W. Va. Code R. § 148-1-12

Current through Register Vol. XLI, No. 24, June 14, 2024

Section 148-1-12 - Prequalification Agreement and Delegated Prequalification Bidding

12.1. Authority. Authority to promulgate rules relating to prequalification agreements and delegated prequalification bidding derives from W.Va. Code § 5A-3-10e.

12.2. Definitions. The words and phrases used herein have the same meanings assigned to them in W. Va. Code §§ 5A-3-10e and 5A-1-1.

12.3. Prequalification Agreement Procedures. An agency that desires to establish a prequalification agreement with a subsequent delegated prequalification bidding process as defined in W. Va. Code § 5A-3-10e(b)(4) must first provide written justification and obtain the written approval from the Director to do so.

12.3.1. Justification for Use. Any request by a spending unit to establish a prequalification agreement must include the following items:

12.3.1.a. Identification and a detailed description of the commodity or service to be covered by the prequalification agreement;

12.3.1.b. One or more requirements that each vendor must meet to be approved for the prequalification agreement, which may include, but are not limited to, experience, quality assurance, licensing, delivery terms, and quantity terms;

12.3.1.c. An estimation of the quantity and price of the commodity or service to be purchased over the term of the pre-qualification agreement; and

12.3.1.d. Forms (if any) that will be utilized in the delegated prequalification bidding.

12.3.2. Advertisement Once the Director approves a request to solicit prequalification agreements, the documentation contained in the request, along with any additional documentation the Director deems necessary, will be compiled into a form suitable to the Director. The vendor community will be notified of the opportunity to obtain a prequalification agreement through an advertisement that the Director deems appropriate. The advertisement will be completed in the same manner that a request for quotation is advertised under Chapter 5 A, Article 3 of the West Virginia Code.

12.3.3. The justification referenced in this Section 12.3 must also contain:

12.3.3.a. A clause stating that the state is seeking a prequalification agreement that will permit all awarded vendors an opportunity to participate in the delegated prequalification bidding;

12.3.3.b. An explanation of how bids will be submitted and evaluated through the delegated prequalification bidding.

12.3.3.c. A clause limiting the prequalification agreement to a term of three years, and

12.3.3.d. Language setting dollar thresholds for delegated prequalification bidding.

12.3.4. Evaluation and Award. At the date and time provided in the advertisement required by this section, the Purchasing Division will publicly open the vendors' responses in accordance with current laws, rules, and procedures applicable to bid opening, including but not limited to, late bids, public availability of bids, etc. Vendors' responses will be evaluated and each vendor that meets all of the qualifications will be awarded a prequalification agreement that allows the vendor to participate in the delegated prequalification bidding.

12.3.5. The Director may also recognize prequalification agreements established by other public entities for purposes of conducting a delegated prequalification bid. Such approval must be obtained prior to issuing the delegated prequalification bid and the delegated prequalification bid must be directed to all entities within the prequalification group known to offer the commodity or service in question.

12.4. Delegated Prequalification Bidding.

12.4.1. Limitations. No single order under the prequalification agreement and delegated prequalification bidding is permitted to exceed $1,000,000 unless a written request to exceed these limits is approved by the Director in writing. If all bids returned under the delegated prequalification bidding are over the applicable dollar threshold, the spending unit must cancel the delegated prequalification bidding and solicit competitive bids in accordance with the requirements contained in West Virginia Code Chapter 5A, Article 3 and West Virginia Code of State Rules § 148-1-6. If the spending unit solicits bids and one or more vendors submit bids over the applicable dollar threshold, then the spending unit may only award to the vendors that submit bids under the threshold. Nothing contained herein will prohibit the Director from setting lower limits for the delegated prequalification bidding if he or she determines lower limits are more appropriate.

12.4.2. Request for Bids -- A spending unit, or the Purchasing Division when acting as a spending unit, that desires to purchase a commodity or service identified in the prequalification agreement must notify each vendor that has been awarded a prequalification agreement of the request. The notice must contain any commodity or service specific requirements, the total quantity of the commodity or service being sought, the deadline by which the vendors must submit bids, and the location to which bids must be submitted.

12.4.3. Delegated Prequalification Bid Opening -- At the appointed date, time, and place, the spending unit, or the Purchasing Division when acting as a spending unit, will open all bids in a public bid opening and announce the vendors' bid prices for all bids.

12.4.4. Evaluation and Award -- After bids have been opened, the spending unit, or the Purchasing Division when acting as a spending unit, shall evaluate the bids received to ensure that the bid submissions comply with the requirements contained in the Prequalification Agreement and the request for bids. The spending unit, or the Purchasing Division when acting as a spending unit, shall award the delegated prequalification bid to the lowest responsible bidder that has complied with all requirements. The spending unit must reject any bid that fails to comply with the requirements contained in the prequalification agreement and the request for bids. The spending unit shall provide the following notices related the evaluation and award:

12.4.4.a. The lowest responsible bidder must be notified that it has won the delegated prequalification bidding and may begin the process of filling the order.

12.4.4.b. The vendors that do not submit the lowest bid must be notified that their bids were not the lowest and they will not be selected to provide the commodity, and

12.4.4.c. Any vendor that submits a bid that is rejected must be notified of the rejection and upon request, the vendor must be provided with a reason for that rejection.

All notices relating to evaluation and award must be provided as close to simultaneously as practical.

12.5. Records. Any spending unit utilizing the delegated prequalification bidding described herein must maintain records of all requests for bids, bids received, bids awarded, bids rejected, and other correspondence related to the delegated prequalification bidding.

12.6. Purchasing Division Oversight. Notwithstanding anything contained herein to the contrary, the Purchasing Division may institute oversight procedures that require spending units to provide notices to the Purchasing Division and obtain approvals from the Purchasing Division prior to utilizing the delegated prequalification bidding. The Purchasing Division may also choose to conduct the delegated prequalification bidding on behalf of a spending unit if the Director determines additional oversight is warranted.

W. Va. Code R. § 148-1-12