WEST VIRGINIA PURCHASING DIVISION
POLICIES AND PROCEDURES HANDBOOK
SECTION 7: FORMAL ACQUISITION PROCEDURES
7.0 FORMAL ACQUISITION PROCEDURES
7.1 Definition of Authority: All requisitions for commodities and services over $10,000 must be submitted to the Purchasing Division using TEAM or a Purchase Requisition, WV-35, for formal competitive bidding.
The Purchasing Division will perform the following tasks:
- Review the bid specifications
- Select prospective bidders (in addition to those recommended by the agency),
- Advertise in the West Virginia Purchasing Bulletin
- Request and receive bids,
- Evaluate bids, and,
- Award the purchase to the lowest responsible bidder.
State agencies may also be requested to review and evaluate the bids and recommend an award; however, this additional review adds time to the process.
The vendor is responsible for submitting a correct and accurate bid to the Purchasing Division and the State Auditors Office by the specified bid opening time and date. Fax bids are acceptable, but must be followed by an original within two business days.
7.2 The Bid Process: Formal bid procedures have been developed for procurements exceeding $10,000 which are processed through the Purchasing Division. The steps in this process are detailed below:
7.2.1 Solicitation of Bids: The Purchasing Division utilizes various mechanisms to solicit competition from responsible vendors. Two most often used solicitation techniques are Requests for Quotations and Best Value Purchasing.
22.214.171.124 Requests for Quotations: The Request for Quotation (RFQ) is used to acquire all tangible property (i.e., equipment, supplies, etc.).
An RFQ consists of:
(1) a detailed description of, or specification for, the item(s) being purchased;
(2) delivery date, if required;
(3) bid price per unit of the item(s);
(4) any applicable maintenance; and,
(5) quantities of all items.
Each item should be identified by a model number or some other specific identification. Prices cannot be altered after bids are opened.
126.96.36.199 Best Value Purchasing: Best Value Purchasing is a purchasing method used to acquire services where the specifications or scope of work may not be well-defined and/or cost is not the sole factor in determining the award. Best Value Purchasing techniques, including Requests for Proposals (RFPs), Expressions of Interest (EOI), Life Cycle Cost (LLC) and Design-Build, are used to solicit proposals from potential bidders, taking into consideration the vendors ability, resources, experience, and proposed methods to provide the required services.
188.8.131.52.1 Requests for Proposals: Requests for Proposals (RFPs) shall have a minimum estimated value of $250,000. This amount has been established to eliminate a timely process for low dollar purchases. All procurements under that dollar amount must use another purchasing method.
The Purchasing Director or his designee must approve the use of all RFPs prior to release. Please note that the time required to process an RFP is longer than other purchasing methods and requires significant agency personnel time.
Standard Format (See Appendix J): All Requests for Proposals shall follow the standard format defined by the Purchasing Division. This format addresses required areas and enables the agency to modify the background and scope of work to meet its needs.
Evaluation Criteria: All evaluation criteria must be clearly defined in the specifications section and based on a 100 point total score. Based on a 100 point total, cost shall represent a minimum of 30 of the 100 total points in the criteria.
Proposal Format and Content: Proposals shall be requested and received in two distinct parts: technical and cost. The cost portion shall be sealed in a separate envelope and will not be opened initially.
Proposal Submission: West Virginia Code, §5A-3-11, states that "all bidders submitting bid proposals to the Purchasing Division are required to submit an extra or duplicate copy to the State Auditor. Both copies must be received at the respective offices prior to the specified date and time of the bid openings."
Technical Bid Opening: The Purchasing Division and the State Auditor will open only the technical proposals on the date and time specified in the Request for Proposal. The Purchasing Division representative will read aloud the names of those who responded to the solicitation to confirm receipt by the State Auditor, and to confirm that both original packages contained a separately sealed cost proposal.
Technical Evaluation: An evaluation committee will review the technical proposals, assign appropriate points and make a final written consensus recommendation to the Purchasing Division buyer. If the buyer approves the committees recommendation, the information will be forwarded to an internal review committee within the Purchasing Division.
Cost Bid Opening: Upon approval of the technical evaluation from the internal review committee, the Purchasing Division shall notify the State Auditor and schedule a time and date to publically open and read aloud the cost proposals. The agency and the vendors shall be notified of this date.
Cost Evaluation: The evaluation committee will review the cost proposals, assign appropriate points and make final consensus recommendation to the Purchasing Division. West Virginia State Code, §5A-3-37, provides an opportunity fo rqualifying vendors to request (at the time of bid) preference for their residency status. Such preference is an evaluation method only and will be applied only to the cost bid in accordance with the West Virginia State Code. A certificate of application is used to request this preference. Generally, a West Virginia vendor may be eligible for two 2.5% preferences in the evaluation process. The Purchasing Division will make the determination of the Resident Vendor Preference, if applicable.
Contract Approval and Award: After the cost proposals have been opened, the evaluation committee performs its review and makes its recommendation based on the highest scoring vendor to the Purchasing Division buyer.
Once approved by the buyer, the contract is signed in the Purchasing Division, forwarded to the Attorney Generals Office for approval as to form, encumbered and mailed to the appropriate parties.
Evaluation Committee: The Purchasing Division requires a committee of at least three (3) and recommends no more than five (5) persons knowledgeable of the service to be acquired. The agency must receive approval from the Purchasing Division to request more than five members to this committee. The agency will identify and justify the evaluation committee members to the Purchasing Division prior to the release of the RFP.
The agency procurement officer, who is skilled in purchasing techniques and procedures, will be one of the evaluation committee members and will be required to participate as a full voting member. (The Purchasing Division reserves the right to accept or reject agency appointed committee members and/or to appoint committee members directly to provide proper representation.)
The Purchasing Division buyer will, on a pilot basis, observe the committee evaluation and answer procedural issues and provide general process oversight.
The Purchasing Division has created an internal Request for Proposal Evaluation Committee to review all agency evaluation committee recommendations prior to making the award.
Evaluation Training: All evaluation committee members must receive RFP evaluation training prior to commencing the evaluation. The Purchasing Division buyer will meet with the agency committee at the first evaluation meeting after the bid opening and provide committee training and general review of the proposals.
The purpose of this training is to ensure that the committee is knowledgeable of the proper evaluation procedure and the purchasing process. This training may be conducted by the Purchasing Division buying staff, by videotape presentation offered by the Purchasing Division or by agency procurement officers as determined by the Purchasing Division.
After the training, members will review all proposals independently and later meet to evaluate and assign points to each proposal. (See Appendix J for Standard RFP Evaluation Format). A Purchasing Division representative or agency procurement officer, at the discretion of the Purchasing Director, shall be present to observe and ensure that proper procedures are followed in the final evaluation and assignment of scores.
Committee Recommendation: The committee will meet and assign points based on the criteria and prepare a consensus recommendation signed by all members which is submitted to the Purchasing Division for approval. The members shall not average points and must reach a consensus decision. The Purchasing Director reserves the right to appoint a new member(s) or excuse existing members, if determined to be in the best interest of the state.
Since subjective criteria are used for the evaluation, it is not uncommon for vendors to challenge the award of an RFP. A challenge is likely to add delays to the process. If the committees recommendation is acceptable to the Purchasing Division, the contract award will be processed. Any exception to these procedures must be approved by the Purchasing Director.
184.108.40.206.2 Expression of Interest: The Purchasing Division uses Expressions of Interest only in the selection of Architectural and Engineering Services.
A response to an expression of interest should include a statement of the firms qualifications and performance data, and may include anticipated concepts and proposed methods of approach to the project. Projects exceeding $250,000 (including construction costs) must be announced by public notice.
220.127.116.11.3 Life Cycle Cost: This best value purchasing tool incorporates not only the purchase price of a piece of equipment, but all operating and related costs over the life of the equipment, including but not limited to maintenance, downtime, energy costs, and salvage value. It focuses on the total cost of ownership rather than the initial purchase price. When Life Cycle Cost is used, it must be clearly stated in the specifications.
18.104.22.168.4 Design-Build: This best value purchasing tool combines project design and construction within a single contract when applied to building renovations and new construction. In accordance with §5-22A-1 of the West Virginia Code and Legislative Rule 148 Series 11, specific instances are set forth where this process may be utilitized. All requisitions must be accompanied with a letter of approval by the Design Build Board, chaired by the Cabinet Secretary of the Department of Administration prior to submitting the RFP to the Purchasing Division for bidding.
7.2.2 Selection of Vendors: The Purchasing Division buyers maintain a list of vendors who offer particular commodities and services. In addition, the West Virginia Purchasing Bulletin, which is distributed to all paid registered vendors, consists of general descriptions of all requisitions expected to exceed $10,000. Vendors may request bid packages by telephone, electronic mail, fax or via the Internet to receive bid packages. Competition is always encouraged on all requisitions.
7.2.3 Bid Submission: The vendor is responsible for submitting a correct and accurate bid to the Purchasing Division and a duplicate bid to the State Auditors Office by the specified bid opening time and date. Fax bids are acceptable, but transmission must be completed prior to the bid opening time and date and followed by an original bid received by the Purchasing Division within two business days.
7.2.4 Establish Bid Opening: Formal bid opening dates are established by the Purchasing Division, based on the complexity of the purchase, and are opened to the public. Vendors are not required to attend. Bid openings may be delayed due to the need for pre-bid conferences, issuance of addendums or other unforeseen factors.
At the bid opening, all bids are opened and read aloud. The Bid Observer from the Auditors Office is present with the duplicate bids received by his/her office. Bids shall not be considered if the vendor fails to submit the respective bid to both the Purchasing Division and the State Auditors Office.
7.2.5 Public Notice: Purchasing Division is required to make public notice of purchases expected to exceed $10,000. This is usually accomplished by advertising in the West Virginia Purchasing Bulletin. Although the Purchasing Division establishes cut-off dates for public notice, the agencies are required to allow at least five (5) working days prior to the publication cut-off date to permit adequate time for the buyers review. Those not received within this time frame will not be published in the issue currently being prepared, and will be advertised in the following issue.
7.2.6 Securities/Bonds: Instruments are occasionally demanded from the successful vendor by the Purchasing Division prior to bid or award to ensure performance or to minimize financial risks to the state of West Virginia in the event of default.
22.214.171.124 Bonds: The Purchasing Director may require a bond or deposit as part of the bidding process. This requirement is most often used for construction contracts, however, may be used for any commodity or service if determined to be in the best interest of the state.
The Director shall determine the applicability and amount of bonds and/or deposit required of a vendor at any time, if, in his opinion, the security is necessary to safeguard the state from undue risk. The bonds or deposit serve as a guarantee that if the contract is awarded to such bidder, that bidder will enter into a contract for the work specified in the bid.
Below are types of bonds used in the state purchasing process:
Bid Bond - An insurance agreement in which a third party agrees to be liable to pay a certain amount of money in the event a selected bidder fails to accept the contract as bid. This bond is usually required for 5 percent of the total bid amount.
Labor and Materials Payment Bond - A valid bond submitted by the apparent successful vendor upon request of the state to ensure payment of labor and materials purchased or contracted for on behalf of the state in a construction project.
Litigation Bond - A valid bond submitted by the vendor at the time of the bid which may be used by the state to recover damages due to frivolous and groundless law suits filed by the vendor in protest of an award.
Maintenance Bond - A valid bond provided as a warranty of normally two years, which is frequently used on roofing projects.
Performance Bond - An insurance agreement in which a valid surety agrees to be liable to pay a certain amount of money in the event a vendor fails to perform a contract as bid. This bond is usually for the full amount of the contract.
126.96.36.199 Liquidated Damages: A specified contract provision which entitles the state to demand a set monetary amount determined to be a fair and equitable repayment to the state for loss of service due to vendors failure to meet specific completion or due dates.
188.8.131.52 Bonuses: Provisions in any requisition or contract that specifies a monetary reward for early completion of a project shall be strictly prohibited and illegal.
7.2.7 Evaluation and Award: Once bids are received, they are examined by the Purchasing Division to ensure compliance with all specifications.
When the Request for Quotation process is used, competitive bids are received, properly evaluated and an award is made to the lowest responsible bidder who meets specifications, in accordance with §5A-3-11 of the West Virginia Code. Generally defined, a responsible bidder is one who has a reputation for good performance and financial accountability, and is able to furnish the required needs of the organization as requested.
After a proper evaluation, if an award is made to other than the lowest responsible bidder, a thorough written justification signed by the evaluator(s) must be inserted into the file and retained for public record and inspection.
If using the Request for Proposal process, certain stipulations must be met and an evaluation committee is formed to review all proposals. (See Section 184.108.40.206.1).
Prior to an award, a vendor must be in compliance with the following:
Properly registered with the Purchasing Division by completing the appropriate form and paying the annual fee, if applicable)
Good standing in accordance with the West Virginia Code, §21A-2-6 concerning the Workers Compensation/BEP default account search (to verify vendor is not in default with workers compensation and employment compensation). Agency personnel may check online at Bureau of Employment Programs to ensure compliance. (See Appendix L for sample letter)
Sing and submit the No Debt Affidavit which required on all contracts over $5,000. (See Appendix B)
Sign and submit the Agreement Addendum [WV-96] which is required when vendors submits alternate terms and condition with their bid. (See Appendix B)
State agencies may be involved in the evaluation process by reviewing bids, making recommendations and providing justification.
220.127.116.11 Resident Vendor Preference: West Virginia State Code, §5A-3-37, provides an opportunity fo rqualifying vendors to request (at the time of bid) preference for their residency status. Such preference is an evaluation method only and will be applied only to the cost bid in accordance with the West Virginia State Code. A certificate of application is used to request this preference. Generally, a West Virginia vendor may be eligible for two 2.5% preferences in the evaluation process. The Purchasing Division will make the determination of the Resident Vendor Preference, if applicable.
Examples of Utilizing Resident Vendor Preference:
Amount of Bids $25,000* $24,500
*Assuming that the in-state vendor qualifies for both 2.5% preferences for evaluation purposes.
$24,500 (out of state bid) x 1.05 = $25,725
Result: The award would go to the in-state vendor.
* Did not request Resident Vendor Preference
**Requested 5% Resident Vendor Preference
$24,500 (out of state bid) x 1.05 = $25,725
Because one of the in-state vendors applied for Resident Vendor Preference, the formula must be added to the out-of-state vendor, bringing the total bid to $25,725. Resident Vendor Preference cannot be used between in-state vendors; therefore, in-state vendor #1 is awarded the contract.
There are different scenarios of eligibility using the Resident Vendor Preference, it is strongly recommended that the Purchasing Division buyer assist the agency in evaluating specific situations relating to this preference.
Reciprocity is also applicable to all commodities and services, including construction. Exact preferences applied against West Virginia vendors bidding in other states will in turn be applied to vendors bidding in West Virginia from that state.
18.104.22.168 Tie Bids: Occasionally two or more bids of equal terms and dollar amount are received in response to a solicitation, thus, resulting in a tie bid. If multiple awards are not made, then the tie bid(s) must be resolved. The preferred method for resolving tie bids is the flip of a coin, draw of a card, or any other impartial method.
The Purchasing Division must make the final decision in tie bid situations exceeding $10,000.
22.214.171.124 Erroneous Bids: If an error is discovered by the vendor or the Purchasing Division, the burden of proof and timely action for request of relief is the vendors responsibility. The request for relief must be made in writing by the vendor to the Director of Purchasing or his designee within five (5) working days from the bid opening date.
Purchasing Division Rules and Regulations, 148 CSR 1- 5.2.G, offers the Purchasing Director or his designee, the authority to reject an erroneous bid after the bid opening according to the following criteria:
(1) An error was made; and,
(2) The error materially affected the bid; and,
(3) Rejection of the bid would not cause a hardship on the state agency involved other than losing an opportunity to receive commodities and services at a reduced cost; and,
(4) Enforcement of the part of the bid in error would be unconscionable. In order to reject a bid, the public file must contain documented evidence that all of the above conditions exist.
The vendor must specifically identify the error(s), and provide documentation to substantiate the claim that the error(s) materially affected the bid and enforcement of the part of the bid in error would be unconscionable.
7.2.8 Contract Commencement: The encumbrance date is the earliest date that a vendor may commence work on any contract. No authority may be given to the vendor by the agency or any other entity to commence work unless an encumbered contract has been processed by the Purchasing Division and received by the vendor.
In regard to construction projects, when an architect/engineering firm is employed, construction does not commence until such time as the A/E firm or agency gives the contractor a "Notice to Proceed".
Contracts with a "Notice to Proceed" clause in the contract require start and end dates of all ones (11/11/11) on the P-document agency cover sheet. When the start and end dates have been established by the vendor and agency, the agency must change the dates in accordance with the agreed start and end time by executing a Type 1 Adjustment. The Type 1 Adjustment is to be electronically approved to the Org 1200 (State Auditors Office).
The Type 1 Adjustment cover sheet and "Notice to Proceed" verification letter to be submitted to the State Auditors Office.
A change order must be issued to cover all additional time extensions. The change order along with the X-document (Type 2 Adjustment - Contract Change Order), justification from the agency and confirmation from the vendor must be submitted to the Purchasing Division specifying the exact date of the extension or completion.
7.2.9 Inspection: In accordance with §5A-3-9 of the West Virginia Code, the Purchasing Director reserves the right to inspect whether commodities delivered or services provided conform to contractual requirements. Nonconformity is to be reported to the Purchasing Director and the chief officer of the spending unit purchasing such commodities for remedial action.
7.3 Encumbrances: The Purchasing Divisions Administration Unit encumbers all purchase orders executed by the Purchasing Division over $10,000 and all purchase orders executed by Higher Education (colleges and universities) over $15,000.
Requisitions submitted to the Purchasing Division are to be accompanied with a WVFIMS Purchase Order Agency Cover Sheet (P-Document) for purchase orders to be encumbered by the Purchasing Divisions Administration Unit. The WVFIMS agency cover sheet should contain all the information known by the agency at the time the requisition is prepared.
Open End Contracts do not need a WVFIMS Purchase Order Cover Sheet.
WVFIMS Agency Cover sheet (P-document)
PO Amount: This amount should be the same amount as on the WV-35. This amount can be revised after evaluation and award.
Encumbrance Amount: The anticipated encumbrance amount. If unknown enter at least $1.00. This amount can be revised after the evaluation and award.
Start Date: This is to be the same date as on requisition or purchase order. If no start date is required on the purchase order, then no start date is required on the WVFIMS agency cover sheet.
End Date: This is to be the same date as on your requisition or purchase order. If no end date is required on the purchase order, then no end date is required on the WVFIMS agency cover sheet.
Contracts with a "Notice to Proceed" clause will have all ones (11/11/11) on the WVFIMS cover sheet as the start and end date. Once the agency and vendor establish a start and end date on contracts with a notice to proceed clause, the agency must execute a Type 1 Adjustment, enter the established start and end dates, electronically approved to the Auditors Office, Org. 1200 and forward the WVFIMS cover sheet along with the notice to proceed letter to the State Auditors Office.
State Purchase Order Number: Enter the purchase order number placed on the requisition or purchase order. Do not enter hyphens, spaces, etc.
Agency Commitment ID: Leave blank.
FEIN#: The FEIN number on the WVFIMS cover sheet is derived from the Financial Accounting and Reporting Section (FARS) vendor file. The FEIN number on the state purchase order is derived from the Purchasing Division vendor file. The vendors FEIN number on the cover sheet and purchase order must agree. However, if payment is to be made to a vendor other than the vendor on the state purchase order vendor and the payment vendor has a different FEIN number, the remit to information must be on the state purchase order, e.g. vendor name, address and FEIN number.
Vendor Number: WVFIMS vendor number.
WVFIMS Vendor Name. Remit to vendor.
Vendor Address: Remit to vendors address
If payments are to be made to a vendor with a different FEIN than the vendor on the agency requisition (WV-35), the "remit to" vendor information must be on the WV-35 agency requisition and subsequently on the TEAM purchase order. The "remit to" vendor is the vendor to be added to the WVFIMS agency cover sheet.
Description: A brief description of the commodity or services provided on the state purchase order.
Funding: Add the correct funding information. Please make sure that the object code is correct. It is electronically approved to the Purchasing Division, Org. 0200.
Open End Contracts do not need a WVFIMS Purchase Order Cover Sheet.
7.3.1 Type 1 Accounting Adjustment (X-document)
Type 1 Accounting Adjustments are used to modify accounting information or establish start and end dates on contracts with a "notice to Proceed" clause. All Type 1 Accounting Adjustments are to be electronically approved to the Auditors Office, Org.1200.
In the Description Field, add a brief description of the Type 1 Accounting Adjustment.
7.3.2 Type 2 Contract Change Order (X-document)
Type 2 Contract Change Orders are to be electronically approved to Org. 0200, Purchasing Division.
The WVFIMS agency copy of the Type 2 Contract Change Order is to accompany the WV-35 change order requisition and submitted to the Purchasing Division for processing.
A brief description of the change is to be inserted in the Description Field on the cover sheet. Requisitions must be accompanied by a WVFIMS agency cover sheet for purchase orders which are to be encumbered by the Purchasing Divisions Administration Unit. The cover sheet should contain all the information known by the agency at the time the requisition is prepared and electronically approved to the Purchasing Division (org 0200). The change order number on the WV-35 requisition and the WVFIMS agency cover sheet must agree.
7.4 Changes and Reinstatements:
7.4.1 Changes: Occasionally, it becomes necessary to amend, clarify, change or cancel purchasing documents. Depending upon the type of change required and the original document submitted, the document used to accomplish the change is a Purchase Requisition (WV-35).
All changes must be approved by the Purchasing Division and the Attorney Generals Office (as to form) prior to commencement of any work. Violations may result in penalties.
All agreements, many change orders and other documents require an effective date, at which time the vendor may begin to supply the commodities and services as specified. The West Virginia Code, §5A-3, requires the Purchasing Division to authorize purchases on behalf of state agencies, and the Attorney Generals office to approve those purchases as to form before the contract is legal and binding. The Purchasing Division will not accept any agreements, change orders or other documents which sets an effective date that precedes the date of arrival in the Purchasing Division by more than 20 calendar days. All documents beyond 20 days will be returned unapproved. Any exceptions must be approved by the Purchasing Director.
Changes to the original purchase order must be sequentially numbered in the appropriate space. To effect the change, written concurrence from the vendor is required.
Purchase Requisition [WV-35] designated 'Change Order' as the type of purchase, is used to change an existing contracts specifications, terms, prices, quantities, etc. A WVFIMS Agency Purchase Order Coversheet (X-document) may be required. If required, submit the coversheet with the Purchase Requisition to the Purchasing Division. In addition, insert the X- Document number one line below the Change Order number on the WV-35.
7.4.2 Reinstatements: Upon occasion, it may become necessary to reinstate a closed purchase order. Reinstatements should be processed on a Purchase Requisition (WV-35) (see Appendix B) and reflect the original purchase order number. Purchase Requisitions that are closed prior to a purchase order being issued may be reinstated in some cases. Requests must be submitted to the Purchasing Division on a Purchase Requisition and prior approval of a buyer is required.
7.4.3 Standard Change Order Language: Standard purchase order language has been developed for use by the Purchasing Division in order to clarify the intent of the changes to contracts. This provision does not apply to extensions, renewals or other matters contemplated in the original purchase order.
Purchasing Division buyers are required to use this approved verbiage when renewing, extending, canceling and making other changes to original contracts. (See Appendix K for specific language). By establishing standard language, the vendor, agency and other entities in state government which reviews these contract changes will mutually understand the intended action to be initiated.
Any change request of a purchase order in excess of 10 percent of the original contract amount (aggregate) is strongly discouraged. The Purchasing Director, at his discretion, may grant a change in any amount if unforeseen circumstances have occurred and such change is in the best interest of the state of West Virginia.
7.5 Protest Procedures: The Purchasing Divisions Legislative Rules and Regulations (148 CSR 1) provide participating vendors with the right to protest specifications and purchase order awards.
7.5.1 Submission of Protest: Protests based on bid specifications must be submitted no later than five (5) working days prior to bid opening. Protest of purchase order/contract awards must be submitted no later than five working days after the award. The vendor is responsible for knowing the bid opening and award dates. Protests received after these dates may be rejected at the option of the Purchasing Director.
All protests shall be submitted in writing to the Purchasing Division and contain the following information:
(a.) the name and address of the protestor;
(b.) the requisition, purchase order/contract numbers;
(c.) a statement of the grounds of protest;
(d.) supporting documentation (if necessary); and
(e.) the resolution or relief sought.
Failure to submit this information shall be grounds for rejection of the protest by the Director of the Purchasing Division.
7.5.2 Protest Review: The Purchasing Director or his/her designee shall review the matter of protest and issue a written decision. A hearing may be conducted at the option of the Purchasing Director or assigned designee.
Continuation or delay of the purchase order/contract award while the protest is considered is at the discretion of the Purchasing Director.
The Purchasing Division may refuse to review any protests when the matter involved is the subject of litigation before a court of competent jurisdiction; if the merits have previously been decided by a court of competent jurisdiction; or if it has been decided in a previous protest by the Purchasing Division. The provisions of this subsection do not apply where the court requests, expects, or otherwise expresses interest in the decision of the state.
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