HB 2616 Text

COMMITTEE SUBSTITUTE
FOR
H. B. 2616
(By Delegates Brown, Miley, Burdiss,
Talbott, Overington and Pino)

(Originating in the Committee on the Judiciary)
[February 22, 2007]

A BILL to amend and reenact §64-1-1 of the Code of West Virginia, 1931, as amended; and to amend and reenact article 2, chapter 64 of said code , all relating generally to the promulgation of administrative rules by the various executive or administrative agencies and the procedures relating thereto; the promulgation of administrative rules by the Department of Administration and the procedures relating thereto legislative mandate or authorization; the promulgation of certain legislative rules by various executive or administrative agencies of the state; authorizing certain of the agencies to promulgate certain legislative rules in the form that the rules were filed in the State Register; authorizing certain of the agencies to promulgate certain legislative rules with various modifications presented to and recommended by the Legislative Rule-Making Review Committee; authorizing certain of the agencies to promulgate certain legislative rules as amended by the Legislature; authorizing certain of the agencies to promulgate certain legislative rules with various modifications presented to and recommended by the Legislative Rule-Making Review Committee and as amended by the Legislature; and disapproving certain rules; authorizing the Department of Administration to promulgate a legislative rule relating to purchasing; authorizing the Department of Administration to promulgate a legislative rule relating to cannibalization of state property; authorizing the Department of Administration to promulgate a legislative rule relating to waste disposal of state property; authorizing the Department of Administration to promulgate a legislative rule relating to the administration of state funds and grants; authorizing the Consolidated Public Retirement Board to promulgate a legislative rule relating to the deputy sheriff retirement system; authorizing the Consolidated Public Retirement Board to promulgate a legislative rule relating to the teachers' defined contribution system; authorizing the Consolidated Public Retirement Board to promulgate a legislative rule relating to teachers' retirement system; authorizing the Consolidated Public Retirement Board to promulgate a legislative rule relating to the public employees retirement system; authorizing the Consolidated Public Retirement Board to promulgate a legislative rule relating to refund, reinvestment and loan interest factors; authorizing the Division of Personnel to promulgate a legislative rule relating to the administrative rule of the Division of Personnel; authorizing the Division of Personnel to promulgate a legislative rule relating to workers' compensation TTD rule; authorizing the Division of Personnel to promulgate a legislative rule relating to interdepartmental transfer rule; and authorizing the Board of Risk & Insurance Management to promulgate a legislative rule relating to mine subsidence insurance.

Be it enacted by the Legislature of West Virginia:
That §64-1-1 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that article 2, chapter 64 of said code be amended and reenacted, all to read as follows:
ARTICLE 1. GENERAL LEGISLATIVE AUTHORIZATION.

§64-1-1. Legislative authorization.
Under the provisions of article three, chapter twenty-nine-a of the Code of West Virginia, the Legislature expressly authorizes the promulgation of the rules described in articles two through eleven, inclusive, of this chapter, subject only to the limitations set forth with respect to each such rule in the section or sections of this chapter authorizing its promulgation. Legislative rules promulgated pursuant to the provisions of articles one through eleven, inclusive, of this chapter in effect at the effective date of this section shall continue in full force and effect until reauthorized in this chapter by legislative enactment or until amended by emergency rule pursuant to the provisions of article three, chapter twenty-nine-a of this code.
ARTICLE 2. AUTHORIZATION FOR DEPARTMENT OF ADMINISTRATION TO PROMULGATE LEGISLATIVE RULES.

§64-2-1. Department of Administration.
(a) The legislative rule filed in the state register on the twenty-eighth day of July, two thousand six, authorized under the authority of section four, article three, chapter five-a, of this code, modified by the Department of Administration to meet the objections of the legislative rule-making review committee and refiled in the state register on the eleventh day of January, two thousand seven, relating to the Department of Administration (Purchasing, 148 CSR 1), is authorized with the following amendments:
On page 13, subdivision 7.10.1, after the first sentence, by striking out the remainder of subdivision 7.10.1 and inserting in lieu thereof the following:
"In arriving at a determination, the Director will consider the following factors, insofar as they are applicable:
(1) The quality, availability, and reliability of the supplies, materials, equipment, or service and their adaptability to the particular use required;
(2) The ability, capacity, and skill of the bidder;
(3) The sufficiency of the bidder's financial resources;
(4) The bidder's ability to provide maintenance, repair parts, and service;
(5) The compatibility with existing equipment;
(6) The need for flexibility in evaluating new products on a large scale before becoming contractually committed for all use; and
(7) Any other relevant factors.";
On page 14, subdivision 7.13.1, at the beginning of the first sentence, by striking out the word "The" and inserting in lieu thereof the words "For contracts for commodities and services in the amount of $1 million or less, the";
On page 14, after subdivision 7.13.1, by inserting a new subdivision, designated subdivision 7.13.2, to read as follows:
"7.13.2. For contracts for commodities and services in an amount exceeding $1 million, the following contract management procedures apply:
a. Post Award Conferences.
The agency administrator responsible for administering the contract shall hold a post award conference with the contractor to ensure a clear and mutual understanding of all contract terms and conditions, and the respective responsibilities of all parties. The agenda for the conference shall include, at a minimum, the introduction of all participants and identification of agency and contractor key personnel, and discussion of the following items:
(1) The scope of the contract, including specifications of what the agency is buying;
(2) The contract terms and conditions, particularly any special contract provisions;
(3) The technical and reporting requirements of the contract;
(4) The contract administration procedures, including contract monitoring and progress measurement;
(5) The rights and obligations of both parties and the contractor performance evaluation procedures;
(6) An explanation that the contractor will be evaluated on its performance both during and at the conclusion of the contract and that such information may be considered in the selection of future contracts;
(7) Potential contract problem areas and possible solutions;
(8) Invoicing requirements and payment procedures, with particular attention to whether payment will be made according to milestones achieved by the contractor;
(9) An explanation of the limits of authority of the personnel of both the agency and the contractor.
b. Monitoring.
The agency shall develop a comprehensive and objective monitoring checklist which:
(1) Measures outcomes;
(2) Monitors compliance with contract requirements; and
(3) Assesses contractor performance.
c. Reports.
The agency shall make the following reports to the Director, on a schedule established by the Director, but not less frequently than once each year:
(1) Status Reports. Status reports describe the progress of the work; track the organizational structure of the statement of work in terms of phases, segments, deliverables and products; and describe what work is complete and what work is pending and contrast that status against the contract schedule. If there are any unresolved issues that the agency is contractually obligated to resolve, those issues should be included in the status report and a resolution should be requested.
(2) Activity Reports. Activity reports describe all activity on the project, regardless of whether substantial progress has been made toward completion of the project. If payment is based on the number of completed transactions, these activities must be specifically set out in the report.";
On page 14, after subsection 7.13, by inserting the following:
"7.14. Inspection.
17.14.1. The agency shall inspect all materials, supplies, and equipment upon delivery to insure compliance with the contract requirements and specifications.
17.14.2. The agency shall report any discrepancies to the Director immediately.
17.14.3. If unlisted shortages are discovered, the vendor and the Director must be notified immediately.
17.14.4. A contractor may be required to pick up any merchandise not conforming to specifications and replace the merchandise immediately.
7.15. Substitutions.
Substitution of items called for in a contract is not permitted without the Director's prior approval. The Director will not approve substitution of items unless the substituted items are of equal quality and are offered at the same or lower price.
7.16. Cancellations.
7.16.1. The director may cancel a purchase or contract under any one of the following conditions including, but not limited to:
(a) The vendor agrees to the cancellation;
(b) The vendor has obtained the contract by fraud, collusion, conspiracy, or in conflict with any statutory or constitutional provision of the state of West Virginia;
(c) Failure to conform to contract requirements or standard commercial practices;
(d) The existence of an organizational conflict of interest is identified; or
(e) Funds are not appropriated or an appropriation is discontinued by the legislature for the acquisition.
17.16.2. Notwithstanding other provisions of this subdivision, the Director may cancel a purchase or contract for any reason or for no reason, upon 30 days' notice to the vendor.
7.17. Damages.
7.17.1. A vendor who fails to perform as required under a contract shall be liable for actual damages and costs incurred by the state.
17.17.2. If any merchandise delivered under a contract has been used or consumed by an agency and on testing is found not to comply with specifications, no payment may be approved by the Director for the merchandise until the amount of actual damages incurred has been determined.
17.17.3. The Director shall seek to collect damages by following the procedures established by the Office of the Attorney General for the collection of delinquent obligations."; and
On page 17, section §148-1-11, after subsection 11.1, by striking out subsections 11.2, 11.3, 11.4 and 11.5 in their entirety and inserting in lieu thereof the following:
"11.2. The state spending unit for surplus property may contract with one or more nationally recognized commercial Internet auction sites to coordinate sales of surplus property, pursuant to the provisions of §5A-3-45 of the West Virginia Code and this rule.
11.3. To ensure that organizations eligible under Federal Property Management Regulations (41 CFR Chapter 101) have priority in obtaining surplus property, all surplus property will be listed on the West Virginia State Agency for Surplus Property website for at least five (5) working days prior to being made available on an Internet auction site." .
(b) The legislative rule filed in the state register on the eleventh day of July, two thousand six, authorized under the authority of section forty-five, article three, chapter five-a, of this code, modified by the Department of Administration to meet the objections of the legislative rule-making review committee and refiled in the state register on the sixteenth day of August, two thousand six, relating to the Department of Administration (cannibalization of state property, 148 CSR 16), is authorized, with the following amendment:
On pages one and two, by striking out section four in its entirety and renumbering the remaining section accordingly;
On page two, section five, by inserting a new subsection to read as follows:
"4.1. State assets shall be disposed of exclusively through the state agency for surplus property.";
On page two, section five, by redesignating subsections 5.1. through 5.6. as subsections 4.2. through 4.7.;
On page two, subdivisions 5.1.a. through 5.1.c., by inserting the word "The" before the word "commodity";
On page two, subdivision 5.1.d., by inserting the word "A" before the word "description";
On page two, subdivision 5.1.e., by capitalizing the word "whether"; after the word "If", by inserting the word "the"; and by striking out the words "why the agency is" and inserting in lieu thereof the word "for";
On page two, subdivision 5.1.f., by capitalizing the word "how";
On page two, subdivision 5.1.g., lines one and two, by capitalizing the word "who" and, after the word "document", by inserting a comma and the words "signed by the spending officer,";
On page two, subdivision 5.1.g., line three, by striking out the words "which will identify" and inserting in lieu thereof the word "identifying";
On page two, subdivision 5.1.g., line five, by striking out the words "qualification. This document must be signed by the spending officer." and inserting in lieu thereof the word "qualifications";
On pages two and three, by striking out subsection 5.2. in its entirety and by inserting in lieu thereof the following:
"4.2.a. If the agency plans to use the cannibalized parts immediately, it must provide the following additional information:
4.2.a.1. Whether the part restores the commodity to an operable condition;
4.2.a.2. If the part does not restore the property to an operable condition, additional justification for the initial cannibalization, along with the additional steps required to restore the property to an operable condition; and
4.2.a.3. The cost of the parts and labor to restore the commodity to an operable condition without cannibalization.
4.2.b. The agency must properly retire an inoperable part being replaced to the state agency for surplus property using the authorized means of disposal outlined in W. Va. Code §5A-3-45.
4.2.c. The Director shall make a comparison of the current value of the asset being cannibalized, the value of the property being repaired and the cost to repair the item without cannibalization. The Director will not authorize cannibalization unless the value of the repaired asset exceeds the value of the asset to be cannibalized, along with the cost of the cannibalization/repair process."
On page three, subsection 5.3., lines one and two, after the word "use", by inserting a comma and the words "it must submit written"; after the word "justification" by striking out the words "must be submitted"; after the word "to" by striking out the words "and approved by"; and, after the word "property" by inserting the words "for approval";
On page three, subsection 5.3. by striking out "5.3.a." and by redesignating paragraphs 5.3.a.1. through 5.3.a.4 as subdivisions 4.3.a. through 4.3.d.;
On page three, paragraph 5.3.a.1., by striking out the words "the potential" and inserting in lieu thereof the word "The";
On page three, paragraph 5.3.a.2. by capitalizing the word "the" at the beginning of the paragraph;
On page three, paragraph 5.3.a.3. by capitalizing the word "the" at the beginning of the paragraph and, after the word "stored;", by inserting the word "and";
On page three, paragraph 5.3.a.2. by capitalizing the word "the" at the beginning of the paragraph;
On page three, subsection 5.5., lines one and two, by striking out the words "make determination' and inserting in lieu thereof the word "determine" and by capitalizing the word "state";
On page three, paragraph 5.5.a. by striking out the word "The" and inserting in lieu thereof the words "Does the" and, after the word "cannibalized", by inserting a question mark;
On page three, paragraph 5.5.b. by striking out the words "There is" and inserting in lieu thereof the words "Is there" and, after the word "form;", by inserting "?; and";
On page three, paragraph 5.5.c., by striking out the word "The" and inserting in lieu thereof the words "Does the"; by striking out the words "does not"; by capitalizing the word "state"; by striking out the word "non-used" and inserting in lieu thereof the word "unused"; and, after the word "components" by changing the period to a question mark;
And,
On page three, section 5.6, line one, after the words "review the" by inserting the word "agency".
(c) The legislative rule filed in the state register on the eleventh day of July, two thousand six, authorized under the authority of section forty-five, article three, chapter five-a, of this code, modified by the Department of Administration to meet the objections of the legislative rule-making review committee and refiled in the state register on the sixteenth day of August, two thousand six, relating to the Department of Administration (waste disposal of state property, 148 CSR 17), is authorized.
(d) The legislative rule filed in the state register on the twenty-sixth day of July, two thousand six, authorized under the authority of section fourteen, article four, chapter twelve, of this code, modified by the Department of Administration to meet the objections of the legislative rule-making review committee and refiled in the state register on the twentieth day of November, two thousand six, relating to the Department of Administration (administration of state funds and grants, 148 CSR 18), is authorized.
§64-2-2. Consolidated Public Retirement Board.
(a) The legislative rule filed in the state register on the twelfth day of July, two thousand six, authorized under the authority of section one, article ten-D, chapter five, of this code, modified by the Consolidated Public Retirement Board to meet the objections of the legislative rule-making review committee and refiled in the state register on the nineteenth day of September, two thousand six, relating to the Consolidated Public Retirement Board (deputy sheriff retirement system, 162 CSR 10), is authorized.
(b) The legislative rule filed in the state register on the twelfth day of July, two thousand six, authorized under the authority of section one, article ten-D, chapter five, of this code, relating to the Consolidated Public Retirement Board (teachers' defined contributions system, 162 CSR 3), is authorized.
(c) The legislative rule filed in the state register on the twelfth day of July, two thousand six, authorized under the authority of section one, article ten-D, chapter five, of this code, relating to the Consolidated Public Retirement Board (teachers' retirement system, 162 CSR 4), is authorized.
(d) The legislative rule filed in the state register on the twelfth day of July, two thousand six, authorized under the authority of section one, article ten-D, chapter five, of this code, modified by the Consolidated Public Retirement Board to meet the objections of the legislative rule-making review committee and refiled in the state register on the nineteenth day of September, two thousand six, relating to the Consolidated Public Retirement Board (public employees retirement system, 162 CSR 5), is authorized.
(e) The legislative rule filed in the state register on the twelfth day of July, two thousand six, authorized under the authority of section one, article ten-D, chapter five, of this code, modified by the Consolidated Public Retirement Board to meet the objections of the legislative rule-making review committee and refiled in the state register on the nineteenth day of September, two thousand six, relating to the Consolidated Public Retirement Board (Refund, reinstatement and loan interest factors, 162 CSR 7), is authorized.
§64-2-3. Division of Personnel.
(a) The legislative rule filed in the state register on the twenty-first day of July, two thousand six, authorized under the authority of section ten, article six, chapter twenty-nine, of this code, modified by the Division of Personnel to meet the objections of the legislative rule-making review committee and refiled in the state register on the thirtieth day of November, two thousand six, relating to the Division of Personnel (administrative rule of the West Virginia Division of Personnel, 143 CSR 1), is authorized with the following amendment:
On page seven, subsection 3.88, following the words "not to exceed", by striking out the number "1,000" and inserting in lieu thereof the number "720";
On page twenty-one, subsection 9.4, following the words "not to exceed", by striking out the number "1,000" and inserting in lieu thereof the number "720";
And,
On page twenty-two, subsection 9.5, by striking subsection (e) in its entirety, and by redesignating the remaining subsections accordingly.
(b) The legislative rule filed in the state register on the twenty-first day of July, two thousand six, authorized under the authority of section one, article four, chapter twenty-three, of this code, relating to the Division of Personnel (workers' compensation temporary total disability, 143 CSR 3), is authorized.
(c) The legislative rule filed in the state register on the seventeenth day of February, two thousand six, authorized under the authority of section two, article two, chapter five-F, of this code, modified by the Division of Personnel to meet the objections of the legislative rule-making review committee and refiled in the state register on the twenty-first day of November, two thousand six, relating to the Division of Personnel (interdepartmental transfer of permanent state employees, 143 CSR 7), is authorized.
§64-2-4. Board of Risk and Insurance Management.
The legislative rule filed in the state register on the twenty-first day of July, two thousand six, authorized under the authority of section fifteen, article thirty, chapter thirty-three, of this code, modified by the Board of Risk and Insurance Management to meet the objections of the legislative rule-making review committee and refiled in the state register on the third day of November, two thousand six, relating to the Board of Risk and Insurance Management (mine subsidence insurance, 115 CSR 1), is authorized.

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