Current through Register Vol. XLI, No. 49, December 6, 2024
Section 170-6-7 - Registration, Advertising, Bidding and Award7.1 Registration of Vendors:7.1.1. Purchasing Division Registration. All vendors must register with the Purchasing Division prior to being awarded a contract, except that the following categories of vendors are exempt from this registration requirement. 7.1.1.a. Purchasing card vendors providing travel related services are not required to register with the Purchasing Division.7.1.1.b. Purchasing card vendors receiving an aggregate total yearly payment less than $25,000.00 from a spending unit are not required to register with the Purchasing Division.7.1.1.c. Any company or corporation, or subsidiary of the company or corporation, listed on any nationally recognized stock exchange is not required to register with the Purchasing Division.7.1.2. Vendors shall register by submitting the vendor registration and disclosure statement provided by the Purchasing Division.7.1.3. Purchasing Division Fee Payment. All vendors shall pay to the Purchasing Division, an annual registration fee of $125 prior to being awarded a contract, except that the following categories of vendors are exempt from this requirement. 7.1.3.a. Purchasing card vendors providing travel related services are not required to pay the registration fee.7.1.3.b. Vendors paid only by the State purchasing card that receive aggregate total yearly payments of less than $25,000.00 from a spending unit are not required to pay the registration fee.7.1.3.c. Vendors receiving orders for goods or services of $2,500 or less, from all spending units, regardless of payment method, are not required to pay the registration fee.7.1.3.d. Vendors providing a good or service under a direct award are not required to pay the registration fee for providing that good or service for which they have been designated a direct award vendor.7.1.3.e. Any vendor can be exempted from paying the registration fee if the Assistant Director - DAS Purchasing Section determines that waiving the registration fee would be in the best interest of the Division.7.1.4. A vendor with multiple locations shall pay only one fee when operating under one Federal Employer Identification Number (FEIN).7.1.5. Other Registrations, Licenses, etc. The vendor must be licensed and in good standing in accordance with 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 Tax Department, West Virginia Insurance Commission, 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.7.1.6. Failure to Register. The Division is prohibited from awarding any contract to any vendor not properly registered. 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 7.1. of these Rules, the vendor will be given a period of time that the Assistant Director - DAS Purchasing Section deems sufficient to cure the failure. If after that period vendor has not cured the failure, the Assistant Director - DAS Purchasing Section may disqualify the vendor's bid or cancel the contract.7.2. Advertising. Solicitations that exceed $25,000 must be advertised using advertising media such as wv Oasis Purchasing Bulletin, or any other media the Assistant Director - DAS Purchasing Section considers advisable.7.3 Bidding. 7.3.1. The Procurement Section or DAS - Purchasing Section must receive bids from vendor prior to the date and time of the bid opening listed on the solicitation forms provided by the Procurement Section or DAS - Purchasing Section. The Procurement Section and/or DAS - Purchasing Section must reject bids received after the designated time and date. Each vendor is solely responsible for delivering its bid to the location designated in the solicitation documents.7.3.2. An authorized representative of the vendor must sign all bids submitted to the Division. A corporate or other business entity signature without an individual name is not an acceptable signature.7.3.3. The Assistant Director - DAS Purchasing Section may allow bids by electronic transmission, to include by facsimile and email. Bids by electronic transmission must be received by the Procurement Section or DAS- Procurement Section prior to the bid opening date and time. A bid will not be considered received until after transmission is completed. 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 State 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 Division. The Division makes no guarantee of confidentiality when vendors utilize electronic transmission.7.3.4. Copies of bids will be open for public inspection in the office of the Division or at DAS- Purchasing Section at any time after the completion of the public bid opening. No original bid may be removed from the presence of a Procurement Section or DAS - Purchasing Section representative. The Director may prescribe policies to include scanning, copying or other methods of assuring public access. The purchasing files of the Division are open for public inspection after the award for the solicited commodity or service has been made.7.3.5. A bidder may make a change to a sealed bid before the bid opening. A bidder must submit changes in writing or by electronic transmission to the Procurement Section or DAS - Purchasing Section. To be effective, any change must be received by the Procurement Section or DAS - Purchasing Section prior to the date and time of the bid opening. Changes by electronic transmission must be made in the manner provided in Subdivision 7.3.3. of this rule.7.3.6. The Assistant Director - DAS Purchasing Section may reject a bid that a vendor declares to be erroneous after the bid opening, but otherwise appears to be responsive, if all of the following conditions exist: (2) The error materially affected the bid;(3) Rejection of the bid would not cause a hardship on the Division, other than losing an opportunity to receive commodities, services or printing at a reduced cost; and(4) Enforcement of the part of the bid in error would be unconscionable. In order for the Assistant Director - DAS Purchasing Section to reject a bid under this subsection, the public file must contain documented evidence that all of the conditions set forth in this subdivision exist.7.3.7. The Assistant Director - DAS Purchasing Section must reject a bid that is found to be non-responsive. A non-responsive bid is one that fails to conform to the solicitation in all material respects.7.3.8. The official time clock of the Division or the DAS - Purchasing Section for the purpose of receipt of bids, shall be the time clock as displayed in the offices of the Division or the DAS - Purchasing Section, whichever is specified in the bid announcement7.3.9. If there is a conflict between the extension (total) price and the unit price in the bid, the unit price prevails. The Division reserves the right to recalculate a vendor's extension (total) pricing.7.3.10. 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 Assistant Director - DAS Purchasing Section may assume that items offered meet the specifications.7.3.11. Vendors are responsible for the accuracy of the information on and in the bid envelopes.7.3.12. Vendors may contact the Procurement Section or DAS - Purchasing Division to obtain official bid forms.7.3.13. 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.7.3.14. Per West Virginia Code § 15-14-9(a), "There is hereby created in the State Treasury a special revenue account to be known as the Stateside Interoperable Radio Network Account to be administered by the director. The special revenue account shall consist of appropriations made by the Legislature; income derived from the lease of property, towers or tower space owned, operated or controlled by the WVDHSEM or any other state agency managed as part of the SIRN; moneys received by the Department of Health and Human Resources or WVDHSEM as proceeds of any claims for damages to structures, equipment or property of any kind, including moneys in the Insurance Property Loss Claims Fund administered by the Division of Health; income from the investment of moneys held in the special revenue account; grant money and all other sums available for deposit to the special revenue account from any source, public or private; and moneys received from the sale of recycled two-way telecommunications equipment pursuant to §15-14-6(10) of this code." As such, the Emergency Management Division should not have to request moneys from any radio sales.7.4. Awards. 7.4.1. Any award made by the Assistant Director - DAS Purchasing Section will be made in accordance with the law governing the type of procurement being awarded. The Assistant Director - DAS Purchasing Section may make multiple or split awards when it is in the best interest of the Division.7.4.2. The Assistant Director - DAS Purchasing Section may accept or reject, in whole or in part, any bid when the Assistant Director - DAS Purchasing Section feels it to be in the best interest of the Division. If any bid is rejected, the Assistant Director - DAS Purchasing Section, or designee, shall place a written explanation in the purchase order file.7.4.3. When tie bids are received, the Assistant Director - DAS Purchasing Section shall break the tie by: allowing the tied vendors to make a final offer, flip of a coin, draw of the cards, or any other impartial method considered prudent by the Assistant Director - DAS Purchasing Section.7.4.4. Requirements for bonds and deposits. The Assistant Director - DAS Purchasing Section shall determine the applicability and amount of bonds or deposit required of a vendor at any time, if, it is judged that security is necessary to safeguard the Division from undue risk. The Assistant Director - DAS Purchasing Section may require the vendor to submit a certified check, certificate of deposit, performance bond, litigation bond or any other security acceptable to the Director, payable to the State of West Virginia. Neither personal checks nor company checks are acceptable. 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 spending unit or other relevant party that the bond or security in question has fully served its purpose, the Assistant Director - DAS Purchasing Section may return the bond or security.7.4.4.a. Any bonds submitted via fax should be followed by an original bond received by the Procurement Section or DAS - Purchasing Section within two (2) business days.7.5. Specifications. 7.5.1. 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 vendor. 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 unless a specific brand/model must be purchased by the Division for compatibility reasons or uniformity.7.5.1.a. Examples of limiting competition or favoring a brand or vendor include, but are not limited to:7.5.1.a.1. Drafting specifications to match a vendor's description of its commodity or service to the exclusion of others.7.5.1.a.2. Listing a brand name in specifications without noting that equivalent products will be considered.7.5.1.a.3. Drafting specifications that are so restrictive that only one desired vendor can meet the requirements without adequate justification for the restrictions, unless a specific brand/model must be purchased by the Division for compatibility reasons or uniformity.7.5.1.b. Nothing contained in the subsection will be construed to prevent the Division from drafting specifications with restrictions and mandatory requirements that are necessary to perform the objectives for which the commodity or service is purchased.7.5.1.c. Reduced need for training, maintaining consistency in inventory, staff familiarity, and other similar objectives will not be sufficient to justify restrictions in specifications.7.5.1.d. If the Procurement Section or DAS - Purchasing Section uses a brand or vendor name to describe a needed commodity or service, the Procurement Section or DAS - Purchasing Section 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. 7.5.1.d.1. 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 Assistant Director - DAS Purchasing Section, or designee, shall not disqualify the vendor's bid due to inequality of non-mandatory components.7.5.1.d.2. Any request by Procurement Section or DAS - Purchasing Section staff 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.7.5.2. The Assistant Director - DAS Purchasing Section has authority to develop standard specifications that will form the basis of Division contracts used by the Division.7.6 Bid Evaluation. 7.6.1. 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 Assistant Director - DAS Purchasing Section may develop a form that evaluators can sign for certification purposes under this subsection.7.6.2. When a requisition is submitted to the Procurement Section or DAS - Purchasing Section for public advertisement, until an award is made, evaluators and Division personnel are not permitted to communicate with vendors about the solicitation or any component thereof without prior approval from the Assistant Director - DAS Purchasing Section. 7.6.2.a. All communication regarding the solicitation must be directed to the Assistant Director - DAS Purchasing Section until an award has been made.7.6.2.b. Nothing in this subsection, however, shall prevent the evaluators and Division personnel from communicating with a vendor about existing contracts or other matters unrelated to the solicitation in question.7.7 Deliveries. Receivers for the Division are responsible for: (1) the inspection of commodities, services, or printing upon delivery to ensure that purchases meet contractual requirements, and(2) maintaining records of receipt.7.8. Change Orders. 7.8.1. Review and Approval. The Assistant Director - DAS Purchasing Section has the authority and responsibility to review change orders just as he or she has authority and responsibility for review and approval of the original contract.7.8.2. Change Order Submission. Any change order request submitted to the Procurement Section or DAS Purchasing Section must include the vendor's agreement in writing.7.8.3. The Assistant Director - DAS Purchasing Section may ask for and the Division must provide, any documentation or further explanation that the Assistant Director - DAS Purchasing Section deems necessary to aid in reviewing a change order request.7.8.4. A contract change order is required whenever the change affects the payment provision, time for completion of the work and/or the scope of the work.7.8.5. Changes to the original purchase order must be sequentially numbered in the appropriate space. The explanation of change to an existing contract must be described with sufficient detail and clarity that any individual could review and generally understand the contract and change.7.8.6. Any change to existing contracts that adds work or changes contract cost, and were not included in the original contract, must be approved by the Director or designee.7.8.7. A Change Order is required for all contract renewals or extensions.7.8.8. Rejection. If the Director reviews the change order and determines that it has not been properly justified; fails to include necessary documentation; is or could be construed as an attempt to circumvent the bidding process; or is otherwise unfit to be approved; the Director shall reject the change order.7.8.9. Attorney General. Change orders must be approved by the Attorney General's office, as to form, just as the original contract must be approved as to form by that office.7.8.10. Timing of Work. 7.8.10.a. The Division must not permit vendors to perform work that the Division anticipates will be added to a contract through a change order until such time as the change order has been: 7.8.10.a.1. Formally approved by the Procurement Section or DAS - Purchasing Section and the Attorney General's office.7.8.10.a.2. Encumbered by the Procurement Section or DAS - Purchasing Section.7.8.10.a.3. Mailed to the vendor.7.8.10.b. This subsection related to timing of work does not apply to government construction contracts executed pursuant to W.Va. Code § 5-22-1, et seq.