W. Va. Code R. § 145-17-5 - Remedies
5.1. The Procurement Officer may require the
Department sections attempt to resolve any issues that it may have with the
vendor prior to pursuing a remedy contained herein. The Department sections
must document any resolution efforts and provide copies of those documents to
the Procurement Officer.
5.2.
Contract Cancellation.
5.2.1. The Procurement
Officer may cancel a purchase or contract immediately under any one of the
following conditions including, but not limited to:
5.2.1.a. The vendor agrees to
cancellation.
5.2.1.b. The vendor
has obtained the contract by fraud, collusion, conspiracy, or is in conflict
with any statutory or constitutional provision of the State of West
Virginia.
5.2.1.c. Failure to honor
any contractual term or condition or to honor standard commercial
practices.
5.2.1.d. The existence
of an organizational conflict of interest is identified.
5.2.1.e. Funds are not appropriated, or an
appropriation is discontinued by the legislature for the acquisition.
5.2.1.f. Violation of any federal, state, or
local law, regulation, or ordinance.
5.2.2. The Procurement Officer may cancel a
purchase or contract for any reason or no reason, upon providing the vendor
with 30 days' notice of the cancellation.
5.3. Opportunity to Cure.
5.3.1. In the event that a vendor fails to
honor any contractual term or condition, or violates any provision of federal,
state, or local law, regulation, or ordinance, the Procurement Officer may
request the vendor remedy the contract breach or legal violation within a time
frame the Procurement Officer deems appropriate.
5.3.2. If the vendor fails to remedy the
contract breach or legal violation or the Procurement Officer determines, at
his or her sole discretion, that such a request is unlikely to yield a
satisfactory result, then he or she may cancel immediately without providing
the vendor an opportunity to perform a remedy.
5.4. Re-Award. The Procurement Officer may
award a cancelled contract to the next lowest bidder (or next highest scoring
bidder if best value procurement) without a subsequent solicitation if the
following conditions are met:
5.4.1. The next
lowest responsible bidder (or next highest scoring bidder if best value
procurement) is able to perform at the price contained in its original bid
submission, and
5.4.2. The contract
is an open-end contract, a one-time purchase contract, or a contract for work
which has not yet commenced.
5.4.3.
Award to the next lowest responsible bidder (or next highest scoring bidder if
best value procurement) will not be an option if the vendor's failure has in
any way increased or significantly changed the scope of the original contract.
The vendor failing to honor contractual and legal obligations is responsible
for any increase in cost the state incurs as a result of the
re-award.
5.5.
Non-responsible.
5.5.1. If the Procurement
Officer believes that a vendor may be non-responsible, the Procurement Officer
may request a vendor or Department section provide evidence the vendor either
does or does not have the capability to fully perform the contract requirements
and the integrity and reliability necessary to assure good faith
performance.
5.5.2. If the
Procurement Officer determines the vendor is non-responsible, the Procurement
Officer shall reject the vendor's bid and shall not award the contract to that
vendor.
5.5.3. A determination of
non-responsibility must be evaluated on a case-by-case basis and can only be
made after the vendor in question has submitted a bid.
5.5.4. A determination of non-responsibility
will only extend to the contract for which the vendor has submitted a bid and
does not operate as a bar against submitting future bids.
5.6. Suspension by the Department.
5.6.1. The Director may suspend, for a period
not to exceed one year, the right of a vendor to bid on procurements issued by
the Procurement Office if:
5.6.1.a. The vendor
has exhibited a pattern of submitting bids and then requesting that its bid be
withdrawn after bids have been publicly opened. For purposes of this provision,
a pattern is two or more instances within a 12-month period.
5.6.1.b. The vendor has exhibited a pattern
of poor performance in fulfilling his or her contractual obligations to the
Department. Poor performance includes, but is not limited to, two or more
instances of any of the following:
5.6.1.b.1.
Violations of law, regulation, or ordinance;
5.6.1.b.2. Failure to deliver
timely;
5.6.1.b.3. Failure to
deliver quantities ordered;
5.6.1.b.4. Poor performance
reports;
5.6.1.b.5. Failure to
deliver commodities or services at the quality level required by the contract;
and
5.6.1.b.6. The vendor has
breached a contract issued by the Procurement Office or any section or office
and refuses to remedy that breach.
5.6.1.c. The Director shall suspend from
bidding on Department purchases up to one year, any vendor violating the West
Virginia Code or rules adopted by the Procurement Office.
5.6.2. Vendor suspension for the reasons
listed in subsection 5.6.1. of this rule shall occur as follows:
5.6.2.a. Upon a determination by the Director
that a suspension is warranted, the Director will serve a notice of suspension
to the vendor.
5.6.2.b. A notice of
suspension must inform the vendor:
5.6.2.b.1.
Of the grounds for the suspension;
5.6.2.b.2. Of the duration of the
suspension;
5.6.2.b.3. Of the right
to request a hearing contesting the suspension;
5.6.2.b.4. That a request for a hearing must
be served on the Director no later than five working days of the vendor's
receipt of the notice of suspension;
5.6.2.b.5. That when a vendor fails to
request a hearing in accordance with paragraph 5.6.2.b.4. of this rule, that
failure will be considered a waiver of the right to a hearing and will result
in automatic enforcement of the suspension without further notice or
opportunity to respond; and
5.6.2.b.6. That a request for a hearing must
include an explanation of why the vendor believes the Director's asserted
grounds for suspension do not apply and why the vendor should not be
suspended.
5.6.2.c. A
vendor's failure to request a hearing in accordance with paragraph 5.6.2.b.4.
of this rule will be considered a waiver of the right to a hearing and will
result in automatic enforcement of the suspension without further notice or
opportunity to respond.
5.6.2.d. A
vendor who files a timely request for a hearing but fails to provide an
explanation of why the asserted grounds for suspension are inapplicable or
should not result in suspension, may result in denial of the vendor's hearing
request.
5.6.2.e. Within five
working days of receiving the vendor's request for a hearing, the Director will
serve the vendor with a notice of hearing that includes the date, time, and
place of the hearing.
5.6.2.f. The
hearing will be recorded, and an official record prepared. Within 10 working
days of the conclusion of the hearing, the Director will issue and serve on the
vendor a written decision either confirming or reversing the
suspension.
5.6.3. A
vendor may appeal a decision of the Director to the Cabinet Secretary. The
appeal must be in writing and served on the Cabinet Secretary no later than
five working days of receipt of the Director's decision.
5.6.4. A vendor whose right to bid on
Department purchases has been suspended by the Director shall have the right to
have the Director's actions reviewed by the Cabinet Secretary, who shall have
the power and authority to set aside such suspension.
5.6.5. Any notice or service related to
suspension actions or proceedings must be provided by certified mail, return
receipt requested.
5.7.
Vendor Debarment by the Department.
5.7.1. The
Procurement Officer has primary responsibility for administering the debarment
process. The Procurement Officer's duties include:
5.7.1.a. Obtaining lists of vendors declared
ineligible under federal laws and regulations;
5.7.1.b. Notification of the Department
sections and offices regarding disbarred vendors;
5.7.1.c. Compiling and maintaining a current,
consolidated list of all vendors that have been disbarred or declared
ineligible, the period of such debarment, and the reasons therefor;
and
5.7.1.d. Investigating
complaints about vendors from the Department and its sections and offices
responsible for contracting with vendors for supplies and services.
5.7.2. The Director has primary
responsibility for initiating and conducting debarment procedures.
5.7.2.a. The Director may debar a vendor if
the vendor has been declared ineligible to participate in procurement related
activities under federal law and regulation, when the vendor's name appears on
the West Virginia Division of Purchasing or United States Excluded Parties List
System, on the basis of any one or more grounds for debarment pursuant to W.
Va. Code §
5A-3-33d,
or when any section or office requests debarment of a vendor and the Director
finds probable cause for debarment exists.
5.7.2.b. Vendor debarment shall be conducted
according to the following procedures:
5.7.2.b.1. The Director shall notify the
vendor by certified mail, return receipt requested, of the following:
5.7.2.b.1.A. 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;
5.7.2.b.1.B. The causes relied upon for the
proposed debarment;
5.7.2.b.1.C.
That within 10 working days after receipt of the notice, the vendor may submit
in writing information and argument in opposition to the proposed
debarment;
5.7.2.b.1.D. The
procedures governing debarment decision-making; and
5.7.2.b.1.E. The potential effect of the
proposed debarment.
5.7.2.b.2. A vendor that has received notice
of the proposed debarment by certified mail, return receipt requested, must
respond to the proposed debarment within 10 working days after receipt of
notice or the debarment will be instituted without further notice. A vendor is
deemed to have received notice, notwithstanding the vendor's failure to accept
the certified mail, if the letter is addressed to the vendor at its last known
address. After considering the matter and reaching a decision, the Director
shall notify the vendor of his or her decision by certified mail, return
receipt requested.
5.7.2.b.3. 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. Proof of grounds for debarment must be clear and
convincing.
5.7.2.b.4. In any
debarment decision, the Director shall specify the length of the debarment
period. The debarment period must be for the period of time the Director finds
necessary and proper to protect the public from an irresponsible
vendor.
5.7.2.b.5. In the event a
vendor wishes to contest the debarment decision, the Director shall decide the
matter in accordance with the provisions of W. Va. Code §
29A-5-1
etseq.
5.7.2.b.6.
Any vendor, other than a vendor prohibited from participating in a federal
procurement, undergoing debarment proceedings is permitted to continue
participating in the Department's procurement process until a final debarment
decision has been reached. Any contract that a debarred vendor obtains prior to
a final debarment decision shall remain in effect for the current term but may
not be extended or renewed. Notwithstanding the foregoing, the Director may
cancel a contract held by a debarred vendor if the Director determines, in his
or her sole discretion, that doing so is in the best interest of the
Department. A vendor prohibited from participating in federal procurement will
not be permitted to participate in the Department's procurement process during
debarment proceedings.
5.7.2.b.7.
If the Director's final debarment decision is that debarment is warranted and
notice of the final debarment decision is mailed, the Procurement Office shall
reject any bid submitted by the debarred vendor, including any bid submitted
prior to the final debarment decision if that bid has not yet been accepted and
a contract consummated.
5.7.3. Unless the Director determines in
writing there is a compelling reason to do otherwise, the Department may not
solicit offers from, award contracts to, nor consent to subcontract with a
debarred vendor during the debarment period.
5.7.4. The Procurement Officer may not
exercise an option to renew or otherwise extend a current contract with a
debarred vendor, nor a contract which is being performed in any part by a
debarred subcontractor, unless the Director approves the action in writing,
based upon compelling evidence for exercise of the option or
extension.
5.7.5. The Director may
extend the debarment to include a related party of the vendor. The Director
shall follow the same procedure, and afford the related party like notice,
hearing and other rights, for extending the debarment to the affiliate as
provided for under section 5.7. of this rule. For purposes of this subsection,
a related party may include:
5.7.5.a. Spouses,
parents, children, siblings, grandparents, or grandchildren of a debarred
vendor or individual;
5.7.5.b. Any
individual or entity that partially or completely owns, controls, or
influences, or is partially or completely owned, controlled, or influenced by
the actions of a debarred vendor or individual;
5.7.5.c. Entities that are related under
common ownership or control with a debarred vendor; or
5.7.5.d. A business entity or individual that
has contracted with or employed a debarred vendor or individual to perform work
on one or more public contracts.
5.7.6. The Director may reduce the period or
extent of debarment, upon the vendor's request supported by documentation, for
the following reasons:
5.7.6.a. Newly
discovered material evidence;
5.7.6.b. Reversal of the conviction or
judgment upon which debarment was based;
5.7.6.c. Elimination of the causes for which
the debarment was imposed; or
5.7.6.d. Other good cause shown, including
evidence that the vendor has become responsible.
5.7.7. The Director may extend the debarment
period for an additional period if he or she determines the extension is
necessary to protect the interests of the Department. 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 the Department, until
such time as the cause for the extended debarment is removed. If the Director
extends the debarment period he or she shall follow the same procedures, afford
the vendor like notice, hearing, and other rights for extending the debarment
as provided for debarment under this section of this rule.
5.7.8. A debarment under this rule may be
waived by the Director with respect to a particular contract if he or she
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.
5.8. Damages.
5.8.1. A vendor who fails to perform as
required under a contract shall be liable for actual damages and costs incurred
by the state.
5.8.2. If any
commodities delivered under a contract have been used or consumed by a section
or office and on testing the commodities are found not to comply with
specifications, no payment may be approved by the section or office for the
merchandise until the amount of actual damages incurred has been
determined.
5.8.3. The Department
shall seek to collect damages by following the procedures established by the
Office of the Attorney General for the collection of delinquent
obligations.
Notes
State regulations are updated quarterly; we currently have two versions available. Below is a comparison between our most recent version and the prior quarterly release. More comparison features will be added as we have more versions to compare.
No prior version found.