WEST VIRGINIA PURCHASING DIVISION
SECTION 7: FORMAL ACQUISITION PROCEDURES
7.0 FORMAL ACQUISITION PROCEDURES
7.1 Definition of Authority: All requisitions for commodities and services over $25,000 must be submitted to the Purchasing Division using wvOASIS 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 by the specified bid opening time and date. Signed fax bids are acceptable but receipt of bid must be completed prior to the bid opening time and date. Any bonds submitted via fax should be followed by an original bond received by the Purchasing Division within two (2) business days. A vendor choosing to submit a bid or a written change to a bid by electronic transmission accepts full responsibility for transmission and receipt of the bid or written change to a bid. The state accepts no responsibility for the unsuccessful or incomplete transmission of bids by electronic transmission. Bids submitted via facsimile may not be sealed until receipt by the Purchasing Division. The Purchasing Division makes no guarantee of confidentiality and accepts no responsibility for completeness of bids or transmission.
7.2 The Bid Process: Formal bid procedures have been developed for procurements exceeding $25,000 which are processed through the Purchasing Division. For procedures relating to technology purchases, visit Section 4: Acquisition Planning, 184.108.40.206 Technology.
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 Procurement.
7.2.2 Requests for Quotations: The Request for Quotation (RFQ) is used to acquire all tangible property (i.e., equipment, supplies, etc.).
An RFQ consists of the following:
(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.
7.2.3 Best Value Procurement: Best Value Procurement is a purchasing method used to acquire services where the specifications or scope of work may not be well-defined or cost is not the sole factor in determining the award. Best Value Procurement techniques, including Requests for Proposals (RFP's), Expressions of Interest (EOI), Life Cycle Cost (LCC) 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.
7.2.4 Requests for Proposals: Requests for Proposals (RFP's) shall have a minimum estimated value of $250,000. All procurements under this dollar amount must use another purchasing method unless approved by the Purchasing Director.
The Purchasing Director or his/her designee must approve the use of all RFP's prior to release. To acquire this approval, prior to development of the RFP, please submit in writing the justification for utilizing this process and if this purchase order/contract will replace a current purchase order/contract. If it does replace an existing purchase order/contract, the agency should identify the current vendor and purchase order number. Please note that the time required to process an RFP is longer than other purchasing methods and requires significant agency personnel time. Agencies are cautioned in writing specifications containing an excessive number of mandatory requirements. Mandatory requirements cannot be scored and cannot be waived. If an agency establishes mandatory requirements in the RFP, vendors must demonstrate they meet the mandatory requirements. Failure to meet the mandatory response requirements must result in disqualification. Waiving mandatory requirement is strictly prohibited.
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 one hundred (100) point total, cost shall represent a minimum of thirty (30) of the one hundred (100) total points in the criteria.
Proposal Format and Content: Proposals shall be requested and received in two (2) 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 the bid must be received by the Purchasing Division prior to the specified date and time of the bid opening. The failure to deliver or the non-receipt of the bid by the Purchasing Division prior to the appointed date and hour, shall result in the rejection of the bid. The Purchasing Division will not accept bids, modification of bids, or addendum acknowledgment forms by e-mail transmission. Acceptable delivery methods include hand-delivery, delivery by courier or facsimile.
Technical Bid Opening: The Purchasing Division 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 and confirm that the original package contained a separately sealed cost proposal.
Technical Evaluation: An evaluation committee shall review the technical proposals, assign appropriate points and make a final written consensus recommendation to the Purchasing Division buyer within 10 days.
All proposals submitted first are evaluated to determine if they meet all mandatory requirements. Once it is established which proposals have met all mandatory requirements, the proposals are evaluated for the non-mandatory qualifications, experience, goals and objectives as outlined in the RFP. During this evaluation, all proposals begin with the maximum score. Deficiencies are noted through point deductions. No partial points are applied except for cost. All deductions issued for each proposal must include justification, with fairness and consistency.
Vendors must score a minimum of 70% (49 points) of the total technical points possible (minimum acceptable score) in order to be considered. Vendors not attaining the minimum acceptable score shall be disqualified and removed from further consideration. If the buyer approves the committee's recommendation, the information will be forwarded to an internal review committee within the Purchasing Division. The assigned Purchasing Division buyer for the specific agency should participate in the final consensus meeting in an advisory capacity. Agencies are required to contact the designee at least one week prior to the meeting with the date and time.
Cost Bid Opening: Upon approval of the technical evaluation from the internal review committee, the Purchasing Division shall schedule a time and date to publicly open and read aloud all cost proposals, including those proposals from vendors not meeting the minimum acceptable score. 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 a final consensus recommendation to the Purchasing Division. West Virginia Code §5A-3-37 provides an opportunity for qualifying vendors to request preference for their residency status when the vendors submit their bids. Such preference is an evaluation method only and will be applied only to the cost portion of the bid in accordance with the West Virginia Code. A certificate of application is used to request this preference. A West Virginia vendor may be eligible for up to two 2.5% preferences in the evaluation process. The Purchasing Division will make the determination of the 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 General's 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 (5) members to this committee. The agency may invite individuals to serve as advisors who are subject matter experts, knowledgeable in the area of discussion. The advisors may assist the evaluation committee members (referred to as evaluators) in the evaluation process. The agency will identify and justify the evaluation committee members and advisors to the Purchasing Division prior to the release of the RFP.
To ensure that there is no conflict of interest, the evaluators and/or advisor(s) are required by the Purchasing Division 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.
State agencies must submit the signed certification to the Purchasing Division prior to beginning the evaluation of an RFP or EOI.
The agency procurement officer or a member of the agency procurement staff, who is skilled in purchasing techniques and procedures, shall be present at evaluation committee meetings and serve on the evaluation committee as a full voting member unless the agency can provide written justification detailing the reason(s) why this requirement cannot be met. Such request must be approved by the Purchasing Division. (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. A non-state employee shall not serve as voting member of the evaluation committee.) To ensure there is no conflict or influence on the committee members' decision process, the evaluation should take place with only the designated evaluators and advisors present.
If the participating vendors are required to conduct an oral presentation, the agency is permitted to invite other individuals, in addition to the evaluators and advisors, to attend these demonstrations.
The Purchasing Division buyer may 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 voting members must receive RFP evaluation training prior to commencing the evaluation. This training should be completed within a year of any 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, at the online training module available at the Purchasing Division's web site 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, may 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 deduct 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 it is 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 committee's 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.
7.2.5 Expression of Interest: The Purchasing Division uses Expressions of Interest (EOI) primarily in the selection of Architectural and Engineering Services. For guidance on processing Expressions of Interest, refer to Section 8.1 and Appendix P for the EOI standard format.
7.2.6 Life Cycle Cost: This Best Value Procurement 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. In accordance with West Virginia Code §5A-3-11(b) Life Cycle Cost may be considered provided, that the cost of maintenances and expected life of the commodities must be taken into consideration if the director determines there are nationally accepted industry standards for the commodities being purchased.
7.2.7 Product Testing: Agencies may encounter situations in which it may be prudent to test products or services for the purpose of reducing costs or improving efficiencies. In these situations, if the anticipated action or result, lead to standardization or reduction in competition, agencies must contact the Purchasing Division for review and approval. This action will assure that appropriate laws, rules and regulations are followed and that any potential reduction of competition or any potential sole source purchase be adequately reviewed, publicized and approved.
7.2.8 Design-Build: This Best Value Procurement tool combines project design and construction within a single contract when applied to building renovations and new construction. In accordance with the West Virginia Code §5-22A-1 and Legislative Rule 148 Series 11, specific instances are set forth where this process may be utilized. 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.
7.2.9 Selection of Vendors: The West Virginia Purchasing Bulletin consists of general descriptions of all requisitions expected to exceed $25,000. Vendors may request bid packages by telephone, electronic mail, fax or via the Internet. Competition is always encouraged on all requisitions.
7.2.10 Pre-Bid Conferences: The Purchasing Division recommends agencies to consider conducting pre-bid conferences on major acquisitions early in the bid process to provide an opportunity to explain 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.
The Purchasing Division may participate in these pre-bid conferences. In all cases, it is very important for the agency procurement officer or designee who is trained and knowledgeable of the state procurement process to attend these conferences.
Vendor attendance at conferences may be optional or mandatory, as described in the bid document. If mandatory attendance is required, only bids or proposals from those vendors represented at the conference will be accepted. If participating vendors sign the official sign-in sheet while the meeting is in progress, then the vendors will be treated as if they were present for the entire conference and will be deemed to have the knowledge that they would have had if attending the entire conference. Teleconference attendance is prohibited unless specified in the bid document.
Sign-in sheets for mandatory pre-bid conferences should contain the following: name of company, person attending (signature and printed name), address, telephone number and facsimile number. The header information on the sheets should include the requisition number and the date and time of the pre-bid conference. The original sheet must be submitted to the Purchasing Division. No one (1) individual may represent more than one (1) vendor. (See Appendix I).
It is recommended that pre-bid conferences be scheduled on Tuesdays through Thursdays between 10 a.m. and 3 p.m. to encourage more participation.
A sample agenda for a pre-bid conference is as follows:
Conference Opening (Purchasing Representative)
- Offers opening remarks (Welcome attendees and introduce yourself)
- Identify the project by RFQ or RFP number and generic scope of work
- Provide the sign-in sheet
- Make available a few extra copies of the bid documents
- Remind all attendees to complete the sign-in sheet (Emphasize the importance of the sign in sheet)
- Introduce the user agency representatives
- Review important general information items:
o Vendor Registration
o Oral Statements
o Bid proposal submission process
o Schedule of events
o Bonding Requirements (Bid, performance, etc.)
Specification Discussion (Agency Representatives)
Agency personnel will open the technical specifications for discussion by item with all attendees. Items that all parties, including the agency and Purchasing Division representatives, agree need to be amended by addendum will be recorded by the agency to aid in preparing the addendum.
All clarifying statements and questions shall to be addressed on an addendum. Once the discussion of the technical specifications has concluded, the agency representative requests the Purchasing representative to discuss General Terms and Conditions of the solicitation.
Questions are received and discussed.
General Terms and Conditions Discussion (Purchasing Representatives)
Purchasing representatives will discuss the part General Terms & Conditions and then proceed to discuss the format, evaluation, and, in the use of RFPs, the cost proposals and Minimum Acceptable Score (MAS) concept.
Questions are received and discussed.
Conclusion (Both Agency and Purchasing Representatives)
Purchasing representatives will review items to be included in the addendum if at all possible. For items deferred, the information will be addressed in the addendum after management has had an opportunity to consider the issue.
Agency personnel should close with remarks and thank everyone for attending.
7.2.11 Addenda: During the bid process, it may be necessary to alter bidding documents. To facilitate a change to a solicitation after issuance for bid in the West Virginia Purchasing Bulletin, a formal written addendum is required. The addendum is generated by the agency to address the change and is issued to prospective bidders by the Purchasing Division.
A formal addendum is necessary to: add, delete or change specifications or attachments; provide a copy of the pre-bid attendee list; answer technical questions, requests for clarification, or requests for product substitutions (on construction projects); extend or alter bid schedule dates/times; or any other such change to the issued bidding documents.
The agency must submit a Requisition (including: description of change, amended budget amount/maximum budget amount-if applicable, and signature of authorized agency representative) to the Purchasing Division to issue the addendum.
The agency should also include the following where applicable:
Specification changes, additions, or noted deletions
Pre-bid attendee list
An attachment listing each technical question with a corresponding answer
Revised or added sketches, drawings and/or charts
Upon receipt, review and approval, the Purchasing Division will issue the addendum and distribute to all known bidders (those attending the pre-bid meeting, receiving bid packages, suggested vendors, etc.). Addenda are available in the West Virginia Purchasing Bulletin upon issuance. Additional bid time may be required to distribute addenda.
Addenda should be received by the Purchasing Division from the agency within seven (7) calendar days prior to the current scheduled bid opening date. For complex transactions, such as construction bids, Requests for Proposals, or complex Requests for Quotation, the Purchasing Division should receive from the agency the addenda within 14 calendar days prior to the current scheduled bid opening to allow bidders ample time to prepare and submit bid responses. The Purchasing Division may, at its discretion, extend the bid opening date if it deems to be in the best interest of the state of West Virginia.
7.2.12 Bid Submission: The vendor is responsible for submitting a correct and accurate bid to the Purchasing Division by the specified bid opening time and date. Fax bids are acceptable, but receipt of bid must be completed prior to the bid opening time and date. The Purchasing Division will not accept bids, modification of bids, or addendum acknowledgment forms by e-mail transmission. Acceptable delivery methods include hand-delivery, delivery by courier or facsimile. Any bonds submitted via fax should be followed by an original bond received by the Purchasing Division within two (2) business days.
7.2.13 Establish Bid Opening: Formal bid opening dates are established by the Purchasing Division, based on the complexity of the purchase, and are open to the public. Vendors are not required to attend. Bid openings may be delayed due to the need for pre-bid conferences, issuance of addenda or other unforeseen factors.
At the bid opening, all bids are opened and read aloud. Bids shall not be considered if the vendor fails to submit the respective bid to the Purchasing Division by the specified date and time of the bid opening.
Bids that are not received by the date and time of the bid opening will be noted as Bid Received Late, maintained with the official file and posted on this website upon receipt with the other bids.
7.2.14 Public Notice: Purchasing Division is required to make public notice of purchases expected to exceed $25,000. This is usually accomplished by advertising in the West Virginia Purchasing Bulletin. The Purchasing Division requires sufficient time for our staff to perform various functions, including but not limited to, reviewing specifications and ensuring that all pre-approvals and other requirements have been met in advance of advertising the solicitation in the West Virginia Purchasing Bulletin. Agencies should allow at least five (5) working days prior to advertisement for this extensive review. Should the documentation received require additional information, the advertisement of the solicitation will not be released until all proper supporting documentation is obtained.
7.2.15 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.
7.2.16 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, it 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 or deposit required of a vendor at any time, if, in his or her 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 - A bond 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 five percent (5%) of the total bid amount. Faxed bids that contain bid bonds or any other bond should be submitted with the bid and the vendor should provide the original bonds within two (2) working days of the bid opening dates.
Labor and Materials Payment Bond - A 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.
Maintenance Bond - A bond provided as a warranty of normally two (2) years, which is required on roofing projects.
Performance Bond - A bond in which a 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.
7.2.17 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 vendor's failure to meet specific completion or due dates.
7.2.18 Bonuses: Provisions in any requisition or contract that specifies a monetary reward for early completion of a project shall be strictly prohibited and illegal.
7.2.19 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 meeting specifications, in accordance with the West Virginia Code §5A-3-11.
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 7.2.4).
Prior to an award, a vendor must be in compliance with the following requirements:
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 verification of current unemployment fee status and Workers'
Compensation coverage. This verification is required to ensure the vendor is not
in default with Workers' Compensation and Employment Compensation. Agency
personnel must check the following website to verify compliance:
Workforce West Virginia's Unemployment Compensation/Workers' Compensation
to ensure the vendor is listed and in compliance for unemployment compensation
or proof that such coverage is not required. Agency personnel must also check
Employer Violator System (EVS) (https://icomp.wvinsurance.gov/Login/EmpViolator.asp)
and the OIC Defaulted
Employer Lookup (http://apps.wvinsurance.gov/defaulted/)
for Workers' Compensation defaults owed to the Insurance Commission. If the
vendor appears on either of the Insurance Commission's websites, agencies may
not do business with them. A copy of the online verification database search is
to be maintained in the file. To verify Workers' Compensation coverage, agency
search the Insurance Commission's Coverage Validation System or obtain a copy of
the Workers' Compensation insurance certificate which should be maintained in the
file and is also acceptable. (See
Appendix L for
sample letter notifying the vendor of the areas for which it is in default);
accordance with the Code of State Rules 148 CSR 6.1.7, the vendor
must be licensed and in good standing with any and all state and local law and
requirements, including proper registration with the Secretary of State's
office, if applicable. To search for a business or corporation with the
Secretary of State's office, visit
and submit the Purchasing Affidavit which is required on all
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.
220.127.116.11 Additive / Alternative Options (Add-on or Deduct): In construction contracts, there are projects for which alternative options may be requested of the participating bidders. Depending upon funding resources, these options may be included in the evaluation of the bids. When preparing the specifications, agency purchasers must put the alternatives in the order of importance to the agency, with the first alternative being the most essential to the project should additional funding be available. It is highly recommended that additives / alternatives are to be awarded in the order listed. Any exceptions require pre-approval by the Purchasing Director.
For guidance relating to the release of contract information, please refer to Section 4.7.8.
7.2.20 Tie Bids: Occasionally two (2) 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 $25,000.
7.2.21 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 vendor's responsibility. The request for relief must be made in writing by the vendor to the Director of Purchasing or his/her 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/her designee the authority to reject an erroneous bid after the bid opening according to the following criteria:
(1) An error was made;
(2) The error materially affected the bid;
(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.
7.2.22 Multiple Awards: The Director may elect to award a contract to more than one vendor when the Director determines such action would be in the best interest of the State of West Virginia.
In arriving at a determination, the Purchasing Director will consider the following factors, insofar as they are applicable:
(1) The quality, availability and reliability of the supplies, materials, equipment or services and their adaptability to the particular use required;
(2) The ability, capacity and skill of the bidder;
(3) The sufficiency of the bidder's financial resources;
(4) The bidder's ability to provide maintenance, repair parts and service;
(5) The compatibility with existing equipment;
(6) The need for flexibility in evaluating new products on a large scale before becoming contractually committed for all use; and
(7) Any other relevant factors.
A written explanation will be included in the public file in situations where a multiple award is deemed necessary.
7.2.23 Negotiation When All Bids Exceed Available Funds: Spending units shall submit a valid maximum budgeted amount for each requisition or Request for Proposal to the Purchasing Division, which cannot be changed after the bid opening. The Purchasing Division will not disclose this information to the bidders at any time.
If all bids meeting requirements exceed this budgeted amount, the Purchasing Division may negotiate a lower price within budget with the lowest bidder. If the negotiation does not lead to the budget amount being met, the Director may negotiate a lower price with the next lowest bidder and continue negotiations with participating bidders after negotiation closes with the preceding bidder. It is vital that all incoming requisitions state the maximum budgeted amount for the transaction. This information is requested on the Requisition. See Appendix B.
If the agency does not provide its budgeted amount for the requisition prior to the bid opening, the Purchasing Division is unable to negotiate, in accordance with West Virginia State Code, §5A-3-11a.
7.2.24 Discussion and Final Offers: The Director may conduct discussions to obtain best and final offers from bidders to assure full understanding of solicitation requirements. If the Director determines that a best and final offer is necessary from one vendor, all vendors shall be afforded the opportunity to provide best and final offers. All best and final offers shall be treated like a formal bid, except that advertising is not required. All bidders shall provide their best and final offers to the Purchasing Division prior to the date and time specified.
Government construction contracts and supplies and materials are exempt from this negotiation method.
7.3 Vendor Preference: West Virginia State Code §5A-3-37 provides an opportunity for a qualifying vendor to request at the time it submits its bid, preference for its residency status. This preference does not apply to construction. Such preference is an evaluation method only and will be applied only to the cost bid in accordance with the West Virginia Code and as specified herein. 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 determinations as to whether the Vendor Preference is applicable. Please note that when applying vendor preference with the Request for Proposal process, the preference is applied only to the bid price prior to calculating total cost points.
There are different scenarios of eligibility using the Vendor Preference. It is therefore strongly recommended that the Purchasing Division buyer assist the agency in evaluating specific situations relating to this preference.
The Vendor Preference should be applied using the following five step process shown below. The process is also illustrated by three specific examples included inAppendix S.
7.3.1 Preference for West Virginia Veterans: West Virginia State Code §5A-3-37(a)(5) & (6) provides an opportunity for qualifying resident vendors who are a veteran of the United States armed forces, the reserves or the National Guard to request, at the time of bid, preference for their residency status. Resident veterans who qualify may receive a preference of 3.5%.
7.3.2 Preference for Non-Resident Small, Woman, and Minority-Owned Businesses: West Virginia State Code §5A-3-37(a)(7) provides that a non-resident vendor certified as a small, women-owned, or minority-owned (“SWAM”) business, pursuant to West Virginia State Code §5A-3-59, shall be provided the same preference made available to any resident vendor. This certification may assist resident small, women and minority-owned businesses when soliciting business in other states.
The SWAM rules found in West Virginia Code of State Rules §148-22-9 further explain that a non-resident SWAM business will receive the highest preference made available to a resident vendor in the solicitation for which the SWAM business has submitted a bid.
In order to obtain this preference, however, a non-resident SWAM business must identify itself as such in writing on the Vendor Preference Certificate available from the Purchasing Division and submit with its bid. Additionally, the vendor must have indicated on the Vendor Registration and Disclosure Statement and Small, Women-, and Minority-owned Business Certification Application (WV-1 or WV-1A) that they qualify for this certification under question 4(A). The vendor must be properly certified under the rules governing certification pursuant in West Virginia Code of State Rules §148-22-1 et seq.
In the event that no preference is made available to a resident vendor in a particular solicitation, the non-resident SWAM business will not receive a preference. Additionally, any preference granted to a non-resident SWAM business shall not be applied between or among West Virginia resident vendors and non-resident SWAM businesses.
Agencies are required to maintain a list on the prescribed form from the Purchasing Division listing all SWAM vendors for which they have contracted during the fiscal year and submit such list to the Purchasing Division.
The SWAM rules also requirestate agencies to report, in a manner prescribed by the Purchasing Director, procurement transactions in the preceding fiscal year with SWAM businesses.
7.4. Contract Commencement: With the exception of certain approved emergency contracts, 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 architectural or engineering (A/E) firm is employed, construction does not commence until such time as the A/E firm gives the contractor a Notice to Proceed. Copies of all Notices to Proceed shall be provided to the Purchasing Division at the same time as the contractors receive their notification.
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 coversheet. 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 Auditor's Office).
The Type 1 Adjustment coversheet and Notice to Proceed verification letter, if applicable, must be submitted to the State Auditor's Office and a copy sent to the appropriate Purchasing Division buyer.
A change order must be issued to cover all additional time extensions. The change order along with the 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.
7.5. Contract Management: Contract management provides for assurance that the state receives service or commodities meeting requirements before payment is made. Construction contracts are excluded by law.
7.5.1 Except for government construction contracts, the Purchasing Director shall prescribe contract management procedures for contracts for commodities and services in the amount of $1 million or less. These procedures may include, but are not limited to:
(a) establishing payment benchmarks to assure the state receives value prior to remitting payment;
(b) conducting regular meetings between spending unit and vendor to assess contract performance;
(c) training spending unit personnel to manage contracts; or
(d) using the Office of Technology Project Manager for its projects.
7.5.2 For contracts for commodities and services in an amount exceeding $1 million, the following contract management procedures apply:
18.104.22.168. Post Award Conferences
The agency administrator responsible for administering the contract shall hold a post award conference with the contractor to ensure a clear and mutual understanding of all contract terms and conditions and the respective responsibilities of all parties. The agenda for the conference shall include, at a minimum, the introduction of all participants and identification of agency and contractor key personnel and discussion of the following items:
(1) The scope of the contract, including specifications of what the agency is buying;(2) The contract terms and conditions, particularly any special contract provisions;
(3) The technical and reporting requirements of the contract;(4) The contract administration procedures, including contract monitoring and progress measurement;
(5) The rights and obligations of both parties and the contractor performance evaluation procedures;
(6) An explanation that the contractor will be evaluated on its performance both during and at the conclusion of the contract and that such information may be considered in the selection of future contracts;
(7) Potential contract problem areas and possible solutions;(8) Invoicing requirements and payment procedures, with particular attention to whether payment will be made according to milestones achieved by the contractor; and
(9) An explanation of the limits of authority of the personnel of both the agency and the contractor.
The agency shall develop a comprehensive and objective monitoring checklist which:
(1) Measures outcomes;(2) Monitors compliance with contract requirements; and
(3) Assesses contractor performance.
22.214.171.124 ReportsThe agency shall make the following reports to the Director, on a schedule established by the Director, but not less frequently than once a year:
Status ReportsStatus reports describe the progress of the work; track the organizational structure of the statement of work in terms of phases, segments, deliverables and products; and describe what work is complete and what work is pending and contrast that status against the contract schedule. If there are any unresolved issues that the agency is contractually obligated to resolve, those issues should be included in the status report and a resolution should be requested.
Activity reports describe all activity on the project, regardless of whether substantial progress has been made toward completion of the project. If payment is based on the number of completed transactions, these activities must be specifically set out in the report.
7.5.6 Inspection: In accordance with the West Virginia Code §5A-3-9, 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.
7.6 Encumbrances: The Purchasing Division's Communication and Technical Services Section encumbers all purchase orders executed by the Purchasing Division over $25,000. Encumbrance is the process which ensures that funding is available for the payments relating to the specific purchase order or contract.
Requisitions submitted to the Purchasing Division are to include proper encumbrance information for purchase orders to be encumbered by the Purchasing Division's Communication and Technical Services Unit. Open-end contracts do not need to be encumbered.
7.7 Changes and Reinstatements:
7.7.1 Changes: Occasionally, it becomes necessary to amend, clarify, change or cancel purchasing documents. A contract change order is required whenever the change affects the payment provision, time for completion of the work and/or the scope of the work.
All changes must be approved by the Purchasing Division and the Attorney General's Office, as to form, prior to commencement of any work. Violations may result in penalties. The Purchasing Affidavit is required only for renewals of existing contracts.
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-3-1 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. The Purchasing Division will 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 twenty (20) calendar days. All documents beyond twenty (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. The explanation of change to an existing contract must be described with sufficient detail and clarity that any individual could review and generally understand the contract and change.
Any change request of a purchase order in excess of ten percent (10%) of the original contract amount (aggregate) is strongly discouraged. The Purchasing Director, at his/her 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 percent 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.
7.7.2 Reinstatements: Upon occasion, it may become necessary to reinstate a closed purchase order. Requests must be submitted to the Purchasing Division and prior approval of a buyer is required.
7.7.3 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.
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 review these contract changes will mutually understand the intended action to be initiated.
7.8 Protest Procedures: The Purchasing Division's Legislative Rules and Regulations (148 CSR 1) provide participating vendors with the right to protest specifications and purchase order awards.
7.8.1 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 or contract awards must be submitted no later than five (5) 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 or 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.
7.8.2 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 or 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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