before the first day of September, two thousand four, and report on or before the thirty-first day of December, two thousand four, and annually thereafter to the Legislature, and provide recommendations to the Legislature on needed legislative action and other functions established by the article or requested by the joint committee on government and finance of the Legislature; and

(9) The council shall, upon the passage of this article, immediately commence to study the fiscal impact to this state of the federal "Medicare Prescription Drug Improvement and Modernization Act of 2003" and shall report to the Legislature's joint committee on government and finance on or before the fifteenth day of October, two thousand four, as to the findings of the council.

(10) The council shall develop an evaluation methodology to certify and audit savings in the discount savings program by determining the impact on growth and profit of the pharmaceutical manufacturers to ensure that prices have not been inflated to offset the discount card value.

(11) The council shall evaluate the clearinghouse established by this article and the discount card program established by this article to report to the Joint Committee on Government and Finance, and the Legislative Oversight Commission on Health and Human Resources Accountability, their findings and recommendations for further action by the Legislature.

(12) The council shall further: (1) Review determine that the implementation of the programs under this article will not jeopardize, reduce or penalize the benefits of veterans or other recipients of FSS drug prices, considering their respective co-pay structures, and the pricing mechanisms of their respective programs; (2) commence negotiations to obtain independent agreements or multi-state agreements as many as ten states to use or reference a pricing schedule as set forth in section six of this article; (3) and determine the ability to establish a savings of forty-two percent of the retail cost to be reported to the Joint Committee on Government and Finance and the Legislative Oversight Commission on Health and Human Resources Accountability, as established in section eight of this article.


WVC 5 A- 3 C- 9 §5A-3C-9. Investigation of Canadian drugs; wholesaling; federal waivers.
The council created in section eight of this article and the director of the public employees insurance agency are authorized to investigate the feasibility of purchasing prescription drugs from sources in Canada, which may include the feasibility of the state or an instrumentality thereof serving as a wholesale distributor of prescription drugs in the state.

(a) Upon a determination by the council or the director of the public employees insurance agency that the same is feasible and in the best interests of the citizens of the state, the council or the director is authorized to pursue waivers from the federal government, including, but not limited to, from the United States food and drug administration, as necessary for the state to accomplish prescription drug purchasing from sources in Canada provided, however, if a waiver is not granted, the council is authorized to take necessary legal action.

(b) Upon a favorable finding by the appropriate federal agencies or courts, notwithstanding any provision of this code to the contrary, the council or the director of the public employees insurance agency may establish and implement a methodology to provide wholesale drugs to licensed pharmacies located within West Virginia, provided however, prior to the implementation, the Legislature must adopt a concurrent resolution authorizing such action.


WVC 5 A- 3 C- 10 §5A-3C-10. Director's powers; ability to enter drug purchasing contracts.
Notwithstanding any provision of this code to the contrary, nothing contained in this article shall be construed to limit the powers and authority granted to the director of the public employees insurance agency pursuant to article sixteen-c, chapter five of this code. Notwithstanding any provision of this code to the contrary and specifically subdivision four, subsection (a), section four, article five-c, chapter five of this code, the director is authorized to execute prescription drug purchasing agreements without further enactment of the Legislature.


WVC 5 A- 3 C- 11 §5A-3C-11. Agency's management ability continued.
(a) Nothing contained in this article may be construed to limit the ability of the various state agencies to enter into contracts or arrangement or to otherwise to manage their pharmacy programs until such time as the programs created or authorized pursuant to this article are implemented.

(b) The provisions of article three, chapter five-a of this code do not apply to the agreements and contracts executed under the provisions of this article.


WVC 5 A- 3 C- 12 §5A-3C-12. Restraint of trade; civil and criminal violations defined.
(a) The following are considered to restrain trade or commerce unreasonably and shall be unlawful:

(1) A contract, combination or conspiracy between two or more persons:

(A) For the purpose or with the intent to fix, control or maintain the market price, rate or fee of pharmaceuticals; or

(B) Allocate or divide customers or markets, functional or geographic, for any pharmaceutical.

(2) The establishment, maintenance or use of a monopoly or an attempt to establish a monopoly of trade or commerce, any part of which is within this state, by any persons for the purpose of or with the intent to exclude competition or control, fix or maintain pharmaceutical prices.

(b) Any person violating the provisions of this section is guilty of a felony and, upon conviction thereof, shall be confined in a state correctional facility for not less than one nor more than ten years, or fined in an amount consistent with the Clayton Act 15 U.S.C. §15 et seq., which may include treble damages, or both fined and confined.

(c) Any person violating the provisions of this section is liable for a civil penalty and fine in an amount consistent with the Clayton Act 15 U.S.C. §15 et seq., which may include treble damages, for each violation.

(d) The county prosecutor shall investigate suspected violations of, and institute criminal proceedings pursuant to, the provisions of this section.

(e) The attorney general or special counsel appointed by the governor, in his or her discretion, shall represent the state in all civil proceedings brought on behalf of the state to enforce the provisions of this section. After payment of all attorney fees and costs, no less than fifty percent of all judgments or settlements shall be placed in the general revenue fund of the state.


WVC 5 A- 3 C- 13 §5A-3C-13. Advertising costs; reporting of same.
(a) Advertising costs for prescription drugs, based on aggregate national data, must be reported to the state council by all manufacturers and labelers of prescription drugs dispensed in this state that employs, directs or utilizes marketing representatives. The reporting shall assist this state in its role as a purchaser of prescription drugs and an administrator of prescription drug programs, enabling this state to determine the scope of prescription drug advertising costs and their effect on the cost, utilization and delivery of health care services and furthering the role of this state as guardian of the public interest.

(b) The council shall establish, by legislative rule, the reporting requirements of information by labelers and manufacturers which shall include all national aggregate expenses associated with advertising and direct promotion of prescription drugs through radio, television, magazines, newspapers, direct mail and telephone communications as they pertain to residents of this state.

(c) The following shall be exempt from disclosure requirements:

(1) All free samples of prescription drugs intended to be distributed to patients;

(2) All payments of reasonable compensation and reimbursement of expenses in connection with a bona fide clinical trial. As used in this subdivision, "clinical trial" means an approved clinical trial conducted in connection with a research study designed to answer specific questions about vaccines, new therapies or new ways of using known treatments; or

(3) All scholarship or other support for medical students, residents and fellows to attend significant educational, scientific or policy-making conference of national, regional or specialty medical or other professional association if the recipient of the scholarship or other support is selected by the association.

(d) The council is further authorized to establish time lines, the documentation, form and manner of reporting required as the council determines necessary to effectuate the purpose of this article. The council shall report to the joint committee on government and finance, in an aggregate form, the information provided in the required reporting.

(e) Notwithstanding any provision of law to the contrary, information submitted to the council pursuant to this section is confidential and is not a public record and is not available for release pursuant to the West Virginia freedom of information act. Data compiled in aggregate form by the council for the purposes of reporting required by this section is a public record as defined in the West Virginia freedom of information act, as long as it does not reveal trade information that is protected by state or federal law.


WVC 5 A- 3 C- 14 §5A-3C-14. State role.
For purpose of implementing this article, the state represented by the council shall have authority to negotiate pharmaceutical prices to be paid by program participants. These negotiated prices shall be available to all programs.


WVC 5 A- 3 C- 15 §5A-3C-15. Rulemaking.
The council may promulgate emergency rules pursuant to the provisions of section fifteen, article three, chapter twenty-nine-a of this code to implement any section of this article.


WVC 5 A- 3 C- 16 §5A-3C-16. Sunset provision.
The council shall continue to exist, pursuant to the provisions of article ten, chapter four of this code, until the first day of July, two thousand eight, unless sooner terminated, continued or reestablished pursuant to the provisions of that article.


WVC 5 A- 3 C- 17 §5A-3C-17. Potential use of savings.
Savings identified by all program participants shall be quantified and certified to the council and included in the annual report of the council to the Legislature provided for in section eight of this article. Savings, or any part thereof, created by the implementation of this program may, in the sole discretion of the Legislature, be directed towards the maintenance of existing state health programs and the expansion of insurance programs for the uninsured and underinsured.


WVC -4- ARTICLE 4. GENERAL SERVICES DIVISION.


WVC 5A-4-1 §5A-4-1. General services division; director.
There is hereby created a new general services division of the department of administration for the purpose of having the care, custody and control of the capitol buildings. The division shall be under the supervision of a director.


WVC 5A-4-1a §5A-4-1a.
Repealed.

Acts, 1990 Reg. Sess., Ch. 2.


WVC 5 A- 4 - 2 §5A-4-2. Care, control and custody of capitol buildings and grounds.
(a) The director has the full responsibility for the care, control and custody of the capitol buildings and in this connection he or she shall:

(1) Furnish janitorial services, which are to be provided by employees of the Department of Administration for the main capitol building, including east and west wings, together with all the departments in the building, or connected with the building, regardless of the budget or budgets, departmental or otherwise, from which the janitorial services are paid, and shall furnish janitorial supplies, light, heat and ventilation for all the rooms and corridors of the buildings: Provided, That nothing in this section shall be construed to prohibit contracts for janitorial services with sheltered workshops. The President of the Senate and Speaker of the House of Delegates, or their respective designees, have charge of the halls and committee rooms of their respective houses and any other quarters at the State Capitol provided for the use of the Legislature or its staff and shall keep the areas properly cleaned, warmed and in good order and shall do and perform any other duties in relation to the areas as either house may require; (2) Landscape and take care of the lawns and gardens; and

(3) Direct the making of all minor repairs to and alterations of the capitol buildings and governor's mansion and the grounds of the buildings and mansion. Major repairs and alterations shall be made under the supervision of the director, subject to the direction of the secretary.

(b) The offices of the assistants and employees appointed to perform these duties shall be located where designated by the secretary, except that they shall not be located in any of the legislative chambers, offices, rooms or halls. Office hours shall be arranged so that emergency or telephone service is available at all times. The hours shall be arranged so that janitorial service shall not interfere with other employment during regular office hours. (c) There is created in the State Treasury a special revenue account to be named the "Capitol Dome and Capitol Improvements Fund". The fund shall consist of moneys received under section ten, article twenty-two-a, chapter twenty-nine of this code and funds from any other source. Moneys in the fund shall be expended for maintenance and repairs of the capitol dome and other capital improvements and repairs to state-owned buildings.

(d) There is hereby created in the State Treasury a special revenue fund to be known as the "Governor's Mansion Fund". The fund shall operate as a special revenue fund whereby all deposits and payments thereto do not expire to the General Revenue Fund, but shall remain in the fund and be available for expenditure in succeeding fiscal years. This Fund shall consist of moneys deposited in the fund pursuant to the provisions of section two-a, article eight, chapter three of this code as well as interest earned on investments made from moneys deposited in the fund. Moneys from this fund shall be expended by the director for enhancement of the governor's mansion subject to the direction of the secretary of administration and the discretion of the Governor: Provided, That any furniture, fixtures and equipment purchased with moneys from the Governor's Mansion Fund are property of the State of West Virginia.


WVC 5A-4-3 §5A-4-3. Security officers; appointment; oath; carrying weapons; powers and duties generally, etc.
In addition to the other powers given and assigned to the secretary in this chapter, he is hereby authorized to appoint bona fide residents of this state to act as security officers upon any premises owned or leased by the state of West Virginia and under the jurisdiction of the secretary, subject to the conditions and restrictions hereinafter imposed. Before entering upon the performance of his duties as such security officer, each person so appointed shall qualify therefor in the same manner as is required of county officers by taking and filing an oath of office as required by article one, chapter six of this code. No such person shall have authority to carry a gun or any other dangerous weapon until he shall have obtained a license therefor in the manner prescribed by section two, article seven, chapter sixty-one of this code.

It shall be the duty of any person so appointed and qualified to preserve law and order on any premises under the jurisdiction of the secretary to which he may be assigned by the secretary. For this purpose he shall as to offenses committed on such premises have and may exercise all the powers and authority and shall be subject to all the responsibilities of a deputy sheriff of the county. The assignment of security officers to any premises under the jurisdiction of the secretary shall not be deemed to supersede in any way the authority or duty of other peace officers to preserve law and order on such premises.

The secretary may at his pleasure revoke the authority of any such officer by filing a notice to that effect in the office of the clerk of each county in which his oath of office was filed, and in the case of officers licensed to carry a gun or other dangerous weapon, by notifying the clerk of the circuit court of the county in which the license therefor was granted.


WVC 5A-4-4 §5A-4-4. Unlawful to kill or molest animals, birds or fowls upon grounds of capitol; powers and duties of security officers; penalties.
In addition to the duties of persons appointed and qualified as security officers pursuant to section three, article four, chapter five-a of this code, to preserve law and order on any premises under the jurisdiction of the secretary to which he may be assigned by the secretary, such security officers shall have authority and it shall be the duty of such security officers to enforce the provisions of this section. This authority and duty of security officers shall not be deemed to supersede in any way the authority or duty of other peace officers to enforce the provisions of this section.

It shall be unlawful at any time to kill or molest in any manner, any animals, birds or fowls on the grounds of the capitol buildings or governor's mansion, except as may be deemed necessary by the secretary for the control or extermination of animals, birds or fowls deemed by him to be pests or a danger to the health and safety. Any person who kills or molests in any manner, or knowingly allows a dog or other animal owned by him to kill or molest in any manner any animals, birds or fowls on the grounds of the capitol buildings or governor's mansion shall be guilty of a misdemeanor, and, upon conviction thereof, be fined not less than fifty dollars nor more than five hundred dollars or, in the discretion of the court, be imprisoned in the county jail for not more than six months, or both such fine and imprisonment.

It shall be unlawful for any person to knowingly allow a dog owned by him to be upon the grounds of the capitol buildings or governor's mansion unless such dog is under control by leash. Any person who knowingly allows a dog owned by him to be upon the grounds of the capitol buildings or governor's mansion while not under control by leash shall be guilty of a misdemeanor, and, upon conviction thereof, be fined not less than twenty-five nor more than one hundred dollars.

It shall further be unlawful for any person to knowingly allow a dog or other animal owned by him or under his control to defecate upon the grounds of the capitol buildings or governor's mansion. In the event that a dog or other animal owned by or under the control of a person defecates upon the grounds of the capitol buildings or governor's mansion, the person shall remove such defecation. Any person who knowingly allows a dog or other animal owned by him or under his control to defecate upon the grounds of the capitol buildings or governor's mansion and who subsequently fails to remove said defecation, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than twenty- five nor more than one hundred dollars.


WVC 5 A- 4 - 5 §5A-4-5. Regulation of parking on state-owned or -leased property in Charleston; construction of parking garage for general public; penalties; jurisdiction; creation of funds.
(a) It is the intent of the Legislature to provide a parking facility for the general public and to direct the Secretary of the Department of Administration to plan and construct a parking garage at the State Capitol Complex that will provide sufficient and additional parking for the general public.

(b) The secretary may regulate the parking of motor vehicles in accordance with the provisions of this section with regard to the following state-owned property in the city of Charleston, Kanawha County:

(1) The east side of Greenbrier Street between Kanawha Boulevard and Washington Street, East;

(2) The west side of California Avenue between Kanawha Boulevard and Washington Street, East;

(3) Upon the state-owned or -leased grounds upon which state office buildings number one (1) through twenty (20) and the Laidley Field complex are located; and

(4) Upon any other property now or hereafter owned or leased by the state or any of its agencies and used for parking purposes in conjunction with the State Capitol or any state office buildings.

(c) The secretary shall propose legislative rules pursuant to article three, chapter twenty-nine-a of this code relating to parking and to also allocate parking spaces to public officers and employees of the state upon all of the property set forth in subsection (b) of this section: Provided, That notwithstanding this or any other provision of law to the contrary, during sessions of the Legislature, including regular, extended, extraordinary and interim sessions, and any other times designated by the Speaker of the House of Delegates and the President of the Senate, parking on the east side of Greenbrier Street between Kanawha Boulevard and Washington Street, East, in the Science and Culture Center parking lot, on the north side of Kanawha Boulevard between Greenbrier Street and California Avenue and on the west side of California Avenue between Kanawha Boulevard and Washington Street, East, and any other areas designated by a joint policy of the Speaker of the House of Delegates and the President of the Senate shall be managed and controlled by the Legislature. Any person parking any vehicle contrary to this section or the rules promulgated under authority of this subsection is subject to a fine as established by rule of the secretary. In addition, a designee of the secretary or the Legislature, as the case may be, may cause the removal, immobilization or other remedy considered necessary, at owner expense, of any vehicle that is parked in violation of the rules or the joint policy between the Speaker of the House of Delegates and the President of the Senate. Magistrates in Kanawha County have jurisdiction of all the offenses.

(d) The secretary, the Speaker of the House of Delegates and the President of the Senate may employ persons as may be necessary to enforce the parking rules as provided for under the provisions of this section.

(e) There is created in the Department of Administration a special fund to be named the "Parking Garage Fund" in which shall be deposited funds that are appropriated and funds from other sources to be used for the construction and maintenance of a parking garage on the State Capitol Complex.


WVC 5 A- 4 - 5 A §5A-4-5a. Construction of parking garage for general public; creation of fund.
(a) It is the intent of the Legislature to provide a parking facility for the general public and to direct the secretary of the department of administration to plan and construct a parking garage at the state capitol complex that will provide sufficient and additional parking exclusively for the general public.

(b) There is created in the state treasury to be administered by the department of administration a special fund to be named the "2004 capitol complex parking garage fund" into which shall be deposited funds that are appropriated and funds from other sources to be used for the construction and maintenance of a parking garage on or adjacent to the state capitol complex.


WVC 5 A- 4 - 6 §5A-4-6. Renovation and improvement of capitol building and capitol complex.
(a) It is the intent of the Legislature to provide renovation and improvement of the existing state capitol building and the capitol complex and to direct the secretary of the department of administration to plan and make renovations and improvements of the existing state capitol building and the capitol complex for the purpose of reversing deterioration to existing facilities, securing the safety of the general public and state employees, promoting efficiency of governmental operations and enhancing tourism in the state.

(b) There is created in the state treasury to be administered by the department of administration a special fund to be named the "capitol renovation and improvement fund" into which shall be deposited funds that are appropriated and funds from other sources to be used for renovations and improvements of the existing state capitol building and the capitol complex.


WVC 5A-4-7 §5A-4-7.
Repealed.

Acts, 1990 Reg. Sess., Ch. 2.


WVC -4A- ARTICLE 4A. GOVERNOR'S MANSION ADVISORY COMMITTEE.


WVC 5A-4A-1 to 5A-4A-3 §§5A-4A-1 to 5A-4A-3.
Repealed.

Acts, 1990 Reg. Sess., Ch. 2.


WVC -5- ARTICLE 5. GOVERNOR'S MANSION ADVISORY COMMITTEE.


WVC 5A-5-1 §5A-5-1. Committee continued; appointment, terms, etc., of members; meetings and responsibilities; annual report.
There is hereby continued the governor's mansion advisory committee within the department of administration. The secretary of administration or his designated representative, the commissioner of culture and history or his designated representative, and the spouse of any governor during the term of office of that governor, or the designated representative of such governor, shall be ex officio members of the committee. In addition, the governor shall appoint four additional members of the committee, one to be a curator in the field of fine arts, one to be an interior decorator who is a member of the American institute of decorators, one to be a building contractor, and one member to represent the interest of the general public. The appointive members of the committee shall serve for a term of four years. The members of the committee shall serve without compensation but shall be reimbursed for reasonable and necessary expenses actually incurred in the performance of their duties; except that in the event the expenses are paid, or are to be paid, by a third party, the member shall not be reimbursed by the state. The governor shall designate from the committee a chairman to serve for a term of one year. The secretary of administration shall serve as secretary. The committee shall meet upon the call of the chairman annually and may meet at such other times as may be necessary for the performance of its functions.

The committee shall be charged with the following responsibilities:

(1) To make recommendations to the governor for the maintaining, preserving and replenishing of all articles of furniture, fixtures, decorative objects, linens, silver, china, crystal and objects of art used or displayed in the state rooms of the governor's mansion, which state rooms shall consist of the front hall, the reception room, the ballroom and its sitting room, the state dining room, the front upstairs hall and the music room;

(2) To make recommendations to the governor as to the decor and arrangements best suited to enhance the historic and artistic values of the mansion in keeping with the architecture thereof and of such articles of furniture, fixtures, decorative objects, linens, silver, china, crystal and objects of art, which recommendations shall be considered by the governor in decorating said mansion; and

(3) To invite interested persons to attend its meetings or otherwise to assist in carrying out its functions.

All departments, boards, agencies, commissions, officials and employees of the state are hereby authorized to cooperate with and assist the committee in the performance of its functions and duties whenever possible. As soon after the close of each fiscal year as possible, the committee shall make an annual report to the governor and the Legislature with respect to its activities and responsibilities.


WVC 5A-5-2 §5A-5-2. Office of governor's mansion director created; duties and responsibilities.
There is hereby created the office of governor's mansion director, who shall be qualified by background and experience for such a position and shall be appointed by the governor to serve at the will and pleasure of the governor. The mansion director shall be charged with the following duties and responsibilities: To protect and preserve all articles of furniture, fixtures, table linens, silver, china, crystal and objects of art displayed in the state rooms in the mansion. The mansion director shall assist the governor and/or the governor's spouse in the scheduling of state government functions and entertainment at the mansion.


WVC 5A-5-3 §5A-5-3. Official use of state rooms in governor's mansion; vacating private rooms of mansion.
(a) The state rooms of the mansion shall be used for official state government functions and entertainment: Provided, That tours of the state rooms of the mansion shall be permitted, and the mansion director shall assist in the scheduling of said tours and prescribe rules and regulations governing same.

(b) No personal furniture or furnishings of the first family may be placed in the state rooms of the mansion except for home entertainment equipment.

(c) No furniture or furnishings in the state rooms located on the first floor of the mansion may be replaced, removed or sold without prior approval of the governor's mansion advisory committee.

(d) No items in the state rooms purchased by the West Virginia mansion preservation foundation, inc., may be replaced, removed or sold without prior approval of such corporation.

(e) The outgoing governor and his family shall vacate the private rooms of the mansion at least seven days prior to the inauguration of a new governor so that the mansion may be made suitable for the change in occupancy.


WVC 5A-5-4 §5A-5-4.
Repealed

Acts, 1990 Reg. Sess., Ch. 2.


WVC 5A-5-5 §5A-5-5.
Repealed.

Acts, 1990 Reg. Sess., Ch. 2.


WVC 5 A- 6 - ARTICLE 6. OFFICE OF TECHNOLOGY.


WVC 5 A- 6 - 1 §5A-6-1. Findings and purposes.
The Legislature finds and declares that information technology is essential to finding practical solutions to the everyday problems of government and that the management goals and purposes of government are furthered by the development of compatible, linked information systems across government. Therefore, it is the purpose of this article to create, as an integral part of the Department of Administration, the Office of Technology with the authority to advise and make recommendations to all state spending units on their information systems and to have the authority to oversee coordination of the state's technical infrastructure.


WVC 5 A- 6 - 2 §5A-6-2. Definitions.
As used in this article:

(a) "Information systems" means computer-based information equipment and related services designed for the automated transmission, storage, manipulation and retrieval of data by electronic or mechanical means;

(b) "Information technology" means data processing and telecommunications hardware, software, services, supplies, personnel, maintenance, training and includes the programs and routines used to employ and control the capabilities of data processing hardware;

(c) "Information equipment" includes central processing units, front-end processing units, miniprocessors, microprocessors and related peripheral equipment, including data storage devices, networking equipment, services, routers, document scanners, data entry equipment, terminal controllers, data terminal equipment, computer-based word processing systems other than memory typewriters;

(d) "Related services" includes feasibility studies, systems design, software development and time-sharing services whether provided by state employees or others;

(e) "Telecommunications" means any transmission, emission or reception of signs, signals, writings, images or sounds of intelligence of any nature by wire, radio or other electromagnetic or optical systems. The term includes all facilities and equipment performing those functions that are owned, leased or used by the executive agencies of state government;

(f) "Chief Technology Officer" means the person holding the position created in section three of this article and vested with authority to oversee state spending units in planning and coordinating information systems that serve the effectiveness and efficiency of the state and individual state spending units and further the overall management goals and purposes of government;

(g) "Technical infrastructure" means all information systems, information technology, information equipment, telecommunications and related services as defined in this section;

(h) "Information technology project" means the process by which telecommunications, automated data processing, databases, the internet, management information systems and related information, equipment, goods and services are planned, procured and implemented;

(i) "Major information technology project" means any information technology project estimated to cost more than one hundred thousand dollars or require more than three hundred man hours to complete; and

(j) "Steering committee" means an internal agency oversight committee established jointly by the Chief Technology Officer and the agency requesting the project, which shall include representatives from the Office of Technology and at least one representative from the agency requesting the project.


WVC 5 A- 6 - 3 §5A-6-3. Office of Technology; Chief Technology Officer; appointment and qualifications.
The Office of Technology is created within the Department of Administration. A Chief Technology Officer shall be appointed by and shall serve at the will and pleasure of the Governor. The Chief Technology Officer shall have knowledge in the field of information technology, experience in the design and management of information systems and an understanding of the special demands upon government with respect to budgetary constraints, the protection of privacy interests and federal and state standards of accountability.


WVC 5 A- 6 - 4 §5A-6-4. Powers and duties of the Chief Technology Officer generally.

     (a) With respect to all state spending units the Chief Technology Officer may:

     (1) Develop an organized approach to information resource management for this state;

     (2) Provide technical assistance to the administrators of the various state spending units in the design and management of information systems;

     (3) Evaluate the economic justification, system design and suitability of information equipment and related services, and review and make recommendations on the purchase, lease or acquisition of information equipment and contracts for related services by the state spending units;

     (4) Develop a mechanism for identifying those instances where systems of paper forms should be replaced by direct use of information equipment and those instances where applicable state or federal standards of accountability demand retention of some paper processes;

     (5) Develop a mechanism for identifying those instances where information systems should be linked and information shared, while providing for appropriate limitations on access and the security of information;

     (6) Create new technologies to be used in government, convene conferences and develop incentive packages to encourage the utilization of technology;

     (7) Engage in any other activities as directed by the Governor;

     (8) Charge a fee to the state spending units for evaluations performed and technical assistance provided under the provisions of this section. All fees collected by the Chief Technology Officer shall be deposited in a special account in the State Treasury to be known as the Chief Technology Officer Administration Fund. Expenditures from the fund shall be made by the Chief Technology Officer for the purposes set forth in this article and are not authorized from collections but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of article three, chapter twelve of this code and upon the fulfillment of the provisions set forth in article two, chapter eleven-b of this code: Provided, That the provisions of section eighteen, article two, chapter eleven-b of this code do not operate to permit expenditures in excess of the spending authority authorized by the Legislature. Amounts collected which are found to exceed the funds needed for purposes set forth in this article may be transferred to other accounts or funds and redesignated for other purposes by appropriation of the Legislature;

     (9) Monitor trends and advances in information technology and technical infrastructure;

     (10) Direct the formulation and promulgation of policies, guidelines, standards and specifications for the development and maintenance of information technology and technical infrastructure, including, but not limited to:

     (A) Standards to support state and local government exchange, acquisition, storage, use, sharing and distribution of electronic information;

     (B) Standards concerning the development of electronic transactions, including the use of electronic signatures;

     (C) Standards necessary to support a unified approach to information technology across the totality of state government, thereby assuring that the citizens and businesses of the state receive the greatest possible security, value and convenience from investments made in technology;

     (D) Guidelines directing the establishment of statewide standards for the efficient exchange of electronic information and technology, including technical infrastructure, between the public and private sectors;

     (E) Technical and data standards for information technology and related systems to promote efficiency and uniformity;

     (F) Technical and data standards for the connectivity, priorities and interoperability of technical infrastructure used for homeland security, public safety and health and systems reliability necessary to provide continuity of government operations in times of disaster or emergency for all state, county and local governmental units; and

     (G) Technical and data standards for the coordinated development of infrastructure related to deployment of electronic government services among state, county and local governmental units;

     (11) Periodically evaluate the feasibility of subcontracting information technology resources and services, and to subcontract only those resources that are feasible and beneficial to the state;

     (12) Direct the compilation and maintenance of an inventory of information technology and technical infrastructure of the state, including infrastructure and technology of all state, county and local governmental units, which may include personnel, facilities, equipment, goods and contracts for service, wireless tower facilities, geographic information systems and any technical infrastructure or technology that is used for law enforcement, homeland security or emergency services;

     (13) Develop job descriptions and qualifications necessary to perform duties related to information technology as outlined in this article; and

     (14) Promulgate legislative rules, in accordance with the provisions of chapter twenty-nine-a of this code, as may be necessary to standardize and make effective the administration of the provisions of article six of this chapter.

     (b) With respect to executive agencies, the Chief Technology Officer may:

     (1) Develop a unified and integrated structure for information systems for all executive agencies;

     (2) Establish, based on need and opportunity, priorities and time lines for addressing the information technology requirements of the various executive agencies of state government;

     (3) Exercise authority delegated by the Governor by executive order to overrule and supersede decisions made by the administrators of the various executive agencies of government with respect to the design and management of information systems and the purchase, lease or acquisition of information equipment and contracts for related services;

     (4) Draw upon staff of other executive agencies for advice and assistance in the formulation and implementation of administrative and operational plans and policies;

     (5) Recommend to the Governor transfers of equipment and human resources from any executive agency and the most effective and efficient uses of the fiscal resources of executive agencies, to consolidate or centralize information-processing operations; and

     (6) Ensure information technology equipment is properly cleansed before disposal or transfer to another agency or organization, and is responsible for the retirement or transfer of information technology equipment that may contain confidential or privileged electronic data. Information technology equipment shall be cleansed using appropriate and effective methods that are commensurate with the data, the decommissioning agency and the planned disposition of the information technology equipment. Following the cleansing, the Chief Technology Officer may distribute the information technology equipment for reuse by another state spending unit, send the information technology equipment to a state authorized recycler or send the information technology equipment to a certified information technology equipment refurbisher. Transfers and disposal of information technology equipment are specifically exempt from the surplus property requirements enumerated in sections forty-three through forty-six, article three of this chapter.

     (c) The Chief Technology Officer may employ the personnel necessary to carry out the work of the Office of Technology and may approve reimbursement of costs incurred by employees to obtain education and training.

     (d) The Chief Technology Officer shall develop a comprehensive, statewide, four-year strategic information technology and technical infrastructure policy and development plan to be submitted to the Governor and the Joint Committee on Government and Finance. A preliminary plan shall be submitted by December 1, 2006, and the final plan shall be submitted by June 1, 2007. The plan shall include, but not be limited to:

     (A) A discussion of specific projects to implement the plan;

     (B) A discussion of the acquisition, management and use of information technology by state agencies;

     (C) A discussion of connectivity, priorities and interoperability of the state's technical infrastructure with the technical infrastructure of political subdivisions and encouraging the coordinated development of facilities and services regarding homeland security, law enforcement and emergency services to provide for the continuity of government operations in times of disaster or emergency;

     (D) A discussion identifying potential market demand areas in which expanded resources and technical infrastructure may be expected;

     (E) A discussion of technical infrastructure as it relates to higher education and health;

     (F) A discussion of the use of public-private partnerships in the development of technical infrastructure and technology services; and

     (G) A discussion of coordinated initiatives in website architecture and technical infrastructure to modernize and improve government to citizen services, government to business services, government-to-government relations and internal efficiency and effectiveness of services, including a discussion of common technical data standards and common portals to be utilized by state, county and local governmental units.

     (e) The Chief Technology Officer shall oversee telecommunications services used by state spending units for the purpose of maximizing efficiency to the fullest possible extent. The Chief Technology Officer shall establish microwave or other networks and LATA hops; audit telecommunications services and usage; recommend and develop strategies for the discontinuance of obsolete or excessive utilization; participate in the renegotiation of telecommunications contracts; and encourage the use of technology and take other actions necessary to provide the greatest value to the state.
WVC 5 A- 6 - 4 A §5A-6-4a. Duties of the Chief Technology Officer relating to security of government information.

     (a) To ensure the security of state government information and the data communications infrastructure from unauthorized uses, intrusions or other security threats, the Chief Technology Officer is authorized to develop policies, procedures, standards and legislative rules. At a minimum, these policies, procedures and standards shall identify and require the adoption of practices to safeguard information systems, data and communications infrastructures, as well as define the scope and regularity of security audits and which bodies are authorized to conduct security audits. The audits may include reviews of physical security practices.

     (b) (1) The Chief Technology Officer shall at least annually perform security audits of all executive branch agencies regarding the protection of government databases and data communications.

     (2) Security audits may include, but are not limited to, on- site audits as well as reviews of all written security procedures and documented practices.

     (c) The Chief Technology Officer may contract with a private firm or firms that specialize in conducting these audits.

     (d) All public bodies subject to the audits required by this section shall fully cooperate with the entity designated to perform the audit.

     (e) The Chief Technology Officer may direct specific remediation actions to mitigate findings of insufficient administrative, technical and physical controls necessary to protect state government information or data communication infrastructures.

     (f) The Chief Technology Officer shall propose rules for legislative approval in accordance with the provisions of chapter twenty-nine-a of this code to minimize vulnerability to threats and to regularly assess security risks, determine appropriate security measures and perform security audits of government information systems and data communications infrastructures.

     (g) To ensure compliance with confidentiality restrictions and other security guidelines applicable to state law-enforcement agencies, emergency response personnel and emergency management operations, the provisions of this section do not apply to the West Virginia State Police, the Division of Protective Services, the West Virginia Intelligence Fusion Center or the Division of Homeland Security and Emergency Management.

     (h) The provisions of this section do not infringe upon the responsibilities assigned to the state Comptroller, the Treasurer, the Auditor or the Legislative Auditor, or other statutory requirements.

     (i) In consultation with the Adjutant General, Chairman of the Public Service Commission, the Superintendent of the State Police and the Director of the Division of Homeland Security and Emergency Management, the Chief Technology Officer is responsible for the development and maintenance of an information systems disaster recovery system for the State of West Virginia with redundant sites in two or more locations isolated from reasonably perceived threats to the primary operation of state government. The Chief Technology Officer shall develop specifications, funding mechanisms and participation requirements for all executive branch agencies to protect the state's essential data, information systems and critical government services in times of emergency, inoperativeness or disaster. Each executive branch agency shall assist the Chief Technology Officer in planning for its specific needs and provide to the Chief Technology Officer any information or access to information systems or equipment that may be required in carrying out this purpose. No statewide or executive branch agency procurement of disaster recovery services may be initiated, let or extended without the expressed consent of the Chief Technology Officer.
WVC 5 A- 6 - 4 B §5A-6-4b. Project management duties of the Chief Technology Officer; establishment of the Project Management Office and duties of the director of the Project Management Office.
(a) Concerning the management of information technology projects, the Chief Technology Officer shall:

(1) Develop an approval process for proposed major information technology projects by state agencies to ensure that all projects conform to the statewide strategic plan and the information management plans of agencies;

(2) Establish a methodology for conceiving, planning, scheduling and providing appropriate oversight for information technology projects, including oversight for the projects and a process for approving the planning, development and procurement of information technology projects;

(3) Establish minimum qualifications and training standards for project managers;

(4) Direct the development of any statewide and multiagency enterprise project; and

(5) Develop and update a project management methodology to be used by agencies in the development of information technology.

(b) The Chief Technology Officer shall create a Project Management Office within the Office of Technology.

(c) The Director of the Project Management Office shall:

(1) Implement the approval process for information technology projects;

(2) Assist the Chief Technology Officer in the development and implementation of a project management methodology to be used in the development and implementation of information technology projects in accordance with this article;

(3) Provide ongoing assistance and support to state agencies and public institutions of higher education in the development of information technology projects;

(4) Establish a program providing training to agency project managers;

(5) Review information management and information technology plans submitted by agencies and recommend to the Chief Technology Officer the approval of the plans and any amendments thereto;

(6) Monitor the implementation of information management and information technology plans and periodically report its findings to the Chief Technology Officer;

(7) Assign project managers to review and recommend information technology project proposals.

(8) The director shall create criteria upon which information technology project proposal plans may be based including:

(A) The degree to which the project is consistent with the state's overall strategic plan;

(B) The technical feasibility of the project;

(C) The benefits of the project to the state, including customer service improvements;

(D) The risks associated with the project;

(E) Any continued funding requirements; and

(F) The past performance on other projects by the agency.

(9) Provide oversight for state agency information technology projects.


WVC 5 A- 6 - 4 C §5A-6-4c. Major information technology projects proposals and the establishment of steering committees.
(a) Prior to proceeding with a major information technology project, an agency shall submit a project proposal, outlining the business need for the project, the proposed technology solution, if known, and an explanation of how the project will support the agency's business objective and the state's strategic plan for information technology. The project manager may require the submission of additional information as needed to adequately review any proposal.

(b) The proposal will further include:

(1) A detailed business case plan, including a cost-benefit analysis;

(2) A business process analysis, if applicable;

(3) System requirements, if known;

(4) A proposed development plan and project management structure;

(5) Business goals and measurement criteria, as appropriate; and

(6) A proposed resource or funding plan.

(c) The project manager assigned to review the project development proposal shall recommend its approval or rejection to the Chief Technology Officer. If the Chief Technology Officer approves the proposal, then he or she shall notify the agency of its approval.

(d) Whenever an agency has received approval from the Chief Technology Officer to proceed with the development and acquisition of a major information technology project, the Chief Technology Officer shall establish a steering committee.

(e) The steering committee shall provide ongoing oversight for the major information technology project and have the authority to approve or reject any changes to the project's scope, schedule or budget.

(f) The Chief Technology Officer shall ensure that the major information technology project has in place adequate project management and oversight structures for addressing the project's scope, schedule or budget and shall address issues that cannot be resolved by the steering committee.


WVC 5 A- 6 - 5 §5A-6-5. Notice of request for proposals by state spending units required to make purchases through the State Purchasing Division.
Any state spending unit that pursues an information technology purchase that does not meet the definition of a "major technology project" and that is required to submit a request for proposal to the State Purchasing Division prior to purchasing goods or services shall obtain the approval of the Chief Technology Officer, in writing, of any proposed purchase of goods or services related to its information technology and telecommunication systems. The notice shall contain a brief description of the goods and services to be purchased. The state spending unit shall provide the notice to the Chief Technology Officer prior to the time it submits its request for proposal to the State Purchasing Division.


WVC 5 A- 6 - 6 §5A-6-6. Notice of request for proposals by state spending units exempted from submitting purchases to the State Purchasing Division.
(a) Any state spending unit that is not required to submit a request for proposal to the State Purchasing Division prior to purchasing goods or services shall notify the Chief Technology Officer, in writing, of any proposed purchase of goods or services related to its information technology or telecommunication systems. The notice shall contain a detailed description of the goods and services to be purchased. The state spending unit shall provide the notice to the Chief Technology Officer a minimum of ten days prior to the time it requests bids on the provision of the goods or services.

(b) If the Chief Technology Officer evaluates the suitability of the information technology and telecommunication equipment and related services under the provisions of subdivision (3), subsection (a), section four of this article and determines that the goods or services to be purchased are not suitable, he or she shall, within ten days of receiving the notice from the state spending unit, notify the state spending unit, in writing, of any recommendations he or she has regarding the proposed purchase of the goods or services. If the state spending unit receives a written notice from the Chief Technology Officer within the time period required by this section, the state spending unit shall not put the goods or services out for bid less than fifteen days following receipt of the notice from the Chief Technology Officer.


WVC 5 A- 6 - 7 §5A-6-7. Biannual report.
The Chief Technology Officer shall report biannually to the Legislative Joint Committee on Government and Finance on the activities of his or her office.


WVC 5 A- 6 - 8 §5A-6-8. Exemptions.
(a) The provisions of this article do not apply to the Legislature, the judiciary or any state constitutional officer designated in section two, article seven, chapter six of this code.

(b) Notwithstanding any other provision of this article to the contrary, except for participation in the compilation and maintenance of an inventory of information technology and technical infrastructure of the state authorized by section four of this article, the provisions of this article do not apply to the West Virginia Board of Education, the West Virginia Department of Education or the county boards of education. However, the West Virginia Board of Education, the West Virginia Department of Education and the county boards of education will attempt to cooperate and collaborate with the Chief Technology Officer to the extent feasible.

(c) The Governor may by executive order exempt from the provisions of this article any entity created and organized to facilitate the public and private use of health care information and the use of electronic medical records throughout the state.


WVC 5 A- 6 A- ARTICLE 6A. PERMITTING AND LICENSING INFORMATION ACT.

WVC 5 A- 6 A- 1 §5A-6A-1. Short title.

Short title. -- This article may be known and cited as the Permitting and Licensing Information Act.


WVC 5 A- 6 A- 2 §5A-6A-2. Legislative findings.
(a) The Legislature finds that:

(1) Persons conducting business activities in this state are required to obtain permits and licenses from various agencies that regulate those activities;

(2) The efficiency of the permitting and licensing process is an integral component of effective government, business development and public participation; and

(3) It is in the public interest that the permitting and licensing process for business activities should be efficient and streamlined.

(b) Therefore, the Legislature declares that the permitting and licensing process for business activities be facilitated and coordinated by the Governor's Office of Technology.


WVC 5 A- 6 A- 3 §5A-6A-3. Definitions.
For the purposes of this article, the following words have the meaning assigned unless the context indicates otherwise:

(1) "Agency" means any board, department, division, authority, commission or other public entity that requires a permit or license to be obtained from the entity to conduct a business activity in this state.

(2) "Office" means the Governor's Office of Technology.

(3) "Permit" means any permit, license, authorization, certification, registration or other approval required to perform a business activity.


WVC 5 A- 6 A- 4 §5A-6A-4. Permit and license information authority.
(a) The Legislature hereby authorizes the Governor's Office of Technology to facilitate and coordinate the permitting and licensing process for business activities in this state.

(b) The office has the following authority to:

(1) Establish a central permit and license information repository;

(2) Determine the type of information that each agency must submit in order to provide adequate information to the public regarding the permits and licenses needed for a particular business activity;

(3) Require state agencies and local agencies to provide their permit and license information, including the type and purpose of all permits and licenses the agency issues;

(4) Create an online permitting and licensing program monitored through the state web page; and

(5) Make recommendations to the Governor and the Legislature concerning the functionality of the central permit and license information repository to ensure its accessibility and reliability for use by agencies and the public.


WVC 5 A- 6 A- 5 §5A-6A-5. Duty of agencies to provide permitting and licensing information; development of permitting and licensing information repository.
(a) On or before the first day of October, two thousand eight, the office shall provide notice to all agencies that beginning on the first day of February, two thousand nine, that the agency shall submit licensing and permitting information to the office.

(b) On or before the first day of December, two thousand eight, the office shall establish, and provide to agencies that issue permits and licenses, the procedures and methods for submission of required permitting and licensing information for the permitting and licensing information repository.

(c) On or before the first day of February, two thousand nine, an agency that issues permits and licenses shall submit the required permitting and licensing information to the office in accordance with the procedures and methods established in this article.

(d) On or before the first day of July, two thousand nine, the office will create an internet-based, publicly accessible permitting and licensing information repository, in coordination with the state's e-government initiatives, that contains the following:

(1) A comprehensive detailed listing of the types of permits and licenses required for specific business activities;

(2) The purposes of the permits and licenses; and

(3) The agencies responsible for issuance of the permits and licenses, including the agency contact information.

(e) The permitting and licensing information repository shall allow individuals to obtain a listing of the types of permits and licenses required for specific business activities.


WVC 5 A- 6 A- 6 §5A-6A-6. Requirements for adopted, revised or terminated permitting or licensing information.
No later than thirty days prior to the effective date of the implementation, revision or termination of any permitting or licensing requirement, an agency, subject to the provisions of this article, is required to provide to the office the current information relating to a permit or license.


WVC 5 A- 6 A- 7 §5A-6A-7. Reporting requirements.
Annually, by the thirtieth day of December, the office shall report to the Joint Committee on Government and Finance and the Governor the status of the permitting and licensing information repository and identify any agency that has failed to comply with the requirements of this article.


WVC 5 A- 6 A- 8 §5A-6A-8. Rule-making authority.
The office may propose rules for legislative approval pursuant to the provisions of article three, chapter twenty-nine-a of this code to effectuate the purpose and provisions of this article.


WVC 5 A- 6 A- 9 §5A-6A-9. Limitation.
Although this article creates a central permitting and licensing information repository, each agency shall continue to administer its own permitting and licensing procedures and charge and collect the appropriate fees.


WVC -7- ARTICLE 7. INFORMATION SERVICES AND COMMUNICATIONS DIVISION.


WVC 5A-7-1 §5A-7-1. Definitions.
Unless the context in which used clearly requires a different meaning, as used in this article:

(a) "Data-processing equipment" means: (1) Any equipment having stored program capabilities; (2) any equipment designed to handle electronic input-output devices; or (3) any other similar equipment specified by the director;

(b) "Director" means the director of the information services and communications division;

(c) "Division" means the information services and communications division established in section two hereof;

(d) "Secretary" means the secretary of the department of administration;

(e) "Telecommunications equipment" means: (1) Any equipment used in the transmission, emission or reception of signals, writings, images, sounds or other forms of communication by electromagnetic or visual means; or (2) any other similar equipment specified by the director.


WVC 5A-7-2 §5A-7-2. Division created; purpose; use of facilities; rules and regulations.
There is hereby created the information services and communications division of the department of administration for the purpose of establishing, developing and improving data processing and telecommunication functions in the various state agencies, for promulgating standards in the utilization of data processing and telecommunication equipment and for promoting the more effective and efficient operation of all branches of state government. The facilities of the division shall be available, subject to rules and regulations established by the secretary, to the legislative, executive and judicial branches of state government. Such rules and regulations shall be promulgated in accordance with the provisions of article three, chapter twenty-nine-a of this code.


WVC 5A-7-3 §5A-7-3. Director; appointment and qualifications.
The division shall be under the supervision and control of a director. The secretary shall appoint a director of the division. The director must have extensive knowledge in the principles and practices of administration, five years' experience in data processing and telecommunications operations and extensive knowledge of the procedures and techniques used in conducting highly complex systems analyses.


WVC 5 A- 7 - 4 §5A-7-4. Powers and duties of division generally; professional staff; telephone service.
(a) The division is responsible for providing technical services and assistance to the various state spending units with respect to developing and improving data processing and telecommunications functions. The division may provide training and direct data processing services to the various state agencies. The division shall, upon request of the Chief Technology Officer, provide technical assistance in evaluating the economic justification, system design and suitability of equipment and systems used in state government. The director shall report to the Chief Technology Officer.

(b) The director is responsible for the development of personnel to carry out the technical work of the division and may approve reimbursement of costs incurred by employees to obtain education and training.

(c) The director may assess each state spending unit for the cost of any evaluation of the economic justification, system design and suitability of equipment and systems used by the state spending unit or any other technical assistance that is provided or performed by the Chief Technology Officer and the division under the provisions of section four, article six of this chapter.

(d) The director shall transfer any moneys received as a result of the assessments that he or she makes under subsection (c) of this section to the Office of Technology. The director shall report quarterly to the Joint Committee on Government and Finance on all assessments made pursuant to subsection (c) of this section.

(e) The director shall maintain an accounting system for all telephone service to the state.

(f) The provisions of this article do not apply to the Legislature or the judiciary.


WVC 5 A- 7 - 4 A §5A-7-4a. Payment of legitimate uncontested invoices for telecommunications services; procedures and powers of the Information and Communications Division and Secretary of Administration.

     (a) The Legislature finds that it is in the best interest of the state, its spending units and those vendors supplying telecommunications services to the state and its spending units that any properly registered and qualified vendor supplying telecommunications services to two or more spending units under a shared account is entitled to prompt payment upon presentation of a legitimate uncontested invoice for telecommunications services to the division, as provided in the following subsections.

     (b) To facilitate the administration and payment of telecommunications services, there is continued in the State Treasury a special revenue account to be known as the Telecommunications Services Payment and Reserve Fund. All moneys transferred from state spending units pursuant to the requirements of this section shall be deposited in the account. Expenditures from the fund shall be made by the director for the exclusive purposes set forth in this section: Provided, That no more than $150,000 or the actual amount collected pursuant to subsection (j) of this section in any fiscal year, whichever is less, may be expended from the fund in any fiscal year to defray the costs of administration of this section.

     (c) Upon receipt of any telecommunications charges from a properly registered and qualified vendor, the division shall conduct a preliminary review of the charges. If the division determines during this preliminary review that: (1) Any of the charges are not authorized by law or by the contract under which the telecommunications services are provided; (2) no specific spending unit is designated for any charge; or (3) any charge or service is not in accordance with contract pricing, the division shall reject those charges. Within fourteen days of receipt of any telecommunications charge, the director shall notify a vendor of any rejected charges and shall include in the notice a description of the rejected charges, the reasons a charge was rejected and a proposed resolution of the rejected charge. The director and the vendor shall attempt to resolve the matter in good faith. Within ninety days of the receipt of the vendor's invoice or a time period mutually agreed to by the vendor and secretary, the secretary shall make the final decision as to the legitimacy of the rejected amount and determine if payment is warranted. If the final decision of the secretary is to require payment of the rejected amount, the secretary shall cause the division to bill that amount to the appropriate spending unit which shall remit payment of the amount as required in subsection (d) of this section. If the final decision of the secretary is to refuse to pay any amount, the vendor may proceed in accordance with the provisions of article two, chapter fourteen of this code.

     (d) Following the preliminary review of the charges, the director shall fully apportion all telecommunications charges not rejected during the preliminary review required by subsection (c) of this section among spending units based on the spending unit's service and usage, as determined by the director. The director shall send each spending unit a statement of the spending unit's proportionate share of any telecommunications charges within thirty days of receipt by the division of the invoice detailing the telecommunications charges. Monthly statements for a spending unit of less than $75 may be accumulated and sent to the spending unit on one statement near the end of the fiscal year. The director shall continue to pay any vendor invoices based upon the requirements of subsection (b) of this section. The statement is to provide a date of no more than thirty calendar days from the date the division sends the statement by which the spending unit shall submit payment or transfer to the telecommunications services payment and reserve fund all funds necessary to pay for the spending unit's charges in full: Provided, That the statement sent in last month of the fiscal year shall provide that the transfer shall be made by July 31. If feasible for the spending unit, the preferable method of payment is by intergovernmental transfer.

     (e) All spending units shall budget for telecommunications service expenses. Prior to the date provided in each statement sent to a spending unit pursuant to subsection (d) of this section, each spending unit shall pay or transfer the statement amount to the Telecommunications Services Payment and Reserve Fund.

     (f) If a spending unit fails to pay or transfer funds by the date specified in the statement sent pursuant to subsection (d) of this section, the Secretary of the Department of Administration shall transfer to the Telecommunications Services Payment and Reserve Fund the statement amount plus an additional penalty in the amount of three percent of the statement amount from any funds supporting the administration of that spending unit: Provided, That the secretary shall complete all such transfers by July 31 of each fiscal year. Upon exercising a transfer under the authority of this subsection, the director shall provide a notification to the spending unit, including, but not limited to, the date, time, total amount of the transfer, statement amount and penalty amount. If a participating spending unit does not maintain funds in the State Treasury, the secretary may transfer funds by wire from any depository outside the State Treasury. A participating spending unit maintaining funds in depositories outside the State Treasury shall furnish the secretary access to those funds for the exclusive purposes of this section.

     (g) If a spending unit contests any portion of its statement, it shall nonetheless remit payment for the entire statement amount and notify the division in writing within thirty days of statement receipt by the spending unit. The secretary shall consider any contested apportionments of charges and provide a final determination on the apportionment of legitimate charges. Corrections or adjustments to apportionments may be effected on future transfer payments: Provided, That legitimate vendor charges are to be fully apportioned. If the basis of the contest is vendor error, overcharge, service failure, failure to terminate services as required by the division or other failure of or error in vendor performance, the director shall withhold the contested amount from current or future vendor payments, pending resolution by the secretary, and the director shall bring the contested matter to the attention of the vendor. The director and the vendor shall attempt to resolve the matter in good faith. Within ninety days of the receipt of the vendor's invoice or a time period mutually agreed to by the vendor and secretary, the secretary shall make the final decision as to the legitimacy of the contested amount and determine if payment is warranted. If the final decision of the secretary is to refuse to pay any amount, the vendor may proceed in accordance with the provisions of article two, chapter fourteen of this code.

     (h) The director shall provide for full payment of legitimate, uncontested telecommunications charges within ninety days of receipt of an invoice detailing the telecommunications charges by the division. Payment for the charges shall be made by the director from the Telecommunications Services Payment and Reserve Fund.

     (i) The director may direct the discontinuance of telecommunications services to any spending unit that fails to comply with the provisions of this section and the vendor supplying telecommunication services shall comply with the written direction of the director on discontinuance of services.

     (j) To help defray the additional cost of administering this section, the director may assess a proportional fee of up to $150,000 in aggregate per fiscal year to the participating spending units based on each spending unit's portion of service and usage. This fee is to be included in the statement sent to spending units pursuant to subsection (d) of this section and transferred to the Telecommunications Service Payment and Reserve Fund by the date specified in the statement for the transfer of payment.

     (k) Notwithstanding any other provision of this code to the contrary, for purposes of this section, an invoice is considered received by the division on the date on which the invoice is marked as received by the division, or three business days after the date of the postmark made by the United States Postal Service as evidenced on the envelope in which the invoice is mailed, whichever is earlier: Provided, That if an invoice is received by the division prior to the date on which the telecommunications services covered by the invoice are delivered or fully performed, for purposes of determining the ninety-day time period for payment in subsection (h) of this section, the invoice is considered received on the date on which the telecommunications services covered by the invoice were delivered or fully performed.

     (l) For purposes of this section, "telecommunications service" means and includes not only telephone service regulated under chapter twenty-four of this code or under federal law, but also may include, at the discretion of the Secretary of Administration, wireless service, voice over Internet protocol service, Internet service and any other service or equipment used for the electronic transmission of voice or data: Provided, That the service is provided under a statewide contract.

     (m) The director may propose rules for legislative approval in accordance with the provisions of article three, chapter twenty- nine-a of this code to effectuate the purposes of this section.
WVC 5A-7-5 §5A-7-5. Control over central mailing office.
The central mailing office heretofore controlled by the director of the general services division shall hereinafter be under the control of the director of the information services and communications division.


WVC 5A-7-6 §5A-7-6. Central mailing office employees.
The director shall employ such persons as shall be necessary to carry out the provisions of sections seven, eight, nine and ten of this article.


WVC 5A-7-7 §5A-7-7. Central mailing office responsibilities.
The director shall have the general charge and supervision of the central mailing office, and shall be responsible for its efficient administration. The director shall be required to: (1) Charge each spending unit of state government served by the central mailing office for providing such services; (2) keep proper account of the receipts and disbursements of the central mailing office; (3) render to the secretary a report each month showing the receipts and expenses of the central mailing office for the preceding month, and shall render such other reports as the secretary may require; (4) keep the central mailing office open during regularly stated hours to serve state spending units; and (5) provide rules and regulations for the efficient and prompt dispatch of the mail.


WVC 5A-7-8 §5A-7-8. Use of the central mailing office.
All state spending units having their offices in the capitol, except the legislative branch of government, shall dispatch all mail through the central mailing office: Provided, That mail prepared after gathering time and mail for special handling may be posted without utilizing the central mailing office upon approval of the director.


WVC 5A-7-9 §5A-7-9. Preparation of mail for special rates.
All mail received by the central mailing office shall be processed and presorted in order to receive the most favorable mailing rates, unless otherwise directed by the director. The director is authorized to make such expenditures as are necessary to process and presort all outgoing mail or to enter into contracts with any person, firm or corporation engaged in such business to supply the service.


WVC 5A-7-10 §5A-7-10. Special fund created; payments into fund; charges for services; disbursements from fund.
For the operation of the division, there is hereby created in the state treasury a special revolving fund to be known and designated as the "information services and communications fund." This fund shall consist of appropriations made by the Legislature, funds transferred in accordance with the provisions of section four of this article, funds received for data processing, telecommunication and central mailing office services rendered to other agencies, departments, units of state and local government and any other entity, and funds received from the federal government or any agency or department thereof, which federal funds the division is hereby authorized to receive. Each agency, department, unit of state or local government or any other entity served by the information services and communications division, is hereby authorized and directed to transmit to the division for deposit in said special fund the charges made by the agency for data processing, telecommunication and central mailing office services rendered, such charges to be those fixed in a schedule or schedules prepared by the director and approved by the governor. Disbursements from the fund shall be made in accordance with an approved expenditure schedule as provided by article two, chapter five-a of this code and shall be made under the direct supervision of the secretary.


WVC 5A-7-11 §5A-7-11. Confidential records.
Under no circumstances whatever shall the head of any state department or agency deliver to the division any records required by law to be kept confidential, but such head may extract information from such records for data processing by such division, provided the integrity of such confidential records is fully protected.


WVC -8- ARTICLE 8. PUBLIC RECORDS MANAGEMENT AND PRESERVATION ACT.


WVC 5A-8-1 §5A-8-1. Short title.
This article shall be known as the "Records Management and Preservation of Essential Records Act."


WVC 5A-8-2 §5A-8-2. Declaration of policy.
The Legislature declares that programs for the efficient and economical management of state and local records will promote economy and efficiency in the day-to-day record-keeping activities of state and local government and will facilitate and expedite government operations; that records containing information essential to the operation of government and to the protection of the rights and interests of persons must be protected against the destructive effects of all forms of disaster and must be available when needed. It is necessary, therefore, to adopt special provisions for the selection and preservation of essential state and local records thereby providing for the protection and availability of such information.


WVC 5A-8-3 §5A-8-3. Definitions.
As used in this article:

(a) "Disaster" means any occurrence of fire, flood, storm, earthquake, explosion, epidemic, riot, sabotage or other condition of extreme peril resulting in substantial damage or injury to persons or property within this state, whether such occurrence is caused by an act of God, nature or man, including an enemy of the United States.

(b) "Record" means document, book, paper, photograph, sound recording or other material, regardless of physical form or characteristics, made or received pursuant to law or ordinance or in connection with the transaction of official business. Library and museum material made or acquired and preserved solely for reference or exhibition purposes, extra copies of documents preserved only for convenience of reference, and stocks of publications and of processed documents are not included within the definition of records as used in this article.

(c) "State record" means:

(1) A record of a department, office, commission, board or other agency, however designated, of the state government.

(2) A record of the state Legislature.

(3) A record of any court of record, whether of statewide or local jurisdiction.

(4) Any record designated or treated as a state record under state law.

(d) "Local record" means a record of a county, city, town, authority or any public corporation or political entity whether organized and existing under charter or under general law unless the record is designated or treated as a state record under state law.

(e) "Agency" means any department, office, commission, board or other unit, however designated, of the executive branch of state government.

(f) "Preservation duplicate" means a copy of an essential state record which is used for the purpose of preserving such state record pursuant to this article.


WVC 5A-8-3a §5A-8-3a.
Repealed.

Acts, 1990 Reg. Sess., Ch. 2.


WVC 5A-8-4 §5A-8-4. Categories of records to be preserved.
State or local records which are within the following categories are essential records which shall be preserved pursuant to this article:

Category A. Records containing information necessary to the operation of government in the emergency created by a disaster.

Category B. Records not within category A but containing information necessary to protect the rights and interest of persons or to establish and affirm the powers and duties of governments in the resumption of operations after a disaster.


WVC 5A-8-5 §5A-8-5. State records administrator.
The secretary of the department of administration is hereby designated the state records administrator, hereinafter called the administrator. The administrator shall establish and administer in the department of administration of the executive branch of state government a records management program, which will apply efficient and economical management methods to the creation, utilization, maintenance and retention, preservation and disposal of state records; and shall establish and maintain a program for the selection and preservation of essential state records and shall advise and assist in the establishment of programs for the selection and preservation of essential local records.


WVC 5A-8-6 §5A-8-6. Records management and preservation advisory committee.
A records management and preservation advisory committee is continued within the department of administration, to advise the administrator and to perform such other duties as this article requires. The records management and preservation advisory committee shall be composed of the following members: The governor, auditor, attorney general, president of the senate, speaker of the house of delegates, the chief justice of the supreme court of appeals, a judge of a circuit court to be appointed by the governor, the director of the office of emergency services, and the director of the section of archives and history of the division of culture and history, or their respective designated representatives. The advisory committee shall designate one of its members to be chairman, and it shall adopt rules for the conduct of its business. The advisory committee shall meet whenever called by its chairman or the administrator. The members of the advisory committee shall serve without compensation but shall be reimbursed for all reasonable and necessary expenses actually incurred in the performance of their duties as members of the advisory committee; except that in the event the expenses are paid, or are to be paid, by a third party, the member shall not be reimbursed by the state.


WVC 5A-8-7 §5A-8-7. Duties of administrator.
The administrator shall, with due regard for the functions of the agencies concerned:

(a) Establish standards, procedures, and techniques for effective management of records.

(b) Make continuing surveys of paperwork operations and recommend improvements in current records management practices including the use of space, equipment and supplies employed in creating, maintaining, storing and servicing records.

(c) Establish standards for the preparation of schedules providing for the retention of state records of continuing value and for the prompt and orderly disposal of state records no longer possessing sufficient administrative, legal, or fiscal value to warrant their further keeping.

(d) Select the state records which are essential and determine their category pursuant to this article. In accordance with the rules and regulations promulgated by the administrator, each person who has custody or control of state records shall (1) inventory the state records in his custody or control; (2) submit to the administrator a report thereon containing such information as the administrator directs and containing recommendations as to which state records are essential; and (3) periodically review his inventory and his report and, if necessary, revise the report so that it is current, accurate and complete.

(e) Obtain reports from agencies as are required for the administration of the program.


WVC 5A-8-8 §5A-8-8. Rules and regulations.
The administrator shall promulgate such rules and regulations concerning the management and selection and preservation of essential state records as are necessary or proper to effectuate the purpose of this article.


WVC 5A-8-9 §5A-8-9. Duties of agency heads.
The head of each agency shall:

(a) Establish and maintain an active, continuing program for the economical and efficient management of the records of the agency.

(b) Make and maintain records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures and essential transactions of the agency designed to furnish information to protect the legal and financial rights of the state and of persons directly affected by the agency's activities.

(c) Submit to the administrator, in accordance with the standards established by him, schedules proposing the length of time each state record series warrants retention for administrative, legal or fiscal purposes after it has been received by the agency. The head of each agency also shall submit lists of state records in custody that are not needed in the transaction of current business and that do not have sufficient administrative, legal or fiscal value to warrant their further keeping for disposal in conformity with the requirements of section ten of this article.

(d) Cooperate with the administrator in the conduct of surveys made pursuant to the provisions of this article.

(e) Comply with the rules, regulations, standards and procedures issued by the administrator.

(f) First obtain the administrator's written approval before purchasing or acquiring any equipment or supplies used or to be used to store or preserve records of the agency. If such approval is obtained the agency will submit a requisition to the finance division together with a copy of the administrator's said approval.


WVC 5 A- 8 - 10 §5A-8-10. Essential state records -- Preservation duplicates.
(a) The administrator may make or cause to be made preservation duplicates or may designate as preservation duplicates existing copies of essential state records. A preservation duplicate shall be durable, accurate, complete and clear, and a preservation duplicate made by means of photography, microphotography, photocopying, film, microfilm or digital image stored on unalterable media shall be made in conformity with the standards prescribed therefor by the administrator.

(b) A preservation duplicate made by a photographic, photostatic, microfilm, microcard, miniature photographic, digital image or other process which accurately reproduces or forms a durable and unalterable medium for so reproducing the original, shall have the same force and effect for all purposes as the original record whether the original record is in existence or not. A transcript, exemplification or certified copy of such preservation duplicate shall be deemed for all purposes to be a transcript, exemplification or certified copy of the original record.


WVC 5A-8-11 §5A-8-11. Essential state records--Safekeeping.
(a) The administrator shall prescribe the place and manner of safekeeping of essential state records and preservation duplicates and may establish, with the approval of the Legislature, storage facilities therefor. The administrator may provide for storage outside the state.

(b) When in the opinion of the administrator the legally designated or customary location of an essential state record is such that the essential state record may be destroyed or unavailable in the event of a disaster caused by an enemy of the United States:

(1) The administrator shall store a preservation duplicate at another location and permit such state record to remain at its legally designated or customary location; or

(2) The administrator shall store such state record at a location other than its legally designated or customary location and deposit at the legally designated or customary location a preservation duplicate for use in lieu of the state record; or

(3) The administrator may store such state record at a location other than its legally designated or customary location, without providing for a preservation duplicate, upon a determination that it is impracticable to provide for a preservation duplicate and that the state record is not frequently used. Such determination shall be made by the administrator and the regularly designated custodian of such state record, but if they disagree the determination shall be made by the administrator.

(c) The requirements of subsection (b) of this section shall not prohibit the administrator from removing an essential state record or preservation duplicate from the legally designated or customary location of the state record if a disaster caused by an enemy of the United States has occurred or is imminent.


WVC 5A-8-12 §5A-8-12. Essential state records -- Maintenance, inspection and use.
(a) The administrator shall properly maintain essential state records and preservation duplicates stored by him.

(b) An essential state record or preservation duplicate stored by the administrator may be recalled by the regularly designated custodian of the state record for temporary use when necessary for the proper conduct of the office and shall be returned by such custodian to the administrator immediately after such use.

(c) When an essential state record is stored by the administrator, the administrator, upon request of the regularly designated custodian of the state record, shall provide for its inspection, or for the making or certification of copies thereof, and such copies when certified by the administrator shall have the same force and effect as if certified by the regularly designated custodian.


WVC 5A-8-13 §5A-8-13. Essential state records -- Confidential records.
When a state record is required by law to be treated in a confidential manner and is an essential state record, the administrator in effectuating the purpose of this article with respect to such state record, shall protect its confidential nature.


WVC 5A-8-14 §5A-8-14. Essential state records -- Review of program.
The administrator shall review periodically but at least once a year the program for the selection and preservation of essential state records, including the classification of records and the provisions for preservation duplicates, and for safekeeping of essential state records or preservation duplicates to ensure that the purposes of this article are accomplished.


WVC 5 A- 8 - 15 §5A-8-15. Records management and preservation of county records; alternate storage of county records; Records Management and Preservation Board; qualifications and appointment of members; reimbursement of expenses; staffing; rule-making authority; study of records management needs of state agencies; grants to counties.
The Legislature finds that the use of electronic technology and other procedures to manage and preserve public records by counties should be uniform throughout the state where possible.

(a) The governing body and the chief elected official of a county, hereinafter referred to as a county government entity, whether organized and existing under a charter or under general law, shall promote the principles of efficient records management and preservation of local records. A county governing entity may, as far as practical, follow the program established for the uniform management and preservation of county records as set out in rules proposed for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code as proposed by the Records Management and Preservation Board.

(b) In the event a county government entity decides to destroy or otherwise dispose of a county record, the county government entity may, prior to destruction or disposal thereof, offer the record to the Director of the Section of Archives and History of the Division of Culture and History for preservation of the record as a document of historical value. Unless authorized by the Supreme Court of Appeals, the records of courts of record and magistrate courts are not affected by the provisions of this section.

(c)(1) A preservation duplicate of a county government entity record may be stored in any format approved by the board in which the image of the original record is preserved in a form, including CD-ROM and optical image storage media, in which the image is incapable of erasure or alteration and from which a reproduction of the stored record may be retrieved that truly and accurately depicts the image of the original county government record.

(2) Except for those formats, processes and systems used for the storage of records on the effective date of this section, no alternate format for the storage of county government entity records described in this section is authorized for the storage of county government entity records unless the particular format has been approved pursuant to a legislative rule promulgated by the board in accordance with the provisions of chapter twenty-nine-a of this code. The board may prohibit the use of any format, process or system used for the storage of records upon its determination that the same is not reasonably adequate to preserve the records from destruction, alteration or decay.

(3) Upon creation of a preservation duplicate that stores an original county government entity record in an approved format that is incapable of erasure or alteration and that may be retrieved in a format that truly and accurately depicts the image of the original record, the county government entity may destroy or otherwise dispose of the original in accordance with the provisions of section seven-c, article one, chapter fifty-seven of this code.

(d) A Records Management and Preservation Board for county government entities is continued to be composed of eleven members.

(1) Three members shall serve ex officio. One member shall be the Commissioner of the Division of Culture and History or designee who shall be the chair of the board. One member shall be the Administrator of the Supreme Court of Appeals or designee. One member shall be the Chief Technology Officer or designee.

(2) The Governor shall appoint eight members of the board, with the advice and consent of the Senate. Not more than five appointments to the board may be from the same political party and not more than three members may be appointed from the same congressional district. Of the eight members appointed by the Governor:

(i) Five appointments shall be county elected officials, one of whom shall be a clerk of a county commission, one of whom shall be a circuit court clerk, one of whom shall be a county commissioner, one of whom shall be a county sheriff and one of whom shall be a county assessor, to be selected from a list of fifteen names. The names of three clerks of county commissions and three circuit court clerks shall be submitted to the Governor by the West Virginia Association of Counties. The names of three county commissioners shall be submitted to the Governor jointly by the West Virginia Association of Counties and the West Virginia County Commissioners Association. The names of three county sheriffs shall be submitted to the Governor by the West Virginia Sheriff's Association. The names of three county assessors shall be submitted to the Governor by the Association of West Virginia Assessors;

(ii) One appointment shall be a county prosecuting attorney to be selected from a list of three names submitted by the West Virginia Prosecuting Attorneys Institute;

(iii) One appointment shall be an attorney licensed in West Virginia and in good standing as a member of the West Virginia State Bar with experience in real estate and mineral title examination, to be selected from a list of three names submitted by the State Bar; and

(iv) One appointment shall be a representative of a local historical or genealogical society.

(e) The members of the board shall serve without compensation but shall be reimbursed for all reasonable and necessary expenses actually incurred in the performance of their duties as members of the board in a manner consistent with the guidelines of the Travel Management Office of the Department of Administration. In the event the expenses are paid, or are to be paid, by a third party, the member shall not be reimbursed by the state.

(f) The staff of the board shall consist of the Director of the Archives and History Section of the Division of Culture and History and any additional staff as needed.

(g) The board shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to establish a system of records management and preservation for county governments: Provided, That, for the retention and disposition of records of courts of record and magistrate courts, the implementation of the rule is subject to action by the Supreme Court of Appeals of West Virginia. The proposed rules shall include provisions for establishing a program of grants to county governments for making records management and preservation uniform throughout the state. The board is not authorized to propose or promulgate emergency rules under the provisions of this section.

(h) In addition to the fees charged by the clerk of the county commission under the provisions of section ten, article one, chapter fifty-nine of this code, the clerk shall charge and collect an additional one-dollar fee for every document containing less than ten pages filed for recording and an additional one-dollar fee for each additional ten pages of document filed for recording. At the end of each month, the clerk of the county commission shall deposit into the Public Records and Preservation Account as established in the State Treasury all fees collected: Provided, That the clerk may retain not more than ten percent of the fees for costs associated with the collection of the fees. Clerks shall be responsible for accounting for the collection and deposit in the State Treasury of all fees collected by the clerk under the provisions of this section.

(i) There is hereby created in the State Treasury a special account entitled the Public Records and Preservation Revenue Account. The account shall consist of all fees collected under the provisions of this section, legislative appropriations, interest earned from fees, investments, gifts, grants or contributions received by the board. Expenditures from the account shall be for the purposes set forth in this article and are not authorized from collections but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of article three, chapter twelve of this code and upon the fulfillment of the provisions set forth in article two, chapter eleven-b of this code.

(j) Subject to the above provision, the board may expend the funds in the account to implement the provisions of this article. In expending funds from the account, the board shall allocate not more than fifty percent of the funds for grants to counties for records management, access and preservation purposes. The board shall provide for applications, set guidelines and establish procedures for distributing grants to counties, including a process for appealing an adverse decision on a grant application. Expenditures from the account shall be for the purposes set forth in this section, including the cost of additional staff of the Division of Archives and History.


WVC 5 A- 8 - 15 A §5A-8-15a.
Repealed.

Acts, 2010 Reg. Sess., Ch. 32.
WVC 5A-8-16 §5A-8-16. Assistance to legislative and judicial branches.
Upon request, the records administrator shall assist and advise in the establishment of records management programs in the legislative and judicial branches of state government and shall, as required by them, provide program services similar to those available to the executive branch of state government pursuant to the provisions of this article.


WVC 5A-8-17 §5A-8-17. Disposal of records.
Except as provided in section seven-a, article one, chapter fifty-seven of this code, no record shall be destroyed or otherwise disposed of by any agency of the state, unless it is determined by the administrator and the director of the section of archives and history of the division of culture and history that the record has no further administrative, legal, fiscal, research or historical value. In the event the administrator is of the opinion that the record has no further administrative, legal, fiscal, research or historical value, the administrator shall, prior thereto, give written notice of the administrator's intention to direct the destruction or other disposal of the record to the director. Upon the written request of the director, given to the administrator within ten days of receipt of said notice, the administrator shall direct the retention of the record for a period of thirty days. In the event the director fails to retrieve the original document from the administrator or the administrator's designee within the thirty day period, the administrator may direct the destruction or other disposal of the original without further notice to the director.


WVC 5A-8-18 §5A-8-18. Destruction of nonrecord materials.
Nonrecord materials or materials not included within the definition of records as contained in this article may, if not otherwise prohibited by law, be destroyed at any time by the agency in possession of such materials without the prior approval of the administrator. The administrator may formulate procedures and interpretations to guide in the disposal of nonrecord materials.


WVC 5A-8-19 §5A-8-19. Annual report.
The administrator shall make an annual written report to the governor for transmission to the Legislature. The report shall describe the status and progress of programs established pursuant to this article and shall include the recommendations of the administrator for improvements in the management and preservation of records in state government.


WVC 5 A- 8 - 20 §5A-8-20. Alternate storage of state records.

     (a) Findings and purpose. -- The Legislature finds that continuous advances in technology have resulted and will continue to result in the development of alternate formats for the nonerasable storage of state records, and that the use of such alternative storage formats, where deemed advisable, promote the efficient and economical administration of government and provide a means for the preservation of valuable records that are subject to decay or destruction. It is the purpose of the Legislature to authorize the storage of state records in those alternate formats, as may be determined by the various branches of the government of this state, that will reasonably ensure that the originals of those records are copied into alternative formats in a manner in which the image of the original records is not erased or altered, and from which true and accurate reproductions of the original state records may be retrieved.

     (b) Approved format. -- (1) In addition to those formats, processes and systems described in section ten of this article, sections seven-a and seven-c, article one, chapter fifty-seven of this code, and section twelve, article five of that chapter which are otherwise authorized for the reproduction of state records, a preservation duplicate of a state record may be stored in any approved format where the image of the original state record is preserved in a form in which the image thereof is incapable of erasure or alteration, and from which a reproduction of the stored state record may be retrieved which truly and accurately depicts the image of the original state record.

     (2) As a substitute for using medium that is incapable of erasure or alteration, a preservation duplicate of a state record may be stored on other electronic storage medium or other medium capable of storing digitized documents if:

     (A) The medium is stored to maximize its life by minimizing exposure to environmental contaminants;

     (B) At least two copies of the preservation duplicate are made and one copy is stored in an off-site location; and

     (C) A procedure is established and followed which ensures that:

     (i) Modifications in the archiving process are made as technology changes so that the preservation duplicates are readily accessible, which may include migrating the preservation duplicates to different medium or different file formats; and

     (ii) The medium is periodically examined to determine if the preservation duplicates remain readable and intact.

     (c) Executive agency records. -- (1) The alternate formats for the storage of state records described in this section are authorized for the storage of the state records of any agency of this state. The state records administrator shall establish a procedure for executive agencies to follow implementing the provisions of subsection (b) of this section by July 1, 2013. The procedure shall include, at a minimum, the identification of examples of medium and accompanying procedures to be followed for executive agencies when making preservation duplicates of state records on medium readily available, other than microfilm or microfiche.

     (2) Upon creation of a preservation duplicate from which a reproduction of the stored state record may be retrieved which truly and accurately depicts the image of the original state record, the state records administrator may destroy or otherwise dispose of the original in accordance with the provisions of section seventeen of this article for the destruction of records.

     (d) Judicial records. -- (1) Except for those formats, processes and systems used for the storage of state records on the effective date of this section, no alternate format for the storage of state records described in this section is authorized for the storage of the state records of any court of this state unless the particular format has been approved by the Supreme Court of Appeals by rule. This section does not prohibit the Supreme Court of Appeals from prohibiting the use of any format, process or system used for the storage of judicial state records upon its determination that the same is not reasonably adequate to preserve the state records from destruction, alteration or decay.

     (2) Upon creation of a preservation duplicate which stores an original judicial state record in an approved format from which a reproduction of the stored state record may be retrieved which truly and accurately depicts the image of the original state record, the court or the clerk thereof creating the same may, consistent with rules of the Supreme Court of Appeals, destroy or otherwise dispose of the original in accordance with the provisions of section seven, article one, chapter fifty-seven of this code for the destruction of records.

     (e) Legislative records. -- In accordance with all applicable provisions of the West Virginia Constitution, the procedures for the storage and destruction of legislative records shall be determined by each house, or by a joint rule.

     (f) Upon request and payment of a reasonable cost, one copy of any state record archived or preserved pursuant to the provisions of this article shall be provided to any person or entity: Provided, That the person or entity that has produced the state record may receive one copy without charge. For the purpose of this subsection "state record" means electronic record created and maintained by state agencies.
WVC 5 A- 8 - 21 §5A-8-21. Limitation on release of certain personal information maintained by state agencies and entities regarding state employees.
(a) The following personal information maintained by executive, legislative or judicial branch agencies of the state of West Virginia regarding persons in their capacity as state officers, employees, retirees or the legal dependents thereof is hereby deemed to be confidential and exempt from disclosure to non-governmental entities in documents otherwise subject to disclosure under the provisions of chapter twenty-nine-b of this code:

(1) An individual's home address;

(2) An individual's social security number;

(3) An individual's credit or debit card numbers;

(4) An individual's driver's license identification number; and

(5) An individual's marital status or maiden name.

(b) It is the policy of the state of West Virginia that the information enumerated in subsection (a) of this section is personal and confidential and should only be released to non-governmental entities for such purposes as are authorized by federal law or regulation, a provision of this code or a legislative rule promulgated pursuant to the provisions of chapter twenty-nine-a of this code.


WVC 5 A- 8 - 22 §5A-8-22. Personal information maintained by state entities.
(a) The following information maintained by state executive branch agencies with respect to individuals and their dependents, is personal information, exempted from disclosure under the provisions of article one, chapter twenty nine-b of this code, and may not be released to non-governmental entities:

(1) An individual's social security number; or

(2) An individual's credit or debit card number.

(b) Notwithstanding the provisions of subsection (a) of this section, the information enumerated in said subsection may be released for such purposes as are authorized by federal law or regulation, a provision of this code or a legislative rule promulgated pursuant to the provisions of chapter twenty-nine-a of this code.


WVC -9- ARTICLE 9. VOLUNTARY GILDING THE DOME CHECK-OFF PROGRAM.


WVC 5A-9-1 §5A-9-1. Legislative intent.
It is in the public interest to preserve and maintain the state capitol building for the use and benefit of the citizens of West Virginia. The intent of this legislation is to provide additional funding for the preservation and maintenance of the state capitol building, to be primarily used to refurbish the capitol dome with gold leaf.

The financing of this program will be derived from a voluntary check-off and contribution designation on state personal income tax return forms of a portion or all of a taxpayer's refund. The funding provided shall be supplemental to existing revenues.


WVC 5A-9-2 §5A-9-2. Voluntary check-off designation.
(a) Each West Virginia individual income tax return form shall contain a designation as follows:

West Virginia Gilding the Dome Check-Off Program.
Check ( ) if you wish to designate $1, $5, $10 or more of your tax refund for this program. If joint return, check ( ) if spouse wishes to designate $1, $5, $10 or more.

(b) Each individual taxpayer desiring to contribute to the voluntary gilding the dome program may designate by placing an "X" in the appropriate box on the state income tax return form. His contribution shall be credited to said program.


WVC 5A-9-3 §5A-9-3. Contributions credited to special fund.
The tax division of the department of tax and revenue shall determine by the first day of July of each year the total amount designated pursuant to this legislation and shall report such amount to the state treasurer who shall credit such amount to a special department of administration fund.


WVC 5A-9-4 §5A-9-4. Use of funds.
The funds shall be used for the purpose of preserving and maintaining the dome of the capitol by the use of gold leaf in covering the dome. The commissioner of finance and administration shall on the fifteenth day of January each year furnish the Legislature with a report stating the amount of money that has been provided and how such moneys have been expended.


WVC 5A-9-5 §5A-9-5. Effective date.
This article shall apply to all personal income tax returns required to be filed on or after the first day of July, one thousand nine hundred eighty-seven, and before the first day of July, one thousand nine hundred ninety.


WVC 5 A- 10 - ARTICLE 10. REAL ESTATE DIVISION.


WVC 5 A- 10 - 1 §5A-10-1. Division created; purpose; director.
(a) There is hereby created the Real Estate Division within the Department of Administration for the purpose of establishing a centralized office to provide leasing, appraisal and other real estate services to the Secretary of the Department of Administration.

(b) The division shall be under the supervision and control of an executive director, who shall be appointed by the Governor, by and with the advice and consent of the Senate.

(c) Candidates for the position of executive director shall:

(1) Have at least a bachelor of arts or science degree from an accredited four-year college or university; and

(2) (A) Be a licensed real estate broker, pursuant to the provisions of article forty, chapter thirty of this code; or

(B) Be a licensed or certified real estate appraiser pursuant to the provisions of article thirty-eight, chapter thirty of this code; or

(3) (A) Be considered based on their demonstrated education, knowledge and a minimum of ten years' experience in the areas of commercial real estate leasing, commercial real estate appraisal; or

(B) Any relevant experience of a minimum of ten years which demonstrates an ability to effectively accomplish the purposes of this article.

(d) The Real Estate Division is authorized to employ such employees, including, but not limited to, real estate appraisers licensed in accordance with the provisions of article thirty-eight, chapter thirty of this code, as may be necessary to discharge the duties of the division.


WVC 5 A- 10 - 2 §5A-10-2. Leases for space to be made in accordance with article; exceptions.
(a) Notwithstanding any other provision of this code, no department, agency or institution of state government may lease, or offer to lease, as lessee, any grounds, buildings, office or other space except in accordance with the provisions of this article and article three of this chapter.

(b) The provisions of the article, except as to office space, do not apply to the Division of Highways of the Department of Transportation.

(c) The provisions of this article do not apply to:

(1) Public lands, rivers and streams acquired, managed or which title is vested in or transferred to the Division of Natural Resources of the Department of Commerce, pursuant to section seven, article one, chapter twenty of this code and section two, article five of said chapter;

(2) The Higher Education Policy Commission;

(3) The West Virginia Council for Community and Technical College Education;

(4) The institutional boards of governors in accordance with the provisions of subsection (v), section four, article five, chapter eighteen-b of this code;

(5) The real property held by the Department of Agriculture, including all institutional farms, easements, mineral rights, appurtenances, farm equipment, agricultural products, inventories, farm facilities and operating revenue funds for those operations;

(6) The real property held by the West Virginia State Conservation Committee, including all easements, mineral rights, appurtenances and operating revenue funds for those operations; or

(7) The Adjutant General's Department and the West Virginia National Guard, including all real property, acquisitions, leases, easements, armories, armory projects, appurtenances and operating revenue funds for those operations.


WVC 5 A- 10 - 3 §5A-10-3. Powers and duties of Real Estate Division.
The Real Estate Division has the following powers and duties:

(1) To provide leasing, appraisal and other real estate services to state spending units;

(2) To ensure that the purchase of real estate and all contracts for lease are based on established real estate standards and fair market price;

(3) To develop and implement minimum lease space standards for the lease of any grounds, buildings, office or other space required by any spending unit of state government;

(4) To develop and implement minimum standards for the selection and acquisition, by contract or lease, of all grounds, buildings, office space or other space by a spending unit of state government except as otherwise provided in this article;

(5) To establish and maintain a comprehensive database of all state real estate contracts and leases;

(6) To develop policies and procedures for statewide real property management;

(7) To maintain a statewide real property management system that has consolidated real property, building and lease information for all departments, agencies and institutions of state government;

(8) To develop and maintain a centralized repository of comprehensive space needs for all state departments, agencies and institutions of state government, including up-to-date space and resource utilization, anticipated needs and recommended options;

(9) To provide statewide policy leadership and coordinate master planning to guide and organize capital asset management; and

(10) To provide assistance to all state departments, agencies or institutions in acquiring, leasing and disposing of real property.


WVC 5 A- 10 - 4 §5A-10-4. Leasing of space by executive director; delegation of authority.
The executive director is authorized to lease, in the name of the state, any grounds, buildings, office or other space required by any department, agency or institution of state government: Provided, That the executive director may expressly delegate, in writing, the authority granted to him or her by this article to the appropriate department, agency or institution of state government when the rental and other costs to the state do not exceed the sum specified by regulation in any one fiscal year or when necessary to meet bona fide emergencies arising from unforeseen causes.


WVC 5 A- 10 - 5 §5A-10-5. Selection of grounds, etc.; acquisition by contract or lease; long-term leases.
(a) The executive director has sole authority to select and to acquire by contract or lease, in the name of the state, all grounds, buildings, office space or other space, the rental of which is necessarily required by any spending unit, upon a certificate from the chief executive officer or his designee of said spending unit that the grounds, buildings, office space or other space requested is necessarily required for the proper function of said spending unit, that the spending unit will be responsible for all rent and other necessary payments in connection with the contract or lease and that satisfactory grounds, buildings, office space or other space is not available on grounds and in buildings now owned or leased by the state.

(b) The executive director shall, before executing any rental contract or lease, determine the fair rental value for the rental of the requested grounds, buildings, office space or other space, in the condition in which they exist and shall contract for or lease said premises at a price not to exceed the fair rental value thereof.

(c) The executive director may enter into long-term agreements for buildings, land and space for periods longer than one fiscal year: Provided, That such long-term lease agreements are not for periods in excess of forty years, except that the secretary may, in the case of the Adjutant General's department, enter into lease agreements for a term of fifty years or a specific term of more than fifty years so as to comply with federal regulatory requirements and shall contain, in substance, all the following provisions:

(1) That the Department of Administration, as lessee, has the right to cancel the lease without further obligation on the part of the lessee upon giving thirty days' written notice to the lessor, such notice being given at least thirty days prior to the last day of the succeeding month;

(2) That the lease shall be considered canceled without further obligation on the part of the lessee if the state Legislature or the federal government should fail to appropriate sufficient funds therefor or should otherwise act to impair the lease or cause it to be canceled; and

(3) That the lease shall be considered renewed for each ensuing fiscal year during the term of the lease unless it is canceled by the Department of Administration before the end of the then current fiscal year.


WVC 5 A- 10 - 6 §5A-10-6. Long-term leases of public lands for wireless communication towers.
(a) Notwithstanding any provision of law to the contrary, the executive director has sole authority to negotiate and enter into long-term lease agreements for lease of public lands to be used for placement of wireless communication towers: Provided, That such long-term lease agreements may not be for periods in excess of thirty years: Provided, however, That for the governmental units named in subsection (d) of this section, any lease proposed by the executive director may only be entered into upon approval in writing of the ranking administrator of the respective governmental unit described in said subsection.

(b) All revenues derived from leases established upon the enactment of this section shall be deposited into the General Revenue Fund except as provided in subsections (c) and (d) of this section.

(c) Revenues from leases initiated prior to the enactment of this section or subsequently renewed shall continue to be treated as they were prior to the enactment of this section.

(d) Revenues derived from the lease of property under the control of the Department of Transportation shall be deposited into the State Road Fund. Revenues derived from the lease of property under the control of the Division of Natural Resources shall be retained by the Division of Natural Resources and deposited into the appropriate fund. Revenues derived from the lease of property under the control of the Department of Agriculture shall be deposited into the Agriculture Fees Fund. Revenues derived from the lease of property under the control of the Division of Forestry shall be deposited into the Division of Forestry Fund. Revenues derived from the lease of property under the control of institutions of higher education shall be deposited into the institution's education and general capital fees fund. Revenues derived from the lease of property under the control of the Higher Education Policy Commission shall be deposited into the commission's State Gifts Grants and Contracts Fund. Revenues derived from the lease of property under the control of the West Virginia Council for Community and Technical College Education shall be deposited into the council's Tuition and Required Educational and General Fees Fund.

(e) Any long-term lease agreement entered into pursuant to this section shall contain provisions allowing for the nonexclusive use of the public lands and allowance for use of the same public space for additional towers by competing persons or corporations.

(f) The executive director is further authorized to enter into long-term lease agreements for additional wireless communication towers by other persons or corporations upon the same public lands in which there already exists a lease and tower provided for under this section.

(g) Any long-term lease agreement entered into pursuant to this section shall be recorded in the office of the county clerk where public land which is the subject of the lease agreement is located.


WVC 5 A- 10 - 7 §5A-10-7. Leases and other instruments for space signed by executive director; approval as to form; filing.
Leases and other instruments for grounds, buildings, office or other space shall be signed by the Executive Director of the Real Estate Division in the name of the state. They shall be approved as to form by the Attorney General. A lease or other instrument for grounds, buildings, office or other space that contains a term, including any options, of more than six months for its fulfillment shall be filed with the State Auditor.


WVC 5 A- 10 - 8 §5A-10-8. Inspection of leased property; requiring approval of executive director for permanent changes.
(a) The Executive Director of the Real Estate Division shall inspect as necessary any property which may be under a lease or rental agreement in order to determine whether the property is being kept, preserved, cared for, repaired, maintained, used and operated in accordance with the terms and conditions of the lease or rental agreement. The executive director is authorized to take such action necessary to correct any violation of the terms and conditions of the lease or rental agreement.

(b) A spending unit which is granted any grounds, buildings, office space or other space leased in accordance with the provisions of this article may not order or make permanent changes of any type thereto, unless the Executive Director of the Real Estate Division has first determined that the change is necessary for the proper, efficient and economically sound operation of the spending unit.

(c) For purposes of this section, a "permanent change" means any addition, alteration, improvement, remodeling, repair or other change involving the expenditure of state funds for the installation of any tangible effect which cannot be economically removed from the grounds, buildings, office space or other space when vacated by the spending unit.


WVC 5 A- 10 - 9 §5A-10-9. Real property accounting and records.
(a) All real property owned or leased by the state shall be accounted for by the state spending unit that owns, leases or is in the possession of the real property.

(b) Each state spending unit shall establish and maintain a record of each item of real property it owns and/or leases and annually furnish its records to the Real Estate Division.

(c) The accounting and reporting requirements of this section, except as to office space, do not apply to:

(1) The Division of Highways of the Department of Transportation;

(2) Public lands, rivers and streams acquired, managed or which title is vested in or transferred to the Division of Natural Resources of the Department of Commerce, pursuant to section seven, article one, chapter twenty of this code and section two, article five of said chapter;

(3) The Higher Education Policy Commission;

(4) The West Virginia Council for Community and Technical College Education;

(5) The institutional boards of governors in accordance with the provisions of subsection (v), section four, article five, chapter eighteen-b of this code; or

(6) The Adjutant General's Department and the West Virginia National Guard.

(d) With regard to public lands that may be by law specifically allocated to and used by any state agency, institution, division or department, such agency, institution, division or department shall provide an inventory of such public land(s) to the Public Land Corporation in accordance with the provisions of article eleven of this chapter.

(e) The records furnished to the Real Estate Division shall include the following information, if applicable:

(1) A description of each item of real property including:

(A) A reference to a book, page and/or image number from the county records in a particular county; or

(B) A legal description;

(2) The date of purchase and the purchase price of the real property;

(3) The date of lease and the rental costs of the real property;

(4) The name of the state spending unit holding title to the real property for the state;

(5) A description of the current uses of the real property and the projected future use of the real property; and

(6) A description of each building or other improvement located on the real property.

(f) If the description of real property required under this section is excessively voluminous, the Real Estate Division may direct the spending unit in possession of the real property to furnish the description only in summary form, as agreed to by the division and the spending unit.


WVC 5 A- 10 - 10 §5A-10-10. Real property review.
(a) At least once every four years, the Real Estate Division shall review the inventory of real property for each state spending unit submitted pursuant to this article to verify the accuracy of the inventory records.

(b) Based on the review of the inventory of real property, the Real Estate Division shall:

(1) Identify any real property owned or leased by the state that is not being used or that is being substantially underused;

(2) Make recommendations to the Governor and the Secretary of the Department of Administration regarding the use of real property, which shall include:

(A) An analysis of the highest and best use to which the real property may legally be placed; and

(B) An analysis of alternative uses of the real property addressing the potential for any other transaction or use that the Real Estate Division determines to be in the best interest of the state; and

(3) Submit to the Governor and the Secretary of the Department of Administration any information pertinent to the evaluation of a potential transaction involving the real property, including:

(A) An evaluation of any proposals received from private parties that would be of significant benefit to the state; and

(B) The market value of such real property.


WVC 5 A- 10 - 11 §5A-10-11. Rulemaking.
The executive director shall propose rules for legislative approval, in accordance with the provisions of article three, chapter twenty-nine-a of this code, to implement and enforce the provisions of this article.


WVC 5 A- 11 - ARTICLE 11. PUBLIC LAND CORPORATION.


WVC 5 A- 11 - 1 §5A-11-1. Public Land Corporation.
(a) The Public Land Corporation, heretofore created and established as a unit of the Division of Natural Resources, is hereby continued and established as a unit of the Real Estate Division of the Department of Administration.

(b) The corporation is a public benefit corporation and an instrumentality of the state and may sue or be sued, contract and be contracted with, plead and be impleaded, have and use a common seal.

(c) The corporation is vested with the title of the State of West Virginia in public lands, the title to which now is or may hereafter become vested in the State of West Virginia by reason of any law governing the title of lands of the state: Provided, That those lands for which title is specifically vested by law in other state agencies, institutions and departments shall continue to be vested in such state agencies, institutions and departments.

(d) The provisions of this article do not apply to:

(1) The State of West Virginia's interest in the rivers, streams, creeks or beds thereof and all other public lands managed or acquired by the Division of Natural Resources pursuant to the provisions of section seven, article one, chapter twenty of this code and section two, article five, chapter twenty of this code, the title to all of which shall collectively be transferred to and vested in the Division of Natural Resources for the use and enjoyment of the citizens of the state; or

(2) Public lands acquired by the Division of Forestry pursuant to article one-a, chapter nineteen of this code.


WVC 5 A- 11 - 2 §5A-11-2. Corporation boards of directors, members, expenses, appointment, terms, qualifications; director as board chairman; meetings, quorum; executive secretary, secretary to board; professional and support staff; execution of legal documents, permits and licenses.
(a) The Public Land Corporation is governed by a board of directors comprised of six members of which four shall be ex officio and two shall be appointed by the Governor. The members of the board shall receive no compensation for their service thereon. The board members who are not ex officio shall be reimbursed by the Secretary of the Department of Administration for their actual and necessary expenses incurred pursuant to their duties under this article from funds authorized for such purposes.

(b) The following serve as ex officio members of the board:

(1) The Executive Director of the Real Estate Division or a designee, who shall serve as chair;

(2) The Director of the Division of Natural Resources or a designee;

(3) The Commissioner of the Department of Culture and History or a designee; and

(4) The Secretary of the Department of Administration, or a designee.

(c) The Governor shall appoint, by and with the advice and consent of the Senate, two members with a demonstrated interest and knowledge in the conservation and protection of the aesthetic, biological, geological, historical, archeological, cultural or recreational values of the public lands of the state. The terms are for four years and no member may serve more than two consecutive terms. The members on the board as of the first day of January, two thousand seven, shall continue to serve until their term has expired and may be reappointed.

(d) A majority of the board constitutes a quorum for the transaction of business. The board shall meet at such times and places as it may determine and shall meet on call of the chair. It shall be the duty of the chair to call a meeting of the board on the written request of any three members.

(e) The Executive Director of the Real Estate Division shall appoint and supervise an Executive Secretary of the Public Land Corporation, and may employ other necessary professional and support staff for the purposes of this article, who shall be employees of the Department of Administration with merit system status.

(f) An affirmative vote of a majority of the members of the corporation is required for any action of the corporation with respect to the sale or exchange of public lands or for the issuance of a lease or contract for the development of minerals, oil or gas. All actions must be taken at a scheduled meeting of the corporation held in compliance with the provisions of article nine-a, chapter six of this code.

(g) The powers and duties of the corporation are nondelegable, except that the executive secretary may negotiate and enter into preliminary agreements on behalf of the corporation, and shall, upon authorization of the corporation, be entitled to engage in valid actions of the corporation in respect of day-to-day administrative activities. An agreement entered into by the executive secretary on behalf of the corporation is not valid until such agreement is approved by an affirmative vote of a majority of the corporation.


WVC 5 A- 11 - 3 §5A-11-3. Public Land Corporation, powers and duties.
(a) The corporation is hereby authorized and empowered to:

(1) Acquire from any persons or the State Auditor or any local, state or federal agency, by purchase, lease or other agreement, any lands necessary and required for public use;

(2) Acquire by purchase, condemnation, lease or agreement, receive by gifts and devises or exchange, rights-of-way, easements, waters and minerals suitable for public use;

(3) Sell or exchange public lands where it is determined that the sale or exchange of such tract meets any or all of the following disposal criteria:

(A) The tract was acquired for a specific purpose and the tract is no longer required for that or any other state purpose;

(B) Disposal of the tract serves important public objectives including, but not limited to, expansion of communities and economic development which cannot be achieved on lands other than public lands and which clearly outweigh other public objectives and values including, but not limited to, recreation and scenic values which would be served by maintaining the tract in state ownership; or

(C) The tract, because of its location or other characteristics, is difficult and uneconomic to manage as part of the public lands and is not suitable for management by another state department or agency.

(4) Sell, purchase or exchange lands or stumpage for the purpose of consolidating lands under state or federal government administration subject to the disposal criteria specified in subdivision (3) of this subsection;

(5) Negotiate and effect loans or grants from the government of the United States or any agency thereof for acquisition and development of lands as may be authorized by law to be acquired for public use;

(6) Expend the income from the use and development of public lands for the following purposes:

(A) Liquidate obligations incurred in the acquisition, development and administration of lands, until all obligations have been fully discharged;

(B) Purchase, develop, restore and preserve for public use, sites, structures, objects and documents of prehistoric, historical, archaeological, recreational, architectural and cultural significance to the State of West Virginia; and

(C) Obtain grants or matching moneys available from the government of the United States or any of its instrumentalities for prehistoric, historic, archaeological, recreational, architectural and cultural purposes.

(7) Designate lands, to which it has title, for development and administration for the public use including recreation, wildlife stock grazing, agricultural rehabilitation and homesteading or other conservation activities;

(8) Enter into leases as a lessor for the development and extraction of minerals, including coal, oil, gas, sand or gravel except as otherwise circumscribed herein: Provided, That leases for the development and extraction of minerals shall be made in accordance with the provisions of sections five and six of this article. The corporation shall reserve title and ownership to the mineral rights in all cases;

(9) Convey, assign or allot lands to the title or custody of proper departments or other agencies of state government for administration and control within the functions of departments or other agencies as provided by law;

(10) Make proper lands available for the purpose of cooperating with the government of the United States in the relief of unemployment and hardship or for any other public purpose.

(b) There is hereby continued in the state Treasury a special Public Land Corporation Fund into which shall be paid all proceeds from public land sales and exchanges and rents, royalties and other payments from mineral leases: Provided, That all royalties and payments derived from rivers, streams or public lands acquired or managed by the Division of Natural Resources pursuant to section seven, article one, chapter twenty of this code and section two, article five, chapter twenty of this code shall be retained by the Division of Natural Resources: Provided, however, That all proceeds, rents, royalties and other payments from land sales, exchanges and mineral rights leasing for public lands owned, managed or controlled by the Adjutant General's Department will be retained in a fund managed by the Adjutant General in accordance with article six, chapter fifteen of the code: Provided further, That all free gas, sand, gravel or other natural resources derived from a lease or contract made pursuant to this article will be used to benefit the state agencies, institutions, or departments located on the affected public lands, or for which the corporation was acting or to benefit any state agencies, institutions, or departments having adjacent property. The corporation may acquire public lands from use of the payments made to the fund, along with any interest accruing to the fund. The corporation shall report annually, just prior to the beginning of the regular session of the Legislature, to the finance committees of the Legislature on the financial condition of the special fund. The corporation shall report annually to the Legislature on its public land holdings and all its leases, its financial condition and its operations and shall make such recommendations to the Legislature concerning the acquisition, leasing, development, disposition and use of public lands.

(c) All state agencies, institutions, divisions and departments shall make an inventory of the public lands of the state as may be by law specifically allocated to and used by each and provide to the corporation a list of such public lands and minerals, including their current use, intended use or best use to which lands and minerals may be put: Provided, That the Division of Highways need not provide the inventory of public lands allocated to and used by it, and the Division of Natural Resources need not provide the inventory of rivers, streams and public lands acquired or managed by it. The inventory shall identify those parcels of land which have no present or foreseeable useful purpose to the State of West Virginia. The inventory shall be submitted annually to the corporation by August 1. The corporation shall compile the inventory of all public lands and minerals and report annually to the Legislature by no later than January 1, on its public lands and minerals and the lands and minerals of the other agencies, institutions, divisions or departments of this state which are required to report their holdings to the corporation as set forth in this subsection, and its financial condition and its operations.

(d) Except as otherwise provided by law, when the corporation exercises its powers, the corporation will coordinate with other state agencies, institutions, and departments in order to develop and execute plans to utilize mineral rights which benefit their operations or the operations of any other state agencies, institutions, or departments.


WVC 5 A- 11 - 4 §5A-11-4. Public Land Corporation to conduct sales of public lands by competitive bidding, modified competitive bidding or direct sale.
(a) Sales, exchanges or transfers of public lands under this article shall be conducted under competitive bidding procedures. However, where the secretary or executive director determines it necessary and proper in order to assure the following public policies, including, but not limited to, a preference to users, lands may be sold by modified competitive bidding or without competitive bidding. In recognizing public policies, the secretary or director shall give consideration to the following potential purchasers:

(1) The local government entities which are in the vicinity of the lands; and

(2) Adjoining landowners.

(b) The policy for selecting the methods of sale is as follows:

(1) Competitive sale is the general procedure for sales of public lands and shall be used in the following circumstances:

(A) Wherever in the judgment of the secretary the lands are accessible and usable regardless of adjoining land ownership; or

(B) Wherever the lands are within a developing or urbanizing area and land values are increasing due to the location of the land and interest on the competitive market.

(2) Modified competitive sales may be used to permit the adjoining landowner or local governmental entity to meet the high bid at the public sale. Lands otherwise offered under this procedure would normally be public lands not located near urban expansion areas, or not located near areas with rapidly increasing land values, and where existing use of adjacent lands would be jeopardized by sale under competitive bidding procedures.

(3) Direct sale may be used when the lands offered for sale are completely surrounded by lands in one ownership with no public access, or where the lands are needed by local governments.

(4) In no event shall lands be offered for sale by "modified competitive sales" or "direct sale" unless and until the corporation makes a written finding of justification for use of an alternative bidding procedure.

(5) Subject to the bidding procedures set forth herein, the corporation is authorized, at its discretion, to sell public lands subject to rights-of-way, restrictive covenants or easements retained by the corporation, limiting the use of such lands to purposes consistent with the use of adjoining or nearby lands owned by the corporation.

(c) When lands have been offered for sale by one method of sale and the lands remain unsold, then the lands may be reoffered by another method of sale.

(d) Except as provided in this article and section seven-a, article one, chapter twenty of this code, public lands may not be sold, exchanged or transferred by the corporation for less than fair market value. Fair market value shall be determined by an appraisal made by the Real Estate Division. The appraisal shall be performed using the principles contained in the current Uniform Appraisal Standards for Federal Land Acquisitions published under the auspices of the Interagency Land Acquisition Conference: Provided, That public lands not acquired or managed by the Division of Natural Resources pursuant to section seven, article one, chapter twenty of this code or section two, article five of said chapter may be sold, exchanged or transferred to any federal agency or to the state or any of its political subdivisions for less than fair market value if, upon a specific written finding of fact, the Executive Director of the Real Estate Division determines that such a transfer would be in the best interests of the corporation and state.

(e) The corporation may reject all bids when such bids do not represent the corporation's considered value of the property exclusive of the fair market value.

(f) The corporation shall propose rules for legislative approval, in accordance with the provisions of article three, chapter twenty-nine-a of this code, regarding procedures for conducting public land sales by competitive bidding, modified competitive bidding and direct sales.


WVC 5 A- 11 - 5 §5A-11-5. Public Land Corporation to hold public hearing before sale, lease, exchange or transfer of land or minerals.
(a) Prior to any final decision of any state agency to sell, lease as a lessor, exchange or transfer land or minerals title to which is vested in the Public Land Corporation pursuant to this article, the Public Land Corporation shall:

(1) Prepare and reduce to writing the reasons and supporting data regarding the sale, lease, exchange or transfer of land or minerals. The written reasons required under this section shall be available for public inspection at the office of the county clerk at the county courthouse of each county in which the affected lands or minerals are located during the two successive weeks before the date of the public hearing required by this section;

(2) Provide for a public hearing to be held at a reasonable time and place within each county in which the affected lands or minerals are located to allow interested members of the public to attend the hearing without undue hardship. Members of the public may be present, submit statements and testimony and question the corporation's representative appointed pursuant to this section;

(3) Not less than thirty days prior to the public hearing, provide notice to all members of the Legislature, to the head of the governing body of any political subdivision having zoning or other land use regulatory responsibility in the geographic area within which the public lands or minerals are located and to the head of any political subdivision having administrative or public services responsibility in the geographic area within which the lands or minerals are located;

(4) Cause to be published a notice of the required public hearing. The notice shall be published as a Class II legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code and the publication area shall be each county in which the affected lands or minerals are located. The public hearing shall be held no earlier than the fourteenth successive day and no later than the twenty-first successive day following the first publication of the notice. The notice shall contain the time and place of the public hearing along with a brief description of the affected lands or minerals;

(5) Cause a copy of the required notice to be posted in a conspicuous place at the affected land for members of the public to observe. The notice shall remain posted for two successive weeks prior to the date of the public hearing;

(6) Appoint a representative of the corporation who shall conduct the required public hearing. The corporation's representative shall have full knowledge of all the facts and circumstances surrounding the proposed sale, lease, exchange or transfer. The representative of the corporation conducting the public hearing shall make the results of the hearing available to the executive director of the Real Estate Division and the Secretary of the Department of Administration for consideration prior to making final decisions regarding the affected lands or minerals. The representative of the corporation shall make a report of the public hearing available for inspection by the public or, upon written request of any interested person, provide a written copy thereof and to all individuals previously receiving written notice of the hearing within thirty days following the public hearing; and

(7) If the evidence at the public hearing establishes by a preponderance that the appraisal provided for in subsection (d), section four of this article does not reflect the true, fair market value, the Public Land Corporation shall cause another appraisal to be made.

(8) If the evidence at the public hearing establishes by a preponderance that the sale or exchange of land does not meet the criteria set forth in subdivision three, subsection (a), section three of this article, the public land corporation may not proceed with the sale or exchange of said land without judicial approval.

(b) The corporation may not sell, lease as lessor, exchange or transfer lands or minerals before the thirtieth successive day following the public hearing required by this section, but in no event may the sale, lease, exchange or transfer of lands or minerals be made prior to fifteen days after the report of the public hearings are made available to the public in general.

(c) If the corporation authorizes the staff to proceed with consideration of the lease or sale under the terms of this article, all requirements of this section shall be completed within one year of date of the authorization by the corporation.


WVC 5 A- 11 - 6 §5A-11-6. Competitive bidding and notice requirements before the development or extraction of minerals on certain lands; related standards.
(a) The corporation may enter into a lease or contract for the development of minerals, including, but not limited to, coal, gas, oil, sand or gravel on or under lands in which the corporation holds any right, title or interest: Provided, That no lease or contract may be entered into for the extraction and removal of minerals by surface mining or auger mining of coal: Provided, however, That the corporation or the state agencies, institutions or departments for which it is acting will not be required to post any type of surety or performance bond with the West Virginia Department of Environmental Protection or any other state agency when executing a lease for the development of minerals.

(b) With the exception of deep mining operations which are already in progress and permitted as of July 5, 1989, the extraction of coal by deep mining methods under state forests or wildlife refuges may be permitted only if the lease or contract provides that no entries, portals, air shafts or other incursions upon and into the land incident to the mining operations may be placed or constructed upon the lands or within three thousand feet of its boundary.

(c) Any lease or contract entered into by the corporation for the development of minerals shall reserve to the state all rights to subjacent surface support with which the state is seized or possessed at the time of such lease or contract.

(d) Notwithstanding any other provisions of the code to the contrary, nothing herein may be construed to permit extraction of minerals by any method from, on or under any state park or state recreation area, nor the extraction of minerals by strip or auger mining upon any state forest or wildlife refuge.

(e) The corporation may enter into a lease or contract for the development of minerals where the lease or contract is not prohibited by any other provisions of this code, only after receiving sealed bids therefor, after notice by publication as a Class II legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code. The area for publication shall be each county in which the minerals are located.

(f) The minerals so advertised may be leased or contracted for development at not less than the fair market value, as determined by an appraisal made by an independent person or firm chosen by the corporation, to the highest responsible bidder, who shall give bond for the proper performance of the contract or lease as the corporation designates: Provided, That the corporation may reject any and all bids and to readvertise for bids.

(g) If the provisions of this section have been complied with, and no bid equal to or in excess of the fair market value is received, the corporation may, at any time during a period of six months after the opening of the bids, lease or contract for the development of the minerals, but the lease or contract price may not be less than the fair market value.

(h) Any lease or contract for the development of minerals entered into after the effective date of this section shall be made in accordance with the provisions of this section and section five of this article.

(i) The corporation will consult with the office of the Attorney General to assist the corporation in carrying out the provisions of this section.

(j) The corporation shall consult with an independent mineral consultant and any other competent third parties with experience and expertise in the leasing of minerals, to assist the corporation in carrying out the provisions of this section, including determining fair market value and negotiating terms and conditions of mineral leases.

(k) Once the lessee commences the production of minerals and royalties become due and are paid to the Public Land Corporation, the Public Land Corporation shall hire an independent auditing firm to periodically review the lessee's books and accounts for compliance of payment of appropriate royalties due the Public Land Corporation for its minerals as produced under the lease agreement.


WVC 5 A- 11 - 7 §5A-11-7. Effectuation of transfer of Public Land Corporation and transition.
To effectuate the transfer of the Public Land Corporation to Real Estate Division of the Department of Administration upon the effective date of this section in the year two thousand seven:

(1) Subject to the provisions of section one-d of this article, the Secretary of the Department of Administration or a designee and the Secretary of the Department of Commerce or a designee shall determine which employees, records, responsibilities, obligations, assets and property, of whatever kind and character, of the Public Land Corporation will be transferred to the Real Estate Division of the Department of Administration beginning the effective date of this section in the year two thousand seven: Provided, That any title transferred to or vested in the Public Land Corporation, formerly existing under the provisions of article one-a, chapter twenty of this code, as of the first day of July, two thousand seven, or which may hereafter become vested in the Public Land Corporation in accordance with the provisions of this article, shall continue to be vested in the Public Land Corporation.

(2) All orders, determinations, rules, permits, grants, contracts, certificates, licenses, waivers, bonds, authorizations and privileges which have been issued, made, granted or allowed to become effective by the Governor, by any state department or agency or official thereof, or by a court of competent jurisdiction, in the performance of functions which have been transferred to the Real Estate Division of the Department of Administration and were in effect on the date the transfer occurred continue in effect, for the benefit of the department, according to their terms until modified, terminated, superseded, set aside or revoked in accordance with the law by the Governor, the secretary of the Department of Administration, or other authorized official, a court of competent jurisdiction or by operation of law.

(3) Any proceedings, including, but not limited to, notices of proposed rulemaking, in which the Public Land Corporation was an initiating or responding party are not affected by the transfer of the Public Land Corporation to the Real Estate Division of the Department of Administration. Orders issued in any proceedings continue in effect until modified, terminated, superseded or revoked by the Governor, the Secretary of Administration, by a court of competent jurisdiction or by operation of law. Nothing in this subdivision prohibits the discontinuance or modification of any proceeding under the same terms and conditions and to the same extent that a proceeding could have been discontinued or modified if the Public Land Corporation had not been transferred to the Real Estate Division of the Department of Administration. Transfer of the Public Land Corporation does not affect suits commenced prior to the effective date of the transfer and all such suits and proceedings shall be had, appeals taken and judgments rendered in the same manner and with like effect as if the transfer had not occurred, except that the Secretary of the Department of Administration or other officer may, in an appropriate case, be substituted or added as a party.


WVC 5 A- 11 - 8 §5A-11-8.
Repealed.

Acts, 2010 Reg. Sess., Ch. 32.
Note: WV Code updated with legislation passed through the 2014 1st Special Session
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