W. Va. Code R. § 175-5-12

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

Section 175-5-12 - License Bidding Procedure and the Preference for Resident Bidders

12.1. In determining the highest bidder for purposes of W. Va. Code § 60-3A-10a, and 175 CSR 5-10, the Board shall afford a five percent (5%) preference for West Virginia resident bidders. This preference shall be computed by adding five percent (5) of the bid price to the bid price submitted by the West Virginia resident bidder for a retail license. This preference shall be forfeited by any resident bidder who fails to submit the minimum bid amount specified by the Board for a particular retail license.

12.1.a. This preference shall not be added to the amount of any bid that is less than the minimum amount specified by the Board for that retail license.

12.2. For purposes of W. Va. Code § 60-3A-10a and this section of the rule, a bidder shall be considered a West Virginia resident if the bidder:

12.2.a. Being an individual, has resided in West Virginia for at least four (4) years during the 48 consecutive month period immediately prior to the date on which the bid is opened; or:

Example 1. The minimum bid for a Class B retail license is $300,000. Two (2) bids are received. A West Virginia resident bidder submits a bid of $305,000 and a nonresident submits a bid of $310,000 for that license. The bid is awarded to the West Virginia resident bidder. [$305,000 + $15,250.00 (which is five percent (5%) of $305,000) equals $320,250.00 which is greater than the bid of $310,000 submitted by the nonresident bidder.]

Example 2. The minimum bid for a new Class B retail license is $200,000. Two bids are received. A West Virginia resident bidder submits a bid of $200,000 and a nonresident submits a bid of $215,000 for that license. The bid is awarded to the nonresident bidder. [$200,000 + $10,000 (which is five percent (5%) of $200,000.00) equals $210,000, which is less than the bid of $215,000 submitted by the nonresident bidder.]

Example 3. The minimum bid for a new Class B retail license is $200,000. Two bids are received. A West Virginia resident bidder submits a bid of $190,000 and a nonresident submits a bid of $205,000 for that license. The bid is awarded to the nonresident bidder because the resident bidder failed to bid the minimum bid amount. The five percent (5%) resident bidder preference does not apply in this example.

12.2.b. Being a person other than an individual, has had its headquarters or principal place of business in this State for at least four (4) years during the forty-eight (48) consecutive month period immediately prior to the date on which the bid is opened.

12.3. "Headquarters" or "principal place of business" means the place where the majority of the governing power of a bidder resides and is executed.

Example 1. ABC Corporation is a Delaware corporation whose corporate headquarters has been located continuously in West Virginia since July 1, 1990. ABC Corporation is a West Virginia resident for purposes of the preference allowed by W. Va. Code § 60-3A-10a and this section of the rule.

Example 2. D & E Corporation is incorporated under the laws of West Virginia. Its corporate headquarters is located in Alpha State. D & E Corporation is not a West Virginia resident for purposes of the preference allowed by W. Va. Code § 60-3A-10a and this rule.

Example 3. A corporation, whether incorporated in West Virginia or in another state, that operates retail outlets in this State but does not have its headquarters in this State is not a West Virginia resident.

Example 4. A partnership, limited liability company or other legal entity that is not a corporation, whether formed under the laws of this or another state, that operates one or more retail outlets in this State but does not maintain its headquarters or principal place of business in this State is not a West Virginia resident for purposes of the resident vendor preferences allowed under W. Va. Code §§ 60-3A-10a and 60-3A-10b and this rule.

12.4. In order to qualify as a resident bidder, a person other than an individual, means a bidder who in each year of the four (4) year period during the forty-eight (48) consecutive months immediately prior to the date on which the bid is opened, did as follows:

12.4.a. Had registered in accordance with W. Va. Code § 11-12-1, et seq., ["Business Registration Tax"] to transact business within the State of West Virginia;

12.4.b. Maintained its headquarters or principal place of business in this State:

12.4.b.1. Whether or not the person other than an individual maintained its headquarters or principal place of business in this State for the required period can be certified by the chief operating officer, by whatever name called, of the person certifying, under penalty of perjury, that the period of time the person's headquarters or principal place of business was continuously located in this State met the time requirement, as of the date the affidavit is signed and properly acknowledged, and stating that address will remain the same as of the date on which the bids are to be opened. In addition to the submission of an affidavit, the person shall also be required to provide documentary proof that person has complied with all other requirements specified in section 12.4. of this rule.

12.4.c. Had actually paid, and not just applied to pay, county personal property taxes on the equipment used in the regular course of its business activity; and

12.4.d. Had actually paid, and not just applied to pay, required business taxes imposed by W. Va. Code § 11-1-1, et seq.; a resident bidder shall give written consent to the Tax Commissioner authorizing disclosure to the ABCC Commissioner of appropriate information which will verify that the bidder has paid the required business taxes, but such information shall not contain the amounts of taxes paid nor any other information deemed by the Tax Commissioner to be confidential. An "Authorization to Release Information" will be provided by the Commissioner.

12.5. A bidder who is an individual shall be able to meet the four year continuous residency requirement by providing the Commissioner with documentary proof that he/she has resided continuously in West Virginia for four (4) years during the forty-eight (48) month period immediately preceding the filing of the bid. Copies of receipts from the Sheriff of a County indicating payment of personal property taxes and/or real estate taxes for each of the four (4) years which indicate a West Virginia address for the bidder; copies of Department of Motor Vehicle documents such as a Driver's License, Registration Card, and Certificate of Title indicating a West Virginia address for the bidder during those four years; copies of Voter Registration office documents indicating a West Virginia residence address for the bidder during those four years; certification from the Tax Commissioner that the bidder had filed Income Tax Returns for the previous four year period prior to the bid which indicated a West Virginia residence address for the bidder are examples of documents which can be submitted to the Commissioner in proof of a bidder's residence address during the four (4) years in question. Copies of any two documents mentioned above shall be submitted with the bid form and to the Commissioner's office by any individual bidder who desires to be granted a Preference For Resident Bidders.

12.5.a. An individual may prove that he or she continuously resided in this State during the required period ending with the day the individual's bid is opened by submitting with his or her bid form an affidavit signed and acknowledged, under penalty of perjury, certifying the period of time the individual continuously resided in this State, as of the date the affidavit is signed and acknowledged, and stating that he or she intends to be a resident of this State on the day his or her bid is opened. In addition to this affidavit, the individual will also be required to submit supporting documents in proof of his or her residency during the required period.

12.6. A bidder who is other than an individual and is claiming a preference for residential bidders, shall submit documents in its bid package which prove its entitlement to this preferential treatment. The documents must establish that the requirements of section 12.4 of this rule have been satisfied.

12.7. A bidder who believes he meets the requirements for residency must affirmatively assert his or her claim on the official application form to receive this preferential treatment.

12.8. A supplemental two-page (2) guideline for bidders seeking a residential preference entitled "Residential Bid Preferences" will be provided by the Commissioner.

W. Va. Code R. § 175-5-12