W. Va. Code R. § 58-10-6

Current through Register Vol. XLI, No. 36, September 6, 2024

Section 58-10-6 - General Procurement Methods

6.1. Purchases exceeding $25,000.

6.1.1. Except for purchases made pursuant to Section 12 of this rule, purchases exceeding $25,000 shall be subject to the following requirements:

6.1.1.a. Unless purchased according to the provisions of Section 12 of this rule or otherwise exempted pursuant to this rule, competitive bidding is required.

6.1.1.b. A minimum of three written bids are required. The lowest bid meeting specifications must be awarded the purchase order or contract. All bids must be maintained in the purchasing file.

6.1.1.c. Agency terms and conditions must be signed by the vendor and be maintained in the purchasing file.

6.1.1.d. Certification of Non-Conflict of Interest must be signed by the employee and appropriate Division staff and maintained in the purchasing file.

6.1.1.e. A series of requisitions or procurements may not be intentionally used to circumvent competitive bidding or spending thresholds, also known as stringing, is prohibited.

6.1.1.f. The purchase of any piece of equipment with a value that exceeds $5,000 must be listed as a capital asset.

6.2. Recurring purchases under $25,000.

6.2.1. No purchasing unit may make a series of purchases exceeding $25,000 per fiscal year with one vendor.

6.2.2. A contract for vendor services must be created when recurring purchases are equal or greater than $25,000 per fiscal year.

6.3. Bond Purchasing.

6.3.1. Purchase of commodities or services with bond funds will follow the requirements in this rule.

6.3.2. All contracts, purchases, and change orders which use bond funds will be tracked and processed in the State of West Virginia approved accounting software in accordance with the practices, guidelines, and best practices of state appropriated fund expenditures.

6.4. Construction and Architect-Engineering Services.

6.4.1. The Division will procure Architect-Engineer Services in accordance with W. Va. Code § 5G-1-1et seq.

6.4.2. The Division will procure Government Construction Contracts in accordance with W. Va. Code § 5-22-1 and § 5-22-1A.

6.5. Requirements to Use Master Contracts.

6.5.1. The Division will utilize existing statewide contracts with the Department of Administration, when at all possible, to expedite the procurement process unless otherwise approved by the Director or their authorized designee.

6.5.2. Division sections will utilize existing agencywide contracts managed by the Division unless otherwise approved by the Director or their authorized designee.

6.6. Open-End Contracts. The Division may secure and use open end contracts to obtain commodities and services to supply the repetitive needs of the Division.

6.7. Best Value Procurement.

6.7.1. The Chief Procurement Officer may utilize best value procurement to enter into a contract when he or she determines in writing that it is advantageous to the Division.

6.7.2. In order to utilize a request for proposal using best value procurement, the Division must document reasonable justification as to why an evaluation based solely on price and compliance with states specifications would not be adequate.

6.7.3. The Chief Procurement Officer shall review each request to utilize a request for proposal using best value procurement and may permit the use thereof if he or she determines that it is in the best interest of the Division.

6.7.4. A request for proposal using best value procurement must contain provisions necessary to conduct a two-part evaluation. The first part must review the proposal against the requirements sought in the request for proposal to determine whether each proposal is responsive and may be considered further. The second part must review the proposals against one another to determine the best value to the Division, given the overall value of the proposals to the Division, including a consideration of financial impacts between proposals made.

6.7.5. The vendor determined to provide the best value to the Division will be awarded the contract.

6.8. Purchases Utilizing Other Public Agencies and Entities.

6.8.1. Notwithstanding the Division's purchasing exemption pursuant to W. Va. Code § 20-1-7et seq., where the Director determines it is in the best interest of the Division, the Division may utilize the services of the Division of Purchasing in the procurement process.

6.8.2. At the discretion the Director or their authorized designee, the Division may purchase from, join as a party, or otherwise utilize contracts issued by agencies of the federal government, agencies of other states, other public bodies, or other state agencies.

6.8.3. Upon recommendation of the Chief Procurement Officer, the Director may sign an agreement with a vendor that has the effect of adding the Division to a contract issued by agencies of the federal government, agencies of other states, other public bodies, or other state agencies.

6.8.4. Upon recommendation of the Chief Procurement Officer, the Director may lead, participate in, or join after issuance cooperative purchasing arrangements with other public agencies, entities created by public agencies, or non-profit entities, including without limitation, institutions or entities affiliated with institutions of higher education.

6.8.5. Before undertaking any activity authorized by this subsection, the Chief Procurement Officer shall determine the contracts being utilized or created are valid, properly awarded, financially advantageous, and comparable to what can be obtained through competitive bidding. The last requirement will be satisfied if the contract was created or is to be created from a competitive procurement method.

6.9. Negotiation When All Bids Exceed Available Funds.

6.9.1. Prior to receiving bids, a valid maximum budgeted amount for each requisition may be determined, which may not be disclosed to any vendor prior to the bid opening and may not be changed after the bid opening.

6.9.2. If all bids meeting requirements exceed the funds available for the purchase, the Chief Procurement Officer may negotiate a lower price within budget with the lowest bidder meeting specifications.

6.9.2.a. If the negotiation does not lead to the budget amount being met, the Chief Procurement Officer may negotiate a lower price within the budget with the next lowest bidder and continue negotiations with participating bidders after negotiations close with the preceding bidder.

6.9.2.b. In conducting discussions, there may be no disclosure of any information derived from proposals by competing bidders.

6.9.3. If the Chief Procurement Officer solicits bids using a best value procurement, and there is more than one bidder, the Chief Procurement Officer may negotiate a lower price with the highest ranked bidder. If the Chief Procurement Officer does not award the contract to the highest scoring bidder, he or she may close negotiations with that bidder and enter into negotiations with the next highest scoring bidder and may continue to do so in like manner with the remaining responsive and responsible bidders.

6.9.3.a. Nothing contained herein is intended to supersede requirements contained in W. Va. Code § 5G-1-1et seq.

6.9.3.b. The Director or their authorized designee shall determine the method of negotiation.

6.10. Discussion and Final Offers.

6.10.1. The Chief Procurement Officer may conduct discussions to obtain best and final offers from bidders to assure full understanding of solicitation requirements.

6.10.2. All best and final offers shall be treated like a formal bid, except that advertising is not required.

6.10.3. All bidders must provide their best and final offers to the Chief Procurement Officer prior to the date and time specified by the Chief Procurement Officer.

6.11. Contract Management.

6.11.1. For contracts for commodities and services in the amount of $1 million or less, the Chief Procurement Officer may prescribe contract management procedures for all Division contracts, which procedures may include, but are not limited to, the following:

6.11.1.a. Establishing payment benchmarks to assure the Division receives value prior to remitting payment.

6.11.1.b. Conduct regular meetings with vendors to assess contract performance, as necessary.

6.11.1.c. Training Division personnel to manage contracts.

6.12. Substitutions.

6.12.1. Substitutions of items called for in a contract is not permitted without prior approval of the Chief Procurement Officer.

6.12.2. The Chief Procurement Officer will not approve substitution of items unless the substituted items are of equal quality and are offered at the same or lower price.

W. Va. Code R. § 58-10-6