W. Va. Code R. § 145-17-7 - Purchasing Methods
7.1. Purchases of $25,000 or less.
7.1.1. Sections and offices may make
purchases of $25,000 or less per transaction for commodities and services
without processing the purchase as a formal solicitation through the
Procurement Office, provided the sections and offices adhere to the most
current Procurement Office purchasing rule established by the
Department.
7.1.2. Sections and
offices must keep records of these purchases on file and make them available
for public inspection during the normal office hours of the sections and
offices.
7.1.3. Sections and
offices shall not issue a series of requisitions or divide or plan procurements
to circumvent competitive bidding or spending thresholds, otherwise known as
stringing.
7.1.4. If a section or
office fails to comply with the rule established for purchases of $25,000 or
less, the Procurement Officer has the ability to recommend to the Director for
approval the following corrective actions:
7.1.4.a. Suspend or reduce purchasing
permission for that section or office.
7.1.4.b. Require the section or office to
provide additional reports and documentation relating to purchases of $25,000
or less for Procurement Office review.
7.1.4.c. Require the section or office to
submit to additional oversight that the Procurement Officer deems
appropriate.
7.1.4.d. Require the
section or office personnel responsible for purchases of $25,000 or less
participate in remedial training as approved by the Procurement
Office.
7.2.
Purchases in excess of $25,000.01.
7.2.1.
Purchases of commodities and services that exceed $25,000.01 shall be made by
the Procurement Office.
7.2.2. The
use of a purchase order is required for purchases over $25,000.01 and the
agency shall continue to submit contracts to the Attorney General's office for
approval.
7.3. Open End
Contracts and Statewide Contracts.
7.3.1. The
Department may secure open end contracts to obtain commodities and services to
supply the repetitive needs of the sections and offices in the form of
statewide contracts, blanket orders, or section and office contracts.
7.3.2. If the Procurement Officer establishes
a Department open end contract or Statewide contract, any section or office
covered by the contract is required to use it unless not using the contract
would result in a lower purchase price for a comparable commodity.
7.3.2.a. The Procurement Officer may grant
sections and offices a waiver that permits the section or office to purchase
from a source other than the open-end contract.
7.3.3. If the Procurement Officer establishes
a Department contract, all sections and offices are required to use it.
7.3.3.a. The Procurement Officer may grant
sections or offices a waiver that permits the section or office to purchase
from a source other than the Department contract.
7.3.4. Granting of a waiver from an open end,
Statewide or Department contract will be considered on a case-by-case basis and
will only be granted if the Procurement Officer determines the waiver is in the
best interest of the Department. A waiver will only be granted if the section
or office can show that any one of the following conditions exist:
7.3.4.a. The vendor is unable to deliver the
commodity or service by the required delivery date, assuming the section or
office is not imposing an unreasonable delivery deadline.
7.3.4.b. The vendor is unresponsive to
ordering requests.
7.3.4.c. The
vendor has refused to perform.
7.4. Direct Award Procurement.
7.4.1. The Procurement Officer may approve
the purchase of commodities and services directly from a vendor as a direct
award procurement without competitive bidding if:
7.4.1.a. The section or office can acquire
the good or services from only one source.
7.4.1.b. The section or office provides
written documentation to the Procurement Officer setting forth the basis for
the direct award procurement and the specific efforts made to determine the
availability of other sources.
7.4.2. Sections and offices are encouraged to
solicit competition rather than process a direct award request. The Procurement
Officer may reject direct award requests whenever competition is believed to be
available.
7.4.3. All direct award
requests exceeding $25,000 made to the Procurement Officer shall be publicly
advertised and made available for review by vendors registered with the
Purchasing Division. Should this advertisement cause inquiry and concern or
requests to bid by prospective bidders or other interested parties, the
Procurement Officer may:
7.4.3.a. Reject the
direct award request and require the section or office to submit a requisition
for public advertisement and formal bidding.
7.4.3.b. Accept the direct award request and
approve the direct award contract.
7.4.3.c. Take other action as
necessary.
7.4.4. The
Procurement Officer may require potential direct award requests at any dollar
level above $25,000.01 to be subject to review, approval, and processing in the
same manner as described in this rule.
7.4.5. The Procurement Officer must issue
prior approval or disapproval for the purchase of used equipment directly from
the vendor without competitive bids.
7.4.5.a.
If disapproved, the Procurement Officer must return the request to the section
or office and direct another method of purchasing.
7.4.5.b. Notwithstanding the foregoing,
approval to purchase used equipment under this subsection is contingent upon
meeting all the requirements applicable to direct award procurement.
7.5. Emergency
Procurement.
7.5.1. Any request to procure
specific commodities or services for immediate delivery exceeding $25,000 on an
emergency basis must be submitted in writing to the Procurement Office. The
Procurement Officer shall review a section or office's written request and
issue written approval or disapproval.
7.5.2. Approval to procure goods or services
on an emergency basis will permit the sections and offices to purchase the
required goods or services directly from a vendor. Provided, however, the
section or office must obtain three bids, if possible. Required documentation
must be submitted to the Procurement Office as soon as possible for
processing.
7.5.3. What qualifies
as an emergency under this section shall be evaluated by the Procurement
Officer on a case by case basis, but will at least include:
7.5.3.a. Unforeseen events or circumstances
including delays by vendors, delays in transportation, or an unanticipated
volume of work, as well as procurement of specific commodities for immediate
delivery related to an official declaration of emergency by the Governor or
federal officials.
7.5.3.b.
Emergency purchases are not used for hardship, resulting from neglect, poor
planning, or lack of organization by a section or office.
7.6. Best Value Procurement.
7.6.1. Best value procurement includes a
request for proposal pursuant to W. Va. Code §
5A-3-10b
or an expression of interest pursuant to W. Va. Code §
5G-1-1.
7.6.2. Requests for Quotation are the
preferred method and gold standard of procurement, but a section or office may
utilize a best value procurement method to procure goods and services,
excluding construction.
7.6.2.a. In order to
utilize a request for proposal, the section or office must provide adequate
justification explaining why an evaluation based on price and compliance with
specification alone would not be adequate.
7.6.2.b. The Procurement Officer shall review
each request to utilize a request for proposal and may permit the use of a
request for proposal if he or she determines in writing that it is in the best
interest of the Department.
7.6.3. A request for proposal must contain
provisions for a two-part evaluation, the first part being technical aspects of
the proposal and the second part being cost to the Department.
7.6.3.a. The two components must then be
evaluated based upon the criteria specified in the request for proposal,
scored, and combined to form a total score.
7.6.3.b. The highest scoring vendor will be
awarded a contract. No proposal may be evaluated using any criteria other than
the criteria specified in the request for proposal.
7.6.4. Expressions of interest may only be
used to procure architectural, engineering, or other services pursuant to W.
Va. Code §
5G-1-1
et seq.
7.7. Purchases from contracts issued by other
public agencies and entities.
7.7.1. The
Procurement Officer may approve a request by a section or office to purchase
from, join as a party, or otherwise utilize contracts issued by agencies of the
federal government, agencies of other states, other public bodies, or other
state agencies.
7.7.2. The
Procurement Officer may also sign an agreement with a vendor that has the
effect of adding sections or offices to a contract issued by agencies of the
federal government, agencies of other states, other public bodies, or other
state agencies.
The Procurement Officer may, but is not required to, designate such a contract an agency contract and require that sections and offices utilize it.
7.7.3.
The Procurement Officer may also lead, participate in, or join after issuance
cooperative purchasing arrangements with other public agencies and entities
created by public agencies.
7.7.4.
Before undertaking any activity authorized by this section, the Procurement
Officer shall determine that the contracts being utilized and/or created are
valid, properly awarded, financially advantageous, and comparable to what can
be obtained through competitive bidding. The last requirement will be satisfied
if the contract was created or is to be created from a competitive procurement
method.
7.7.5. The Procurement
Officer shall require sections and offices to prove their requests to use such
contracts do not conflict with existing contracts the section of office is
required to use.
7.7.6. All section
and office requests to take an action authorized under this subsection must be
submitted in advance to the Procurement Officer with necessary evidence and
documentation. The Procurement Officer shall approve only those requests
submitted with evidence that justifies use of such contracts. Any request that
is not supportable shall be returned to the section or office.
7.8. Multiple Awards.
7.8.1. The Procurement Officer may elect to
award a contract to more than one vendor when the Procurement Officer
determines in writing such action would be in the best interest of the
Department. In arriving at that determination, the Procurement Officer will
consider the following factors, insofar as they are applicable:
7.8.1.a. The quality, availability, and
reliability of the supplies, materials, equipment, or service and their
adaptability to the particular use required;
7.8.1.b. The ability, capacity, and skill of
the bidder;
7.8.1.c. The
sufficiency of the bidder's financial resources;
7.8.1.d. The bidder's ability to provide
maintenance, repair parts, and service;
7.8.1.e. The compatibility with existing
equipment;
7.8.1.f. The need for
flexibility in evaluating new products on a large scale before becoming
contractually committed for all use; and
7.8.1.g. Any other relevant
factors.
7.8.2. In
situations where a multiple award is necessary, the Procurement Officer shall
place a written explanation into the public file. If a multiple award is
requested by a section or office, that section or office must provide written
justification to the Procurement Officer. The Procurement Officer's decision
shall be final in all cases.
7.9. Negotiation When All Bids Exceed
Available Funds.
7.9.1. Sections and offices
must submit a valid maximum budgeted amount for each requisition to the
Procurement Office. The maximum budgeted amount may not be disclosed to any
vendor prior to the bid opening and may not be changed after the bid
opening.
7.9.2. If all bids meeting
requirements exceed the funds available for the purchase, the Procurement
Office may negotiate a lower price within budget with the lowest bidder meeting
specifications.
7.9.2.a. If the negotiation
does not lead to the budget amount being met, the Procurement Officer may
negotiate a lower price within budget with the next lowest bidder and continue
negotiations with participating bidders after negotiations close with the
preceding bidder.
7.9.2.b. In
conducting discussions, there may be no disclosure of any information derived
from proposals by competing bidders.
7.9.3. If the Procurement Office solicits
bids using a best value procurement, and there is more than one bidder, the
Procurement Officer may negotiate a lower price with the highest ranked bidder.
If the Procurement Officer does not award the contract 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.
7.9.3.a. The Procurement Officer may not
extend an offer to any bidder that is not first extended to the prior bidders
in order of rank.
7.9.3.b. Nothing
contained herein is intended to supersede requirements contained in W. Va. Code
§
5G-1-1
etseq.
7.9.4. If a section or office fails to
provide a valid maximum budgeted amount, the Procurement Officer shall not
permit negotiation.
7.9.5. The
Procurement Officer shall determine the method of negotiation.
7.10. Discussion and Final Offers.
7.10.1. The Procurement Officer may conduct
discussions to obtain best and final offers from bidders to assure full
understanding of solicitation requirements.
7.10.1.a. If the Procurement Officer
determines that a best and final offer is necessary from one vendor, all
vendors shall be afforded the opportunity to provide best and final
offers.
7.10.2. All best
and final offers shall be treated like a formal bid, except that advertising is
not required.
7.10.2.a. All bidders must
provide their best and final offers to the Procurement Office prior to the date
and time specified by the Procurement Officer.
7.10.3. Government construction contracts and
supplies and materials to be used in construction are exempt from the
provisions of this section.
7.11. Contract Management.
7.11.1. For contracts for commodities and
services in the amount of $1 million or less, the Procurement Officer may
prescribe contract management procedures for all Department contracts, except
government construction contracts. These procedures may include, but are not
limited to:
7.11.1.a. Establishing payment
benchmarks to assure the Department receives value prior to remitting
payment.
7.11.1.b. Conducting
regular meetings between sections and offices and vendors to assess contract
performance.
7.11.1.c. Training
Department section and office personnel to manage contracts.
7.11.1.d. Using the Office of Technology
Project Manager for its projects.
7.11.2. For contracts for commodities and
services in an amount exceeding $1 million, the following contract management
procedures apply.
7.11.2.a. Post Award
Conferences.
7.11.2.a.1. The section or office
responsible for administering the contract must hold a post award conference
with the vendor 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 must include, at minimum, the introduction of all
participants and identification of Department and vendor key personnel, and
discussion of the following items:
7.11.2.a.1.A. The scope of the contract,
including specifications of what the section or office is buying;
7.11.2.a.1.B. The contract terms and
conditions, particularly any special contract provisions;
7.11.2.a.1.C. The technical and reporting
requirements of the contract;
7.11.2.a.1.D. The contract administration
procedures, including contract monitoring and progress measurement;
7.11.2.a.1.E. The rights and obligations of
both parties and the vendor performance evaluation procedures;
7.11.2.a.1.F. An explanation that the vendor
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;
7.11.2.a.1.G. Potential
contract problem areas and possible solutions;
7.11.2.a.1.H. Invoicing requirements and
payment procedures, with particular attention to whether payment will be made
according to milestones achieved by the vendor; and
7.11.2.a.1.I. An explanation of the limits of
authority of the personnel of both the section or office and the
vendor.
7.11.2.b. The section or office should
develop a comprehensive and objective monitoring checklist which:
7.11.2.b.1. Measures outcomes;
7.11.2.b.2. Monitors compliance with contract
requirements; and
7.11.2.b.3.
Assesses vendor performance.
7.11.3. The Procurement Officer will make
reports available to the Director and of Administration upon request.
7.12. Inspection.
7.12.1. The section or office must inspect
all materials, supplies, and equipment upon delivery and again prior to final
acceptance to ensure compliance with the contract requirements and
specifications.
7.12.2. The section
or office must report any discrepancies to the Purchasing Liaison and
Procurement Officer immediately.
7.12.3. If unlisted shortages are discovered,
the vendor. Purchasing Liaison and Procurement Officer must be notified
immediately.
7.12.4. A vendor may
be required to pick up any merchandise not conforming to specifications and
replace the merchandise immediately.
7.13. Substitutions.
7.13.1. Substitution of items called for in a
contract is not permitted without the Procurement Officer's prior approval.
7.13.1.a. The Procurement Officer will not
approve substitution of items unless the substituted items are of equal quality
and are offered at the same or lower price.
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.