W. Va. Code R. § 145-17-6

Current through Register Vol. XLI, No. 50, December 13, 2024

Section 145-17-6 - Registration, Advertising, Bidding, and Award

6.1. Registration of Vendors.

6.1.1. All vendors must register through the Vendor Self-Service portal with the Purchasing Division prior to being awarded a contract by the Department. W. Va. Code §5A-3-12 requires the Disclosures of Information, such as ownership, all names under which a vendor is doing business, their physical address and its corporate offices.

6.1.2. Purchasing Division Fee Payment.

6.1.2.a. All vendors shall pay the Purchasing Division annual registration fee or be exempt from the payment requirement pursuant to W. Va. Code of State Rules, Series 148 Title 1, Purchasing, prior to being awarded a contract by the Department, except that the Procurement Officer may exempt the following categories of vendors from this requirement.

6.1.2.a.1. Vendors providing a good or service under a direct award solicitation are not required to pay the registration fee. The fee is considered waived by the Procurement Officer for all direct award providers.

6.1.2.a.2. Any vendor can be exempted from paying the registration fee if the Procurement Officer determines that waiving the registration fee would be in the best interest of the Department.

6.1.3. Other registrations, Licenses, etc.

6.1.3.a. The vendor must be licensed and in good standing in accordance with any and all state and local laws and requirements by any state or local agency of West Virginia, including, but not limited to, the West Virginia Secretary of State's Office, the West Virginia State Tax Department, West Virginia Office of the Insurance Commissioner, the West Virginia State Auditor, the West Virginia State Treasurer, or other state agencies or political subdivisions prior to being awarded a contract. The vendor must provide all necessary releases to obtain information necessary to verify that the vendor is licensed and in good standing with the above entities.

6.1.4. Failure to Register.

6.1.4.a. The Procurement Officer is prohibited from awarding any contract to any vendor not properly registered with the Purchasing Division. If a vendor is eligible to be awarded or has been awarded a contract and it is determined that the vendor has failed to comply with the requirements of Section 6. of this rule, the vendor will be given a period of time that the Procurement Officer deems sufficient to cure the failure. If after that period, vendor has not cured the failure, the Procurement Officer may cancel the contract.

6.2. Advertising.

6.2.1. Solicitations that exceed $50,000.01 must be advertised using available media such as wvOasis, newspapers, trade journals, or any other media the Procurement Officer considers advisable.

6.2.2. The type and duration of advertising completed is at the Procurement Officer's discretion.

6.2.3. This provision shall not apply to expressions of interest procured by the sections or offices pursuant to W. Va. Code §5G-1-4 or other solicitations governed by law that mandates certain advertising requirements be met.

6.3. Bidding.

6.3.1. The Procurement Office must receive bids from vendors prior to the date and time of the bid closing listed on the solicitation forms provided by the Procurement Office.

6.3.2. The Procurement Officer must reject bids received after the designated time and date. Each vendor is solely responsible for delivering its bid to the Procurement Office.

6.3.3. An authorized representative of the vendor must sign all bids submitted to the Procurement Office. A corporate or other business entity signature without an individual name is not an acceptable signature.

6.3.4. The Procurement Officer may allow bids by electronic transmission as defined in W. Va. Code §5A-1-1(6). Bids by electronic transmission must be received by the Procurement Office prior to the bid closing date and time. A bid will not be considered received until after transmission is completed.

6.3.5. A vendor choosing to submit a bid or a written change to a bid by electronic transmission accepts full responsibility for transmission and receipt of the bid or written change to a bid. The Department accepts no responsibility for the unsuccessful and/or incomplete transmission of bids or changes to bids by electronic transmission. Bids submitted via electronic transmission may not be sealed until received by the Procurement Office. The Procurement Office makes no guarantee of confidentiality when vendors utilize electronic transmission.

6.3.6. Copies of bids may be open for public inspection in the office of the Procurement Office at any time after the completion of the public bid opening. No original bid may be removed from the presence of a Procurement Office representative. The Procurement Officer may prescribe policies to include scanning, copying, or other methods of assuring public access. The files of the Procurement Office are open for public inspection after the award has been made.

6.3.7. A bidder may make a change to a sealed bid before the bid closing. A bidder must submit changes in writing or by electronic transmission to the Procurement Office. To be effective, any change must be received by the Procurement Office prior to the date and time of the bid closing.

6.3.8. The Procurement Officer may reject a bid a vendor declares erroneous after the bid opening, but otherwise appears to be responsive, if all of the following conditions exist:

6.3.8.a. An error was made;

6.3.8.b. The error materially affected the bid;

6.3.8.c. Rejection of the bid would not cause a hardship on the sections or offices involved other than losing an opportunity to receive commodities and services at a reduced cost;

6.3.8.d. Enforcement of the part of the bid in error would be unconscionable; and

6.3.8.e. In order for the Procurement Officer to reject a bid under this subsection, the public file must contain documented evidence that all of the conditions set forth in this subsection exist.

6.3.9. The Procurement Officer must reject a bid that is found to be non-responsive.

6.3.10. If there is a conflict between the extension price and the unit price in the bid, the unit price prevails.

6.3.11. Vendor must disclose any instance where the vendor's bid fails to comply with the requirements of the solicitation, which includes but is not limited to, failure to comply with a mandatory requirement or goods or services not meeting the required specifications. If changes are not stated, the Procurement Officer may assume that items offered meet specifications.

6.3.12. Vendors are responsible for the accuracy of the information on and in the bid envelopes.

6.3.13. Vendors may contact the Procurement Office to obtain official bid forms.

6.3.14. All sales to the State of West Virginia are exempt from Consumer Sales Tax or Excise Tax by blanket state exemption and blanket federal exemption.

6.4. Awards.

6.4.1. Any award made by the Procurement Officer will be in accordance with the law governing the type of procurement being awarded. The Procurement Officer may make multiple or split awards when it is in the best interest of the Department.

6.4.2. The Procurement Officer may accept or reject, in whole or in part, any bid when the Procurement Officer feels it to be in the best interest of the Department. If any bid is rejected, the Procurement Officer shall place a written explanation in the purchase order file.

6.4.3. When tie bids are received, the Procurement Officer shall break the tie by the flip of a coin, draw of the cards, or any other impartial method considered prudent by the Procurement Officer.

6.4.4. Vendor Preference.

6.4.4.a. Reciprocal Preference. Reciprocal preference as described in W. Va. Code §5A-3-37(b) applies to commodities. For purposes of application of reciprocal preference, the term commodity will include any contract that involves a commodity being provided to the Department, even if the majority of the contract relates to services. This rule does not apply to construction let to bid under W. Va. Code §5-22-1. Any vendor that desires to receive the reciprocal preference contained in W. Va. Code §5A-3-37(b) must request the preference in writing at the time of bid submission and provide all documentation necessary to prove its status as a resident of West Virginia, as that term is defined in W. Va. Code §5A-3-37(a), at the time of bid submission. That required documentation must include:

6.4.4.a.1. A Certificate of Good Standing from the West Virginia Tax Department;

6.4.4.a.2. Documentation filed with the Secretary of State showing the state of incorporation, the address of all officers, the corporate headquarters, the address of the principal place of business, and other pertinent information. Entities not required to file with the Secretary of State may provide an affidavit confirming that the headquarters or principal place of business is in West Virginia, along with a copy of a utility bill in the name of the business entity;

6.4.4.a.3. A copy of the most recent personal property tax ticket showing taxes have been paid; and

6.4.4.a.4. An affidavit confirming that the business entity has paid all applicable business taxes imposed by Chapter 11 of the West Virginia Code.

6.4.4.b. Preference for Motor Vehicles and Construction and Maintenance Equipment and Machinery. Any vendor providing the Department with motor vehicles or construction and maintenance equipment and machinery used in highway and other infrastructure projects that desires to receive the preference contained in W. Va. Code §5A-3-37(c) must request the preference in writing at the time of bid submission and provide all documentation necessary to prove its entitlement to the preference requested at the time of bid submission. Required documentation will vary depending on the preference requested, but acceptable forms of documentation are described below.

6.4.4.b.1. Resident Vendor Documentation. A vendor's status as a West Virginia resident can be proven with the documentation listed in subdivision 6.4.4.a. of this section.

6.4.4.b.2. Continuous Residency. Continuous residency of business entities can be established by providing the documentation required in subdivision 6.4.4.a. of this rule for the requisite number of years. Continuous residency for employees can be established by including the number of years of residency in West Virginia for each employee included in the list described in paragraph 6.4.4.b.3. of this subdivision.

6.4.4.b.3. Employment. Employment numbers and employment percentages can be verified by submitting a list of employees by first initial and last name and including each employee's city and state of residence with a sworn statement that the list is complete and accurate.

6.4.4.b.4. Ownership. Ownership requirements can be verified by the vendor submitting an affidavit listing each owner and that owner's ownership share as a percentage of the whole entity.

6.4.4.b.5. Veteran Status. Veteran status can be verified by including applicable federal forms that designate the vendor as a veteran.

6.4.5. Requirements for bonds and deposits.

6.4.5.a. The Procurement Officer shall determine the applicability and amount of bonds or deposit required of a vendor at any time, if it is judged the security is necessary to safeguard the Department from undue risk.

6.4.5.b. The Procurement Officer may require the vendor to submit a performance bond, litigation bond or other security acceptable to the Procurement Officer, payable to the State of West Virginia. Neither personal checks nor company checks are acceptable.

6.4.5.c. Vendors can request that bonds or other security be returned after the purpose for which the bond was provided has been fulfilled. Upon confirmation from the sections, offices, or other relevant party that the bond or security in question has fully served its purpose, the Procurement Officer may return the bond or security.

6.5. Specification.

6.5.1. Specifications must be written to encourage competition to the fullest extent possible. No person may write specifications, or attempt to influence the drafter of specifications, to limit competition or favor or disfavor a particular brand or vendor. Sections and offices may not use brand or vendor names to restrict competition. If, however, brand names are used to adequately describe a needed commodity or service, the brand or vendor name must be followed by the phrase "or equal' to promote and encourage competition.

6.5.1.a. Examples of limiting competition or favoring a brand or vendor include, but are not limited to:

6.5.1.a.1. Drafting specifications to match a vendor's description of its commodity or service to the exclusion of others;

6.5.1.a.2. Listing a brand name in specifications without noting that equivalent products will be considered; and

6.5.1.a.3. Drafting specifications that are so restrictive that only one desired vendor can meet the requirements without adequate justification for the restrictions.

6.5.1.b. Nothing contained in this section will be construed to prevent sections or offices from drafting specifications with restrictions and mandatory requirements that are necessary to perform the objectives for which the commodity or service is purchased.

6.5.1.c. Reduced need for training, maintaining consistency in inventory, staff familiarity, and similar other objectives will not be sufficient to justify restrictions in specifications.

6.5.1.d. Sections and offices that use a brand or vendor name to describe a needed commodity or service must also list in the specifications the mandatory components of that commodity or service that the reference to a brand or vendor name is intended to capture.

6.5.1.e. A vendor's equality with the brand or vendor name will be evaluated on the basis of the mandatory components only. If a vendor bids a commodity or service that is equal to the brand or vendor name with regard to all identified mandatory components, the Procurement Officer shall not disqualify the vendor's bid due to inequality on non-mandatory components.

6.5.1.f. Any section or office request to disqualify a vendor on the grounds that the vendor has bid an unequal product must be accompanied by written justification listing the mandatory component that is unequal and explaining how the product bid is unequal.

6.5.2. The Procurement Officer may develop standard specifications that will form the basis of Agency contracts used by sections and offices. Standard specifications shall include information relating to the cost of maintenance and expected life of the commodities and services when the Procurement Officer determines there are applicable nationally accepted standards.

6.5.3. The Procurement Office has final approval over specifications and may require the sections or offices modify specifications. In the event the sections or offices refuse to make the required changes, the Procurement Officer is prohibited from issuing a solicitation until the sections or offices provide the Procurement Officer with a written explanation for the refusal that the Procurement Officer deems satisfactory.

6.6. Bid Evaluation.

6.6.1. Evaluators of bids must certify that no financial, personal, or other conflict of interest exists relating to any vendor or vendor representative that has submitted a bid. The Procurement Office may develop a form that evaluators can sign for certification purposes of this subsection.

6.6.2. From the time a requisition is submitted to the Procurement Office for public advertisement until an award is made, evaluators and section and office personnel are not permitted to communicate with vendors about the solicitation or any component thereof without prior approval from the Procurement Office.

6.6.2.a. All communications regarding the solicitation must be directed to the Procurement Office until an award has been made.

6.6.2.b. Nothing in this subsection, however, shall prevent the evaluators and section and office personnel from communicating with a vendor about existing contracts or other matters unrelated to the solicitation in question.

6.7. Deliveries.

6.7.1. Sections and offices are responsible for:

6.7.1.a. The inspection of commodities and services upon delivery to ensure purchases meet contractual requirements.

6.7.1.b. Maintaining records of receipt.

6.8. Change Orders.

6.8.1. The Procurement Officer has the duty and responsibility to review and approve change orders just as he or she has the duty and responsibility for review and approval of the original contract.

6.8.2. Change order submission.

6.8.2.a. Sections and offices desiring to make a change to a contract must submit a request for the contract change to the Procurement Office.

6.8.2.b. Any change order request submitted to the Procurement Office that requires vendor agreement must include the vendor's agreement in writing.

6.8.3. The Procurement Officer may ask for, and the section and offices must provide, any documentation or further explanation that the Procurement Officer deems necessary to aid in reviewing a change order request.

6.8.4. Rejection.

6.8.4.a. The Procurement Officer shall reject the change order if upon review he or she determines that:

6.8.4.a.1. It has not been properly justified.

6.8.4.a.2. Fails to include necessary documentation.

6.8.4.a.3. Is or could be construed as an attempt to circumvent the bidding process.

6.8.4.a.4. Or is otherwise unfit to be approved.

6.8.5. Change orders must be approved by the Attorney General's office, as to form, just as the original contract is approved as to form by that office.

6.8.6. Timing of Work.

6.8.6.a. Sections and offices must not permit vendors to perform work that the sections or offices anticipate will be added to a contract through a change order until such time as the change order has been:

6.8.6.a.1. Formally approved by the Procurement Office and the Attorney General's Office;

6.8.6.a.2. Encumbered by the Procurement Office; and

6.8.6.a.3. Mailed to the vendor.

6.8.6.b. This subsection related to timing of work does not apply to government construction contracts executed pursuant to W. Va. Code § 5-22-1et seq.

W. Va. Code R. § 145-17-6