W. Va. Code R. § 99-6-7 - Bid Process

7.1. Requests for Quotations: a (RFQ) should be used to acquire all tangible property (i.e. equipment, supplies, etc.). The RFQ is required for all purchases between $10,000.01 and $25,000. Exceptions to this requirement may be granted by the Purchasing Division.

7.2. An RFQ consists of: A detailed description of, or specification for, the item(s) being purchased; delivery date, if required; bid price per unit of the item(s); any applicable maintenance; and quantities of all items.

7.2.a. Each item should be identified by a model number or some other specific identification. Prices cannot be altered after bids are opened. The RFQ must have an established date and time for the bid opening, after which bids will no longer be accepted. All bids should be annotated with the date and time of receipt.

7.3. Solicitation of Bids: To achieve the goal of competitive bidding, a minimum of three bids are required, when possible. For agency delegated purchasing (procurements of $25,000 or less), care must be taken to solicit vendors capable of providing the necessary products or services.

7.4. Public Notice: Advertise delegated solicitations for a period of no less than 10 business days and in wvOASIS when feasible. If exceptional circumstances exist which require a shorter advertisement period, prior approval from the Director of Purchasing is required.

7.5. Evaluation of Bids: Bids are received, opened and examined by the agency to ensure compliance with all specifications and determination of the lowest responsible bidder.

7.6. Award Process: After the evaluation of all bids by the agency personnel, an award is made to the lowest responsible bidder who meets the specifications.

7.6.a Award to Other Than Low Bid: If an award is made to other than the lowest bidder, a detailed justification as to why the lowest bidder was not awarded the contract must be written and retained for public record and inspection. The justification must be signed by the evaluator(s) and retained as part of the bid file.

7.7. When Three Bids Not Possible: The following are instances where obtaining three competitive bids is not possible.

7.7.a Emergency - Agencies are permitted to declare a delegated emergency. The file should contain all documentation necessary to substantiate the declared emergency.

7.7.b. Solicitation Advertised in wvOASIS and Less Than Three Bids Received.

7.7.c. Direct Award

7.8. Emergency Purchases: Purchases may be necessary when unforeseen causes arise; however, emergency purchases are not used for hardship resulting from neglect, poor planning, or lack of organization.

7.8.a. An emergency purchase can only be made if approved by the Director, Deputy Director, Director of Procurement, exercising sound judgment and discretion, concludes in good faith and upon reasonable and sufficient grounds that some unforeseen or unexpected circumstance has suddenly created a situation requiring that commodities or services be immediately purchased. A record of competitive bids must be maintained in the file if applicable.

7.9. Emergency Purchases of $25,000 or Less: A minimum of three verbal or signed bids, if possible, should be obtained. Original written bids and justification along with documentation of required approval (an email will meet this requirement) must be attached to the file.

7.10. Direct Award: A direct award is a procurement method that provides a contract to a vendor without competitive bidding when circumstances allow. Solicitation and competition is encouraged rather than process a direct award request however, a direct award may be made if the following circumstances occur:

7.10.a. Written justification documenting that the direct award is in the best interest of the division.

7.10.b. When there is no other source or that no other source would be willing or able to replace the existing source without a detrimental effect on the spending unit.

7.10.c. No other vendor expresses an interest in providing the commodity or service in question.

7.11. Direct Award of $25,000 or less: The process outlined below for a direct award at the delegated level.

7.11.a. $0 to $2,500: No documentation required but competition is always encouraged.

7.11.b. $2,500.01 to $25,000: Director of Procurement must approve or disapprove the transaction.

7.11.c. All documentation must be maintained in the purchasing file, including its justification to make the award and any documentation awarding the contract.

7.12. Firm Fixed Pricing: All contracts should be entered into for a firm, fixed price per unit of goods or service. In such cases where the nature of the procurement prohibits a firm, fixed price, a detailed written justification must be included in the file.

7.13 Vendor Compliance: Prior to an award, a vendor must be in compliance with the following requirements and, if applicable, documentation verifying compliance shall be retained in the file:

7.13.a. Purchasing Division Registration: Vendors must be properly registered with a wvOASIS vendor/customer account, such as the Owner/Officer Information and Banking Information listed under the "Disclosures" tab, and payment of the annual fee (where required). It is also recommended that the Finance Division have a current W-9 on file for the vendor. This is indicated under the "Hold Payment" portion of the "Disbursement Options" tab of the wvOASIS vendor/customer account;

7.13.b. Workers' Compensation/Unemployment: In accordance with West Virginia Code § 21A-2-6, verification of current unemployment fee status and Workers' Compensation coverage is required to ensure the vendor is not in default with Workers' Compensation and Employment Compensation. wvOASIS automatically verifies compliance prior to award;

7.13.c. Federal Debarment: Verification that the vendor is not debarred by the federal government. wvOASIS automatically verifies this federal compliance prior to award.

7.13.d. State Debarment: Verification that the vendor is not debarred by the State of West Virginia. The Purchasing Division maintains a list of vendors debarred by the state of West Virginia, which may be accessed at www.state.wv.us/admin/purchase/debar.html. This must be verified for compliance prior to award.

7.13.e. Secretary of State: Unless a waiver is obtained from the Secretary of State's office, every vendor must have a certificate of authority and be in good standing with Secretary of State's office. To search for a business or corporation with the Secretary of State's office, visit http://apps.sos.wv.gov/business/corporations. Any vendor that cannot be found or shows a status of "revoked" or "dissolved" is not eligible for award until the issue is resolved. Agencies must verify this compliance manually prior to award and include a copy of the relevant records on the contract file.

7.13.e.1. Other: In accordance with the West Virginia Code §148 C.S.R. 1-6.1.e, the vendor must be licensed and in good standing with any and all state and local laws and complete the following requirements.

7.13.e.2. Purchasing Affidavit; and,

7.13.e.3. Agreement Addendum (WV-96)

7.14. Tie Bids: When purchasing commodities and services of $25,000 or less, occasionally two or more bids of equal terms and amount are received in response to a solicitation, thus, resulting in a tie bid. If multiple awards are not made, the tie bid(s) must be resolved. When tie bids are received, the Purchasing Director shall break the tie by allowing the tied vendors to make a best and final offer, flip of a coin, draw of the cards, or any other impartial method considered prudent by the Purchasing Director.

7.14.a. A witness must be present when resolving the tie and documentation of the method and results, with signatures of all witnesses, must also be included in the file. Vendors affected by the tie should be notified and given an opportunity to attend the tie breaker.

7.15. Errors in Bids: The West Virginia Code of State Rules provides assistance in cases of errors in bids for purchases over $25,000.

7.15.a. If an error is discovered, the burden of proof and timely action for request of relief is the vendor's responsibility. The request for relief must be made in writing by the vendor and should be received by the division within five business days from the bid opening date.

7.15.b. Erroneous bids may be rejected after the bid opening if all the following reasons are met:

7.15.b.1. An error was made.

7.15.b.2. The error materially affected the bid.

7.15.b.3. Rejection of the bid would not cause a hardship on the state agency involved other than losing an opportunity to receive commodities and services at a reduced cost.

7.15.b.4. Enforcement of the part of the bid in error would be unconscionable.

7.15.c. In order to reject a bid, the public file must contain documented evidence that all of the above conditions exist. The vendor must specifically identify the error(s) and provide documentation to substantiate the claim that the error(s) materially affected the bid and enforcement of the part of the bid in error would be unconscionable.

7.15.d. The unit price prevails if there is an error in the extension. The division may recalculate a vendor's extension (total) pricing based upon the unit price provided by the vendor if there is a clear mathematical error and recalculation is warranted. The vendor's original documentation is not to be modified. Any recalculation must be documented separately and retained in the agency file.

7.16. Electronic Submission of Bids: A vendor choosing to submit a bid or a written change to a bid by electronic submission accepts full responsibility for transmission and receipt of the bid or written change to a bid. The division accepts no responsibility for the unsuccessful and/or incomplete transmission of bids by electronic transmission.

7.17. Commodity and Service Receiving Procedures:

7.17.a. Materials must be opened and inspected within 24 hours of receipt. Receivers must verify the shipment against the specifications in the purchase order and retain a copy of the packing list or shipping documents, and place a copy in the purchasing file. For receipt of services, a receiving report similar in form to that required by the Auditor's office shall be completed, signed, and retained with the purchasing file. (An email documenting services received shall meet this requirement)

7.17.b. Receivers must verify quantities received. If quantities do not match the purchase order, the receiver must insist on a correction of the packing slip. After all corrections have been made, request that the driver sign all shipping documents before leaving. Do not accept any alternate or substitution without end user's approval of commodities and services awarded by the Purchaser.

7.18. Inspection: Purchaser or receiver shall perform an inspection on all delivered commodities and services. Nonconformity is to be reported to the Director of Procurement and the purchaser for remedial action.

7.19. Proper Receiving Techniques: Any person receiving commodities is responsible for performing all of the inspection steps described below.

7.19.a. Receipt of Commodities and Services: The receiver shall check the shipment to determine if commodities are in conformance with the purchase order or contract and verify the following:

7.19.a.1. Commodities: The make, model number, brand name and general description of the item(s) received match the specifications on the purchase order.

7.19.a.2. The quantity received agrees with the purchase order quantity, packing list and bill of lading. An actual count is necessary to assure receipt of all items.

7.19.a.3. Services: Labor services must match the frequency (daily, weekly, monthly, etc.) and duration (number of hours, days, etc.) described in the purchase order or contract (janitorial, security, etc.).

7.19.a.4. Service contracts that require the vendor to provide consultant reports, audit reports, statistics or recommendations must be as specified in the purchase order or contract.

7.19.a.5. Service contracts that require the vendor to perform a particular service, such as elevator maintenance or carpet cleaning, must have all tasks completed as described in the purchase order or contract.

7.20. Freight Terminology and Loss/Damage: Freight or shipping terms should always be included in a contract. Purchase orders should have a specified point of origin and destination. Misunderstanding of the freight terms may cause problems in the receiving end of the purchase. In accordance with the National Institute of Governmental Purchasing's (NIGP) Public Procurement Dictionary of Terms (2008), the definitions for Free on Board (F.O.B.) Destination and Free on Board (F.O.B.) Origin are noted as follows:

7.20.a. Free on Board (F.O.B.) Destination: Where the seller or consignee delivers the materials to a specified delivery point. The cost of shipping and the risk of loss are borne by the seller or consignee. Title passes when delivery is received by the buyer at destination. Seller has total responsibility until shipment is delivered. This is the preferred method of shipment as it easily facilitates a comparison of price among multiple vendors.

7.20.b. Free on Board (F.O.B.) Origin: Title is transferred from seller to buyer at the origin of the shipment. Buyer owns the goods in transit and files any claims. Buyer has total responsibility. The payment of the freight charges is determined by contract terms. Any use of this delivery method requires that the price evaluations account for delivery costs to ensure an accurate price comparison.

7.21. Loss or Damage in Shipment: Filing of claims for loss or damage to merchandise in shipment is the responsibility of the party having title to merchandise during shipment. The title to the commodities is determined by the F.O.B. point on the purchase order.

7.21.a. F.O.B. Destination: Title remains with vendor until goods are received and accepted by the state agency. Damage occurring during shipment must be resolved by the seller.

7.21.b. If the damage is obvious note all losses or damages on receiving papers, sign and have driver sign. Write the word "Refused" on receiving papers. Do not accept merchandise with obvious damage from carrier under any circumstances.

7.21.c. If the damage or loss becomes evident when uncrating, stop uncrating and retain all merchandise and crating in exactly the same condition in which it was received. Notify the vendor immediately in writing and by telephone. Do not use any of the merchandise and do not destroy any packaging material.

7.21.d. F.O.B. Shipping Point: Title passes to the state agency immediately when goods are given to a common carrier at the time of shipment. The state agency is responsible for any and all damages or losses while merchandise is in transit. If damages occur to merchandise in shipment, it is the state agency's responsibility to file a claim on behalf of the state.

7.21.e. If there is obvious loss or damage, note all losses or damages on receiving papers, sign and have driver sign. Retain all merchandise in the condition in which it was received and notify both the carrier and seller in writing and by telephone within five business days. The carrier will send a representative to investigate the claim.

7.21.f. If the damage or loss becomes evident when uncrating stop uncrating and retain all merchandise and crating in exactly the same condition in which it was received. Notify the vendor immediately in writing and by telephone. Do not use any of the merchandise and do not destroy any packaging material.

7.21.g. Notify the Director of Procurement when damaged goods are received and a resolve cannot be reached with the vendor.

7.22. Payment Process: Refer to Accounting Section of this manual.

7.23. State Purchasing Card: When possible, it is encouraged to use the State Purchasing Card. Use of the State Purchasing Card, however, is not justification to avoid utilizing statewide or agency contracts but is simply a method of payment.

7.23.a. State Auditor's Office Purchasing Card Program Procedures located at https://www.wvsao.gov/PurchasingCard/Default#Forms. Refer to Accounting Section of this manual.

7.24. Electronic Fund Transfer (EFT): Vendors and agencies not utilizing the Purchasing Card must utilize electronic funds transfer as a method of payment. The West Virginia Auditor's Office will only issue checks in rare circumstances. For more information, visit http://www.wvsao.gov.

7.25. Fixed Assets: After payment has been made to the vendor, assets valued over $1,000.00 or computer equipment valued over $500.00 or any assets deemed reportable by the Director of Procurement must be added to fixed assets in wvOASIS.

7.26. Changes: Occasionally, it becomes necessary to amend, clarify, change or cancel purchasing documents. A contract change order is required whenever the change affects the payment provision, time for completion of the work and/or the scope of the work.

7.26.a. Changes to the original purchase order must be sequentially numbered in the appropriate space. The explanation of change to an existing contract must be described with sufficient detail and clarity that any individual could review and generally understand the contract and change.

7.27. Contract Cancellation: A contract or purchase order may be canceled upon written notice to the vendor under any one of the following conditions including, but not limited to:

7.27.a. The vendor agrees to the cancellation

7.27.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

7.27.c. Failure to conform to contract requirements or standard commercial practice

7.27.d. The existence of an organizational conflict of interest is identified; or

7.27.e. Funds are not appropriated or an appropriation is discontinued by the legislature for the acquisition

7.27.f. Violation of any federal, state, or local law, regulation or ordinance

7.27.g. The contract was awarded in error

7.27.g.1. A contract or purchase order may be canceled for any reason, upon 30 days written notice to the vendor. The Director may cancel a contract if deemed in the best interest of the division.

7.27.g.2. 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 vendor will be requested to remedy the contract breach or legal violation within a time frame determined to be appropriate by the Director of Procurement. If the vendor fails to remedy the contract breach or legal violation, the contract may be canceled immediately without providing the vendor an opportunity to perform a remedy.

7.28. Formal Acquisition Procedures: All requisitions for commodities and services over $25,000 must be submitted using wvOASIS for formal competitive bidding.

7.29. Competitive Bidding: The division may utilize various mechanisms to solicit competition from responsible vendors. Two of the most often used solicitation techniques are Requests for Quotations ("RFQ") and best value procurement. The RFQ method is the most commonly used and preferred method of competitive bidding. Best value procurement can be further broken down into Requests for Proposals ("RFP") and Expressions of Interest ("EOI").

7.30. Requests for Quotations: The Request for Quotation (RFQ) is used to acquire most commodities and services, including construction.

7.31. Award Criteria: An RFQ for commodities or services must be awarded to the lowest responsible bidder. Similarly, an RFQ for construction must be awarded to the lowest qualified responsible bidder.

7.31.a. In both cases, the award is completely objective, going to the lowest bid submission meeting the required specifications (also referred to as mandatory requirements). If a mandatory requirement is not met, then that bid is disqualified.

7.31.b. The vendor provides the pricing in its bid response submitted to the division. Prior to the bid opening, a bid that has already been submitted cannot be modified; submission of the vendor's bid constitutes a binding offer. However, if a vendor wishes to make a change to its bid after submission, it may submit a subsequent bid to supersede the original bid.

7.32. Multiple Awards: The division may elect to award a contract to more than one vendor when the Director determines such action would be in the best interest of the division. In arriving at a determination, the Director of Purchasing will consider the following factors, insofar as they are applicable:

7.32.a. The quality, availability and reliability of the supplies, materials, equipment or services and their adaptability to the particular use required;

7.32.b. The ability, capacity and skill of the bidder;

7.32.c. The sufficiency of the bidder's financial resources;

7.32.d. The bidder's ability to provide maintenance, repair parts and service;

7.32.e. The compatibility with existing equipment;

7.32.f. The need for flexibility in evaluating new products on a large scale before becoming contractually committed for all use; and

7.32.g. Any other relevant factors.

7.32.h. A written explanation will be included in the public file in situations where a multiple award is deemed necessary.

7.33. Selection of Vendors: Purchasers are encouraged to submit a list of suggested vendors to ensure they are properly notified any time a solicitation is advertised for commodities and/or services which they can supply. Additionally, solicitations should utilize the appropriate UNSPSC commodity codes to ensure that vendors registered for those commodity codes are also notified of published solicitations.

7.34. Public Notice: Procurement will make public notice of purchases expected to exceed $25,000.00. This is usually accomplished by advertising the solicitation in wvOASIS. The standard advertisement period for noncomplex procurements is 10 business days. If exceptional circumstances exist which require a shorter or longer advertisement period, notify the Director of Procurement for approval.

7.35. Addenda: During the bid process, it may be necessary to alter bidding documents. To facilitate a change to a solicitation after issuance for bid in wvOASIS, a formal written addendum is required.

7.35.a. A formal addendum is necessary to: add, delete or change specifications or attachments; provide a copy of the pre-bid attendee list; answer technical questions, requests for clarification or requests for product substitutions (on construction projects); extend or alter bid schedule dates/times; or any other such change to the issued bidding documents.

7.35.b. The Purchasing Director must complete a requisition that includes a description of change, amended budget amount/maximum budget amount-if applicable, and signature of authorized agency representative, prior to issuing the addendum.

7.35.c. The following should also be included where applicable:

7.35.c.1. Specification changes, additions, or noted deletions;

7.35.c.2. Pre-bid attendee list;

7.35.c.3. An attachment listing each technical question with a corresponding answer;

7.35.c.4. Revised or added sketches, drawings and/or charts.

7.35.d. Upon issuing the addendum the Purchasing Director will distribute the same to all known bidders (those attending the pre-bid meeting, receiving bid packages, suggested vendors, etc.). Additional bid time may be required to distribute addenda.

7.35.e. The Addenda should be provided to prospective bidders, 7 calendar days prior to the current scheduled bid opening date. For complex transactions, such as construction bids, Requests for Proposals or complex Requests for Quotation, it should be provided within 14 calendar days prior to the current scheduled bid opening to allow bidders ample time to prepare and submit bid responses.

7.35.f. The division may, at its discretion, extend the bid opening date if it deems to be in its best interest.

7.36. Bid Submission: The vendor is responsible for submitting a correct and accurate bid to the division by the specified bid opening time and date. Fax bids are acceptable, but receipt of bid must be completed prior to the bid opening time and date. The division will not accept bids, modification of bids or addendum acknowledgment forms by email transmission. Acceptable delivery methods include hand-delivery, delivery by courier or facsimile.

7.36.a. Any bonds submitted via fax should be followed by an original bond received by the division within two business days.

7.37. Bid Opening: Formal bid opening dates are established by the division based on the complexity of the purchase, and are open to the public. Vendors are not required to attend. Bid openings may be delayed due to the need for pre-bid conferences, issuance of addenda or other unforeseen factors.

7.37.a. At the bid opening, all bids are opened and read aloud. Bids shall not be considered if the vendor fails to submit the respective bid to the division by the specified date and time of the bid opening.

7.37.b. Bids that are not received by the date and time of the bid opening will be noted as "Bid Received Late," maintained with the official file with the other bids with the division established fee for Freedom of Information Act (FOIA) requests.

7.38. Evaluation and Award: When the Request for Quotation process is used, competitive bids are received, properly evaluated and an award is made to the lowest responsible bidder meeting specifications. Following the bid opening, the division will review all bids received to ensure compliance with all specifications and validates the vendor for award.

7.38.a. After a proper evaluation, if an award is made to other than the lowest responsible bidder, a thorough written justification signed by the evaluator(s) must be inserted into the file and retained for public record and inspection.

7.38.b. Prior to an award, a vendor must be in compliance with the following requirements:

7.38.b.1. Vendor registration process (must be registered and the fee paid, if applicable). The registration process includes having the proper disclosure of information in the wvOASIS vendor/customer account, such as the Owner/Officer Information and Banking Information listed under the "Disclosures" tab. It is also recommended that the Finance Division have a current W-9 on file for the vendor. This is indicated under the "Hold Payment" portion of the "Disbursement Options" tab of the wvOASIS vendor/customer account;

7.38.b.2. In accordance with the W. Va. Code § 21A-2-6, verification of current unemployment fee status and Workers' Compensation coverage is required to ensure the vendor is not in default with Workers' Compensation and Employment Compensation. wvOASIS automatically verifies compliance prior to award.

7.38.b.3. Verification that the vendor is not debarred by the federal government. wvOASIS automatically verifies this federal compliance prior to award. Additionally, the Purchasing Division maintains a list of vendors declared as debarred by the state of West Virginia, which may be accessed at HYPERLINK "http: //agencies/"http://www.state.wv.us/admin/purchase/debar.html. Agencies must verify this compliance prior to award;

7.38.b.4. In accordance with the W. Va. § 148 C.S.R. 6.1.e, the vendor must be licensed and in good standing with any and all state and local law and requirements, including proper registration and good standing with the Secretary of State's office and the State Tax Department, regardless of payment method. To search for a business or corporation with the Secretary of State's office, visit http://apps.sos.wv.gov/business/corporations.

7.38.b.5. Purchasing Affidavit;

7.38.b.6. Agreement Addendum (WV-96) (required when vendors submit alternate terms and condition with their bid); and,

7.38.b.7. Interested Party Disclosure Form: W. Va. Code § 6D-1-2 requires that for contracts with an actual or estimated value of at least $1,000,000, the vendor must submit to the Purchasing Division a disclosure of interested parties to the contract, prior to contract award. Additionally, the vendor must submit to the agency a supplemental disclosure within 30 days of contract completion or termination.

7.38.c. The disclosures must occur on the form prescribed and approved by the West Virginia Ethics Commission. To access this form, visit the West Virginia State Purchasing Division's intranet at http://www.state.wv.us/admin/purchase/forms.html.

7.38.d. The Procurement Director may immediately award certain open-end contracts when it is believed to be in the best interest of the division.

7.39. Negotiation When All Bids Exceed Available Funds: If all bids meeting requirements exceed the budgeted amount, the division may negotiate a lower price within budget with the lowest bidder. If the negotiation does not lead to the budget amount being met, the division may negotiate a lower price with the next lowest bidder and continue negotiations with participating bidders after negotiation closes with the preceding bidder.

7.40. Discussion and Final Offers: As provided in the bid solicitation, the Director of Procurement may conduct discussions to obtain best and final offers from bidders to assure full understanding of solicitation requirements. If the Director of Procurement 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. All best and final offers shall be treated like a formal bid, except that advertising is not required. All bidders shall provide their best and final offers to the division prior to the date and time specified.

7.40.a. Government construction contracts and supplies and materials are exempt from this negotiation method.

7.41. Requests for Proposals: Requests for Proposals (RFPs) are a procurement method that can be utilized when the method of achieving an objective is not well known, making the development of mandatory requirements difficult. Using this method, the lowest price is not the sole determining factor. The RFP method is typically longer than other procurement methods and requires significant agency personnel time and resources to complete.

7.42. Limitations: RFPs are limited to procurements with an estimated value of $100,000, unless its determined by the division to utilize the RFP method for a smaller procurement.

7.43. Approval Request: The Procurement Director or his/her designee must request authorization from the Director, prior to utilizing the RFP procurement method. This request should include justification to show that the RFP is in the best interest of the division.

7.43.a. The justification should include a description of the service being sought, an explanation of why the RFQ procurement method is not appropriate, any prior solicitation that has been utilized to procure the service in the past, the expected cost of the project, and any other pertinent information that the Director deems appropriate.

7.44. Award Criteria: An RFP is awarded to the highest scoring responsive and responsible bidder. The award is based upon a subjective technical evaluation, where the Purchaser first determines that all mandatory requirements have been met. The purchaser or purchasers then assigns a subjective point value to the vendor's response to the non-mandatory specifications, followed by an objective point value based on the vendor's cost proposal and the cost score evaluation formula.

7.45. Mandatory Requirements: Caution should be utilized when writing specifications containing an excessive number of mandatory requirements. Mandatory requirements cannot be waived; therefore, a vendor's failure to meet any mandatory requirement will result in disqualification. Before including any mandatory requirement in an RFP, the division must decide whether it is willing to disqualify any one vendor, or all vendors, if the requirement is not met. If the division is not willing to disqualify a vendor, then the requirement should not be mandated.

7.46. Evaluation Criteria: All evaluation criteria must be clearly defined in the specifications section of the RFP and based on a 100-point total score. This score is comprised of a technical score of 70 points possible and a cost score of 30 points possible. Any deviation from this point allocation must be approved in writing by the Director.

7.47. Proposal Format and Content: Proposals from vendors must be requested and received in two distinct parts: technical and cost. All cost information must be contained in the cost proposal, which must be sealed and submitted in a separate envelope from the technical proposal. Vendors must not include cost information in the technical proposal, which ensures that the technical proposal can be evaluated purely on its own merit.

7.48. Proposal Submission: The vendor's entire proposal, both technical and cost, must be received by the division prior to the specified date and time of the bid opening. The failure to deliver or the non-receipt of the bid by the division, prior to the appointed date and hour, shall result in the rejection of the bid. The division will not accept bids, modification of bids, or addendum acknowledgment forms by email transmission. Acceptable delivery methods include hand-delivery, delivery by courier or facsimile.

7.49. Bid Openings: RFPs require a two-part bid opening. Technical proposals are opened first and fully evaluated prior to cost proposals being opened.

7.50. Technical Bid Opening: The division will open only the technical proposals on the date and time specified in the Request for Proposal. The Procurement Director or designee will read aloud the names of those who responded to the solicitation and confirm that the original package contained a separately sealed cost proposal.

7.51. Cost Bid Opening: After the technical evaluation, discussed in more detail below, has been approved by an internal review committee within the division, a time and date is scheduled to publicly open and read aloud all cost proposals. The vendors will be notified of this cost bid opening.

7.52. Proposal Evaluations: As previously mentioned, the technical evaluation must be completed prior to the cost bid opening

7.53. Technical Evaluation: An evaluation committee, established by the Purchaser Director shall review the technical proposals, assign appropriate points and make a final written consensus recommendation to the Director.

7.53.a. The evaluation committee initially determines if the technical proposals meet the mandatory requirements contained in the RFP. Any proposal that fails to meet a mandatory requirement is disqualified.

7.53.b. The evaluation committee will then evaluate all technical proposals that meet the mandatory requirements to assign appropriate point scores to the non- mandatory components in the RFP. Those non-mandatory components generally include the approach and methodology to achieving the goals and objectives, approach and methodology to comply with mandatory requirements, qualifications and experience.

7.53.c. During this evaluation, all proposals begin with the maximum score. The evaluation committee then deducts points for any identified deficiencies in each proposal. Technical proposals may be compared against one another to determine the best in class solution.

7.53.d. Those proposals that exceed the mandatory requirements or the non-mandatory desirables should be assigned the maximum points in that category; with lessor solutions assigned an appropriately lower score. No partial points are permitted in the technical evaluation. All deductions issued for each proposal must include justification, with fairness and consistency.

7.53.e. Proposals must obtain a minimum acceptable score of 70% of the total technical points possible (i.e. 49 out of 70 points in most cases) to be considered for the award. Vendors not attaining the minimum acceptable score will be disqualified and removed from further consideration. The technical evaluation may include oral presentations conducted by the vendors.

7.53.f. Once the evaluation committee reaches a consensus recommendation, the Procurement Director will complete the committee's recommendation to using the Recommendation Memorandum (WV-113) template. The Procurement Director should include in the recommendation an analysis of the technical proposals with the scores and any justification(s) for point deductions, as well as scores for the cost proposals.

7.53.g. The consensus recommendation must be signed by all committee members and must not rely upon average points to reach a consensus. If approved by the division, a date and time for the cost bid opening will be set.

7.54. Oral Presentation: The RFP process allows the division to require each vendor to conduct an oral presentation for the purpose of explaining or clarifying the submitted proposal. Oral presentations are included in the technical evaluation and become part of the total technical score. The oral presentation is not an opportunity to change or modify the submitted proposal. If the division elects to conduct oral presentations, it will be noted in the RFP.

7.54.a. The division may invite other individuals, in addition to the evaluators and advisors, to attend these presentations.

7.55. Cost Evaluation Approval and Award: Once the cost proposals have been opened, the divisions evaluation committee reviews the cost proposals and using the cost formula, assigns an appropriate cost score to each proposal that has not been disqualified. Once a cost score has been assigned, the evaluation committee combines the technical and cost scores to make a final consensus recommendation for contract award to the Director.

7.56. RFP Evaluation Committee: For RFP evaluations, the division requires a committee of at least three and recommends no more than five persons knowledgeable of the service to be acquired. The division may also invite individuals to serve as advisors who are subject matter experts, knowledgeable in the area of discussion. The advisors may assist the evaluation committee members (referred to as evaluators) in the evaluation process.

7.56.a. The Procurement Director or designee, who is skilled in purchasing techniques and procedures, must serve on the evaluation committee as a full voting member.

7.56.b. The Procurement Director or designee must serve as the chairperson or co-chair person for the RFP evaluation committee. In this role, the Procurement Director or designee, is responsible for mediating all discussions related to the evaluation and assisting with time management, and must also prepare the consensus of the committee for award, as in accordance with 148 C.S.R. 1-3.2.

7.56.c. A non-state employee shall not serve as voting member of the evaluation committee.

7.56.d. The names and other relevant information for all evaluation committee members and advisors must be recorded by the Procurement Director prior to the release of the RFP. The record must include justification for any identified advisors and/or requests to have more than five evaluators on the evaluation committee

7.56.e. To ensure there is no conflict or influence on the committee members' decision process, the evaluation should take place with only the designated evaluators and advisors present.

7.56.e.1. Certification of Non-Conflict of Interest: To minimize the risk of conflict of interest, each member of the evaluation committee and any advisors are required sign a Certification of Non-Conflict of Interest.

7.56.e.2. By signing this certification, the evaluator(s), advisor(s) and Procurement Director or designee attest that:

(1) his or her service on the evaluation committee is not in violation of W. Va. Code § 6B-2-5, or any other relevant code section;

(2) his or her service on the evaluation committee does not create a conflict of interest with any of the participating vendors; and

(3) he or she has not had or will not have contact relating to the solicitation identified herein with any participating vendors between the time of the bid opening and the award recommendation without prior approval of the division. The Procurement Director should discuss the non-conflict of interest issue with potential committee members to ensure that individuals who may have a conflict are not chosen to participate as evaluation committee members.

7.57. Pre-Bid Conferences: Regardless of the procurement method used, the Procurement Director should consider conducting pre-bid conferences on high dollar, complex acquisitions early in the bid process to provide an opportunity to explain and clarify critical aspects of the solicitation, eliminate misunderstandings and encourage vendor participation.

7.57.a. In all cases, it is very important for the Procurement Director or designee who is trained and knowledgeable of the procurement process to attend these conferences.

7.57.b. Vendor attendance at conferences may be optional or mandatory, as described in the bid document. If mandatory attendance is required, only bids or proposals from those vendors represented at the conference will be accepted. If participating vendors sign the official "sign-in sheet" while the meeting is in progress, then the vendors will be treated as if they were present for the entire conference and will be deemed to have the knowledge that they would have had if attending the entire conference. Teleconference attendance is prohibited unless specified in the bid document.

7.57.c. "Sign-in sheets" for mandatory pre-bid conferences should contain the following: name of company, person attending (signature and printed name), address, telephone number and facsimile number.

7.57.d. The header information on the sheets should include the requisition number and the date and time of the pre-bid conference. The original sheet must be filed with the division. No one individual may represent more than one vendor.

7.57.e. It is recommended that pre-bid conferences be scheduled on Tuesdays through Thursdays between 10 a.m. and 3 p.m. to encourage more participation. A sample agenda for a pre-bid conference is as follows:

7.58. Conference Opening (Procurement Committee)

7.58.a. Offers opening remarks (Welcome attendees and introduce yourself)

7.58.b. Identify the project by RFQ or RFP number and generic scope of work

7.58.c. Provide the "sign-in sheet"

7.58.d. Make available a few extra copies of the bid documents

7.58.e. Remind all attendees to complete the "sign-in sheet" (Emphasize the importance of the "sign in sheet")

7.58.f. Introduce the Purchaser representatives

7.58.g. Review important general information items:

7.58.g.1. Inquiries

7.58.g.2. Vendor Registration

7.58.g.3. Oral Statements

7.58.g.4. Bid proposal submission process

7.58.g.5. Schedule of events

7.58.g.6. Bonding Requirements (Bid, performance, etc.)

7.59. Specification Discussion (Procurement Committee) Procurement Director will open the technical specifications for discussion by item with all attendees. Items that all party's representatives, agree need to be amended by addendum will be recorded by the Procurement Director to aid in preparing the addendum.

7.59.a. All clarifying statements and questions shall to be addressed on an addendum. Questions are received and discussed.

7.60. Master Terms and Conditions Discussion (Procurement Committee) Procurement committee will discuss the part "General Terms & Conditions" and then proceed to discuss the format, evaluation, and, in the use of RFPs, the cost proposals and Minimum Acceptable Score (MAS) concept.

7.60.a. Questions are received and discussed.

7.61. Conclusion (Both Procurement Committee) Procurement committee will review items to be included in the addendum if at all possible. For items deferred, the information will be addressed in the addendum by determination made by the committee.

7.61.a. Securities/Bonds: Instruments are occasionally demanded from the successful vendor by the division prior to bid or award to ensure performance or to minimize financial risks to the division in the event of default.

7.62. Bonds: The division may require a bond or deposit as part of the bidding process. This requirement is most often used for construction contracts; however, it may be used for any commodity or service if determined to be in the best interest of the state.

7.62.a. The Procurement Director shall determine the applicability and amount of bonds or deposit required of a vendor at any time, if, in his or her opinion, the security is necessary to safeguard the division from undue risk. The bonds or deposit serve as a guarantee that if the contract is awarded to such bidder, that bidder will enter into a contract for the work specified in the bid.

7.62.b. Below are types of bonds used in the division Purchasing Process:

7.62.b.1. Bid Bond -A bond in which a third party agrees to be liable to pay a certain amount of money in the event a selected bidder fails to accept the contract as bid. This bond is usually required for five percent (5%) of the total bid amount. Faxed bids that contain bid bonds, or any other bond should be submitted with the bid and the vendor should provide the original bonds within two working days of the bid opening dates.

7.62.b.2. Labor and Materials Payment Bond - A bond submitted by the apparent successful vendor upon request of the division to ensure payment of labor and materials purchased or contracted for on behalf of the state in a construction project.

7.62.b.3. Maintenance Bond - A bond provided as a warranty typically in a two-year term, which is required on roofing projects.

7.62.b.4. Performance Bond- A bond in which a surety agrees to be liable to pay a certain amount of money in the event a vendor fails to perform a contract as bid. This bond is usually for the full amount of the contract.

7.63. Liquidated Damages: A specified contract provision which entitles the division to demand a setmonetary amount determined to be a fair and equitable repayment to the division for loss of service due to vendor's failure to meet specific completion or due dates.

7.64. Bonuses: Provisions in any requisition or contract that specifies a monetary reward for early completion of a project is prohibited and considered illegal.

7.65. Architectural and Engineering: Architectural and engineering services must be procured in accordance with West Virginia Code § 5G-1-1 et seq. These procurements are unique in a number of respects, most notably that cost is not submitted in the vendor's response and that the normal delegated limits previously discussed do not apply. West Virginia Code 5G creates a distinction between procurements on projects of $250,000 or less and those that exceed $250,000. In both cases, however, the final contract must be processed by the division.

Notes

W. Va. Code R. § 99-6-7