W. Va. Code R. § 148-1-6

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

Section 148-1-6 - Registration, Advertising, Bidding, and Award

6.1. Registration of Vendors.

6.1.1. 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.

6.1.1.a. Purchasing card vendors providing travel related services are not required to register with the Purchasing Division.

6.1.1.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.

6.1.1.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.

6.1.2. Vendors shall register online utilizing the wvOASIS vendor self service function or by submitting the vendor registration and disclosure statement to the Purchasing Division.

6.1.3. 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.

6.1.3.a. Purchasing card vendors providing travel related services are not required to pay the registration fee.

6.1.3.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.

6.1.3.c. Vendors receiving orders for goods or services of $5,000 or less, from all spending units, regardless of payment method, are not required to pay the registration fee.

6.1.3.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.

6.1.3.e. Any vendor can be exempted from paying the registration fee if the Director determines that waiving the registration fee would be in the best interest of the State of West Virginia.

6.1.4. A vendor with multiple locations shall pay only one fee when operating under one Federal Employer Identification Number (FEIN).

6.1.5. 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.

6.1.6. Failure to Register. The Director 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 6.1.e. of these Rules, the vendor will be given a period of time that the Director deems sufficient to cure the failure. If after that period vendor has not cured the failure, the Director may cancel the contract.

6.2. Advertising. Solicitations that exceed a spending unit's delegated threshold must be advertised using advertising media such as the West Virginia Purchasing Bulletin, newspapers, trade journals, or any other media the Director considers advisable. The type and duration of advertising completed is at the Director's discretion. This provision shall not apply to expressions of interest procured by the spending unit under W. Va. Code § 5G-1-4, or other solicitations governed by a law that mandates certain advertising requirements be met. Any vendor that pays the registration fee will receive notice of solicitations that the Purchasing Division has released to the public for bidding, response, comment, or other purposes.

6.3. Bidding.

6.3.1. The Purchasing Division must receive bids from vendor prior to the date and time of the bid opening listed on the solicitation forms provided by the Purchasing Division. The Director must reject bids received after the designated time and date. Each vendor is solely responsible for delivering its bid to the Purchasing Division.

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

6.3.3. The Director 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 Purchasing Division 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 Purchasing Division. The Purchasing Division makes no guarantee of confidentiality when vendors utilize electronic transmission.

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

6.3.5. 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 Purchasing Division. To be effective, any change must be received by the Purchasing Division prior to the date and time of the bid opening. Changes by electronic transmission must be made in the manner provided in Subdivision 6.2.4 of this rule.

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

(1) An error was made;

(2) The error materially affected the bid;

(3) Rejection of the bid would not cause a hardship on the State spending unit involved, 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 Director 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.

6.3.7. The Director may accept or reject, in whole or in part, any bid when the Director feels it to be in the best interest of the State. If any bid is rejected, the Director shall place a written explanation in the procurement file.

6.3.8. The Director 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.

6.3.9. The official time clock of the Purchasing Division, for the purpose of receipt of bids, shall be displayed in the offices of the Purchasing Division.

6.3.10. If there is a conflict between the extension (total) price and the unit price in the bid, the unit price prevails. The Purchasing Division reserves the right to recalculate a vendor's extension (total) pricing.

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 Director may assume that items offered meet the 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 Purchasing Division 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 Director will be made in accordance with the law governing the type of procurement being awarded.

6.4.2. The Director may make multiple or split awards when it is in the best interest of the State.

6.4.3. When tie bids are received, the Director 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 Director.

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 State, 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 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 Division,

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 state with motor vehicles or construction and maintenance equipment and machinery used in highway and other infrastructure projects that desires to receive the preference contained 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.d.1 of this Section.

6.4.4.b.2. Continuous Residency. Continuous residency of business entities can be established by providing the documentation required in Paragraph 6.4.d.2.A 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.d.2.C 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. The Director 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 State from undue risk. The Director 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 Director may return the bond or security.

6.5. Specifications.

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. Spending units 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: drafting specifications to match a vendor's description of its commodity or service to the exclusion of others, listing a brand name in specifications without noting that equivalent products will be considered, and 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 the subsection will be construed to prevent a spending unit from drafting specifications with restrictions and mandatory requirements that are necessary to perform the objectives for which the commodity or service is purchased. Reduced need for training, maintaining consistency in inventory, staff familiarity, and other similar objectives will not be sufficient to justify restrictions in specifications.

6.5.1.c. A spending unit that uses 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. 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 Director shall not disqualify the vendor's bid due to inequality of non-mandatory components. Any spending unit 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 Director has authority to develop standard specifications that will form the basis of statewide contracts used by multiple agencies. Standard specifications shall include information relating to the cost of maintenance and expected life of the commodities, services or printing when the Director determines there are applicable nationally accepted standards.

6.5.3. The Purchasing Division has final authority over specifications and may require that a spending unit modify specifications. In the event that a spending unit refuses to make the required changes, the Director is prohibited from issuing a solicitation until the spending unit provides the Director with a written explanation for the refusal, that the Director deems satisfactory.

6.5.4. The provisions of Subsection 6.5.a. and 6.5.b. do not apply to spending units that have established a Standard in accordance with W. Va. Code § 5A-3-61 and W. Va. Code of State Rules § 148-1-14.

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 Purchasing Division may develop a form that evaluators can sign for certification purposes under this subsection.

6.6.2. From the time a requisition is submitted to the Purchasing Division for public advertisement until an award is made, evaluators and spending unit personnel are not permitted to communicate with vendors about the solicitation or any component thereof without prior approval from the Purchasing Division. All communication regarding the solicitation must be directed to the Purchasing Division until an award has been made. Nothing in this subsection, however, shall prevent the evaluators and spending unit personnel from communicating with a vendor about existing contracts or other matters unrelated to the solicitation in question.

6.6.3. The Purchasing Division may seek additional documentation and clarification from a bidder after bid opening to clarify a point of inconsistency or uncertainty in the bid, and to ensure compliance with mandatory solicitation requirements.

6.6.4. The Director's right to reject a bid in whole or in part contained in these rules includes the ability to reject one or more proposed contract terms contained in a vendor's bid, or other vendor documents, that conflict with the published solicitation, the West Virginia Code, and the Code of State Rules. Such a rejection, if vendor concurrence is obtained, would eliminate the objectionable terms from the bid and leave the remainder of the bid in place.

6.6.5. At the request of the spending unit, or upon its own judgment if it deems necessary, the Purchasing Division may require that a vendor sign additional documentation related to contract terms, privacy requirements, and security requirements prior to contract award. Examples include, but are not limited to, the business associate addendum, cloud addenda, and terms modification addenda.

6.7. Deliveries. Spending units 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.

6.8. Change Orders.

6.8.1. Review and Approval. The Director 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.

6.8.2. Change Order Submission. A spending unit desiring to make a change to a contract must submit a request for the contract change to the Purchasing Division. Any change order request submitted to the Purchasing Division that requires vendor agreement must include the vendor's agreement in writing.

6.8.3. Documentation. The Director may ask for, and the spending unit must provide, any documentation or further explanation that the Director deems necessary to aid in reviewing a change order request.

6.8.4. 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.

6.8.5. Attorney General. 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 under West Virginia W. Va. Code § 5A-3-13.

6.8.6. Timing of Work. Spending units must not permit vendors to perform work that the spending unit anticipates will be added to a contract through a change order until such time as the change order has been formally approved by the Purchasing Division and the Attorney General's office, encumbered by the Purchasing Division, and mailed to the vendor. 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.

6.9. Bid Bonds.

6.9.1. Electronic Bid Bond Submission - When a solicitation mandates that a bid bond be provided, the Purchasing Division may consider the electronically submitted copy of the bid bond to be a valid bid bond for purposes of bid review, evaluation, and acceptance, provided that the electronic copy of the bid bond would be considered a valid bond if presented in its original form. If the electronic copy of the bond is deemed to be valid, the Purchasing Division may, but is not required to, request the original bid bond or a replacement bid bond with original signatures.

W. Va. Code R. § 148-1-6