Current through Register Vol. XXXIX, No. 11, March 18, 2022
otherwise authorized by law, all purchases or acquisitions of materials,
supplies, equipment, services, and printing shall be awarded by competitive
bidding, except as provided in the following paragraphs of this rule:
8.1.a. Purchases not exceeding
8.1.b. Competitive sealed
selection procedures for professional services;
8.1.d. Sole source and single source
8.1.f. Open end and
federal contracts; and
Specifications shall be written to maximize and encourage competition. In
certain cases, a "brand name or equal" may be used as a
8.3. All purchases
and acquisitions shall be made in consideration of and within limits of
available appropriations and funds and in accordance with applicable provisions
of West Virginia Code §5A-2, relating to expenditure schedules and
quarterly allotments of funds.
Award shall be made to the lowest responsible and responsive vendor. In
determining the lowest responsible and responsive vendor, consideration will be
given to such factors as quality (meeting specifications), price, time of
delivery, cost of delivery, and other terms and conditions considered prudent.
Unit prices shall prevail in all cases when there is a conflict between the
unit price and extended price. In some cases multiple and/or split awards may
be made when determined to be in the best interest of the institution.
Occasionally, purchase orders may be issued which impose no obligation to take
delivery of a product and/or service and as such, these purchase orders shall
be issued as blanket purchase orders or price agreements. In situations where
vendors are competing to provide a service that will generate income for an
institution, the award shall be made to the highest responsible and responsive
bidder, taking into consideration the above factors.
8.5. The chief procurement officer or
director of procurement may accept or reject, in whole or in part, any bid or
proposal when the chief procurement officer or director of procurement believes
it to be in the best interest of the institution. If any bid or proposal is
rejected, a written explanation shall be placed in the purchasing
8.6. When tie bids or
proposals are received, the tie shall be broken and an award made by allowing
the tied vendors to make a "last and final offer". If a tie bid is not broken
by a "last and final offer," then the tie may be broken by a flip of a coin,
draw of the cards or any other impartial method deemed prudent by the chief
for exemptions granted in the West Virginia Code, all material, supplies,
equipment, services and printing made upon competitive bids or proposals shall
be subject to any resident vendor preference set forth in the West Virginia
8.8. The chief procurement
officer or director of procurement shall determine the applicability and
amounts of bonds and/or deposits required of a vendor at any time, if, in his
or her judgment, such security is necessary to safeguard the institution from
undue risk. The chief procurement officer or director of procurement may
require the vendor to submit a certified check, certificate of deposit,
performance bond, or any other security acceptable to the chief procurement
officer, payable to the institution. Personal checks and/or company checks are
not acceptable. When a contract has been satisfactorily completed on which a
surety bond or other deposit has been previously submitted, the spending unit
shall certify the completion in writing to the chief procurement officer or the
director of procurement. The chief procurement officer or director of
procurement, upon receipt of the notification, shall return the check or
deposit to the vendor.
Purchases not exceeding $50,000.
chief procurement officer or the director of procurement shall establish
institutional guidelines and procedures for purchases not exceeding $ 50,000.
These guidelines and procedures shall provide for obtaining adequate and
reasonable records to properly account for funds and to facilitate auditing.
They shall be approved by the president, filed with the Vice Chancellor for
Administration and be on file in the institution's purchasing office and made
available to the public upon request.
8.9.b. Purchases in this category do not
require competitive bids or quotations.
The state purchasing card may be used
as a payment method as provided in applicable provisions of West Virginia Code
et seq., and as follows:
travel expenses when the travel is required by the employee's job and is for
official business of the institution. Expenses that may be paid using the
purchasing card are as follows and are limited to $5,000 per transaction or the
card limit whichever is less:
Transportation: Commercial air fare, chartered aircraft service, rail service,
commercial rental vehicles, and miscellaneous ground transportation and fees
such as shuttle service, taxi service and parking.
8.10.a.1.B. Lodging: Room accommodations
only. Any extra charges will be the employee's responsibility to pay.
8.10.a.1.C. Fuel: Fuel for commercial rental
or fleet vehicles only.
Meals: Meals for employee travel may not be paid using the purchasing
and settlement of employee travel expenses paid by the purchasing card shall be
made according to the State Auditor's procedures, provided the procedures are
consistent with the intent of applicable provisions of West Virginia Code
Routine and regularly scheduled
payments may be made using the purchasing card and are limited to the
transaction limit of the card. Routine and regularly scheduled payments mean
all payments that have either received Attorney General approval in accordance
with statute or do not require such approval, and are made on a regular,
predictable and routine basis whether weekly, monthly, annually, or on any
other regular schedule.
regularly scheduled payments are limited to the following: association dues;
accreditation fees; software licenses and maintenance fees; resale merchandise;
maintenance contracts; temporary space rentals; inter-library loan charges;
inter/intra-institutional charges; contracts for artists, entertainers, and
speakers; open end contracts; license fees of all types; utilities of all
types; federal, state and municipal fees and assessments; real property rental
fees; postage; books and related items, including those for libraries and
bookstores; hospitality expenses; travel expenses; shipping, handling, and
freight charges; advertising; subscriptions; periodicals, and publications;
athletic and academic team related expenses; and necessary job related medical
or drug testing and treatment.
8.10.b.2. In order to provide sufficient
accounting and auditing procedures for all purchasing card transactions, each
institution shall adopt and effectively use the reconciliation, reporting and
payment software for the purchasing card program approved by the State Auditor
and the Vice Chancellor for Administration.
8.10.b.3. The Commission and Council may
expand the use of the purchasing card for travel and routine and regularly
scheduled payments for any institution it determines has the capacity, internal
controls and record of effective management to handle the expanded
8.10.c. The Commission and each institution
shall maintain a purchasing card that may be used for emergencies declared by
the President of an institution and approved by the Chancellor up to the
transaction limit of the card as provided in subparagraph
Greater than $50,000.
sealed bidding is the preferred method for purchase and acquisition of
materials, supplies, equipment, services, and printing greater than
8.11.b. The chief
procurement officer or director of procurement shall advertise for bids on all
purchases exceeding $50,000. The advertisement shall appear no less than 5 days
prior to the date bids are due.
8.11.c. The chief procurement officer or
director of procurement shall, in addition to advertising, post or otherwise
make available notice of all acquisitions and purchases for which competitive
bids are being solicited in the purchasing office of the institution involved
in the purchase no less than 5 days prior to making such purchase and shall
ensure that the notice is available to the public during business
8.11.d. Bids shall be
delivered to the specified location for receipt of bids by the bidder prior to
the date and time of the bid opening according to the instruction contained in
the request for bids and any addenda or modifications officially
8.11.e. Bids not properly
delivered or received after the required time and date shall not be opened and
shall be returned to the bidder.
8.11.f. The bid shall be signed by an
authorized agent of the bidder. A corporate signature without an individual's
name and signature shall not be construed as an acceptable signature.
8.11.g. Facsimile transmitted bids are not
acceptable for bids over $50,000. Facsimile and electronically transmitted
modifications are acceptable if the bid price is not revealed.
8.11.h. A bidder may make a written
modification to a sealed bid prior to the bid opening, provided modifications
are made by the bidder in such a manner that the bid price is not revealed or
known until the bid is opened. Written modifications must be received by the
chief procurement officer or the director of procurement prior to the date and
time of the bid opening. Electronically transmitted modifications are
acceptable if submitted prior to the bid opening date and time and the bid
price is not revealed.
Originals or copies of bids shall be available for public inspection after the
bid opening. Vendors may designate in writing with the bid submission
information contained within the bid constituting trade secrets, pursuant to
West Virginia Code §
which shall be exempt from disclosure. The purchasing files shall be open for
public inspection after the award has been made, except for information
qualifying for the exemption set out above.
The chief procurement officer or the
director of procurement may reject an erroneous bid after the bid opening upon
request of the bidder if all of the following conditions exist:
(a) an error was made;
(b) the error materially affected the bid or
(c) rejection of the bid
or proposal would not cause a hardship on the institution other than losing an
opportunity to receive materials, supplies, equipment, services, construction
and/or printing at a reduced cost; and
(d) enforcement of the part of the bid or
proposal in error would be unconscionable. In order to reject a bid or
proposal, the purchasing file must contain documented evidence that all of the
above conditions exist.
8.11.k. Price and other adjustments shall be
allowed on any purchase order if specific provisions for adjustments have been
incorporated in the prescribed forms and the purchase order. All such requests
for adjustments shall be made in accordance with the specific terms and
conditions of the individual purchase order. In the event no provision for
adjustments has been made, discretion to grant adjustments shall rest with the
chief procurement officer.
Every person, firm or corporation selling or offering to sell to the
Commission, Council, a Governing Board and its institutions, materials,
supplies, equipment, services, construction and printing, upon competitive bid
or otherwise, in excess of $50,000 per order, shall be registered with the West
Virginia Department of Administration, Purchasing Division, pursuant to West
Virginia Code §
Purchase orders in excess of $50,000 may not be issued to any vendor not
properly registered with the West Virginia Department of
purchase orders and associated documents such as performance and labor/material
payment bonds and certificates of insurance are not required to be approved by
the Attorney General provided standard terms and conditions or standardized
forms previously approved by the Attorney General are used.
8.11.n. Contracts and purchase orders that
exceed the amount set forth in West Virginia Code §
for sealed competitive bidding shall be filed with the State Auditor.
Vendor's Rights and Duties.
8.12.a. Each vendor is solely responsible for
delivery of its bid to the specified location prior to the specified date and
time of the bid or proposal opening.
8.12.b. If there is a conflict between the
extension price and the unit price, the unit price shall prevail.
8.12.c. Any changes made by the vendor in the
specifications listed in the bid request must be clearly stated. If changes are
not stated, it will be assumed that items offered meet the specifications in
8.12.d. Vendors are
responsible for the accuracy of the information in their bid or proposal and on
the bid or proposal envelope.
8.12.e. All sales to the Commission, Council
and the Governing Boards are exempt from West Virginia consumer sales tax or
excise tax by blanket state exemption and blanket federal exemption.
8.12.f. It is the vendor's exclusive duty and
obligation to file protests and requests for reconsideration according to the
requirements of Section 9, and for reconsideration of suspension, in accordance
with the requirements of Section 10 of this rule; otherwise, they shall be
Competitive Sealed Proposals.
purchases above $50,000, competitive sealed bids are the preferred method of
procurement; however, if it is either not practicable or advantageous, a
contract may be entered into by a request for proposals. The words
"practicable" and "advantageous" are to be given ordinary dictionary meanings.
The term "practicable" denotes what may be accomplished or put into practical
application. "Advantageous" connotes a judgmental assessment of what is in the
institution's best interest. The key element in determining advantageousness
will be the need for flexibility.
8.13.b. The request for proposal method of
purchasing is used to obtain goods and services when sufficient knowledge or
expertise does not exist to adequately specify the details of the desired
result. The desired result is written into the request for proposals. The
vendor responds to the request for proposals with a proposal identifying its
intended approach to meet the desired result along with a proposed price or
fee. Terms and conditions of the contract shall be included in a request for
proposals, along with a pre-established award criteria based on value or
points. Whenever desirable, interviews may be conducted with interested parties
for clarification and/or determination of qualifications and experience prior
to award. Requests for proposals go beyond price alone. They also look at the
vendor's ability and resources to furnish the desired service to get the
desired result. Quality of service and performance are important
considerations. Requests for proposals are primarily used for large dollar
projects requiring a high level of expertise on the part of the
Competitive Selection Procedures for Professional Services.
8.14.a. The competitive selection procedure
for professional services is similar to the process used for competitive sealed
proposals; however, greater weight is given to the ability to perform the
service as reflected by technical training, education and experience, and in
some cases, artistic and aesthetic values and capabilities. In these cases,
price may be a secondary consideration.
8.14.b. The competitive selection process for
hiring architects and engineers is set forth in Chapter 5G of the West Virginia
and Single Source Procurement.
chief procurement officer or director of procurement may approve the purchase
of materials, supplies, equipment, services, and/or printing directly from a
vendor without competitive bid or proposals, if any of the following conditions
(a) the item cannot be obtained
through ordinary purchasing procedures;
(b) the item is of unique nature and not
available from any other source; or
(c) the item is available from a state
spending unit or other institution with preference under the West Virginia
Code, provided the price, availability and quality are comparable to those in
the open market.
8.16.a. Emergency purchases exceeding $50,000
must receive the prior written approval of the chief procurement officer or
director of procurement unless made according to subparagraph 8.16.2. An
emergency situation requiring purchase of materials, supplies, equipment,
services, construction or printing must be the result of unforeseen events or
circumstances, including delays by contractors, delays in transportation, or an
unanticipated volume of work. Emergency purchases shall not be used for
hardship resulting from neglect, poor planning or lack of organization by the
spending unit. Competitive bids must be obtained if possible.
8.16.b. The Commission and each institution
may maintain a purchasing card for use in and for situations declared an
emergency by the president of an institution and approved by the Chancellor.
Such emergencies may include but are not limited to partial or total
destruction of a campus facility; loss of a critical component of utility
infrastructure; heating ventilating, or air conditioning failure in an
essential academic building; loss of campus road, parking lot or campus
entrance; or a local, regional, or national emergency situation that has a
direct impact on the campus.
8.16.c. In the event of an emergency declared
by the president of the institution and approved by the Chancellor, the
president or his or her designee may authorize the use of an emergency
purchasing card by a designated representative in accordance with the
procedures set forth in the State Auditor's Legislative Rule for the purchasing
End Contracts and Federal Contracts.
The Commission, Council or a Governing Board and its institution(s) may enter
into open end contracts that were competitively bid for materials, supplies,
equipment, services, and/or printing to supply their respective needs in the
form of statewide contracts, blanket orders or price agreements. Once issued,
purchases and acquisitions may be made from these contracts without securing
any other bids or quotations. These contracts may be made available to other
institutions, the Commission and Council for their use.
8.17.b. The Commission, Council, a Governing
Board and its institution(s) may, without securing any other bids or
quotations, make purchases from cooperative buying groups, consortia, the
federal government and from federal government contracts if the materials,
supplies, equipment, services, and printing to be purchased are available from
these groups, consortia, or the federal government and its contracts, and if
this is the most financially advantageous manner of making the
8.18.a. Essential services
may be purchased and paid for by the Commission, Council, a Governing Board and
its institution(s) without securing competitive bids or proposals or issuing
purchase orders. Commodities in this category may include but are not limited
to utilities of all kinds; postage; items for resale; municipal, county, state,
and federal fees; student awards, stipends, loans and grants; shipping and
freight charges; tuition and registration fees and refunds thereof;
professional dues; etc. The Vice Chancellor for Administration shall issue
guidelines for the purchase of and payment for essential services.
Motor Vehicle Purchase.
8.19.a. The purchase and leasing of motor
vehicles shall be consistent with this rule, and guidelines and procedures
adopted by the Commission, Council, a Governing Board and the Vice Chancellor
The chief procurement officer or
director of procurement shall maintain a purchasing file for each procurement
or acquisition. This file shall contain all relevant information pertaining to
such purchase or acquisition, including but not limited to:
(a) bids, proposals or quotations received in
response to a request for sealed bids or proposals; however, an unopened bid or
proposal shall not be considered a public document or record;
(b) identification and certification of the
(c) why any bid or
proposal is rejected in whole or in part;
(d) justification for award to other than the
lowest vendor; and
protests or complaints. The purchasing file shall be a public record open to
inspection during normal business hours. No records in the purchasing file
shall be destroyed without the written consent of the Legislative Auditor,
except as set forth in subparagraph 8.20.b.
8.20.b. Those files in which the original
documentation has been held for at least one year and in which the original
documents have been reproduced and archived on microfilm or other equivalent
method of duplication may be destroyed without written consent of the
Legislative Auditor. All files, no matter the storage method, shall be open for
inspection by the Legislative Auditor upon request.
Approval of Lease-Purchase Agreements
for the Governing Boards.
8.21.a. After the
Commission or Council has granted approval for lease-purchase agreements by a
Governing Board, the Governing Board may enter into lease-purchase agreements
for capital improvements, including equipment. Any lease-purchase agreement
exceeding one million dollars in total must have prior approval of the
Commission or Council.
Proposals for any lease-purchase agreements shall be made in accordance with
West Virginia Code §
The Vice Chancellor for Administration may establish guidelines and a format
for receiving, considering and approving such proposals.
8.21.c. Lease-purchase agreements exceeding
one hundred thousand dollars must be approved as to form by the Attorney
Agreements for Grounds, Buildings, Office Space or Other Space.
The Commission, Council and Governing
Boards have the authority to enter into lease agreements for grounds,
buildings, office space or other space in the name of the State
for more than one fiscal year
but not exceeding
forty years under the following conditions:
8.22.a.1. The Commission, Council and
institutions shall be responsible for all rent and other necessary payments in
connection with the contract of lease; and
8.22.a.2. Satisfactory grounds, buildings,
office or other space is not available on grounds and in buildings currently
owned or leased.
Before executing any rental contract or lease, the Commission, Council or a
Governing Board, as appropriate, shall do the following:
8.22.b.1. Determine the fair rental value of
the grounds, building, office space or other space to be leased in the
condition in which they exist, and shall contract for or lease the premises at
a price not to exceed the fair market value;
Leases shall contain, in substance,
all of the following provisions:
That the Commission, Council or Governing Board, as lessee, has the right to
cancel the lease without further obligation on the part of the lessee upon
giving thirty days' written notice to the lessor at least thirty days prior to
the last day of the succeeding month;
8.22.b.2.B. That the lease shall be
considered canceled without further obligation on the part of the lessee if the
Legislature or the federal government fails to appropriate sufficient funds for
the lease or otherwise acts to impair the lease or causes it to be canceled;
8.22.b.2.C. That the lease
shall be considered renewed for each ensuing fiscal year during the term of the
lease unless it is canceled by the Commission, Council or the Governing Board
before the end of the then-current fiscal year.
8.22.3. The Commission, Council or an
institution which is granted any grounds, buildings, office space or other
space leased in accordance with West Virginia Code §
may not order or make permanent changes of any type unless the Commission,
Council or the Governing Board, as appropriate, has first determined that the
change is necessary for the proper, efficient and economically sound operation
of the institution. For purposes of this section, a "permanent change" means
any addition, alteration, improvement, remodeling, repair or other change
involving the expenditure of state funds for the installation of any tangible
thing which cannot be economically removed from the grounds, buildings, office
space or other space when vacated by the institution.
8.22.4. Leases and other instruments for
grounds, buildings, office or other space, once approved by the Commission,
Council or Governing Board, may be signed by the chief executive officer of the
Commission, Council or the institution. A lease and other instrument entered
into by a Governing Board that exceeds one million dollars in total must
receive prior approval of the Commission or Council, as appropriate, before
being executed by the Governing Board or institution.
8.22.5. The Commission or Council shall
present to the Joint Committee on Government and Finance for prior review any
purchase of real estate, any lease-purchase agreement and any construction of
new buildings or other acquisitions of buildings, office space, grounds
resulting from a lease entered into pursuant to the provisions of West Virginia
if the transaction exceeds $1 million.
8.22.6. Any lease or instrument exceeding one
hundred thousand dollars annually shall be approved as to form by the Attorney
General. A lease or other instrument for grounds, buildings, office or other
space that contains a term, including any options, of more than six months for
its fulfillment shall be filed with the State Auditor.
8.22.7. The Commission and Council may
promulgate additional rules deemed necessary to carry out the provisions of
this section, and the Vice Chancellor for Administration may issue procedures
for complying with this section.