Current through Register Vol. XLI, No. 25, June 21, 2024
Section 90-10-7 - Purchasing Methods7.1. General.7.1.1. Contracts requiring more than six (6) months to fulfill are filed with the State Auditor.7.2. Purchases of $25,000 or Less. 7.2.1. Agency Sections may make purchases of $25,000 or less per transaction for certain commodities, services, or printing without processing the purchase as a formal solicitation through the Purchasing Office, provided that the Agency Sections adhere to the most current Purchasing Office procedures established by the Director or designee.7.2.2. Agency Section purchases of $10,000 and less, no bidding required, but encouraged.7.2.3. Agency Section purchases of $10,000.01 to $20,000.00, the Agency Section must solicit at least three (3) verbal bids, if possible, from vendors and make a written contract, or agreement, with the lowest responsible bidder. The threshold dollar amount applies to both vendors utilized and commodities and/or services purchased.7.2.4. Agency Section purchases of $20,000.01 to $25,000.00, the Agency Section must solicit at least three (3) written bids, if possible, from vendors and make a written contract, or agreement, with the lowest responsible bidder. The threshold dollar amount applies to both vendors utilize and commodities and/or services purchased.7.2.5. The Agency Sections must keep records of these purchases on file and make them available for public inspection during the normal office hours of the Agency Sections.7.2.6. If the Agency Section fails to comply with the procedures and requirements established for purchases of $25,000 or less, the Director or designee has the ability to: 7.2.6.a. Suspend or reduce purchasing authority for that Agency Section.7.2.6.b. Require the Agency Section to provide additional reports and documentation relating to purchases of $25,000 or less for Purchasing Office review.7.2.6.c. Require the Agency Section to submit to additional oversight that the Director or designee deems appropriate.7.2.6.d. Require that the Agency Section personnel responsible for purchases of $25,000 or less participate in remedial training provided by the Purchasing Office.7.3. Purchases in Excess of $25,000.7.3.1. Purchases of commodities, services or printing that exceed $25,000 shall be made by the Purchasing Office, unless otherwise approved by the Director or designee, and the Commissioner.7.4. Open End Contracts and Statewide Contracts. 7.4.1. The State may secure open end contracts to obtain commodities, services, or printing to supply the repetitive needs of the Agency Sections in the form of statewide contracts, blanket orders, or Agency Sections contracts.7.4.2. If the Director or designee establishes an Agency open end contract, any Agency Section covered by the contract is required to use it. 7.4.2.a. The Director or designee may grant Agency Sections a waiver that permits the Agency Section to purchase from a source other than the open end contract.7.4.3. If the Director or designee establishes an Agency contract, all Agency Sections are required to use it. 7.4.3.a. The Director or designee may grant Agency Sections a waiver that permits the Agency Sections to purchase from a source other than the Agency contract.7.4.4. Granting of a waiver from an open end or Agency contract will be considered on a case-by case basis and will only be granted if the Director or designee determines that granting the waiver is in the best interest of the State. A waiver will only be granted if the Agency Sections can show that any one of the following conditions exists: 7.4.4.a. The vendor is unable to deliver the commodity or service by the required delivery date, assuming the Agency Sections is not imposing an unreasonable delivery deadline.7.4.4.b. The vendor is unresponsive to ordering requests.7.4.4.c. The vendor has refused to perform.7.5. Direct Award Procurement. 7.5.1. The Director or designee may approve the purchase of commodities, services, or printing directly from a vendor as a direct award procurement without competitive bidding, if: 7.5.1.a. The Agency Sections can acquire the required good or services from only one source.7.5.1.b. The Agency Section provides written documentation to the Director or designee setting forth the basis for the sole source procurement and the specific efforts made to determine the availability of other sources.7.5.2. Agency Sections are encouraged to solicit competition rather than process a sole source request. The Director or designee has authority to reject sole source requests whenever competition is believed to be available.7.5.3. Direct award requests over $10,000 shall be publicly advertised and made available for review by vendors. Should this advertisement cause inquiry and concern or requests to bid by prospective bidders or other interested parties, the Director or designee may: 7.5.3.a. Reject the direct award request and require the Agency Sections to submit a requisition for public advertisement and formal bidding.7.5.3.b. Accept the request and approve the direct award.7.5.3.c. Take other action as necessary.7.5.4. The Director or designee may require potential direct award requests at any dollar level above $10,000 to be subject to review, approval and processing in the same manner described in these procedures.7.5.5. The Director or designee must issue prior approval or disapproval for the purchase of used equipment directly from the vendor without competitive bids.7.5.5.a. If disapproved, the Director or designee must return the request to the Agency Sections and direct another method of purchasing.7.5.5.b. Notwithstanding the foregoing, approval to purchase used equipment under this subsection is contingent upon meeting all of the requirements applicable to a direct award procurement.7.6. Emergency Procurement. 7.6.1. Any request to procure specific commodities for immediate delivery on an emergency basis must be submitted in writing to the Commissioner or Commissioner's designee. The Commissioner or the Commissioner's designee will submit the emergency procurement request to the Secretary of the Department of Homeland Security, for approval. Once the emergency procurement request has been approved by the Commissioner or Commissioner's designee and the Secretary of the Department of Homeland Security, the Commissioner or Commissioner's designee will provide a copy of the approved emergency procurement request to the Director.7.6.2. Approval to procure goods or services on an emergency basis will permit the Agency Sections to purchase the required goods or services directly from a vendor. Provided, however, that the Agency Sections must obtain three bids, if possible. Required documentation must be submitted to the Purchasing Office as soon as possible for processing.7.6.3. What qualifies as an emergency under this subsection shall be evaluated by the Commissioner and the Secretary of the Department of Homeland Security on a case by case basis, but will at least include:7.6.3.a. Unforeseen events or circumstances including delays by contractors, delays in transportation, or an unanticipated volume of work, as well as procurement of specific commodities for immediate delivery related to an official declaration of emergency by the Governor or federal officials.7.6.3.b. Emergency purchases are not used for hardship resulting from neglect, poor planning, or lack of organization by the Agency Sections.7.7. Best Value Procurement. 7.7.1. The term best value procurement means a request for proposal as described in West Virginia Code § 15A-3-14.7.7.2. Requests for Quotation are the preferred method and gold standard of procurement, but an Agency Section may utilize a best value procurement method to procure goods, services, or printing, excluding construction.7.7.2.a. In order to utilize a request for proposal, the Agency Sections must provide adequate justification explaining why an evaluation based on price and compliance with specification alone would not be adequate.7.7.2.b. The Director or designee shall review each request to utilize a request for proposal and may permit the use of a request for proposal if determined that it is in the best interest of the State.7.7.3. A request for proposal must contain provisions for a two-part evaluation, the first part being technical aspects of the proposal and the second part being cost to the State.7.7.3.a. The two components must then be evaluated based upon the criteria contained in the request for proposal, scored, and combined to form a total score.7.7.3.b. The highest scoring vendor will be awarded a contract. No proposal may be evaluated using any criteria other than the criteria specified in the request for proposal.7.7.4. Expressions of interest may only be used to procure architectural, engineering, or other services contained within Chapter 5G, Article 1 of the West Virginia Code.7.8. Purchases from contracts issued by other public agencies and entities.7.8.1. The Director, or designee, may approve a request by an Agency Section to 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.7.8.2. The Director or designee may also sign an agreement with a vendor that has the effect of adding state Agency Sections to a contract issued by agencies of the federal government, agencies of other states, other public bodies, or other state agencies.7.8.3. The Director or designee may, but is not required to, designate such a contract as an Agency contract and require that Agency Sections utilize it.7.8.4. The Director or designee may also lead, participate in, or join after issuance cooperative purchasing arrangements with other public agencies and entities created by public agencies.7.8.5. Before undertaking any activity authorized by this section, the Director or designee shall determine that the contracts being utilized and/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.7.8.6. The Director or designee shall require Agency Sections to prove that their requests to use such contracts: 7.8.6.a. No price comparison may be based on differing specifications as determined by the Director or designee.7.8.6.b. Will not cause a West Virginia vendor that offers like products and services to lose substantial business, unless the Director or designee determines based on submitted documentation from the Agency Sections that the difference in price is so great that the State's best interest is served by using the contracts issued by other public agencies and entities; and does not cause extensive hardship to any Agency Sections offered preference under the West Virginia Code.7.8.6.c. All Agency Sections requests to take an action authorized under this subsection must be submitted in advance to the Director or designee with necessary evidence and documentation. The Director or designee shall approve only those requests submitted with evidence that justifies use of such contracts. Any request that is not supportable shall be returned to the Agency Sections.7.9. Multiple Awards. 7.9.1. The Director or designee may elect to award a contract to more than one vendor when the Director or designee determines in writing such action would be in the best interest of the State. In arriving at a determination, the Director or designee will consider the following factors, insofar as they are applicable: 7.9.1.a. The quality, availability, and reliability of the supplies, materials, equipment, or service and their adaptability to the particular use required.7.9.1.b. The ability, capacity, and skill of the bidder.7.9.1.c. The sufficiency of the bidder's financial resources.7.9.1.d. The bidder's ability to provide maintenance, repair parts, and service.7.9.1.e. The compatibility with existing equipment.7.9.1.f. The need for flexibility in evaluating new products on a large scale before becoming contractually committed for all use; and7.9.1.g. Any other relevant factors.7.9.2. In situations where a multiple award is necessary, the Director or designee shall place a written explanation into the public file. If a multiple award is requested by Agency Sections, that Agency Section must provide written justification to the Director or designee. The Director or designee's decision shall be final in all cases.7.10. Negotiation When All Bids Exceed Available Funds.7.10.1. If all bids meeting requirements exceed the funds available for the purchase, the Commissioner and the Director may negotiate a lower price within budget with the lowest bidder meeting specifications. 7.10.1.a. If the negotiation does not lead to the budget amount being met, the Commissioner and the Director may negotiate a lower price with the next lowest bidder and continue negotiations with participating bidders after negotiations close with the preceding bidder.7.10.1.b. In conducting discussions, there may be no disclosure of any information derived from proposals submitted by competing bidders.7.10.2. If the Purchasing Office solicits bids utilizing a best value procurement, and there is more than one bidder, the Director or the Commissioner may negotiate a lower price with the highest ranked bidder. If the Director or the Commissioner 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.7.10.2.a. The Director or the Commissioner may not extend an offer to any bidder that is not first extended to the prior bidders in order of rank.7.10.3. The Director shall determine the method of negotiation.7.11. Discussion and Final Offers. 7.11.1. The Director or the Commissioner may conduct discussions to obtain best and final offers from bidders to assure full understanding of solicitation requirements. 7.11.1.a. If the Director or the Commissioner determine that a best and final offer is necessary from one vendor, all vendors shall be afforded the opportunity to provide best and final offers.7.11.2. All best and final offers shall be treated like a formal bid, except that advertising is not required. 7.11.2.a. All bidders must provide their best and final offers prior to the date and time specified by the Agency.7.11.3. Government construction contracts and supplies and material are exempt from this section.7.12. Contract Management. 7.12.1. For contracts for commodities and services in the amount of $1 million or less, the Director or designee may prescribe contract management procedures for all Agency contracts, except government construction contracts. These procedures may include, but are not limited to:7.12.1.a. Establishing payment benchmarks to assure the Agency receives value prior to remitting payment.7.12.1.b. Conducting regular meetings between Agency Sections and vendor to assess contract performance.7.12.1.c. Training Agency Section personnel to manage contracts.7.12.1.d. Using the Office of Technology Project Manager for its projects.7.12.2. For contracts for commodities and services in an amount exceeding $1 million, the following contract management procedures apply:7.12.2.a. Post Award Conferences.7.12.2.a.1. The Agency Section is responsible for administering the contract must hold a post award conference with the contractor 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 a minimum, the introduction of all participants and identification of Agency and contractor key personnel, and discussion of the following items: 7.12.2.a.1.A. The scope of the contract, including specifications of what the Agency Section is buying.7.12.2.a.1.B. The contract terms and conditions, particularly any special contract provisions.7.12.2.a.1.C. The technical and reporting requirements of the contract.7.12.2.a.1.D. The Administrative Services contract procedures, including contract monitoring and progress measurement.7.12.2.a.1.E. The rights and obligations of both parties and the contractor performance evaluation procedures.7.12.2.a.1.F. An explanation that the contractor 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.7.12.2.a.1.G. Potential contract problem areas and possible solutions.7.12.2.a.1.H. Invoicing requirements and payment procedures, with particular attention to whether payment will be made according to milestones achieved by the contractor.7.12.2.b. An explanation of the limits of authority of the personnel of both the Agency Section and the contractor.7.12.2.b.1. The Agency Section must develop a comprehensive and objective monitoring checklist which:7.12.2.b.2. Measures outcomes.7.12.2.b.3. Monitors compliance with contract requirements.7.12.2.b.4. Assesses contractor performance.7.13. Inspection. 7.13.1. The Agency Section must inspect all materials, supplies, and equipment upon delivery and again prior to final acceptance to ensure compliance with the contract requirements and specifications.7.13.2. The Agency Section must report any discrepancies to the Director or designee immediately.7.13.3. If unlisted shortages are discovered, the vendor and the Director or designee must be notified immediately.7.13.4. A contractor may be required to pick up any merchandise not conforming to specifications and replace the merchandise immediately.7.14. Substitutions. 7.14.1. Substitution of items called for in a contract is not permitted without the Director or designee's prior approval. 7.14.1.a. The Director or designee will not approve substitution of items unless the substituted items are of equal quality and are offered at the same or lower price.