W. Va. Code R. § 145-17-5

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

Section 145-17-5 - Remedies

5.1. The Procurement Officer may require the Department sections attempt to resolve any issues that it may have with the vendor prior to pursuing a remedy contained herein. The Department sections must document any resolution efforts and provide copies of those documents to the Procurement Officer.

5.2. Contract Cancellation.

5.2.1. The Procurement Officer may cancel a purchase or contract immediately under any one of the following conditions including, but not limited to:

5.2.1.a. The vendor agrees to cancellation.

5.2.1.b. The vendor has obtained the contract by fraud, collusion, conspiracy, or is in conflict with any statutory or constitutional provision of the State of West Virginia.

5.2.1.c. Failure to honor any contractual term or condition or to honor standard commercial practices.

5.2.1.d. The existence of an organizational conflict of interest is identified.

5.2.1.e. Funds are not appropriated, or an appropriation is discontinued by the legislature for the acquisition.

5.2.1.f. Violation of any federal, state, or local law, regulation, or ordinance.

5.2.2. The Procurement Officer may cancel a purchase or contract for any reason or no reason, upon providing the vendor with 30 days' notice of the cancellation.

5.3. Opportunity to Cure.

5.3.1. In the event that a vendor fails to honor any contractual term or condition, or violates any provision of federal, state, or local law, regulation, or ordinance, the Procurement Officer may request the vendor remedy the contract breach or legal violation within a time frame the Procurement Officer deems appropriate.

5.3.2. If the vendor fails to remedy the contract breach or legal violation or the Procurement Officer determines, at his or her sole discretion, that such a request is unlikely to yield a satisfactory result, then he or she may cancel immediately without providing the vendor an opportunity to perform a remedy.

5.4. Re-Award. The Procurement Officer may award a cancelled contract to the next lowest bidder (or next highest scoring bidder if best value procurement) without a subsequent solicitation if the following conditions are met:

5.4.1. The next lowest responsible bidder (or next highest scoring bidder if best value procurement) is able to perform at the price contained in its original bid submission, and

5.4.2. The contract is an open-end contract, a one-time purchase contract, or a contract for work which has not yet commenced.

5.4.3. Award to the next lowest responsible bidder (or next highest scoring bidder if best value procurement) will not be an option if the vendor's failure has in any way increased or significantly changed the scope of the original contract. The vendor failing to honor contractual and legal obligations is responsible for any increase in cost the state incurs as a result of the re-award.

5.5. Non-responsible.

5.5.1. If the Procurement Officer believes that a vendor may be non-responsible, the Procurement Officer may request a vendor or Department section provide evidence the vendor either does or does not have the capability to fully perform the contract requirements and the integrity and reliability necessary to assure good faith performance.

5.5.2. If the Procurement Officer determines the vendor is non-responsible, the Procurement Officer shall reject the vendor's bid and shall not award the contract to that vendor.

5.5.3. A determination of non-responsibility must be evaluated on a case-by-case basis and can only be made after the vendor in question has submitted a bid.

5.5.4. A determination of non-responsibility will only extend to the contract for which the vendor has submitted a bid and does not operate as a bar against submitting future bids.

5.6. Suspension by the Department.

5.6.1. The Director may suspend, for a period not to exceed one year, the right of a vendor to bid on procurements issued by the Procurement Office if:

5.6.1.a. The vendor has exhibited a pattern of submitting bids and then requesting that its bid be withdrawn after bids have been publicly opened. For purposes of this provision, a pattern is two or more instances within a 12-month period.

5.6.1.b. The vendor has exhibited a pattern of poor performance in fulfilling his or her contractual obligations to the Department. Poor performance includes, but is not limited to, two or more instances of any of the following:

5.6.1.b.1. Violations of law, regulation, or ordinance;

5.6.1.b.2. Failure to deliver timely;

5.6.1.b.3. Failure to deliver quantities ordered;

5.6.1.b.4. Poor performance reports;

5.6.1.b.5. Failure to deliver commodities or services at the quality level required by the contract; and

5.6.1.b.6. The vendor has breached a contract issued by the Procurement Office or any section or office and refuses to remedy that breach.

5.6.1.c. The Director shall suspend from bidding on Department purchases up to one year, any vendor violating the West Virginia Code or rules adopted by the Procurement Office.

5.6.2. Vendor suspension for the reasons listed in subsection 5.6.1. of this rule shall occur as follows:

5.6.2.a. Upon a determination by the Director that a suspension is warranted, the Director will serve a notice of suspension to the vendor.

5.6.2.b. A notice of suspension must inform the vendor:

5.6.2.b.1. Of the grounds for the suspension;

5.6.2.b.2. Of the duration of the suspension;

5.6.2.b.3. Of the right to request a hearing contesting the suspension;

5.6.2.b.4. That a request for a hearing must be served on the Director no later than five working days of the vendor's receipt of the notice of suspension;

5.6.2.b.5. That when a vendor fails to request a hearing in accordance with paragraph 5.6.2.b.4. of this rule, that failure will be considered a waiver of the right to a hearing and will result in automatic enforcement of the suspension without further notice or opportunity to respond; and

5.6.2.b.6. That a request for a hearing must include an explanation of why the vendor believes the Director's asserted grounds for suspension do not apply and why the vendor should not be suspended.

5.6.2.c. A vendor's failure to request a hearing in accordance with paragraph 5.6.2.b.4. of this rule will be considered a waiver of the right to a hearing and will result in automatic enforcement of the suspension without further notice or opportunity to respond.

5.6.2.d. A vendor who files a timely request for a hearing but fails to provide an explanation of why the asserted grounds for suspension are inapplicable or should not result in suspension, may result in denial of the vendor's hearing request.

5.6.2.e. Within five working days of receiving the vendor's request for a hearing, the Director will serve the vendor with a notice of hearing that includes the date, time, and place of the hearing.

5.6.2.f. The hearing will be recorded, and an official record prepared. Within 10 working days of the conclusion of the hearing, the Director will issue and serve on the vendor a written decision either confirming or reversing the suspension.

5.6.3. A vendor may appeal a decision of the Director to the Cabinet Secretary. The appeal must be in writing and served on the Cabinet Secretary no later than five working days of receipt of the Director's decision.

5.6.4. A vendor whose right to bid on Department purchases has been suspended by the Director shall have the right to have the Director's actions reviewed by the Cabinet Secretary, who shall have the power and authority to set aside such suspension.

5.6.5. Any notice or service related to suspension actions or proceedings must be provided by certified mail, return receipt requested.

5.7. Vendor Debarment by the Department.

5.7.1. The Procurement Officer has primary responsibility for administering the debarment process. The Procurement Officer's duties include:

5.7.1.a. Obtaining lists of vendors declared ineligible under federal laws and regulations;

5.7.1.b. Notification of the Department sections and offices regarding disbarred vendors;

5.7.1.c. Compiling and maintaining a current, consolidated list of all vendors that have been disbarred or declared ineligible, the period of such debarment, and the reasons therefor; and

5.7.1.d. Investigating complaints about vendors from the Department and its sections and offices responsible for contracting with vendors for supplies and services.

5.7.2. The Director has primary responsibility for initiating and conducting debarment procedures.

5.7.2.a. The Director may debar a vendor if the vendor has been declared ineligible to participate in procurement related activities under federal law and regulation, when the vendor's name appears on the West Virginia Division of Purchasing or United States Excluded Parties List System, on the basis of any one or more grounds for debarment pursuant to W. Va. Code §5A-3-33d, or when any section or office requests debarment of a vendor and the Director finds probable cause for debarment exists.

5.7.2.b. Vendor debarment shall be conducted according to the following procedures:

5.7.2.b.1. The Director shall notify the vendor by certified mail, return receipt requested, of the following:

5.7.2.b.1.A. The reasons for the proposed debarment in sufficient detail to put the vendor on notice of the conduct or transactions upon which the proposed debarment is based;

5.7.2.b.1.B. The causes relied upon for the proposed debarment;

5.7.2.b.1.C. That within 10 working days after receipt of the notice, the vendor may submit in writing information and argument in opposition to the proposed debarment;

5.7.2.b.1.D. The procedures governing debarment decision-making; and

5.7.2.b.1.E. The potential effect of the proposed debarment.

5.7.2.b.2. A vendor that has received notice of the proposed debarment by certified mail, return receipt requested, must respond to the proposed debarment within 10 working days after receipt of notice or the debarment will be instituted without further notice. A vendor is deemed to have received notice, notwithstanding the vendor's failure to accept the certified mail, if the letter is addressed to the vendor at its last known address. After considering the matter and reaching a decision, the Director shall notify the vendor of his or her decision by certified mail, return receipt requested.

5.7.2.b.3. In any debarment decision, the Director shall make a specific finding, based on the substantial record, whether the public interest requires that the debarment decision extend to all commodities and services of the vendor, or whether the public interest allows the debarment decision to be limited to specific commodities or services. Proof of grounds for debarment must be clear and convincing.

5.7.2.b.4. In any debarment decision, the Director shall specify the length of the debarment period. The debarment period must be for the period of time the Director finds necessary and proper to protect the public from an irresponsible vendor.

5.7.2.b.5. In the event a vendor wishes to contest the debarment decision, the Director shall decide the matter in accordance with the provisions of W. Va. Code §29A-5-1et seq.

5.7.2.b.6. Any vendor, other than a vendor prohibited from participating in a federal procurement, undergoing debarment proceedings is permitted to continue participating in the Department's procurement process until a final debarment decision has been reached. Any contract that a debarred vendor obtains prior to a final debarment decision shall remain in effect for the current term but may not be extended or renewed. Notwithstanding the foregoing, the Director may cancel a contract held by a debarred vendor if the Director determines, in his or her sole discretion, that doing so is in the best interest of the Department. A vendor prohibited from participating in federal procurement will not be permitted to participate in the Department's procurement process during debarment proceedings.

5.7.2.b.7. If the Director's final debarment decision is that debarment is warranted and notice of the final debarment decision is mailed, the Procurement Office shall reject any bid submitted by the debarred vendor, including any bid submitted prior to the final debarment decision if that bid has not yet been accepted and a contract consummated.

5.7.3. Unless the Director determines in writing there is a compelling reason to do otherwise, the Department may not solicit offers from, award contracts to, nor consent to subcontract with a debarred vendor during the debarment period.

5.7.4. The Procurement Officer may not exercise an option to renew or otherwise extend a current contract with a debarred vendor, nor a contract which is being performed in any part by a debarred subcontractor, unless the Director approves the action in writing, based upon compelling evidence for exercise of the option or extension.

5.7.5. The Director may extend the debarment to include a related party of the vendor. The Director shall follow the same procedure, and afford the related party like notice, hearing and other rights, for extending the debarment to the affiliate as provided for under section 5.7. of this rule. For purposes of this subsection, a related party may include:

5.7.5.a. Spouses, parents, children, siblings, grandparents, or grandchildren of a debarred vendor or individual;

5.7.5.b. Any individual or entity that partially or completely owns, controls, or influences, or is partially or completely owned, controlled, or influenced by the actions of a debarred vendor or individual;

5.7.5.c. Entities that are related under common ownership or control with a debarred vendor; or

5.7.5.d. A business entity or individual that has contracted with or employed a debarred vendor or individual to perform work on one or more public contracts.

5.7.6. The Director may reduce the period or extent of debarment, upon the vendor's request supported by documentation, for the following reasons:

5.7.6.a. Newly discovered material evidence;

5.7.6.b. Reversal of the conviction or judgment upon which debarment was based;

5.7.6.c. Elimination of the causes for which the debarment was imposed; or

5.7.6.d. Other good cause shown, including evidence that the vendor has become responsible.

5.7.7. The Director may extend the debarment period for an additional period if he or she determines the extension is necessary to protect the interests of the Department. Upon the expiration of a debarment period, the Director shall extend the debarment period for any vendor who has not paid all current state obligations for at least the four most recent calendar quarters, exempting the current calendar quarter, and for any vendor who is in default on a repayment agreement with the Department, until such time as the cause for the extended debarment is removed. If the Director extends the debarment period he or she shall follow the same procedures, afford the vendor like notice, hearing, and other rights for extending the debarment as provided for debarment under this section of this rule.

5.7.8. A debarment under this rule may be waived by the Director with respect to a particular contract if he or she determines the debarment of the vendor would severely disrupt the operation of a governmental entity to the detriment of the general public or would not be in the public interest.

5.8. Damages.

5.8.1. A vendor who fails to perform as required under a contract shall be liable for actual damages and costs incurred by the state.

5.8.2. If any commodities delivered under a contract have been used or consumed by a section or office and on testing the commodities are found not to comply with specifications, no payment may be approved by the section or office for the merchandise until the amount of actual damages incurred has been determined.

5.8.3. The Department shall seek to collect damages by following the procedures established by the Office of the Attorney General for the collection of delinquent obligations.

W. Va. Code R. § 145-17-5