W. Va. Code R. § 145-17-7

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

Section 145-17-7 - Purchasing Methods

7.1. Purchases of $50,000 or less.

7.1.1. Sections and offices may make purchases of $50,000 or less per transaction for commodities and services without processing the purchase as a formal solicitation through the Procurement Office, provided the sections and offices adhere to the most current Procurement Office purchasing rule established by the Department.

7.1.2. Sections and offices must keep records of these purchases on file and make them available for public inspection during the normal office hours of the sections and offices.

7.1.3. Sections and offices shall not issue a series of requisitions or divide or plan procurements to circumvent competitive bidding or spending thresholds, otherwise known as stringing.

7.1.4. If a section or office fails to comply with the rule established for purchases of $50,000 or less, the Procurement Officer has the ability to recommend to the Director for approval the following corrective actions:

7.1.4.a. Suspend or reduce purchasing permission for that section or office.

7.1.4.b. Require the section or office to provide additional reports and documentation relating to purchases of $50,000 or less for Procurement Office review.

7.1.4.c. Require the section or office to submit to additional oversight that the Procurement Officer deems appropriate.

7.1.4.d. Require the section or office personnel responsible for purchases of $50,000 or less participate in remedial training as approved by the Procurement Office.

7.2. Purchases in excess of $50,000.01.

7.2.1. Purchases of commodities and services that exceed $50,000.01 shall be made by the Procurement Office.

7.2.2. The use of a purchase order is required for purchases over $50,000.01 and the agency shall continue to submit contracts to the Attorney General's office for approval.

7.3. Open End Contracts and Statewide Contracts.

7.3.1. The Department may secure open end contracts to obtain commodities and services to supply the repetitive needs of the sections and offices in the form of statewide contracts, blanket orders, or section and office contracts.

7.3.2. If the Procurement Officer establishes a Department open end contract or Statewide contract, any section or office covered by the contract is required to use it unless not using the contract would result in a lower purchase price for a comparable commodity.

7.3.2.a. The Procurement Officer may grant sections and offices a waiver that permits the section or office to purchase from a source other than the open-end contract.

7.3.3. If the Procurement Officer establishes a Department contract, all sections and offices are required to use it.

7.3.3.a. The Procurement Officer may grant sections or offices a waiver that permits the section or office to purchase from a source other than the Department contract.

7.3.4. Granting of a waiver from an open end, Statewide or Department contract will be considered on a case-by-case basis and will only be granted if the Procurement Officer determines the waiver is in the best interest of the Department. A waiver will only be granted if the section or office can show that any one of the following conditions exist:

7.3.4.a. The vendor is unable to deliver the commodity or service by the required delivery date, assuming the section or office is not imposing an unreasonable delivery deadline.

7.3.4.b. The vendor is unresponsive to ordering requests.

7.3.4.c. The vendor has refused to perform.

7.4. Direct Award Procurement.

7.4.1. The Procurement Officer may approve the purchase of commodities and services directly from a vendor as a direct award procurement without competitive bidding if:

7.4.1.a. The section or office can acquire the good or services from only one source.

7.4.1.b. The section or office provides written documentation to the Procurement Officer setting forth the basis for the direct award procurement and the specific efforts made to determine the availability of other sources.

7.4.2. Sections and offices are encouraged to solicit competition rather than process a direct award request. The Procurement Officer may reject direct award requests whenever competition is believed to be available.

7.4.3. All direct award requests exceeding $50,000 made to the Procurement Officer shall be publicly advertised and made available for review by vendors registered with the Purchasing Division. Should this advertisement cause inquiry and concern or requests to bid by prospective bidders or other interested parties, the Procurement Officer may:

7.4.3.a. Reject the direct award request and require the section or office to submit a requisition for public advertisement and formal bidding.

7.4.3.b. Accept the direct award request and approve the direct award contract.

7.4.3.c. Take other action as necessary.

7.4.4. The Procurement Officer may require potential direct award requests at any dollar level above $50,000.01 to be subject to review, approval, and processing in the same manner as described in this rule.

7.4.5. The Procurement Officer must issue prior approval or disapproval for the purchase of used equipment directly from the vendor without competitive bids.

7.4.5.a. If disapproved, the Procurement Officer must return the request to the section or office and direct another method of purchasing.

7.4.5.b. Notwithstanding the foregoing, approval to purchase used equipment under this subsection is contingent upon meeting all the requirements applicable to direct award procurement.

7.5. Emergency Procurement.

7.5.1. Any request to procure specific commodities or services for immediate delivery exceeding $50,000 on an emergency basis must be submitted in writing to the Procurement Office. The Procurement Officer shall review a section or office's written request and issue written approval or disapproval.

7.5.2. Approval to procure goods or services on an emergency basis will permit the sections and offices to purchase the required goods or services directly from a vendor. Provided, however, the section or office must obtain three bids, if possible. Required documentation must be submitted to the Procurement Office as soon as possible for processing.

7.5.3. What qualifies as an emergency under this section shall be evaluated by the Procurement Officer on a case by case basis, but will at least include:

7.5.3.a. Unforeseen events or circumstances including delays by vendors, delays in transportation, or an unanticipated volume of work, as well as procurement of specific commodities for immediate delivery related to an official declaration of emergency by the Governor or federal officials.

7.5.3.b. Emergency purchases are not used for hardship, resulting from neglect, poor planning, or lack of organization by a section or office.

7.6. Best Value Procurement.

7.6.1. Best value procurement includes a request for proposal pursuant to W. Va. Code §5A-3-10b or an expression of interest pursuant to W. Va. Code §5G-1-1.

7.6.2. Requests for Quotation are the preferred method and gold standard of procurement, but a section or office may utilize a best value procurement method to procure goods and services, excluding construction.

7.6.2.a. In order to utilize a request for proposal, the section or office must provide adequate justification explaining why an evaluation based on price and compliance with specification alone would not be adequate.

7.6.2.b. The Procurement Officer shall review each request to utilize a request for proposal and may permit the use of a request for proposal if he or she determines in writing that it is in the best interest of the Department.

7.6.3. A request for proposal must contain provisions for a two-part evaluation, the first part being technical aspects of the proposal and the second part being cost to the Department.

7.6.3.a. The two components must then be evaluated based upon the criteria specified in the request for proposal, scored, and combined to form a total score.

7.6.3.b. The highest scoring vendor will be awarded a contract. No proposal may be evaluated using any criteria other than the criteria specified in the request for proposal.

7.6.4. Expressions of interest may only be used to procure architectural, engineering, or other services pursuant to W. Va. Code §5G-1-1et seq.

7.7. Purchases from contracts issued by other public agencies and entities.

7.7.1. The Procurement Officer may approve a request by a section or office to purchase from, join as a party, or otherwise utilize contracts issued by agencies of the federal government, agencies of other states, other public bodies, or other state agencies.

7.7.2. The Procurement Officer may also sign an agreement with a vendor that has the effect of adding sections or offices to a contract issued by agencies of the federal government, agencies of other states, other public bodies, or other state agencies.

The Procurement Officer may, but is not required to, designate such a contract an agency contract and require that sections and offices utilize it.

7.7.3. The Procurement Officer may also lead, participate in, or join after issuance cooperative purchasing arrangements with other public agencies and entities created by public agencies.

7.7.4. Before undertaking any activity authorized by this section, the Procurement Officer shall determine that the contracts being utilized and/or created are valid, properly awarded, financially advantageous, and comparable to what can be obtained through competitive bidding. The last requirement will be satisfied if the contract was created or is to be created from a competitive procurement method.

7.7.5. The Procurement Officer shall require sections and offices to prove their requests to use such contracts do not conflict with existing contracts the section of office is required to use.

7.7.6. All section and office requests to take an action authorized under this subsection must be submitted in advance to the Procurement Officer with necessary evidence and documentation. The Procurement Officer shall approve only those requests submitted with evidence that justifies use of such contracts. Any request that is not supportable shall be returned to the section or office.

7.8. Multiple Awards.

7.8.1. The Procurement Officer may elect to award a contract to more than one vendor when the Procurement Officer determines in writing such action would be in the best interest of the Department. In arriving at that determination, the Procurement Officer will consider the following factors, insofar as they are applicable:

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

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

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

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

7.8.1.e. The compatibility with existing equipment;

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

7.8.1.g. Any other relevant factors.

7.8.2. In situations where a multiple award is necessary, the Procurement Officer shall place a written explanation into the public file. If a multiple award is requested by a section or office, that section or office must provide written justification to the Procurement Officer. The Procurement Officer's decision shall be final in all cases.

7.9. Negotiation When All Bids Exceed Available Funds.

7.9.1. Sections and offices must submit a valid maximum budgeted amount for each requisition to the Procurement Office. The maximum budgeted amount may not be disclosed to any vendor prior to the bid opening and may not be changed after the bid opening.

7.9.2. If all bids meeting requirements exceed the funds available for the purchase, the Procurement Office may negotiate a lower price within budget with the lowest bidder meeting specifications.

7.9.2.a. If the negotiation does not lead to the budget amount being met, the Procurement Officer may negotiate a lower price within budget with the next lowest bidder and continue negotiations with participating bidders after negotiations close with the preceding bidder.

7.9.2.b. In conducting discussions, there may be no disclosure of any information derived from proposals by competing bidders.

7.9.3. If the Procurement Office solicits bids using a best value procurement, and there is more than one bidder, the Procurement Officer may negotiate a lower price with the highest ranked bidder. If the Procurement Officer does not award the contract to the highest scoring bidder, he or she may close negotiations with that bidder and enter into negotiations with the next highest scoring bidder and may continue to do so in like manner with the remaining responsive and responsible bidders.

7.9.3.a. The Procurement Officer may not extend an offer to any bidder that is not first extended to the prior bidders in order of rank.

7.9.3.b. Nothing contained herein is intended to supersede requirements contained in W. Va. Code §5G-1-1 et seq.

7.9.4. If a section or office fails to provide a valid maximum budgeted amount, the Procurement Officer shall not permit negotiation.

7.9.5. The Procurement Officer shall determine the method of negotiation.

7.10. Discussion and Final Offers.

7.10.1. The Procurement Officer may conduct discussions to obtain best and final offers from bidders to assure full understanding of solicitation requirements.

7.10.1.a. If the Procurement Officer 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.

7.10.2. All best and final offers shall be treated like a formal bid, except that advertising is not required.

7.10.2.a. All bidders must provide their best and final offers to the Procurement Office prior to the date and time specified by the Procurement Officer.

7.10.3. Government construction contracts and supplies and materials to be used in construction are exempt from the provisions of this section.

7.11. Contract Management.

7.11.1. For contracts for commodities and services in the amount of $1 million or less, the Procurement Officer may prescribe contract management procedures for all Department contracts, except government construction contracts. These procedures may include, but are not limited to:

7.11.1.a. Establishing payment benchmarks to assure the Department receives value prior to remitting payment.

7.11.1.b. Conducting regular meetings between sections and offices and vendors to assess contract performance.

7.11.1.c. Training Department section and office personnel to manage contracts.

7.11.1.d. Using the Office of Technology Project Manager for its projects.

7.11.2. For contracts for commodities and services in an amount exceeding $1 million, the following contract management procedures apply.

7.11.2.a. Post Award Conferences.

7.11.2.a.1. The section or office responsible for administering the contract must hold a post award conference with the vendor to ensure a clear and mutual understanding of all contract terms and conditions, and the respective responsibilities of all parties. The agenda for the conference must include, at minimum, the introduction of all participants and identification of Department and vendor key personnel, and discussion of the following items:

7.11.2.a.1.A. The scope of the contract, including specifications of what the section or office is buying;

7.11.2.a.1.B. The contract terms and conditions, particularly any special contract provisions;

7.11.2.a.1.C. The technical and reporting requirements of the contract;

7.11.2.a.1.D. The contract administration procedures, including contract monitoring and progress measurement;

7.11.2.a.1.E. The rights and obligations of both parties and the vendor performance evaluation procedures;

7.11.2.a.1.F. An explanation that the vendor will be evaluated on its performance both during and at the conclusion of the contract and that such information may be considered in the selection of future contracts;

7.11.2.a.1.G. Potential contract problem areas and possible solutions;

7.11.2.a.1.H. Invoicing requirements and payment procedures, with particular attention to whether payment will be made according to milestones achieved by the vendor; and

7.11.2.a.1.I. An explanation of the limits of authority of the personnel of both the section or office and the vendor.

7.11.2.b. The section or office should develop a comprehensive and objective monitoring checklist which:

7.11.2.b.1. Measures outcomes;

7.11.2.b.2. Monitors compliance with contract requirements; and

7.11.2.b.3. Assesses vendor performance.

7.11.3. The Procurement Officer will make reports available to the Director and of Administration upon request.

7.12. Inspection.

7.12.1. The section or office must inspect all materials, supplies, and equipment upon delivery and again prior to final acceptance to ensure compliance with the contract requirements and specifications.

7.12.2. The section or office must report any discrepancies to the Purchasing Liaison and Procurement Officer immediately.

7.12.3. If unlisted shortages are discovered, the vendor, Purchasing Liaison and Procurement Officer must be notified immediately.

7.12.4. A vendor may be required to pick up any merchandise not conforming to specifications and replace the merchandise immediately.

7.13. Substitutions.

7.13.1. Substitution of items called for in a contract is not permitted without the Procurement Officer's prior approval.

7.13.1.a. The Procurement Officer will not approve substitution of items unless the substituted items are of equal quality and are offered at the same or lower price.

W. Va. Code R. § 145-17-7