Current through Register Vol. XXXIX, No. 11, March 18, 2022
9.1.
Authority.
The Executive Director, has the sole authority to select,
inspect and to acquire by contract, in the name of the State, real property
which is necessarily required by any spending unit except those spending units
exempted under W. Va. Code §
5A-10-2.
Said real property to be acquired may be purchased from Department of
Administration funds, the requesting spending unit's funds, or any other funds
available to a requesting spending unit which may properly be applied to the
purchase of real property.
9.2.
Applicability.
Any contracts wherein the State purchases real property, is
deeded real property, or has the right or option to purchase real property at
any time or at the conclusion of the contract, shall be treated as a real
property acquisition under Section 9 of this Rule.
9.3. Request to Purchase Real Property.
9.3.a. A spending unit desiring to have the
Executive Director acquire real property on its behalf shall submit to the Real
Estate Division a completed Requisition for Real Property on the form provided
by the Real Estate Division signed by the chief executive officer of the
spending unit or his or her designee. The requisition shall require that the
spending unit provide information necessary for the Executive Director to
accurately assess the spending unit's real property needs, including but not
limited to, the number of employees contemplated in the request, current
location and space utilized, anticipated location and space to be utilized,
customer needs, parking needs, and any other information which the Executive
Director may request be provided. The requisition shall contain a certification
by the chief executive officer of the spending unit or his or her designee that
the real property is necessarily required for the proper function of the
spending unit and that satisfactory grounds, buildings, office space or other
space are not available on real property now owned or leased by the
State.
9.3.b. Upon receipt of the
spending unit's request, the Executive Director may require further
justification or may approve the request as written. If the spending unit has
requested a specific location or property (referred to herein as "sole source")
the Executive Director may approve the sole source request with written
justification made by the spending unit explaining in detail why the real
property is being requested as a sole source. The Executive Director may make
any further inquiry or investigation and may require any further certification
from the spending unit that he or she deems necessary to determine whether an
approval of the sole source request is in the best interests of the
State.
9.4. Selection.
9.4.a. If a request for real property which
is not a sole source is approved, the spending unit shall submit criteria for
the real property to be acquired to the Executive Director. The Executive
Director shall review the submitted criteria and may include this criteria in
any bid specifications or requirements that may be set forth in a Solicitation
of Interest.
9.4.b. The Executive
Director may, at his or her discretion, issue a Solicitation of Interest in the
State Purchasing Bulletin and by whatever other means he or she so chooses in
order to elicit responses from the largest number of potential
bidders.
9.4.c. Where a
Solicitation of Interest is issued, the Real Estate Division shall provide
specifications to all potential bidders. Bid specifications may include special
considerations, including but not limited to, consideration for revitalization
of downtown areas and historical areas, and facilities that are on the National
Register of Historic Places.
9.4.d.
Where bids are received pursuant to a Solicitation of Interest, an evaluation
committee shall be appointed by the spending unit with the approval of the
Executive Director, or, at the request of the spending unit, the Executive
Director may form an evaluation committee on behalf of the spending unit to
review and rank qualifying bids. The evaluation committee shall consist of
persons possessing expertise or knowledge associated with the real property to
be acquired. Each member of the evaluation committee shall complete and sign a
non-conflict of interest form, as provided by the Executive Director, as to the
bids to be evaluated.
9.4.e. Where
bids are received pursuant to a Solicitation of Interest, the Executive
Director shall select one or more bidders, if any, ranked by the evaluation
committee and initiate negotiations with the bidder(s) pursuant to Subsection
9.5 of this Rule. All non-selected bidders shall be promptly notified by the
Executive Director. The Executive Director reserves the right to cancel a
Solicitation of Interest at any time.
9.5. Negotiation.
The Executive Director shall negotiate with a sole source
property owner or, if applicable, one or more selected bidders pursuant to
Subsection 9.4.e of this Rule. The Executive Director may enter into
simultaneous negotiations with any of the selected bidders. All recommendations
and bids shall remain confidential until execution of the contract.
9.6. Fair Market Value.
Before executing any contract, the Executive Director shall
determine the fair market value of the real property by the manner in which he
or she determines to be most efficient and effective for the spending unit's
request. To determine the fair market value of the real property requested, the
Executive Director may cause an appraisal to be conducted by a licensed real
estate appraiser and may require the spending unit to pay for the cost of the
appraisal.
9.7. Preparation
of Contract to Purchase Real Property.
A contract shall be prepared by the Executive Director, and
shall not be executed until the spending unit's chief executive officer or his
or her designee has provided the Executive Director with a written
certification, in the form provided by the Real Estate Division, that
sufficient funds are available and may be properly applied to the purchase
price of the real property to be acquired by the Executive Director. Upon
receipt of the certification of funding, the Executive Director shall inform
the State Auditor of the impending real property acquisition, and of the funds
which will be applied to the purchase price of the real property.
9.8. Execution by the Seller.
9.8.a. When the seller is a corporation, or
other corporate entity, the contract shall be executed by its president or vice
president and duly attested to by another officer of the corporation, usually
the secretary. The corporate seal shall be affixed, when available.
9.8.b. When the seller is a limited liability
company which is member managed, any member authorized to bind the limited
liability company shall execute the contract. When the seller is a limited
liability company which is manager managed, the manager shall execute the
contract on behalf of the limited liability company.
9.8.c. When the seller is an individual or
sole proprietor, the contract shall be executed by the owner of the property or
his or her authorized representative.
9.8.d. When the seller is a partnership, any
partner authorized to bind the partnership shall execute the contract. In a
limited partnership, the general partner may execute the contract on behalf of
the limited partners.
9.8.e. When
an individual or sole proprietor is married, his or her spouse must also
execute the contract, even if the subject property has been deeded to only one
of the parties.
9.8.f. If an
individual or corporate entity other than the owner of the property is
authorized to execute the contract on behalf of the owner, written
authorization, duly signed by the property owner, shall be filed with the
Executive Director at the time of execution of the contract by the
seller.
9.9. Execution
by the Executive Director.
The Executive Director shall execute each contract in the
name of the State for and on behalf of the spending unit requesting the real
property after execution by the seller. Execution of a contract by the
Executive Director on behalf of a spending unit will in no way make the
Executive Director, the Secretary or the Department of Administration, or any
party other than the spending that provided the Executive Director with a
certification of funding pursuant to Subsection 9.7 of this Rule, responsible
for the payment of any sums contemplated by the contract.
9.10. Approval as to Form
Following execution of the contract by the Executive
Director, the contract shall be transmitted to the office of the Attorney
General for approval as to form. Contracts that have been approved as to form
by the Attorney General shall be filed with the Real Estate Division, with
copies being sent to the seller, and the spending
unit.
