Senate Bill No. 240
(By Senators Kessler (Acting President) and Hall,
By Request of the Executive)
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[Introduced January 24, 2011; referred to the Committee on
Government Organization; and then to the Committee on Finance.]
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A BILL to amend and reenact §5A-3-10 of the Code of West Virginia,
1931, as amended, relating to purchasing practices generally;
providing that the Purchasing Division Director may not
approve certain purchases; providing that reverse auctions may
be used to purchase only commodities; defining the "reverse
auction process"; permitting the use of third-party vendors
for reverse auctions; providing Purchasing Division Director
with rule-making and emergency rule-making authority to
implement reverse auctions; and providing technical cleanup.
Be it enacted by the Legislature of West Virginia:
That §5A-3-10
of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 3. PURCHASING DIVISION.
§5A-3-10. Competitive bids; publication of solicitations for sealed bids; purchase of products of nonprofit
workshops; employee to assist in dealings with
nonprofit workshops.
(a) A purchase of and contract for commodities, printing and
services shall be based, whenever possible, on competitive bids.
(b) The director shall solicit sealed bids for the purchase of
commodities and printing which is estimated to exceed $25,000. No
spending unit shall issue a series of requisitions or divide or
plan procurements to circumvent this $25,000 threshold or otherwise
avoid the use of sealed bids. Any spending unit which awards
multiple contracts for the same or similar commodity or service to
an individual vendor over any twelve-month period, the total value
of which exceeds $25,000, shall file copies of all contracts
awarded to the vendor within the twelve preceding months with the
director immediately upon exceeding the $25,000 limit, along with
a statement explaining how the multiple contract awards do not
circumvent the $25,000 threshold. If the spending unit does not
immediately report to the director, the director may suspend the
purchasing authority of the spending unit until the spending unit
complies with the reporting requirement of this subsection. The
director may conduct a review of any spending unit to ensure
compliance with this subsection. Following a review, the director
shall complete a report summarizing his or her findings and forward the report to the spending unit. In addition, the director shall
report to the Joint Committee on Government and Finance on January
1 and July 1 of each year the spending units which have reported
under this subsection and the findings of the director. The
director may not approve purchases made in violation of this
section.
(c) The director may permit bids by electronic transmission to
be accepted in lieu of sealed bids.
(d) Notwithstanding any other provision of law, the director
may permit the use of a reverse auction to purchase commodities if
the director determines that the use of a reverse auction would be
advantageous to the state. The director may not, however, use
reverse auctions for the procurement of services.
(1) For purposes of this subsection, "reverse auction" means
a process in which bidders compete to provide commodities in an
open and interactive environment, including the use of electronic
media; bids are opened and made public immediately; bidders are
given an opportunity to submit revised bids until the bidding
process is complete; and the bid is awarded to the lowest
responsible bidder.
(2) The director may contract with qualified, industry-
recognized third-party vendors to conduct reverse auctions on
behalf of the director.
(3) The director shall propose rules for legislative approval
in accordance with the provisions of article three, chapter twenty-
nine-a of this code for the implementation of the reverse auction
process
and the qualification and selection of qualified, industry-
recognized third-party vendors to conduct reverse auctions on
behalf of the director. The director is also authorized to propose
emergency rules to implement the provisions of this subsection.
(d) (e) Bids shall be solicited by public notice. The notice
may be published by any advertising medium the director deems
advisable. The director may also solicit sealed bids by sending
requests by mail or electronic transmission to prospective vendors.
(e) (f) The director shall, without competitive bidding,
purchase commodities and services produced and offered for sale by
nonprofit workshops, as defined in section one, article one of this
chapter, which are located in this state: Provided, That such
commodities and services shall be of a fair market price and of
like quality comparable to other commodities and services otherwise
available as determined by the director with the advice of the
committee on the purchase of commodities and services from the
handicapped.
To encourage contracts for commodities and services with
nonprofit workshops, the director shall employ a person whose
responsibilities in addition to other duties shall be are to identify all commodities and services available for purchase from
nonprofit workshops, to evaluate the need of the state for
commodities and services to coordinate the various nonprofit
workshops in their production efforts and to make available to such
workshops information about available opportunities within state
government for purchase of commodities or services which might be
produced and sold by such workshops. Funds to employ such a person
shall be included annually in the budget.
NOTE: The purpose of this bill is to allow the Director of
the Purchasing Division to conduct reverse auctions to purchase
commodities.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.