Current through Register Vol. XLI, No. 36, September 6, 2024
Section 58-10-8 - Remedies8.1. The Chief Procurement Officer may require the Division attempt to resolve any issues that it may have with the vendor prior to pursuing a remedy contained herein. The Division must document any resolution efforts to be retained by the Chief Procurement Officer.8.2. Contract Cancellation.8.2.1. The Chief Procurement Officer may cancel a purchase or contract immediately under any one of the following conditions including without limitation: 8.2.1.a. The vendor agrees to cancellation.8.2.1.b. The vendor has obtained the contract by fraud, collusion, conspiracy, or is in conflict with any statutory or constitutional provision of the State of West Virginia.8.2.1.c. Failure to honor any contractual term or condition or to honor standard commercial practices.8.2.1.d. The existence of an organizational conflict of interest is identified.8.2.1.e. Funds are not appropriated, or an appropriation is discontinued by the legislature for the acquisition.8.2.1.f. Violation of any federal, state, or local law, regulation, or ordinance.8.2.2. Except as provided in subsection 8.2.1., the Chief Procurement Officer may cancel a purchase or contract for any reason or no reason, upon providing the vendor with 30 days' notice of the cancellation.8.3. Opportunity to Cure.8.3.1. In the event that a vendor fails to honor any contractual term or condition, or violates any provision of federal, state, or local law, regulation, or ordinance, the Chief Procurement Officer may request the vendor remedy the contract breach or legal violation within a time frame the Chief Procurement Officer deems appropriate.8.3.2. If the vendor fails to remedy the contract breach or legal violation or the Chief Procurement Officer determines, at his or her sole discretion, that such a request is unlikely to yield a satisfactory result, then he or she may cancel immediately without providing the vendor an opportunity to perform a remedy.8.4. Re-Award. The Chief Procurement Officer may award a cancelled contract to the next most qualified responsible bidder, whether that be the next lowest bidder in a cost driven competitive bid or the next highest scoring bidder if best value procurement, without a subsequent solicitation if the Director determines it to be in the best interest of the Division.8.5. Non-responsible.8.5.1. If the Chief Procurement Officer believes that a vendor may be non-responsible, the Chief Procurement Officer may request a vendor provide evidence the vendor either does or does not have the capability to fully perform the contract requirements and the integrity and reliability necessary to assure good faith performance.8.5.2. If the Chief Procurement Officer determines the vendor is non-responsible, the Chief Procurement Officer shall reject the vendor's bid and shall not award the contract to that vendor.8.5.3. A determination of non-responsibility must be evaluated on a case-by-case basis and can only be made after the vendor in question has submitted a bid.8.5.4. A determination of non-responsibility will only extend to the contract for which the vendor has submitted a bid and does not operate as a bar against submitting future bids.8.6. Suspension by the Division.8.6.1 The Director may suspend, for a period not to exceed one year, the right of a vendor to bid on procurements issued by the Division if:8.6.1.a. The vendor has exhibited a pattern of submitting bids and then requesting that its bid be withdrawn after bids have been publicly opened. For purposed of this provision, a pattern is two or more instances within a 12-month period.8.6.1.b. The vendor has exhibited a pattern of poor performance in fulfilling his or her contractual obligations to the Division. Poor performance includes, but is not limited to, two or more instance of any of the following:8.6.1.b.1. Violations of law, regulation, or ordinance.8.6.1.b.2. Failure to deliver timely.8.6.1.b.3. Failure to deliver quantities ordered.8.6.1.b.4. Poor performance reports.8.6.1.b.5. Failure to deliver commodities or services at the quality level required by the contract.8.6.1.b.6. The vendor has breached a contract issued by the Property and Procurement Office or any section or office and refuses to remedy that breach.8.7. Vendor Debarment by the Division.8.7.1. The Chief Procurement Officer has primary responsibility for administering the debarment process. The Chief Procurement Officer's duties include:8.7.2. Obtaining lists of vendors declared ineligible under federal laws and regulations.8.7.3. Notification of the Division sections and offices regarding disbarred vendors.8.7.4. Compiling and maintaining a current, consolidated list of all vendors that have been disbarred or declared ineligible, the period of such disbarment, and the reasons therefor.8.7.5. Investigating complaints about vendors from the Division and its sections and offices responsible for contracting with vendors for supplies and services.8.7.6. The Director has primary responsibility for initiating and conducting disbarment procedures.8.7.7. The Director may debar a vendor if the vendor has been declared ineligible to participate in procurement related activities under federal law and regulation, when the vendor's name appears on the West Virginia Division of Purchasing or United States Excluded Parties List System, on the basis of any one or more grounds for disbarment pursuant to W. Va. Code § 5A-3-33 d, or when any section or office requests disbarment of a vendor and the Director finds probable cause for debarment exists.8.7.8. Vendor debarment shall be conducted according to the following procedures: 8.7.8.a. The Director shall notify the vendor by certified mail, return receipt requested, of the following:8.7.8.b. The reasons for the proposed disbarment in sufficient detail to put the vendor on notice of the conduct or transactions upon which the proposed debarment is based.8.7.8.c. The causes relied upon for the proposed debarment.8.7.8.d. That within 10 working days after receipt of the notice, the vendor may submit in writing information and argument in opposition to the proposed debarment.8.7.8.e. The procedures governing debarment decision-making, and8.7.8.f. The potential effect of the proposed debarment.8.7.9. A vendor that has received notice of the proposed debarment by certified mail, return receipt requested, must respond to the proposed debarment within 10 working days after receipt of notice or the debarment will be instituted without further notice. A vendor is deemed to have received notice, notwithstanding the vendor's failure to accept the certified mail, if the letter is addressed to the vendor at its last known address. After considering the matter and reaching a decision, the Director shall notify the vendor of his or her decision by certified mail, return receipt requested.8.7.10. In any debarment decision, the Director shall make a specific finding, based on the substantial record, whether the public interest requires that the debarment decision extend to all commodities and services of the vendor, or whether the public interest allows the debarment decision to be limited to specific commodities or services. Proof of grounds for disbarment must be clear and convincing.8.7.11. In any debarment decision, the Director shall specify the length of the debarment period. The debarment period must be for the period of time the Director finds necessary and proper to protect the public from an irresponsible vendor.8.7.12. In the event a vendor wishes to contest the debarment decision, the Director shall decide the matter in accordance with the provision of W. Va. Code § 29A-5-1et seq.8.7.13. Any vendor, other than a vendor prohibited from participating in a federal procurement, undergoing debarment proceedings is permitted to continue participating in the Division's procurement process until a final debarment decision has been reached. Any contract that a debarred vendor obtains prior to a final debarment decision shall remain in effect for the current term but may not be extended or renewed. Notwithstanding the foregoing, the Director may cancel a contract held by a debarred vendor if the Director determines, in his or her sole discretion, that doing so is in the best interest of the Division. A vendor prohibited from participating in federal procurement will not be permitted to participate in the Division's procurement process during disbarment proceedings.8.7.14. If the Director's final debarment decision is that debarment is warranted and notice of the final debarment decision is mailed, the Property and Procurement Office shall reject any bid submitted by the debarred vendor, including any bid submitted prior to the final debarment decision if that bid has not yet been accepted and a contract consummated.8.7.15. Unless the Director determines in writing there is a compelling reason to do otherwise, the Division may not solicit offers from, award contracts to, nor consent to subcontract with a debarred vendor during the debarment period.8.7.16. The Chief Procurement Officer may not exercise an option to renew or otherwise extend a current contract with a debarred vendor, nor a contract which is being performed in any part by a debarred subcontractor, unless the Director approves the action in writing, based upon compelling evidence for exercise of the option or extension.8.7.17. The Director may extend the disbarment to include a related party of the vendor. The Director shall follow the same procedure, and afford the related party like notice, hearing, and other rights, for extending the debarment to the affiliate as provided for under section 5.7. of this rule. For purposes of this subsection, a related party may include:8.7.17.a. Spouses, parents, children, siblings, grandparents, or grandchildren of a debarred vendor or individual.8.7.17.b. Any individual or entity that partially or completely owns, controls, or influences, or is partially or completely owned, controlled, or influenced by the actions of a debarred vendor or individual.8.7.17.c. Entities that are related under common ownership or control with a debarred vendor, or8.7.17.d. A business entity or individual that has contracted with or employed a debarred vendor or individual to perform work on one or more public contracts.8.8.1. The Director may reduce the period or extent of debarment, upon the vendor's request supported by documentation, for the following reasons: 8.8.1.a. Newly discovered material evidence.8.8.1.b. Reversal of the conviction or judgment upon which debarment was based.8.8.1.c. Elimination of the causes for which the debarment was imposed, or8.8.1.d. Other good cause shown, including evidence that the vendor has become responsible.8.8.2. The Director may extend the debarment period for an additional period if he or she determines the extension is necessary to protect the interests of the Division. Upon the expiration of a debarment period, the Director shall extend the debarment period for any vendor who has not paid all current state, obligations for at least the four most recent calendar quarters, exempting the current calendar quarter, and for any vendor who is in default on a repayment agreement with the Division, until such time as the cause for the extended debarment is removed. If the Director, extends the debarment period, he or she shall follow the same procedures, afford the vendor like notice, hearing, and other rights for extending the debarment, as provided for debarment under this section of this rule.8.8.3. A debarment under this rule may be waived by the Director with respect to a particular contract if he or she determines the debarment of the vendor would severely disrupt the operation of a governmental entity to the detriment of the general public or would not be in the public interest.8.9. Damages. 8.9.1. A vendor who fails to perform as required under a contract shall be liable for actual damages and costs incurred by the state.8.9.2. The Division shall seek to collect damages by means determined appropriate by the Director in consultation with legal counsel.