Current through Register Vol. XLI, No. 25, June 21, 2024
Section 90-10-5 - Remedies5.1. The Director or designee may require that the Agency Sections attempt to resolve any issues that it may have with the vendor prior to pursuing a remedy contained herein. The Agency Sections must document any resolution efforts and provide copies of those documents to the Purchasing Office.5.2. Contract Cancellation. The Director or designee may cancel a purchase or contract immediately under any one of the following conditions including, but not limited to: 5.2.1. The vendor agrees to the cancellation.5.2.2. The vendor has obtained the contract by fraud, collusion, conspiracy, or conflicts with any statutory or constitutional provision of the State of West Virginia.5.2.3. Failure to honor any contractual term or condition or to honor standard commercial practices.5.2.4. The existence of an organizational conflict of interest is identified.5.2.5. Funds are not appropriated, or an appropriation is discontinued by the legislature for the acquisition.5.2.6. Violation of any federal, state, or local law, regulation, or ordinance.5.2.7. The Director or designee may cancel a purchase or contract for any reason or no reason, upon providing the vendor with thirty (30) days' notice of the cancellation.5.3. Opportunity to Cure. 5.3.1. 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 Director or designee may request that the vendor remedy the contract breach or legal violation within a time frame the Director or designee determines to be appropriate.5.3.2. If the vendor fails to remedy the contract breach or legal violation or the Director or designee 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.5.4. Re-Award. The Director or designee may award a cancelled contract to the next lowest responsible bidder (or next highest scoring bidder if best value procurement) without a subsequent solicitation if the following conditions are met: 5.4.1. The next lowest responsible bidder (or next highest scoring bidder if best value procurement) can perform at the price contained in its original bid submission, and5.4.2. The contract is an open-end contract, a one-time purchase contract, or a contract for work which has not yet commenced.5.4.3. Award to the next lowest responsible bidder (or next highest scoring bidder if best value procurement) will not be an option if the vendor's failure has in any way increased or significantly changed the scope of the original contract. The vendor failing to honor contractual and legal obligations is responsible for any increase in cost the state incurs as a result of the re-award.5.5. Non-Responsible. 5.5.1. If the Director or designee believes that a vendor may be non-responsible, the Director or designee may request that a vendor or Agency Section provide evidence that 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.5.5.2. If the Director or designee determines that the vendor is non-responsible, the Director or designee shall reject that vendor's bid and shall not award the contract to that vendor.5.5.3. 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.5.5.4. 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.5.6. Suspension. 5.6.1. The Director or designee may suspend, for a period not to exceed one (1) year, the right of a vendor to bid on procurements issued by the Purchasing Office under its authority if: 5.6.1.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 purposes of this provision, a pattern is two or more instances in any twelve (12) month period.5.6.1.b. The vendor has exhibited a pattern of poor performance in fulfilling his or her contractual obligations to the State. Poor performance includes, but is not limited to, two (2) or more instances of any of the following: 5.6.1.b.1. Violations of law, regulation, or ordinance.5.6.1.b.2. Failure to deliver timely.5.6.1.b.3. Failure to deliver quantities ordered.5.6.1.b.4. Poor performance reports.5.6.1.b.5. Failure to deliver commodities, services, or printing at the quality level required by the contract.5.6.1.c. The vendor has breached a contract issued by the Purchasing Office or any Agency Section under its authority and refuses to remedy that breach.5.6.1.d. The vendor's actions have given rise to one or more of the grounds for debarment listed in WV State Code.5.6.2. Vendor suspension for the reasons listed in section 5.6 above shall occur as follows: 5.6.2.a. Upon a determination by the Director or designee that a suspension is warranted, the Director or designee will serve a notice of suspension to the vendor.5.6.2.b. A notice of suspension must inform the vendor:5.6.2.b.1. Of the grounds for the suspension.5.6.2.b.2. Of the duration of the suspension.5.6.2.b.3. Of the right to request a hearing contesting the suspension.5.6.2.b.4. That a request for a hearing must be served on the Director or designee no later than five (5) working days of the vendor's receipt of the notice of suspension.5.6.2.b.5. That the vendor's failure to request a hearing no later than five (5) working days of the receipt of the notice of suspension will be deemed a waiver of the right to a hearing and result in the automatic enforcement of the suspension without further notice or an opportunity to respond; and5.6.2.b.6. That a request for a hearing must include an explanation of why the vendor believes the Director or designee's asserted grounds for suspension do not apply and why the vendor should not be suspended.5.6.2.c. A vendor's failure to serve a request for hearing on the Director or designee no later than five (5) working days of the vendor's receipt of the notice of suspension will be deemed a waiver of the right to a hearing and may result in the automatic enforcement of the suspension without further notice or an opportunity to respond.5.6.2.d. A vendor who files a timely request for hearing but nevertheless fails to provide an explanation of why the asserted grounds for suspension are inapplicable or should not result in a suspension, may result in a denial of the vendor's hearing request.5.6.2.e. Within five (5) working days of receiving the vendor's request for a hearing, the Director or designee will serve on the vendor a notice of hearing that includes the date, time, and place of the hearing.5.6.2.f. The hearing will be recorded, and an official record prepared. Within ten (10) working days of the conclusion of the hearing, the Director or designee will issue and serve on the vendor a written decision either confirming or reversing the suspension.5.6.3. A vendor may appeal a decision of the Director or designee. The appeal must be in writing and served on the Director no later than five (5) working days of receipt of the decision.5.6.4. The Director, or designee, will schedule an appeal hearing and serve on the vendor, a notice of hearing that includes the date, time, and place of the hearing. The appeal hearing will be recorded, and an official record prepared. Within ten (10) working days of the conclusion of the appeal hearing, the Director will issue and serve on the vendor a written decision either confirming or reversing the suspension.5.6.5. Any notice or service related to suspension actions or proceedings must be provided by certified mail, return receipt requested.5.7 Vendor Debarment. 5.7.1. The Director or designee may debar a vendor when that vendor's name appears on the West Virginia Division of Purchasing or the United States Excluded Parties List System.5.8 Damages. 5.8.1. A vendor who fails to perform as required under a contract shall be liable for actual damages and costs incurred by the state.5.8.2. If any commodities delivered under a contract have been used or consumed by an Agency Section and on testing the commodities are found not to comply with specifications, no payment may be approved by the Agency Section for the merchandise until the amount of actual damages incurred has been determined.5.8.3. The Agency Section shall seek to collect damages by following the procedures established by the Office of the Attorney General for the collection of delinquent obligations.