W. Va. Code R. § 135-30-8 - Purchase or Acquisition of Materials, Supplies, Equipment, Services, and Printing

Current through Register Vol. XXXIX, No. 11, March 18, 2022

8.1. Unless 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 $50,000;
8.1.b. Competitive sealed proposals;
8.1.c. Competitive selection procedures for professional services;
8.1.d. Sole source and single source procurement;
8.1.e. Emergency procurement;
8.1.f. Open end and federal contracts; and
8.1.g. Essential services.
8.2. Specifications shall be written to maximize and encourage competition. In certain cases, a "brand name or equal" may be used as a specification.
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.
8.4. 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 file.
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 procurement officer.
8.7. Except 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 Code.
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.
8.9. Purchases not exceeding $50,000.
8.9.a. The 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.
8.10. Purchasing Card.
8.10.a. The state purchasing card may be used as a payment method as provided in applicable provisions of West Virginia Code § 12-3-1 et seq., and as follows:
8.10.a.1 Employee 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:
8.10.a.1.A. 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.
8.10.a.1.D. Meals: Meals for employee travel may not be paid using the purchasing card.
8.10.a.1.E. Reconciliation 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 § 18B-5-4.
8.10.b. 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.
8.10.b.1. Routine, 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 responsibilities.
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 8.16.2.
8.11. Purchases Greater than $50,000.
8.11.a. Competitive sealed bidding is the preferred method for purchase and acquisition of materials, supplies, equipment, services, and printing greater than $50,000.
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 hours.
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 issued.
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.
8.11.i. 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 § 29B-1-4(1), 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.
8.11.j. 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 proposal;
(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.
8.11.l. 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 § 18B-5-5 and § 5A-3-12. Purchase orders in excess of $50,000 may not be issued to any vendor not properly registered with the West Virginia Department of Administration.
8.11.m. Contracts, 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 § 18B-5-4 for sealed competitive bidding shall be filed with the State Auditor.
8.12. 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 all respects.
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 waived.
8.13. Competitive Sealed Proposals.
8.13.a. For 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 vendor.
8.14. 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 Code.
8.15. Sole Source and Single Source Procurement.
8.15.a. The 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 exist:
(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. Emergency Procurement.
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 card program.
8.17. Open End Contracts and Federal Contracts.
8.17.a. 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 purchase.
8.18. Essential Services.
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.
8.19. 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 for Administration.
8.20. Procurement File.
8.20.a. 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 successful bid;
(c) why any bid or proposal is rejected in whole or in part;
(d) justification for award to other than the lowest vendor; and
(e) vendor 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.
8.21. 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.
8.21.b. Proposals for any lease-purchase agreements shall be made in accordance with West Virginia Code § 18B-19-11. 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 General.
8.22. Lease Agreements for Grounds, Buildings, Office Space or Other Space.
8.22.a. 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.
8.22.b. 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;
8.22.b.2. Leases shall contain, in substance, all of the following provisions:
8.22.b.2.A. 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; and
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 § 18B-19-11 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 Code § 18B-19-13, 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.

Notes

W. Va. Code R. § 135-30-8

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