Current through Register Vol. XLI, No. 36, September 6, 2024
Section 58-10-7 - Registration, Advertising, Bidding, and Award7.1. Registration of Vendors.7.1.1. All vendors must register through the Vendor Self-Service portal, and pay any applicable fees for such registration, in order to receive payment under a contract with the Division. Vendors shall be required to disclose the information contained in W. Va. Code § 5A-3-12, such as ownership, all names under which a vendor is doing business, their physical address, and its corporate offices.7.1.2. The vendor must be licensed and in good standing in accordance with any and 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 State Tax Department, West Virginia Office of the Insurance Commissioner, the West Virginia State Auditor, the West Virginia State Treasurer, 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.7.1.3. Failure to Register. 7.1.3.a. The Chief Procurement Officer 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 Section 6 of this rule, the vendor will be given a period of time that the Chief Procurement Officer deems sufficient to cure the failure. If after that period, vendor has not cured the failure, the Chief Procurement Officer may cancel the contract.7.2. Advertising. 7.2.1. Solicitations that exceed $25,000.00 must be advertised using an available form of media such as wvOasis, newspapers, or any other media the Chief Procurement Officer considers reasonable.7.2.2. The type and duration of advertising completed is at the Chief Procurement Officer's discretion.7.2.3. This subsection shall not apply to solicitations governed by law that mandates certain advertising requirements for the procurement of certain commodities or services be met.7.3. Bidding. 7.3.1. The Chief Procurement Officer must receive bids from vendors prior to the date and time of the bid closing listed on the solicitation.7.3.2. The Chief Procurement Officer must reject bids received after the designated time and date. Each vendor is solely responsible for delivering its bid to the Procurement Office.7.3.3. An authorized representative of the vendor must sign all bids submitted to the Procurement Office. A corporate or other business entity signature without an individual name is not an acceptable signature.7.3.4. The Chief Procurement Officer allows only bids submitted by electronic transmission as defined in W. Va. Code § 5A-1-1(6), including, without limitation, electronic mail. Bids by electronic transmission must be received by the Chief Procurement Officer prior to the bid closing date and time. A bid will not be considered received until after transmission is completed.7.3.5. 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 Division 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 Procurement Office. The Procurement Office makes no guarantee of confidentiality when vendors utilize electronic transmission.7.3.6. Copies of bids that are not otherwise exempt pursuant to W. Va. Code § 59-3-1et seq., or under other provisions of the law may be open for public inspection at any time after the completion of the public bid opening. No original bid may be removed from the presence of a Chief Procurement Officer representative. The Chief Procurement Officer may prescribe policies to assure public access. The non-exempt portions of files are open for public inspection after the award has been made.7.3.7. A bidder may make a change to a sealed bid before the bid closing. A bidder must submit changes in writing, which may include electronic transmission, to the Procurement Office. To be effective, any change must be received by the Chief Procurement Officer prior to the date and time of the bid closing.7.3.8. The Chief Procurement Officer may reject a bid a vendor declares erroneous after the bid opening, but otherwise appears to be responsive, if all of the following conditions exist: 7.3.8.a. An error was made.7.3.8.b. The error materially affected the bid.7.3.8.c. Rejection of the bid would not cause a hardship on the Division other than losing an opportunity to receive commodities and services at a reduced cost.7.3.8.d. Enforcement of the part of the bid in error would be unconscionable.7.3.8.e. In order for the Chief Procurement Officer to reject a bid under this subsection, the Chief Procurement Officer must document all of the conditions set forth in this subsection exist.7.3.9. The Chief Procurement Officer must reject a bid that is found to be non-responsive due to failure to conform to the solicitation in all material respects.7.3.10. If there is a conflict between the extension price and the unit price in the bid, the unit price prevails.7.3.11. 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 Chief Procurement Officer may assume that items offered meet specifications.7.3.12. Vendors are responsible for the accuracy of the information in the bid.7.3.13. Vendors may contact the Chief Procurement Officer to obtain guidance related to the form and content required for official bids.7.3.14. 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.7.3.15. The Chief Procurement Officer may work with a vendor to resolve any technical erros in a bid if it is determined to be in the best interest of the Division.7.3.16. The Chief Procurement Officer may, upon approval of the Director or his or her designee, reject any bid when it is determined to be in the best interest of the Division.7.4. Awards. 7.4.1. The Chief Procurement Officer may elect to award a contract to more than one vendor when the Chief Procurement Officer determines in writing such action would be in the best interest of the Division. In situations where a multiple award is necessary, the Chief Procurement Officer must document the reasons therefore.7.4.2. The Chief Procurement Officer may accept or reject, in whole or in part, any bid when the Chief Procurement Officer feels it to be in the best interest of the Division. If any bid is rejected, the Chief Procurement Officer shall place a written explanation in the purchase order file.7.4.3. Tie Breakers7.4.3.a. When tie bids are received, the Chief Procurement Officer shall break the tie by a impartial method including but not limited to the flip of a coin, draw of the cards, or any other considered prudent by the Chief Procurement Officer.7.4.4. If all bids received are higher in cost than a publicly advertised price the Chief Procurement Officer is aware of before bids are made public, which final price of such publicly advertised price is inclusive of all costs or expenses contemplated in the solicitation documents, the Chief Procurement Officer may reject all bids and select the lower cost, publicly advertised price from an entity that may not have submitted a formal bid.7.5. Requirements for bonds and deposits. 7.5.1. The Chief Procurement Officer shall determine the applicability and amount of bonds or deposit required of a vendor at any time, if it is judged the security is necessary to safeguard the Division from undue risk.7.5.2. The Chief Procurement Officer may require the vendor to submit a performance bond, litigation bond or other security acceptable to the Chief Procurement Officer, payable to the State of West Virginia. Neither personal checks nor company checks are acceptable.7.5.3. 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 sections, offices, or other relevant party that the bond or security in question has fully served its purpose, the Chief Procurement Officer may return the bond or security.7.6. Specification.7.6.1. Specifications must be written to encourage competition to the greatest extent possible. No person may write specifications, or attempt to influence the drafter of specifications, to intentionally limit competition or favor or disfavor a particular brand or vendor. Specifications may not use brand or vendor names to intentionally 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.7.6.2. Nothing contained in this subsection will be construed to prevent the Division from drafting specifications with restrictions and mandatory requirements that are, in the opinion of the purchaser, necessary to perform the objectives for which the commodity or service is purchased.7.6.3. The Chief Procurement Officer may develop standard specifications that will form the basis of Agency contracts used by sections and offices. Standard specifications shall include information relating to the cost of maintenance and expected life of the commodities and services when the Chief Procurement Officer determines there are applicable nationally accepted standards.7.6.4. The Property and Procurement Office has final approval over specifications.7.7. Bid Evaluation. 7.7.1. 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 Chief Procurement Officer may develop a form that evaluators can sign for certification purposes of this subsection.7.7.2. From the time a requisition is submitted to the Chief Procurement Officer for public advertisement until an award is made, evaluators and office personnel are not permitted to communicate with vendors about the solicitation or any component thereof without prior approval from Chief Procurement Officer. 7.7.2.a. All communications and inquiries from bidders regarding the solicitation must be directed to the Chief Procurement Officer until an award has been made.7.7.2.b. Nothing in this subsection, however, shall prevent the evaluators and office personnel from communicating with a vendor about existing contracts or other matters unrelated to the solicitation in question.7.8. Multiple Awards. 7.8.1. The Chief Procurement Officer may elect to award a contract to more than one vendor when the Chief Procurement Officer determines in writing such action would be in the best interest of the Division. In arriving at that determination, the Chief Procurement Officer will consider the following factors, insofar as they are applicable: 7.8.1.a. The quality, availability, and reliability of the supplies, materials, equipment, or service and their adaptability to the particular use required.7.8.1.b. The ability, capacity, and skill of the bidder.7.8.1.c. The sufficiency of the bidder's financial resources.7.8.1.d. The bidder's ability to provide maintenance, repair parts, and service.7.8.1.e. The compatibility with existing equipment.7.8.1.f. The need for flexibility in evaluating new products on a large scale before becoming contractually committed for all use; and7.8.1.g. Any other relevant factors.7.8.2. In situations where a multiple award is necessary, the Chief Procurement Officer shall place a written explanation into the public file. If a multiple award is requested by a section or office, that section or office must provide written justification to the Chief Procurement Officer. The Chief Procurement Officer's decision shall be final in all cases.7.9. Negotiation When All Bids Exceed Available Funds.7.9.1. Sections and offices must submit a valid maximum budgeted amount for each requisition to the Property and Procurement Office. The maximum budgeted amount may not be disclosed to any vendor prior to the bid opening and may not be changed after the bid opening.7.9.2. If all bids meeting requirements exceed the funds available for the purchase, the Property and Procurement Office may negotiate a lower price within budget with the lowest bidder meeting specifications.7.9.2.a. If the negotiation does not lead to the budget amount being met, the Chief Procurement Officer may negotiate a lower price within budget with the next lowest bidder and continue negotiations with participating bidders after negotiations close with the preceding bidder.7.9.2.b. In conducting discussions, there may be no disclosure of any information derived from proposals by competing bidders.7.9.3. If the Property and Procurement Office 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.7.9.3.a. The Chief Procurement Officer may not extend an offer to any bidder that is not first extended to the prior bidders in order of rank.7.9.3.b. Nothing contained herein is intended to supersede requirements contained in W. Va. Code § 5G-1-1et seq.7.9.4. If a section or office fails to provide a valid maximum budgeted amount, the Chief Procurement Officer shall not permit negotiation.7.9.5. The Chief Procurement Officer shall determine the method of negotiation.7.10. Discussion and Final Offers. 7.10.1. The Chief Procurement Officer may conduct discussions to obtain best and final offers from bidders to assure full understanding of solicitation requirements. 7.10.1.a. If the Chief Procurement Officer determines that a best and final offer is necessary from one vendor, all vendors shall be afforded the opportunity to provide best and final offers.7.10.2. All best and final offers shall be treated like a formal bid, except that advertising is not required.7.10.2.a. All bidders must provide their best and final offers to the Property and Procurement Office prior to the date and time specified by the Chief Procurement Officer.7.10.3. Government construction contracts and supplies and materials to be used in construction are exempt from the provisions of this section.7.11. Contract Management. 7.11.1. 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, except government construction contracts. These procedures may include, but are not limited to:7.11.1.a. Establishing payment benchmarks to assure the Division receives value prior to remitting payment.7.11.1.b. Conducting regular meetings between sections and offices and vendors to assess contract performance.7.11.1.c. Training Division section and office personnel to manage contracts.7.11.1.d. Using the Office of Technology Project Manager for its projects.7.11.2. For contracts for commodities and services in an amount exceeding $1 million, the following contract management procedures apply.7.11.2.a. Post Award Conferences.7.11.2.a.1. The section or office responsible for administering the contract must hold a post award conference with the vendor to ensure a clear and mutual understanding of all contract terms and conditions, and the respective responsibilities of all parties. The agenda for the conference must include, at minimum, the introduction of all participants and identification of Division and vendor key personnel, and discussion of the following items: 7.11.2.a.1.A. The scope of the contract, including specifications of what the section or office is buying.7.11.2.a.1.B. The contract terms and conditions, particularly any special contract provisions.7.11.2.a.1.C. The technical and reporting requirements of the contract.7.11.2.a.1.D. The contract administration procedures, including contract monitoring and progress measurement.7.11.2.a.1.E. The rights and obligations of both parties and the vendor performance evaluation procedures.7.11.2.a.1.F. An explanation that the vendor will be evaluated on its performance both during and at the conclusion of the contract and that such information may be considered in the selection of future contracts.7.11.2.a.1.G. Potential contract problem areas and possible solutions.7.11.2.a.1.H. Invoicing requirements and payment procedures, with particular attention to whether payment will be made according to milestones achieved by the vendor.7.11.2.a.1.I. An explanation of the limits of authority of the personnel of both the section or office and the vendor.7.11.2.b. The section or office should develop a comprehensive and objective monitoring checklist which: 7.11.2.b.1. Measures outcomes.7.11.2.b.2. Monitors compliance with contract requirements.7.11.2.b.3. Assesses vendor performance.7.11.3. The Chief Procurement Officer will make reports available to the Director and Chief of Administration upon request.7.12. Inspection.7.12.1. The section or office must inspect all materials, supplies, and equipment upon delivery and again prior to final acceptance to ensure compliance with the contract requirements and specifications.7.12.2. The section or office must report any discrepancies to the Purchasing Liaison and Chief Procurement Officer immediately.7.12.3. If unlisted shortages are discovered, the vendor, Purchasing Liaison and Chief Procurement Officer must be notified immediately.7.12.4. A vendor may be required to pick up any merchandise not conforming to specifications and replace the merchandise immediately.7.13. Substitutions. 7.13.1. Substitution of items called for in a contract is not permitted without the Chief Procurement Officer's prior approval.7.13.1.a. 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.7.14. Change Orders. 7.14.1. The Chief Procurement Officer has the duty and responsibility to review and approve change orders just as he or she has the duty and responsibility for review and approval of the original contract.7.14.2. Change order submission.7.14.2.a. A request for the contract change must be submitted to the Chief Procurement Officer.7.14.2.b. Any change order request submitted to the Property and Procurement Office that requires vendor agreement must include the vendor's agreement in writing.7.14.3. The Chief Procurement Officer may request any documentation or further explanation that the Chief Procurement Officer deems necessary to aid in reviewing a change order request.7.14.4. The Chief Procurement Officer shall reject the change order if upon review he or she determines it is unjustified, inadequately documented, or unreasonable.7.14.5. 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.7.14.6. Vendors must not be permitted to perform work that will be added to a contract through a change order until such time as the change order has been:7.14.6.a. Formally approved by the Chief Procurement Officer.7.14.6.b. Encumbered by the Division.7.14.6.c. Transmitted to the vendor.