W. Va. Code R. § 145-17-6 - Registration, Advertising, Bidding, and Award
6.1.
Registration of Vendors.
6.1.1. All vendors
must register through the Vendor Self-Service portal with the Purchasing
Division prior to being awarded a contract by the Department. W. Va. Code
§
5A-3-12
requires the Disclosures of Information, such as ownership, all names under
which a vendor is doing business, their physical address and its corporate
offices.
6.1.2. Purchasing Division
Fee Payment.
6.1.2.a. All vendors shall pay
the Purchasing Division annual registration fee or be exempt from the payment
requirement pursuant to W. Va. Code of State Rules, Series 148 Title 1,
Purchasing, prior to being awarded a contract by the Department, except that
the Procurement Officer may exempt the following categories of vendors from
this requirement.
6.1.2.a.1. Vendors providing
a good or service under a direct award solicitation are not required to pay the
registration fee. The fee is considered waived by the Procurement Officer for
all direct award providers.
6.1.2.a.2. Any vendor can be exempted from
paying the registration fee if the Procurement Officer determines that waiving
the registration fee would be in the best interest of the Department.
6.1.3. Other
registrations. Licenses, etc.
6.1.3.a. The
vendor must be licensed and in good standing in accordance with any and all
state and local laws and requirements by any state or local agency of West
Virginia, including, but not limited to, the West Virginia Secretary of State's
Office, the West Virginia State Tax Department, West Virginia Office of the
Insurance Commissioner, the West Virginia State Auditor, the West Virginia
State Treasurer, or other state agencies or political subdivisions prior to
being awarded a contract. The vendor must provide all necessary releases to
obtain information necessary to verify that the vendor is licensed and in good
standing with the above entities.
6.1.4. Failure to Register.
6.1.4.a. The Procurement Officer is
prohibited from awarding any contract to any vendor not properly registered
with the Purchasing Division. If a vendor is eligible to be awarded or has been
awarded a contract and it is determined that the vendor has failed to comply
with the requirements of Section 6. of this rule, the vendor will be given a
period of time that the Procurement Officer deems sufficient to cure the
failure. If after that period, vendor has not cured the failure, the
Procurement Officer may cancel the contract.
6.2. Advertising.
6.2.1. Solicitations that exceed $25,000.01
must be advertised using available media such as wvOasis, newspapers, trade
journals, or any other media the Procurement Officer considers
advisable.
6.2.2. The type and
duration of advertising completed is at the Procurement Officer's
discretion.
6.2.3. This provision
shall not apply to expressions of interest procured by the sections or offices
pursuant to W. Va. Code §
5G-1-4
or other solicitations governed by law that mandates certain advertising
requirements be met.
6.3. Bidding.
6.3.1. The Procurement Office must receive
bids from vendors prior to the date and time of the bid closing listed on the
solicitation forms provided by the Procurement Office.
6.3.2. The Procurement Officer must reject
bids received after the designated time and date. Each vendor is solely
responsible for delivering its bid to the Procurement Office.
6.3.3. An authorized representative of the
vendor must sign all bids submitted to the Procurement Office. A corporate or
other business entity signature without an individual name is not an acceptable
signature.
6.3.4. The Procurement
Officer may allow bids by electronic transmission as defined in W. Va. Code
§
5A-1-1(6).
Bids by electronic transmission must be received by the Procurement Office
prior to the bid closing date and time. A bid will not be considered received
until after transmission is completed.
6.3.5. A vendor choosing to submit a bid or a
written change to a bid by electronic transmission accepts full responsibility
for transmission and receipt of the bid or written change to a bid. The
Department accepts no responsibility for the unsuccessful and/or incomplete
transmission of bids or changes to bids by electronic transmission. Bids
submitted via electronic transmission may not be sealed until received by the
Procurement Office. The Procurement Office makes no guarantee of
confidentiality when vendors utilize electronic transmission.
6.3.6. Copies of bids may be open for public
inspection in the office of the Procurement Office at any time after the
completion of the public bid opening. No original bid may be removed from the
presence of a Procurement Office representative. The Procurement Officer may
prescribe policies to include scanning, copying, or other methods of assuring
public access. The files of the Procurement Office are open for public
inspection after the award has been made.
6.3.7. A bidder may make a change to a sealed
bid before the bid closing. A bidder must submit changes in writing or by
electronic transmission to the Procurement Office. To be effective, any change
must be received by the Procurement Office prior to the date and time of the
bid closing.
6.3.8. The Procurement
Officer may reject a bid a vendor declares erroneous after the bid opening, but
otherwise appears to be responsive, if all of the following conditions exist:
6.3.8.a. An error was made;
6.3.8.b. The error materially affected the
bid;
6.3.8.c. Rejection of the bid
would not cause a hardship on the sections or offices involved other than
losing an opportunity to receive commodities and services at a reduced
cost;
6.3.8.d. Enforcement of the
part of the bid in error would be unconscionable; and
6.3.8.e. In order for the Procurement Officer
to reject a bid under this subsection, the public file must contain documented
evidence that all of the conditions set forth in this subsection
exist.
6.3.9. The
Procurement Officer must reject a bid that is found to be
non-responsive.
6.3.10. If there is
a conflict between the extension price and the unit price in the bid, the unit
price prevails.
6.3.11. Vendor must
disclose any instance where the vendor's bid fails to comply with the
requirements of the solicitation, which includes but is not limited to, failure
to comply with a mandatory requirement or goods or services not meeting the
required specifications. If changes are not stated, the Procurement Officer may
assume that items offered meet specifications.
6.3.12. Vendors are responsible for the
accuracy of the information on and in the bid envelopes.
6.3.13. Vendors may contact the Procurement
Office to obtain official bid forms.
6.3.14. All sales to the State of West
Virginia are exempt from Consumer Sales Tax or Excise Tax by blanket state
exemption and blanket federal exemption.
6.4. Awards.
6.4.1. Any award made by the Procurement
Officer will be in accordance with the law governing the type of procurement
being awarded. The Procurement Officer may make multiple or split awards when
it is in the best interest of the Department.
6.4.2. The Procurement Officer may accept or
reject, in whole or in part, any bid when the Procurement Officer feels it to
be in the best interest of the Department. If any bid is rejected, the
Procurement Officer shall place a written explanation in the purchase order
file.
6.4.3. When tie bids are
received, the Procurement Officer shall break the tie by the flip of a coin,
draw of the cards, or any other impartial method considered prudent by the
Procurement Officer.
6.4.4. Vendor
Preference.
6.4.4.a. Reciprocal Preference.
Reciprocal preference as described in W. Va. Code §
5A-3-37(b)
applies to commodities. For purposes of application of reciprocal preference,
the term commodity will include any contract that involves a commodity being
provided to the Department, even if the majority of the contract relates to
services. This rule does not apply to construction let to bid under W. Va. Code
§
5-22-1.
Any vendor that desires to receive the reciprocal preference contained in W.
Va. Code §
5A-3-37(b)
must request the preference in writing at the time of bid submission and
provide all documentation necessary to prove its status as a resident of West
Virginia, as that term is defined in W. Va. Code §
5A-3-37(a),
at the time of bid submission. That required documentation must include:
6.4.4.a.1. A Certificate of Good Standing
from the West Virginia Tax Department;
6.4.4.a.2. Documentation filed with the
Secretary of State showing the state of incorporation, the address of all
officers, the corporate headquarters, the address of the principal place of
business, and other pertinent information. Entities not required to file with
the Secretary of State may provide an affidavit confirming that the
headquarters or principal place of business is in West Virginia, along with a
copy of a utility bill in the name of the business entity;
6.4.4.a.3. A copy of the most recent personal
property tax ticket showing taxes have been paid; and
6.4.4.a.4. An affidavit confirming that the
business entity has paid all applicable business taxes imposed by Chapter 11 of
the West Virginia Code.
6.4.4.b. Preference for Motor Vehicles and
Construction and Maintenance Equipment and Machinery. Any vendor providing the
Department with motor vehicles or construction and maintenance equipment and
machinery used in highway and other infrastructure projects that desires to
receive the preference contained in W. Va. Code §
5A-3-37(c)
must request the preference in writing at the time of bid submission and
provide all documentation necessary to prove its entitlement to the preference
requested at the time of bid submission. Required documentation will vary
depending on the preference requested, but acceptable forms of documentation
are described below.
6.4.4.b.1. Resident
Vendor Documentation. A vendor's status as a West Virginia resident can be
proven with the documentation listed in subdivision 6.4.4.a. of this
section.
6.4.4.b.2. Continuous
Residency. Continuous residency of business entities can be established by
providing the documentation required in subdivision 6.4.4.a. of this rule for
the requisite number of years. Continuous residency for employees can be
established by including the number of years of residency in West Virginia for
each employee included in the list described in paragraph 6.4.4.b.3. of this
subdivision.
6.4.4.b.3. Employment.
Employment numbers and employment percentages can be verified by submitting a
list of employees by first initial and last name and including each employee's
city and state of residence with a sworn statement that the list is complete
and accurate.
6.4.4.b.4. Ownership.
Ownership requirements can be verified by the vendor submitting an affidavit
listing each owner and that owner's ownership share as a percentage of the
whole entity.
6.4.4.b.5. Veteran
Status. Veteran status can be verified by including applicable federal forms
that designate the vendor as a veteran.
6.4.5. Requirements for bonds and deposits.
6.4.5.a. The Procurement Officer shall
determine the applicability and amount of bonds or deposit required of a vendor
at any time, if it is judged the security is necessary to safeguard the
Department from undue risk.
6.4.5.b. The Procurement Officer may require
the vendor to submit a performance bond, litigation bond or other security
acceptable to the Procurement Officer, payable to the State of West Virginia.
Neither personal checks nor company checks are acceptable.
6.4.5.c. Vendors can request that bonds or
other security be returned after the purpose for which the bond was provided
has been fulfilled. Upon confirmation from the sections, offices, or other
relevant party that the bond or security in question has fully served its
purpose, the Procurement Officer may return the bond or security.
6.5. Specification.
6.5.1. Specifications must be written to
encourage competition to the fullest extent possible. No person may write
specifications, or attempt to influence the drafter of specifications, to limit
competition or favor or disfavor a particular brand or vendor. Sections and
offices may not use brand or vendor names to restrict competition. If, however,
brand names are used to adequately describe a needed commodity or service, the
brand or vendor name must be followed by the phrase "or equal' to promote and
encourage competition.
6.5.1.a. Examples of
limiting competition or favoring a brand or vendor include, but are not limited
to:
6.5.1.a.1. Drafting specifications to
match a vendor's description of its commodity or service to the exclusion of
others;
6.5.1.a.2. Listing a brand
name in specifications without noting that equivalent products will be
considered; and
6.5.1.a.3. Drafting
specifications that are so restrictive that only one desired vendor can meet
the requirements without adequate justification for the restrictions.
6.5.1.b. Nothing contained in this
section will be construed to prevent sections or offices from drafting
specifications with restrictions and mandatory requirements that are necessary
to perform the objectives for which the commodity or service is
purchased.
6.5.1.c. Reduced need
for training, maintaining consistency in inventory, staff familiarity, and
similar other objectives will not be sufficient to justify restrictions in
specifications.
6.5.1.d. Sections
and offices that use a brand or vendor name to describe a needed commodity or
service must also list in the specifications the mandatory components of that
commodity or service that the reference to a brand or vendor name is intended
to capture.
6.5.1.e. A vendor's
equality with the brand or vendor name will be evaluated on the basis of the
mandatory components only. If a vendor bids a commodity or service that is
equal to the brand or vendor name with regard to all identified mandatory
components, the Procurement Officer shall not disqualify the vendor's bid due
to inequality on non-mandatory components.
6.5.1.f. Any section or office request to
disqualify a vendor on the grounds that the vendor has bid an unequal product
must be accompanied by written justification listing the mandatory component
that is unequal and explaining how the product bid is
unequal.
6.5.2. The
Procurement Officer may develop standard specifications that will form the
basis of Agency contracts used by sections and offices. Standard specifications
shall include information relating to the cost of maintenance and expected life
of the commodities and services when the Procurement Officer determines there
are applicable nationally accepted standards.
6.5.3. The Procurement Office has final
approval over specifications and may require the sections or offices modify
specifications. In the event the sections or offices refuse to make the
required changes, the Procurement Officer is prohibited from issuing a
solicitation until the sections or offices provide the Procurement Officer with
a written explanation for the refusal that the Procurement Officer deems
satisfactory.
6.6. Bid
Evaluation.
6.6.1. Evaluators of bids must
certify that no financial, personal, or other conflict of interest exists
relating to any vendor or vendor representative that has submitted a bid. The
Procurement Office may develop a form that evaluators can sign for
certification purposes of this subsection.
6.6.2. From the time a requisition is
submitted to the Procurement Office for public advertisement until an award is
made, evaluators and section and office personnel are not permitted to
communicate with vendors about the solicitation or any component thereof
without prior approval from the Procurement Office.
6.6.2.a. All communications regarding the
solicitation must be directed to the Procurement Office until an award has been
made.
6.6.2.b. Nothing in this
subsection, however, shall prevent the evaluators and section and office
personnel from communicating with a vendor about existing contracts or other
matters unrelated to the solicitation in question.
6.7. Deliveries.
6.7.1. Sections and offices are responsible
for:
6.7.1.a. The inspection of commodities
and services upon delivery to ensure purchases meet contractual
requirements.
6.7.1.b. Maintaining
records of receipt.
6.8. Change Orders.
6.8.1. The Procurement Officer has the duty
and responsibility to review and approve change orders just as he or she has
the duty and responsibility for review and approval of the original
contract.
6.8.2. Change order
submission.
6.8.2.a. Sections and offices
desiring to make a change to a contract must submit a request for the contract
change to the Procurement Office.
6.8.2.b. Any change order request submitted
to the Procurement Office that requires vendor agreement must include the
vendor's agreement in writing.
6.8.3. The Procurement Officer may ask for,
and the section and offices must provide, any documentation or further
explanation that the Procurement Officer deems necessary to aid in reviewing a
change order request.
6.8.4.
Rejection.
6.8.4.a. The Procurement Officer
shall reject the change order if upon review he or she determines that:
6.8.4.a.1. It has not been properly
justified.
6.8.4.a.2. Fails to
include necessary documentation.
6.8.4.a.3. Is or could be construed as an
attempt to circumvent the bidding process.
6.8.4.a.4. Or is otherwise unfit to be
approved.
6.8.5. Change orders must be approved by the
Attorney General's office, as to form, just as the original contract is
approved as to form by that office.
6.8.6. Timing of Work.
6.8.6.a. Sections and offices must not permit
vendors to perform work that the sections or offices anticipate will be added
to a contract through a change order until such time as the change order has
been:
6.8.6.a.1. Formally approved by the
Procurement Office and the Attorney General's Office;
6.8.6.a.2. Encumbered by the Procurement
Office; and
6.8.6.a.3. Mailed to
the vendor.
6.8.6.b.
This subsection related to timing of work does not apply to government
construction contracts executed pursuant to W. Va. Code §
5-22-1
et seq.
Notes
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