W. Va. Code R. § 90-10-6

Current through Register Vol. XLI, No. 25, June 21, 2024

Section 90-10-6 - Registration, Advertising, Bidding, and Award

6.1. Registration of Vendors.

6.1.1. At Agency's discretion, vendors must register with the Purchasing Division prior to being awarded a contract, except that the following categories of vendors are exempt from this registration requirement or as determined by the Agency to waive said registration.

6.1.1.a. Purchasing card vendors providing travel related services are not required to register with the Purchasing Division.

6.1.1.b. Purchasing card vendors receiving an aggregate total yearly payment less than $25,000.00 from Agency Sections are not required to register with the Purchasing Division.

6.1.1.c. Any company or corporation, or subsidiary of the company or corporation, listed on any nationally recognized stock exchange is not required to register with the Purchasing Division.

6.1.2. Vendors shall register by submitting the vendor registration and disclosure statement provided by the Purchasing Division.

6.1.3. Purchasing Division Fee Payment.

6.1.3.a. All vendors shall pay to the Purchasing Division, an annual registration fee of $125 prior to being awarded a contract, except that the following categories of vendors are exempt from this requirement.

6.1.3.a.1. Purchasing card vendors providing travel related services are not required to pay the registration fee.

6.1.3.a.2. Purchasing card vendors receiving an aggregate total yearly payment less than $25,000.00 from spending units are not required to pay the registration fee.

6.1.3.a.3. Vendors receiving orders for goods or services of $2,500 or less, regardless of payment method, are not required to pay the registration fee.

6.1.3.a.4. Vendors providing a good or service under a sole source solicitation are not required to pay the registration fee. The fee is considered waived by the Agency for all sole source providers.

6.1.3.a.5. Any vendor can be exempted from paying the registration fee if the Assistant Director of Purchasing determines that waiving the registration fee would be in the best interest of the State of West Virginia.

6.1.3.b. A vendor with multiple locations shall pay only one fee when operating under one Federal Employer Identification Number (FEIN).

6.1.4. Other Registrations, Licenses, etc.

6.1.4.a. 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 Tax Department, West Virginia Insurance Commission, 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.

6.1.5. Failure to Register.

6.1.5.a. The Director or designee is prohibited from awarding any contract to any vendor not properly registered. 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 section 6 of these procedures, the vendor will be given a period of time that the Director or designee deems sufficient to cure the failure. If after that period vendor has not cured the failure, the Director or designee may cancel the contract.

6.2. Advertising.

6.2.1. Solicitations that exceed $25,000 must be advertised using media such as the wvOasis Purchasing Bulletin, or any other media the Director or designee considers advisable.

6.3. Bidding.

6.3.1. The Purchasing Office must receive bids from vendors prior to the date and time of the bid opening listed on the solicitation forms provided by the Purchasing Office. The Assistant Director of Purchasing, and all other Agency staff, must reject bids received after the designated time and date. Each vendor is solely responsible for delivering its bid to the Purchasing Office.

6.3.2. An authorized representative of the vendor must sign all bids submitted to the Purchasing Office. A corporate or other business entity signature without an individual name is not an acceptable signature.

6.3.3. The Director or designee may allow bids by electronic transmission. Bids by electronic transmission must be received by the Purchasing Office. A bid will not be considered received until after transmission is completed.

6.3.4. 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 Agency 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 Purchasing Office. The Purchasing Office makes no guarantee of confidentiality when vendors utilize electronic transmission.

6.3.5. Copies of bids may be open for public inspection in the office of the Purchasing Office at any time after the completion of the public bid opening. No original bid may be removed from the presence of a Purchasing Office representative. The Director or designee may prescribe policies to include scanning, copying or other methods of assuring public access. The files of the Purchasing Office are open for public inspection after the award has been made.

6.3.6. A bidder may make a change to a sealed bid before the bid opening. A bidder must submit changes in writing or by electronic transmission to the Purchasing Office. To be effective, any change must be received by the Purchasing Office prior to the date and time of the bid opening.

6.3.7. The Director or designee may reject a bid that a vendor declares to be erroneous after the bid opening, but otherwise appears to be responsive, if all the following conditions exist:

6.3.7.a. An error was made.

6.3.7.b. The error materially affected the bid.

6.3.7.c. Rejection of the bid would not cause a hardship on the Agency Sections involved other than losing an opportunity to receive commodities, services, or printing at a reduced cost.

6.3.7.d. Enforcement of the part of the bid in error would be unconscionable.

6.3.7.e. In order for the Director or designee to reject a bid under this subsection, the public file must contain documented evidence that all of the conditions set forth in this subdivision exist.

6.3.8. The Director or designee must reject a bid that is found to be non-responsive.

6.3.9. If there is a conflict between the extension price and the unit price in the bid, the unit price prevails.

6.3.10. 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 Director or designee may assume that items offered meet the specifications.

6.3.11. Vendors are responsible for the accuracy of the information on and in the bid envelopes.

6.3.12. Vendors may contact the Purchasing Office to obtain official bid forms.

6.3.13. 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.

6.4. Awards.

6.4.1. Any award made by the Director or designee will be made in accordance with the law governing the type of procurement being awarded. The Director or designee may make multiple or split awards when it is in the best interest of the State.

6.4.2. The Director or designee may accept or reject, in whole or in part, any bid when the Director or designee feels it to be in the best interest of the State. If any bid is rejected, the Director or designee shall place a written explanation in the purchase order file.

6.4.3. When tie bids are received, the Director or designee shall break the tie by:

6.4.3.a. Allowing the tied vendors to make a final offer.

6.4.3.b. Flip of a coin, draw of the cards, or any other impartial method considered prudent by the Director or designee.

6.4.4. Requirements for bonds and deposits:

6.4.4.a. The Director or designee shall determine the applicability and amount of bonds or deposit required of a vendor at any time, if it is judged that security is necessary to safeguard the State from undue risk.

6.4.4.b. The Director or designee may require the vendor to submit a certified check, certificate of deposit, performance bond, litigation bond or any other security acceptable to the Director or designee payable to the State of West Virginia. Neither personal checks nor company checks are acceptable.

6.4.4.c. 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 Agency Sections or other relevant party that the bond or security in question has fully served its purpose, the Director or designee may return the bond or security.

6.5. Specifications.

6.5.1. For Agency Section delegated purchases of $25,000 or less, Agency Sections have the primary responsibility to draft specifications, unless otherwise directed by the Commissioner or designee.

6.5.2 Specifications must be written to encourage competition to the fullest extent possible. No person may write specifications, or attempt to influence the drafter of specifications, to limit competition or favor or disfavor a vendor. 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 unless a specific brand/model must be purchased by Agency for compatibility reasons or uniformity.

6.5.2.a. Examples of limiting competition or favoring a brand or vendor include, but are not limited to:

6.5.2.a.1. Drafting specifications to match a vendor's description of its commodity or service to the exclusion of others.

6.5.2.a.2. Listing a brand name in specifications without noting that equivalent products will be considered.

6.5.2.a.3. Drafting specifications that are so restrictive that only one desired vendor can meet the requirements without adequate justification for the restrictions.

6.5.2.b. Nothing contained in the subsection will be construed to prevent Agency Sections from drafting specifications with restrictions and mandatory requirements that are necessary to perform the objectives for which the commodity or service is purchased.

6.5.2.c. Reduced need for training, maintaining consistency in inventory, staff familiarity, and other similar objectives will not be sufficient to justify restrictions in specifications.

6.5.2.d. Agency Sections that use a brand or vendor name to describe a needed commodity or service must also list in the specifications the mandatory components of that commodity or service that the reference to a brand or vendor name is intended to capture.

6.5.2.d.1. A vendor's equality with the brand or vendor name will be evaluated on the basis of the mandatory components only. If a vendor bids a commodity or service that is equal to the brand or vendor name with regard to all identified mandatory components, the Director or designee shall not disqualify the vendor's bid due to inequality of non-mandatory components.

6.5.2.d.2. Any Agency Section request to disqualify a vendor on the grounds that the vendor has bid an unequal product must be accompanied by written justification listing the mandatory component that is unequal and explaining how the product bid is unequal.

6.5.3. The Director or designee has authority to develop standard specifications that will form the basis of Agency contracts used by Agency Sections. Standard specifications shall include information relating to the cost of maintenance and expected life of the commodities, services or printing when the Director or designee determines there are applicable nationally accepted standards.

6.5.4. The Purchasing Office has final authority over specifications and may require that Agency Sections modify specifications. In the event Agency Sections refuse to make the required changes, the Director or designee is prohibited from issuing a solicitation until the Agency Sections provide the Director or designee with a written explanation for the refusal that the Director or designee deems satisfactory.

6.6. Bid Evaluation.

6.6.1. 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 Purchasing Office may develop a form that evaluators can sign for certification purposes under this subsection.

6.6.2. From the time a requisition is submitted to the Purchasing Office for public advertisement until an award is made, evaluators and Agency Section personnel are not permitted to communicate with vendors about the solicitation or any component thereof without prior approval from the Purchasing Office.

6.6.2.a. All communication regarding the solicitation must be directed to the Purchasing Office until an award has been made.

6.6.2.b. Nothing in this subsection, however, shall prevent the evaluators and Agency Sections personnel from communicating with a vendor about existing contracts or other matters unrelated to the solicitation in question.

6.7. Deliveries.

6.7.1. Agency Sections are responsible for:

6.7.1.a. The inspection of commodities, services, or printing upon delivery to ensure that purchases meet contractual requirements.

6.7.1.b. Maintaining records of receipt.

6.8. Change Orders.

6.8.1. The Director or designee has the authority and responsibility to review change orders just as he or she has authority and responsibility for review and approval of the original contract.

6.8.2. Change Order Submission.

6.8.2.a. Agency Sections desiring to make a change to a contract must submit a request for the contract change to the Purchasing Office.

6.8.2.b. Any change order request submitted to the Purchasing Office that requires vendor agreement must include the vendor's agreement in writing.

6.8.3. The Director or designee may ask for, and the Agency Sections must provide, any documentation or further explanation that the Director or designee deems necessary to aid in reviewing a change order request.

6.8.4. Rejection.

6.8.4.a. The Director or designee shall reject the change order if upon review he or she determines that:

6.8.4.a.1. It has not been properly justified.

6.8.4.a.2. Fails to include necessary documentation.

6.8.4.a.3. Is or could be construed as an attempt to circumvent the bidding process.

6.8.4.a.4. Or is otherwise unfit to be approved.

6.8.5. 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 under West Virginia Code § 5A-3-13.

6.8.6. Timing of Work.

6.8.6.a. Agency Sections must not permit vendors to perform work that the Agency Sections anticipate will be added to a contract through a change order until such time as the change order has been:

6.8.6.a.1. Formally approved by the Purchasing Office and the Attorney General's office.

6.8.6.a.2. Encumbered by the Purchasing Office.

6.8.6.a.3. Mailed to the vendor.

6.8.6.b. This subsection related to timing of work does not apply to government construction contracts executed pursuant to W.Va. Code § 5-22-1, et seq.

W. Va. Code R. § 90-10-6