WEST VIRGINIA PURCHASING DIVISION
4.0 ACQUISITION PLANNING
4.1 General: The effective purchase of needed commodities and services begins with proper planning. The first step is to determine the commodity or service that is needed, the quantity, the quality level, delivery location and time frame.
When preparing for a purchase prior to the actual bidding process, the following steps should be taken:
Consider acquisition and delivery lead time
Create specifications for the commodity
Research the market
Explore internal sources, considerations and approvals
Check mandatory resources
Prepare the requisition and maximum budgeted amount
Identify possible vendors
4.2 Define Need: Determining the exact requirements for a commodity to perform a specific function is one of the most important tasks in the procurement process. The agency must take into consideration the problem to be resolved and what alternatives or options are available to satisfy the need. See Appendix M Eleven Steps of the Purchasing Process.
4.3 Acquisition and Delivery Lead Time
4.3.1 Administrative Lead Time: Administrative lead time is required for all purchases. The average time required to prepare, solicit, evaluate and make an award varies depending upon the dollar value, responsiveness of vendors offering the commodity and the complexity of the requisition.
Agencies should always consider the expiration of funds when planning administrative lead time.
18.104.22.168 Backdating Documents: All agreements, many change orders and other documents require an effective date, at which time the vendor may begin to supply the commodities or services as specified. The West Virginia Code §5A-3-1 et seq, requires the Purchasing Division to authorize purchases on behalf of state agencies, and the Attorney General's office to approve those purchases as to form before the contract is legal and binding. Verbal approval by agency personnel is prohibited for a vendor to proceed without a properly executed purchase order and is considered an illegal act. The West Virginia Code §5A-3-17, §5A-3-29, and §5A-3-31, establishes personal responsibility and penalties for noncompliance. Backdating transactions resulting from sole source determination or any other documents may not be honored.
The Purchasing Division may not accept any agreements, change orders or other documents which set an effective date that precedes the date of arrival in the Purchasing Division by more than 20 calendar days. All documents beyond 20 days may be returned unapproved. Any exceptions must be approved by the Purchasing Director.
4.3.2 Delivery Lead Time: Order or ship time is the time after award that is required by suppliers to fill an order and deliver by designated means (truck, rail or air) to the delivery point. These times vary widely by industry or commodity. Consideration must be given to market conditions which will affect delivery. Custom-made and complex items of equipment normally take longer to obtain than in-stock items.
4.4 Specifications: Specifications can either enhance or inhibit competition. In accordance with West Virginia Code §5A-3-11, competition must be sought, whenever possible. This can be accomplished by describing products and services in a manner which meets the agency's needs and encourages competition. Specifications used in the procurement process shall be retained with the purchasing file for each purchase order. Written specifications are required for purchases between $5,000 and $25,000 at the agency level to ensure vendors are being provided a fair opportunity to quote comparable products.
A specification is a concise statement explaining the type of product or service, the quality level, special requirements in design, performance, delivery and usage. Specifications must not be restrictive (locking in a specific vendor and limiting competition) or be vague (allowing a vendor to provide a lower than acceptable quality level product or service).
A good specification should contain language that is the following:
Clearly understandable to both the buyer and the seller
Identifiable wherever possible with some brand or specification already on the market
4.4.1 Types of Specifications: There are three (3) types of specifications used separately and/or in combination to communicate requirements for goods and services to the vendor:
22.214.171.124 A "Brand Name(s) or Equal" Specification is based upon one (1) or more manufacturer's commodity description(s), model number(s) and quality level. The manufacturer's commodity numbers must be easily identified in a current publication that is available to most vendors. Commodity descriptions must be sufficiently detailed, and specify only the required features needed for the application. Unless a feature or requirement is specifically listed on the requisition, it shall not be used to disqualify a vendor.
126.96.36.199 A Performance Specification is based upon the specific performance needs of the purchaser. The performance specification is less structured as to how the product is made, and more structured as to how well it performs. Total ownership cost for operating and maintaining the product may be an element of the specification.
188.8.131.52 A Design Specification concentrates on the dimensional and other physical requirements of an item being purchased. The design specification is used when the commodity has to be specially made to meet the purchaser's unique needs.
Combinations of the above may be used to communicate clear specifications to vendors. A performance specification may refer to a nationally accepted testing procedure for a commodity; a design specification may indicate the physical size and dimension of the commodity; and a brand name or equal specification may be used to indicate a desired quality level.
4.4.2 West Virginia Standard Specifications: According to West Virginia Code §5A-3-5, the Purchasing Director shall promulgate and adopt standard specifications based on scientific and technical data for appropriate commodities, which shall establish the quality to which such commodities to be purchased and services to be contracted for by the state must conform. These standard specifications, which are prepared and adopted by the Purchasing Division for various products and services, are written with the input of state agencies and vendors for products and services that are used by many state agencies. By using standard specifications, the state is assured of an acceptable quality that meets the state's needs. These standard specifications shall include information relating to the cost of maintenance and expected life of the commodities, services or printing when the Director determines there are nationally accepted standards for commodities, services or printing.
4.4.3 Assistance in Preparing Specifications, Purchase Descriptions: Most state agencies have a procurement officer who is responsible and knowledgeable in state purchasing guidelines as well as their own agency procedures. It is important to note that questions from agency personnel relating to purchasing issues should be directed first to the respective agency procurement officer rather than directly to the Purchasing Division. If the agency procurement officer needs assistance, they are encouraged to contact the appropriate state buyer in the Acquisition and Contract Administration Section of the Purchasing Division for assistance in preparing specifications. (See Appendix C).
4.4.4 Format: When preparing a Purchase Requisition (WV-35), a specification format should be used. If the agency currently has a contract for the needed commodity or service, submit the existing contract number and expiration date with the Purchase Requisition when submitting to the assigned buyer in the Purchasing Division. If this is a new contract, also indicate this information to the Purchasing Division buyer. This information will assist the buyer in developing timelines for bidding and acquiring a new contract prior to the expiration of the existing contract.
The Purchase Requisition must include the following:
Total Estimated Value of this Requisition: This is the amount that the agency expects to pay for this product or service. This amount is based upon past contracts for these products and/or services and market research.
Maximum Budgeted Amount: This is the maximum available funding determined by the agency at the time of submitting a Request for Quotations or Proposals to the Purchasing Division. This amount is required on all Purchase Requisitions. For purposes of determining the agency's ability to negotiate, under West Virginia Code §5A-3-11a, this amount cannot be changed after bid opening.
The total quantity requisitioned and the unit of measure, such as cases, each, pounds, etc., must be shown in the appropriate column.
Type of Purchase
The type of purchase should be identified in capital letters as the heading of the description of the Purchase Requisition. For additional information on types of purchases, see Section 4.7.1.
When using a brand name specification, the words OR EQUAL must be inserted to inform vendors that alternate bids will be considered. The general name of the items, e.g., air blowers, automobiles, etc., should be listed first; the manufacturer and model number of the item should follow immediately. Literature should be requested to accompany any alternate bid which can verify that the alternate bid complies with the specifications. The description shall contain the essential requirements that clarify the quality level or indicate the features that are important to the function of the item/service being purchased.
Make sure the Purchase Requisition and any attachments are in compliance with the following:
Appropriate for photocopying
Free of typographical errors
Approved by an authorized agency representative
The information entered on the requisition is a reflection on the agency and the State of West Virginia. Please insist on high quality work. Improperly completed requisitions or inferior quality will be returned to the agency for correction.
The buyer may request electronic copies of specifications from state agencies in order to expedite the procurement process.
184.108.40.206 Specification Templates: Several sets of templates related to Request for Quotation purchases are available for use by state agencies to streamline processing transactions. The templates relate to such specification types as Catalog Discount Request for Quotation Standard Format, One-Time Purchase Request for Quotation Standard Format, and Open-End Request for Quotation Standard Format. These templates are available on the Purchasing Division’s intranet site at:
4.4.5 Design Services/Consultant: Any individual, corporation, or firm (except as provided by a statewide contract) paid to custom design or write specifications for a modular office system, computer system, construction or any other project or contract shall not be permitted to competitively bid to provide the product or service that was designed. This removes the possibility of the designer developing specifications that only the designer can meet or restrict another vendor from meeting. This also prevents the appearance of any impropriety, thereby protecting the integrity of the competitive bid process.
4.4.6 Product Testing: Any testing of specific brands of products, which may lead to future purchases restricting competition, must have pre-approval, in writing, by the Purchasing Division.
Agencies should submit a description of the proposed testing with complete details including, but not limited to: the specific brand and names of vendors involved in the test; the brands and vendors that may be excluded in the future; the length and cost of the test; the cost of potential future purchases after the test, etc.
Agencies may call vendors for information or copies of specifications for consideration of a particular brand or manufacturer without jeopardizing the vendor's ability to compete in the bid process as long as the vendor does not receive compensation or any form of favoritism.
4.5 Research the Market: When preparing specifications, it may be necessary to research the market to gain a better understanding of equipment, its technology, compatibility and availability.
4.5.1 Request for Information (RFI): The Purchasing Division recognizes only one (1) formal method for requesting written information from vendors for the purpose of developing a Request for Quotation (RFQ) or a Request for Proposal (RFP). That method is a Request for Information (RFI).
An RFI shall be used at the discretion of the agency or the Purchasing Division; it is not a mandatory prerequisite to the issuance of an RFQ or an RFP. An RFI should be used when appropriate expertise or information is lacking to develop adequate specifications for an RFQ or RFP. This process allows for the assistance of multiple vendors who have expertise and can provide information in the area of concern.
RFI's can be processed at the agency delegated level ($25,000 or less) or by the Purchasing Division for high dollar procurements. RFI's for commodities and services over $25,000 must be advertised by the Purchasing Division. An RFI shall not be used to make an award of a purchase order or contract.
4.5.2 Trade-In: The trade-in process, as with other methods of disposition, consists of two steps: 1) initial approval by the West Virginia State Agency for Surplus Property (WVASP) after bids have been received by the agency and submitted to WVSASP, showing both the prices with and without the trade-in (which is required before award) and 2) final approval once documented proof of credit has been submitted to WVSASP for completion of the property retirement. If the original cost of the item to be traded in is less than $1,000 and is not listed in the WVFIMS Fixed Asset System, the asset must be added to the WVFIMS Fixed Asset System for trade-in purposes.
If the trade-in is approved, the agency shall forward a signed copy of the WVFIMS cover sheet with a status of “AAP” to the buyer of the Purchasing Division, who will then award a purchase order. Only one-for-one trade-ins will be considered and items may be traded only for the same type of item. Trade-ins will not be authorized for items purchased from statewide contracts or sole source vendors, unless it is in the best interest of the state and approved by WVSASP.
It is important to note that the value of the new equipment without consideration of the trade-in allowance is the value to be used for determining the purchase process and also the value to be reflected on the agency’s fixed assets. For example:
A trade-in allowance does not allow a state agency to alter or circumvent the purchasing process. When agencies request to exchange existing equipment on a trade-in basis when purchasing new equipment, value is a determining factor in processing the request.
For additional information on trading in equipment, please see the Inventory Management Surplus Property Disposition Handbook in Appendix G.
4.6 Define Sources: In the planning process, it is mandatory that agencies review all internal sources and mandatory resources as detailed below.
4.6.1 Internal Sources, Considerations and Approvals
220.127.116.11 Surplus Property: The West Virginia State Agency for Surplus Property operates a state and federal surplus property program.
The State Property Program consists of property no longer needed within state government agencies which is made available to eligible public and nonprofit organizations. The property may also be made available to the general public through competitive public auctions and sealed bids.
In addition to the state Property Program, a federal Property Program is administered. The program serves all eligible organizations and acts as a clearinghouse by offering new and used equipment at reduced costs for acquisition.
In addition to the availability of surplus property, another function of this program is to approve the disposal of property no longer needed by the agencies, including trade-ins against the purchase of new property.
Agencies do not have authority to dispose of any property regardless of value without written approval from the West Virginia State Agency for Surplus Property. All methods of property disposal must be coordinated through Surplus Property.
State agencies are encouraged to refer to the West Virginia Surplus Property Program Reference Manual (see Appendix H) or visit its website at www.state.wv.us/admin/purchase/surplus.
Any questions concerning the disposal or sale of state surplus property should be directed to the West Virginia State Agency for Surplus Property at the address below:
West Virginia State Agency for Surplus Property
2700 Charles Avenue
Dunbar, West Virginia 25064
18.104.22.168 Commodities and Services Provided by Correctional Industries: In accordance with West Virginia Code §25-7-5, all offices, departments, institutions and agencies of the state which are supported in whole or in part by this state shall purchase, and all political subdivisions of this state may purchase, all articles or products which they require from the commissioner, if those articles or products are produced or manufactured by correctional industries, as provided by article 7 of Chapter 25 of the West Virginia Code. No state office, department, institution or agency may purchase an article or product which correctional industries produces from any other source, unless specifically excepted from the provisions of §25-7-5 pursuant to §25-7-6.
These commodities and services must meet certain quality and price standards which are comparable to open-market sources. Use of Correctional Industries does not require bidding.
In accordance with West Virginia Code §25-7-6, exceptions from the mandatory purchase provisions of §25-7-5 may be granted when a correctional industries article or product does not meet the reasonable requirements of the requesting state office, department, institution or agency, or when the requisition cannot be fulfilled because of insufficient supply or other reason. No state office, department, institution or agency may evade the requirements of §25-7-5, or of §25-7-6, by making insubstantial variations from the characteristics of correctional industries products or articles.
Correctional Industries offers a wide variety of products and services to state agencies. In addition to being the preferred contractor for wooden furniture, it also provides other types of furniture, Braille, welding, engraved signs, mattresses, custom signs, tags, janitorial supplies, linens, seating, detergents, inmate clothing, upholstery and decals. Correctional Industries is the sole source supplier for all printing and quick copy services.
For specific information on available commodities and services, contact Correctional Industries at (304) 558-6054 or visit http://www.wvcorrectionalindustries.com/.
22.214.171.124 Commodities and Services Provided by Sheltered Workshops: All state agencies are required by West Virginia Code §5A-3-10, to purchase commodities and services from sheltered workshops whenever such commodities and services are available and meet certain quality and price standards which are comparable to open-market sources. Use of sheltered workshops does not require bidding for commodities and services included in the WVARF statewide contract. Commodities and services not included in the WVARF statewide contract require competitive bidding.
If the West Virginia Association of Rehabilitation Facilities is unable to provide the requested commodities and services, a written notice will be provided by WVARF advising the agency that their request is unable to be met at that time and competition may be sought in accordance with the state purchasing procedures. For specific information on the sheltered workshops or the available commodities and services, contact WVARF at (304) 766-4894, or visit www.state.wv.us/admin/purchase/swc.
126.96.36.199 Technology: The West Virginia Code §5A-6-4 (3) requires that the Chief Technology Office (CTO), in conjunction with the Information Services & Communications Division (IS&C) of the Department of Administration, review and approve all data processing procurements for state agencies.
All infrastructure purchases, regardless of dollar value, require CTO approval prior to submission of a request to use any type of solicitation. Since the CTO may require changes by the agency, the Purchasing Division’s review of documentation without CTO approval may not be practical. All state entities, with the exception of Constitutional Officers, Higher Education and K-12, shall request approval for, at a minimum, but not limited to, the purchase of servers, storage device, routers, hubs, switches, firewalls, video conferencing and telephone equipment, including PBX system. The applicable infrastructure purchases also include infrastructure software of all types, whether it is e-mail applications, anti-virus software or any other interoperability application.
Different than infrastructure purchases in the previous paragraph, state agencies may procure computer application software and other non-infrastructure software, as well as IT consulting services with an estimated value of less than $10,000 without CTO approval, but must provide copies of agency purchase orders to the CTO. All purchases of computer hardware, software and consulting services in excess of $10,000 must have prior approval of the CTO before it can be processed. Such proposed purchases must be submitted to the Office of Technology for review and evaluation, and the results will be forwarded to the CTO for final approval.
The agency must obtain approval from the CTO prior to submitting purchasing transactions to the Purchasing Division.
188.8.131.52 Other Considerations: Depending upon the commodity, there are certain requirements to consider when preparing specifications.
On any contract for the construction of a public improvement, the vendor and any subcontractors utilized by the vendor shall pay a rate or rates of wages which shall not be less than the fair minimum rate or rates of wages (prevailing wage), as established by the West Virginia Division of Labor under the West Virginia Code §21-5A-1 et seq. and available at http://www.sos.wv.gov/administrative-law/wagerates/Pages/default.aspx. The vendor shall be responsible for ensuring compliance with prevailing wage requirements and determining when prevailing wage requirements are applicable. The required contract provisions contained in the West Virginia Code of State Rules §42-7-3 are specifically incorporated by reference.
Other considerations should include the contractor's license, certificate of insurance, and Workers' Compensation, unemployment compensation and bonds. (See Sections 6.2.3 and 7.2.19 for additional information.)
Recycled Products: In accordance with West Virginia Code §22-15A-21, all agencies and instrumentalities are encouraged, to the maximum extent possible, to purchase recycled products.
Recycled paper products shall be given a price preference of ten percent, provided, however, that priority shall be given to paper products with the highest post-consumer content. Agencies should remove any language in the specifications that discriminate against recycled products. The use of disposable and single-use products should be eliminated, to the maximum extent possible. Compost in all land maintenance and landscaping activities are to be used by state agencies and the use of composted or deep stacked poultry litter products, certified by the Commissioner of Agriculture as being free from organisms that are not found in poultry litter produced in this state, have priority unless determined the be economically unfeasible by the agency.
Required Attachments: A Purchasing Affidavit is a required attachment on written Request for Quotations (RFQ) for all purchases exceeding $5,000. In addition, the Vendor Preference Certificate is attached to all RFQ's with the exception of construction projects (See Appendix B).
4.6.2 Mandatory Contracts
184.108.40.206 Statewide Contracts: West Virginia Code §5A-3-5, authorizes the Purchasing Director to promulgate and adopt standard specifications based on scientific and technical data for appropriate commodities and services, which establishes the quality to which such commodities and services to be purchased and services to be contracted for by the state must conform. These standard specifications are used to establish statewide contracts for commodities that are needed on a repetitive basis and are established for the benefit of state spending units. (See Appendix E).
No agency may be exempt from using statewide contracts without prior written approval from the Purchasing Director. When such prior written approval is obtained, it must be retained with the purchase order file for each transaction to which the approval applies.
The commodities and services available on statewide contracts are to be used for official purposes only and are not available for employees of a spending unit for their personal use.
Use of the State Purchasing Card shall not to be used as a payment method to circumvent purchases from established contracts.
220.127.116.11 Agency Open-End Contracts (Over $25,000): Upon request by the state agency, the Purchasing Division establishes agency open-end contracts through competitive bid for commodities and services needed on a repetitive basis. Once established, the agency is required to use this contract.
Piggybacking on agency open-end contracts may be permitted upon written approval of the Purchasing Director.
18.104.22.168 Agency Delegated Contracts ($25,000 or Less): The agency is required to use its established contracts through the life of the contract. Piggybacking on agency delegated open-end contracts is discouraged as it may exceed $25,000.
4.6.3 Piggybacking Contracts: West Virginia Code §5A-3-19 states:
"the Purchasing Director may, upon the recommendation of a state spending unit, participate in, sponsor, conduct, or administer a cooperative purchasing agreement or consortium for the purchase of commodities or services with agencies of the federal government, agencies of other states, other public bodies or other state agencies, if available and financially advantageous. At the discretion of the director, bids may be solicited to determine whether participation in such a cooperative purchasing agreement or consortium is financially advantageous. The Department of Administration may approve administrative fees, not to exceed the amount of fifty thousand dollars ($50,000), necessary to participate in a cooperative purchasing agreement. Fees which exceed fifty thousand dollars are subject to the competitive bid requirements of this article."
The Code of State Rules 148 CSR 1 7.9 address these types of contracts as follows:
7.9. Purchases from contracts issued by other public agencies and entities
7.9.1. The Director may approve a request by a spending unit to make a purchase from contracts issued by agencies of the federal government, agencies of other states, other public bodies or other state agencies. The Director may require the use of a contract issued by another public organization or a spending unit to make a purchase from contracts issued by other public agencies and entities.
The Director may participate in cooperative purchases with other public agencies and entities. In all cases, these contracts or cooperative arrangements shall be from valid properly awarded contracts and considered by the Director to be available and financially advantageous and comparable to what can be obtained by competitive bid. The Director shall require spending units to prove that their requests to use such contracts:
(a) Do not conflict with existing State of West Virginia contracts unless the prices on the contracts issued by other public agencies and entities is substantially lower than the state contract based on an equal comparison. No price comparison may be based on differing specifications as determined by the Director;
(b) Will not cause a West Virginia vendor that offers like products and services to lose substantial business, unless the Director determines based on submitted documentation from the spending unit 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
(c) Does not cause extensive hardship to any spending unit offered preference under the West Virginia Code.
7.9.2. All requests to use such contracts shall be submitted in advance to the Director with necessary evidence and documentation. The Director 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 spending unit.
For more information on how to utilize these types of contracts, please visit Section 8.8 under Special Acquisitions.
4.7 Preparation of the Requisition
4.7.1 Types of Transactions: Identified below are six (6) types of purchases: one-time or single purchases; open-end contracts; professional service contracts; emergency purchases; lease and lease-purchases; and direct purchases.
22.214.171.124 One-Time/Single Purchase: This method is used to purchase commodities or services that are not considered repetitive. State agencies must submit a completed Purchase Requisition (WV-35) to the Purchasing Division and a completed WVFIMS coversheet.
126.96.36.199 Open-End Contracts: The Purchasing Division issues both statewide contracts and agency open-end contracts. The Purchasing Division, at its discretion or upon request of any state agency, may establish a contract for specific commodities and services required. These open-end contracts are convenient for recurrent purchases. For agency open-end contracts, the state agency determines its specific needs and submits a Purchase Requisition (WV-35) to the Purchasing Division for competitive bid.
After the contract is established, a release is required to order commodities or services.
188.8.131.52.1 Releases: All release orders must reference the complete open-end contract number.
Not Requiring Purchasing Division Approval: Most releases do not require advance approval from the Purchasing Division. All releases anticipated to cost $250,000 or less may be released directly by the agency according to the contract ordering instructions in the existing contracts.
Releases anticipated to cost in excess of $250,000 require advance approval from the Purchasing Division and shall follow the procedures below. No agency shall issue a series of releases anticipated to cost $250,000 or less to circumvent this requirement.
Releases to a Single Vendor Contract
Should an agency anticipate issuing a release on an existing open-end contract that may exceed $250,000, the agency procurement officer must send a memorandum to the Purchasing Division for approval. The memorandum must include a synopsis of the purchase, the item(s), the participating vendor, the bidding information, any award justification (as appropriate), and the amount.
Only after written approval from the Purchasing Division may the agency process the release to the vendor.
Releases to a Contract Requiring a Secondary Bid Process
Should an agency anticipate issuing a release on an existing open-end contract that requires a secondary bid process that may exceed $250,000, the agency procurement officer must send a memorandum to the Purchasing Division for approval. The memorandum must include a synopsis of the purchase, the item(s), the possible participating vendors, and the anticipated amount.
Once the original approval is received from the Purchasing Division, the agency may proceed using the secondary bid process described in the contract.
After the secondary bid process has been conducted and bids evaluated by the agency, should the bids received exceed $250,000, the agency procurement officer must submit a memorandum for approval to the Purchasing Division, along with the synopsis of the purchase, the item(s), the participating vendors, the bidding information, any award justification (as appropriate), and the amount.
Only after written approval from the Purchasing Division may the agency process the release to the vendor.
A Release Order, WV-39, or TEAM Purchase Order (See Appendix B) is usually used for commodity-type purchases. This form is submitted by the state agency directly to the vendor.
Requiring Purchasing Division Approval: Some contract releases, in any amount, require the advanced approval of the Purchasing Division. When this is a requirement in the contract, it will be stated in the ordering procedures contained in the open-end contract. A Purchase Requisition, WV-35, is used for this type of release order. The WV-35 should be clearly identified as a Special Release Order. A WVFIMS coversheet must be submitted with the Purchase Requisition.
Agencies should always refer to the ordering procedures on all statewide contracts for proper instructions. Please note that some statewide or open-end contracts may require a secondary bid process.
184.108.40.206 Professional Service Contracts: These contracts are used to obtain specific professional expertise which is not available within state government. Examples of professional services may be legal, architectural, medical, dental, engineering and other consultant services.
All needs for professional services estimated to cost in excess of $25,000 must be bid through the Purchasing Division, unless specifically exempt. (See Section 9)
220.127.116.11 Emergency Purchases: In accordance with West Virginia Code §5A-3-15, purchases may be necessary when unforeseen causes arise; however, emergency purchases are not used for hardship resulting from neglect, poor planning, or lack of organization by the spending unit.
An emergency purchase is a purchase which can be made only if and after the Purchasing Director, exercising sound judgment and discretion, concludes in good faith and upon reasonable and sufficient grounds that some unforeseen or unexpected circumstance has suddenly created a situation requiring that commodities or services be immediately purchased by a state spending unit and the Purchasing Director in writing authorizes such a purchase. A report of any such purchase, together with a record of competitive bids upon which it was based, is to be submitted to the Purchasing Director.
Agencies must first examine mandatory contracts and other internal sources for availability of the product or service and utilize such. For information on mandatory contracts and internal sources, see Section 4: Acquisition Planning, 4.6 Define Sources.
· Declared State of Emergencies by Governor: In accordance with §15-5-6(g) of the West Virginia Code, the governor has the authority to suspend certain laws, rules and/or regulations regarding the acquisition of commodities and services by public organizations in the event the governor declares an emergency. When emergency needs relate directly to the declared state of emergency, these procedures are available and outlined on the Purchasing Division’s website at:
· Emergency Purchases $25,000 or Less: A minimum of three (3) bids, if possible, should be obtained. Original written bids and written agency justification shall be attached to the agency file. Agency Master Terms and conditions should also be included in requests for bids in emergency situations to the extent that the emergency permits. An Agency Purchase Order, WV-88, or a TEAM generated Purchase Order, is required if the purchase exceeds $2,500.
· Emergency Purchases over $25,000: When an emergency situation occurs during normal business hours, verbal approval of the Purchasing Director or his/her designee must be obtained prior to making a purchase or execution of any work. A written explanation must be provided immediately. If an emergency occurs after business hours, on a holiday or weekend, the state agency may proceed with the emergency purchase and provide immediate written justification of the action to the Purchasing Director on the first working day following the emergency.
A minimum of three (3) bids, if possible, shall be obtained. The awarded vendor must be properly registered with the Purchasing Division. Original written bids shall be attached to the Purchase Requisition, and submitted to the Purchasing Division with a letter of justification or a copy of the Director's or designee's written approval.
Depending upon amount of the emergency purchase, Agency Master or Purchasing Master Terms and conditions should also be included in requests for bids in emergency situations to the extent that the emergency permits. Emergency contracts are subject to the same terms and conditions as traditional contracts so it is important to notify vendors of the requirements contained in the terms and conditions as early in the process as possible. The Purchasing Division recognizes that certain emergency situations do not allow time for written bid requests. In those situations is it understandable that terms and conditions will not be addressed until after the emergency situation has been resolved. To access the Purchasing Master Terms and Conditions and Agency Master Terms and Conditions, please visit the Purchasing Division’s website at:
18.104.22.168 Equipment Leases and Lease Purchases: Lease and lease purchase of equipment are methods by which a state agency may obtain equipment and make payments for the use of the equipment over a period of time.
Leases and lease purchases are subject to annual funding authority of the Legislature. The state agency must provide the required funding over the life of the agreement. A reduction in funds or an administrative freeze shall not be sufficient justification to cancel a lease or lease purchase agreement. No lease or lease purchase can be canceled without approval of the Purchasing Division.
Total lease payments should not exceed the original purchase price of the equipment.
State agencies may be authorized by the Purchasing Division to purchase equipment currently under lease if the Purchasing Division competitively bids the lease originally. Each request will be evaluated on its own merits by the Purchasing Division. Approval is required by the Purchasing Division.
The minimum purchase cost to consider a lease-purchase as an option is $100,000. Borrowing money is discouraged; however, if it is critical to the operation of the agency, a letter of justification must be prepared, signed by the agency head, and submitted to the Purchasing Division. A contract for financing is available to all agencies through the Finance Division of the Department of Administration.
22.214.171.124.1 Lease Purchase Agreements: The Finance Division of the Department of Administration administers the Master Lease Purchase Financing Agreement for the state of West Virginia. The minimum purchase cost to consider a lease-purchase as an option is $100,000.00. When borrowing money, a letter of justification must be prepared, signed by the agency head, and submitted to the Purchasing Division.
If the agency is approved to utilize a Lease Purchase against the Master Lease Purchase Financing Agreement, the agency will solicit bids for the equipment to be financed through normal procurement methods. The agency must provide a copy of the approved letter of justification with its Purchase Requisition (WV-35) and note that the resulting purchase will be financed under the Master Lease Purchase Financing Agreement. This requisition must also be routed through the Finance Division. Please note that no financial document will be generated for the purchase order.
After the contract is prepared and approved as to form, by the Attorney General's Office, the contract is held in the Purchasing Division while the release order is generated and approved. A copy of the unencumbered contract will be submitted to the Finance Division in order to execute the Appendix to the Master Lease. The agency will work directly with the Finance Division to facilitate the execution of the Lease Appendix. As time schedules are very sensitive in the execution of the Lease Appendix, the agency and the Finance Division should inform the Purchasing Division Buyer of any deadlines with issuing the documents. The financial document (P-doc) will be issued with the release order.
126.96.36.199 Sole Source Procurement: In a sole source situation, competition is not available. The commodity or service is only available from one (1) source.
Regardless of the dollar amount, written justification is required with the following criteria to be used by the Purchasing Division to determine validity of the request:
(a) The item cannot be obtained through ordinary purchasing procedures;
(b) The item is unique and not available from any other source; or
(c) The item is available from a State spending unit or other institution with preference under the West Virginia Code, provided the price, availability, and quality are comparable to those in the open market.
Agencies are encouraged to solicit competition rather than process a sole source request. The Purchasing Director has authority to reject sole source requests whenever competition is believed to be available.
188.8.131.52.1 Sole Source Procurements $25,000 or Less: If an item is unique and possesses specific characteristics that are available from only one (1) source, an Agency Purchase Order (WV-88 or TEAM-generated Purchase Order) must be completed.
A written, signed quotation from the sole source vendor and written justification from the state agency for purchases over $2,500 must be obtained. Signed fax or electronic quotations are acceptable. A specific description, Agency Master Terms and Conditions, FOB point of shipment and price must be included in the signed quotation. (A quotation may also be accepted on the vendor's letterhead).
The spending unit must maintain written documentation at their location certifying that no other sources are available and that the spending unit exhausted all attempts to secure competition.
184.108.40.206.2 Sole Source Procurements More than $25,000: Whenever an item is unique and possesses specific characteristics that the agency views as being available from only one (1) source, the agency is to submit a Purchase Requisition, marked as Direct Purchase, with a general description of the commodity and service, along with the vendor's quote, Purchasing Affidavit, and Non-Conflict of Interest Certification. The agency should also submit an electronic copy of the language for the sole source determination advertisement (See Appendix N), along with the Purchasing Master Terms and Conditions. The Purchasing Division will advertise the potential sole source purchase with the respective terms and conditions in the West Virginia Purchasing Bulletin to ensure no other vendor may provide this commodity or service.
The spending unit must provide written documentation to the Purchasing Director certifying that no other sources are available and that the spending unit exhausted all attempts to secure competition.
Should no vendor respond to the sole source advertisement, the agency's Purchase Requisition will be processed as a sole source purchase. A signed bid quotation from the sole source vendor must also be submitted with the completed Purchase Requisition (WV-35). A specific description, terms, FOB shipping point, and price must be included in the signed quotation. (The quotation may be on the vendor's letterhead).
Sole Source purchases require an original signed vendor quotation, a signed letter of justification from the agency and, if the vendor offers alternative terms and conditions, an Agreement Addendum (WV96). A WVFIMS P-document is also required for encumbrance purposes, unless the purchase order is an open-end contract.
If a vendor(s) does respond, indicating they can provide the commodity or services advertised, the sole source Purchase Requisition will be canceled and the agency must resubmit a new Purchase Requisition, with detailed specifications. The Purchasing Division will process this requisition competitively and advertise in the West Virginia Purchasing Bulletin accordingly. Backdating transactions resulting from sole source determination or any other documents may not be honored.
4.7.2 Terms and Conditions: Terms and conditions are included to express the intent of the State of West Virginia. Purchasing Master Terms and Conditions are a part of every written solicitation issued through and contract awarded by the Purchasing Division. Agency Master Terms and Conditions are also available for use by state agencies utilizing their delegated purchasing procedures. Both the Agency Master and Purchasing Master Terms and Condition may be found in the Agency Resource Center of the Purchasing Division’s website at http://www.state.wv.us/admin/purchase/arc/default.html. Information and assistance in the preparation or use of additional special terms and conditions not contained in this manual may be obtained by contacting the Purchasing Division.
4.7.3 Life of Contract: Contracts should be issued for no more than a twelve (12) month period or cite a specific time for completion for the project or service. A solicitation for a contract that includes an option on the part of the state to extend or renew the contract for an additional period may be advantageous and may be considered. In instances where there may be larger upfront costs or for extremely complex programs or projects where an initial contract term to be in excess of 12 months is needed, the agency must request approval of the longer term and must provide justification. If price adjustments are permitted during the contract period, the conditions under which they are authorized must be specified in the original solicitation and resulting contract. All contracts should be reviewed during the contract period to determine if the need still exists for the commodities or services, if prices are fair and reasonable based on the current market conditions, and if performance is satisfactory.
4.7.4 Renewals: The standard terms and conditions used by the Purchasing Division indicate a specified date, on which the contract becomes effective, and extend for a period of one (1) year or until such reasonable time thereafter as is necessary to obtain a new contract or renew the original contract. The reasonable time period shall not exceed twelve (12) months. During this reasonable time, the vendor may terminate the contract for any reason upon giving the Purchasing Director thirty (30) days written notice.
Unless specific provisions are stipulated in the contract document, the terms, conditions and pricing established are firm for the life of the contract.
Contracts that contain renewal provisions may be renewed upon the mutual written consent of the spending unit and vendor, submitted to the Purchasing Director thirty (30) days prior to the expiration date. A letter of justification must also be included, stating pertinent reasons for its recommendation to renew the existing contract. These factors include, but are not limited to, vendor performance, market conditions and other analytical measures which indicate that renewing the contract is in the best interest of the state.
Renewals shall be in accordance with the terms and conditions of the original contract and are usually limited to two (2) successive one (1) year periods.
4.7.5 Change Orders: All changes to existing contracts must be approved by the Purchasing Division and the Attorney General's Office (as to form) prior to the commencement of any work. Any change request of a purchase order in excess of ten percent (10%) of the original contract amount (aggregate) is strongly discouraged and the agency must provide the Purchasing Director written justification. 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. This percentage guideline applies to most contracts, but cannot be applied in all types of contracts. For example, this guideline can and should be applied to lump sum type of contracts. For contracts awarded on an open ended basis, such as hourly rates, this guideline may not be practical. In those cases or in other situations when an agency may not apply the ten percent (10%) guideline, the agency should contact the appropriate Purchasing Division buyer. See Section 7.7 Changes and Reinstatements for additional information.
4.7.6 Contract Cancellation: The Purchasing Director reserves the right to cancel any contract or purchase order upon written notice to the vendor under any one of the following conditions including, but not limited to:
(a) The vendor agrees to the cancellation;
(b) The vendor has obtained the contract by fraud, collusion, conspiracy, or in conflict with any statutory or constitutional provision of the State of West Virginia;
(c) Failure to conform to contract requirements or standard commercial practices;
(d) The existence of an organizational conflict of interest is identified; or
(e) Funds are not appropriated or an appropriation is discontinued by the legislature for the acquisition.
Notwithstanding other provisions of this subsection, the Director may cancel a purchase order or contract for any reason or for no reason, upon 30 days notice to the vendor.
4.7.7 Pre-Bid Conferences: When appropriate, the Purchasing Division recommends that agencies conduct pre-bid conferences on major acquisitions early in the solicitation cycle to provide an opportunity to emphasize and clarify critical aspects of the solicitation, eliminate misunderstandings and encourage vendor participation. These conferences are conducted by the state agency with potential bidders when solicitations for complex, large dollar requirements are specified.
For more information on pre-bid conferences, visit Section 7.2.10.
4.7.8 Response Time: When establishing an opening date and time, buyers and/or agency personnel should allow for holiday mail disruptions as well as time required for vendors to respond.
4.7.9 Evaluation Period: After bids are opened, a review and evaluation of the bids received is required. The Purchasing Division may immediately award certain open-end contracts without the necessity of the agency’s review when the Purchasing Division believes this action is in the best interest of the state of West Virginia. However, when an award has not been immediately made by the Purchasing Division, state agencies may be involved in the evaluation process by reviewing bids, making recommendations and providing justification.
State agencies are encouraged to review the bids when posted online at the Purchasing Division’s website. Paper copies will only be provided to the agencies if the bids are too large to post electronically.
If the state agency is involved in the evaluation process, a recommendation for award must be received in the Purchasing Division within five business days of the bid opening date, with the exception of Request for Proposals (RFP) and Expressions of Interest (EOI). RFP and/or EOI recommendations for award must be received within 10 business days.
Failure to comply with these established deadlines may result in the agency requisition being cancelled, unless extenuating circumstances exist. It is the responsibility of the agency to provide justification for keeping a requisition open after these time frames.
The Purchasing Division requires all evaluators and/or advisor(s) of solicitations, despite the type of transaction, to sign a Certification of Non-Conflict of Interest, in accordance with the West Virginia Code §5A-3-31 (see Appendix B). The Purchasing Division also requires that the agency procurement officer sign this certification. By signing this certification, the evaluator(s), advisor(s) and agency procurement officer attest that (1) his or her service on the evaluation committee is not in violation of West Virginia Code §5A-3-31, §6B-2-5, or any other relevant code section; (2) his or her service on the evaluation committee does not create a conflict of interest with any of the participating vendors; and (3) he or she has not had or will not have contact relating to the solicitation identified herein with any participating vendors between the time of the bid opening and the award recommendation without prior approval of the Purchasing Division. Agency procurement officers should discuss the non-conflict of interest issue with potential committee members to ensure that individuals who may have a conflict are not chosen to participate as evaluation committee members.
Please note that this requirement applies to all transaction types. This certification must be submitted at the following time frames:
Proposals (RFP) / Expressions of Interests (EOI): Agencies must submit this
certification prior to beginning the evaluation of an RFP or EOI.
Requests for Quotations and All Other Transaction Types: The evaluator(s) must sign the Certification for Non-Conflict of Interest and submit, along with the recommendation for award, to the Purchasing Division.
This certification applies to all transactions processed through the Purchasing Division. In addition, it is required for agency delegated purchases exceeding $5,000. Agencies may adopt this policy at their discretion for purchases $5,000 or less.
Blackout Period: Information regarding the contract award, such as the name of the potential vendor and the amount, may only be released after an official award is complete. An award is considered complete only if the contract has been signed by the Purchasing Division, approved as to form by the Attorney General's Office, encumbered and placed in the U.S. mail. When contract award information is released prior to a contract award, that information may be incorrect, premature or erroneous and cause work to begin or vendors to protest.
Delays may occur due to a number of factors, such as agency evaluation of bids, bond and insurance requests, Office of Technology / IS&C review/approval, etc.
No person should contact any bidding vendor with regard to the solicitation at hand prior to the award of the contract, without approval of the Purchasing Division.
4.8 Identify Possible Vendors: In order to achieve the goal of competitive bidding, a minimum of three (3) bids is required, when possible.
Agency personnel are encouraged to use West Virginia vendors for delegated purchases, when possible, while maintaining compliance with state purchasing guidelines.
Locating vendors selling a particular product or service can be performed in a number of ways, including:
Reference sources, such as the telephone book's yellow pages and other business listings;
Supplier's catalogs, which not only offer local distributors but provides descriptive information on their products and current technology of the market;
Meeting with business representatives;
TEAM automated purchasing system; and
Utilizing the Internet.
Agencies should suggest to the Purchasing Division buyer at least three (3) potential vendors who may be qualified to bid on the solicitation. It is important to include the vendor's company name, contact person, mailing address, telephone number, fax number and email address.
4.9 Federal Funding Requirements: Any requisition utilizing federal funding which includes special requirements in addition to or different than normal purchasing requirements must be identified when submitted. All special requirements, particularly regarding advertising, must be provided in a separate memorandum and attached to the requisition.
Back to the Table of Contents