Senate Bill No. 363
(By Senators Kessler (Mr. President) and M. Hall,
By Request of the Executive)
[Originating in the Committee on Government Organization;
reported March 27, 2013.]
A BILL to amend and reenact §5A-3-3 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto three new sections, designated §5A-3-10d, §5A-3-60 and §5A-3-61, all relating to the Purchasing Division; clarifying the powers and duties of the director under the direction and supervision of the Administration Secretary; prohibiting the Purchasing Division from using the secondary bid process commencing July 1, 2013; requiring annual purchasing training for executive branch officials; creating a Purchasing Task Force; study and reporting requirements for the task force; and expense reimbursement for legislative members of the task force.
Be it enacted by the Legislature of West Virginia:
That §5A-3-3 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto three new sections, designated §5A-3-10d, §5A-3-60 and §5A-3-61, all to read as follows:
ARTICLE 3. PURCHASING DIVISION.
§5A-3-3. Powers and duties of director of purchasing.
The director, under the direction and supervision of the secretary, shall be the executive officer of the Purchasing Division and shall have the power and duty to:
(1) Direct the activities and employees of the Purchasing Division;
(2) Ensure that the purchase of or contract for commodities shall be based, whenever possible, on competitive bid;
(3) Maintain a record of all procurements and purchases not obtained under the competitive bid process set out in section ten
of this article;
(4) Propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code, that are consistent with, and not contrary to, the provisions of this article;
(5) Provide a handbook that is consistent with, and not contrary to, the provisions of this article;
(3) Purchasing (6) Purchase or contract for, in the name of the state, the commodities and printing required by the spending units of the state government;
(4) (7) Apply and enforce standard specifications established in accordance with section five of this article; as hereinafter provided
(5) (8) Transfer to or between spending units or sell commodities that are surplus, obsolete or unused as hereinafter provided in this article;
(6) (9) Have charge of central storerooms for the supply of spending units, as the director deems advisable;
(7) (10) 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 in this article, as the director deems advisable;
(8) (11) 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) (12) 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 the provisions and terms, and the this duty of examination and approval herein set forth does not supersede the responsibility and duty of the Attorney General to approve such contracts as to form: Provided, That the provisions of this subdivision do not apply in any respect whatever to construction or repair contracts entered into by the Division of Highways of the Department of Transportation: Provided, however, That the provisions of this subdivision do not apply in any respect whatever to contracts entered into by the University of West Virginia Board of Trustees or by the Board of Directors of the State College System, except to the extent that such boards request the facilities and services of the director under the provisions of this subdivision; and
(10) (13) Assure that the specifications and commodity descriptions in all “requests for quotations” are prepared so as to permit all potential suppliers-vendors who can meet the requirements of the state an opportunity to bid and to assure that the specifications 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 having different specifications or quality or in different quantity can be bought, the director may rewrite the “requests for quotations” and the matter shall be rebid. If a matter has to be rebid, then the director must state the reasons for the rebid in writing and place it in the file.
§5A-3-10d. Prohibition of secondary bid process.
Commencing July 1, 2013, the Purchasing Division is prohibited from using the secondary bid process to procure commodities and services.
§5A-3-60. Annual purchasing training.
(a) Commencing July 1, 2013, all executive department secretaries, commissioners, deputy commissioners, assistant commissioners, directors, deputy directors, assistant directors, department heads, deputy department heads and assistant department heads are required to take one hour of training on purchasing procedures annually.
(b) The Director of the Purchasing Division shall provide the required one-hour training at least two times per year. The training shall include purchasing requirements and procedures set out in this article. 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.
§5A-3-61. Purchasing Task Force; study; report.
(a) The President of the Senate and the Speaker of the House of Delegates shall convene a Purchasing Task Force to study:
(1) Purchasing procedures;
(2) The purchasing process;
(3) The current purchasing code and legislative rules;
(4) The Purchasing Division’s Procedures Handbook;
(5) The possible adoption of the Model Procurement Act, in whole or part;
(6) Procurement methods currently being used, including, but not limited to, open-ended contracts, piggyback contracts and contracts awarded to multiple vendors; and
(7) Alternative procurement methods, including, but not limited to, reverse auctions and multiple-step sealed bidding.
(b) The Purchasing Task Force shall consist of:
(1) Three Senators appointed by the President of the Senate;
(2) Three Delegates appointed by the Speaker of the House of Delegates; and
(3) One representative from the Governor's Office.
(c) The Purchasing Task Force shall report to the Joint Committee on Government and Finance by January 1, 2014. The report shall include recommendations and proposed legislation.
(d) A state agency shall provide information requested by the Purchasing Task Force in a timely manner.
(e) The members of the Legislature appointed to the Purchasing Task Force shall receive reimbursement for expenses incurred while performing duties as members thereof, as provided in section seven, article two-a, chapter four.