WEST VIRGINIA PURCHASING DIVISION
West Virginia Purchasing
Non-Competitive / Exempt List of Commodities and Services
In accordance with §5A-3-10 of the West Virginia Code:
"...a purchase of and contract for commodities, printing and services shall be based, whenever possible, on competitive bids."In accordance with the Code of State Rules 148CSR1-4,
The Director shall:
(a) Ensure that purchases and contracts for commodities, services or printing are based on competitive bid where possible. The Director may establish a list of commodities and services that are not possible to submit for competitive bid. The Director shall approve the list before the beginning of each fiscal year and shall make the list available for public review. Spending unit may purchase the commodities and services on the list directly from the vendor and are not required to have contracts for purchase of those items approved by the Purchasing Division. A spending unit's request to add commodities and services to the list must be accompanied by written justification and an explanation of why competitive bids are not possible. Nothing in this section supersedes or replaces the Attorney General's authority to approve contracts as to form.
In accordance with West Virginia Code §5A-3-10 and the West Virginia Code of State Rules §148-1-4, the Director has determined that it is not possible to obtain certain commodities and services through the competitive bidding process. The Director has identified those items that cannot be competitively bid in the Non-Competitive/Exempt List of Commodities and Services (hereinafter "Exempt List") shown below.
Purchasing Division approval is not required for these Exempt List procurements, unless specifically noted. Vendor registration and all other requirements for the dollar amount of the purchase are mandatory for contracts for these commodities and services; however, under the authority granted by the Director of Purchasing in the West Virginia Code of State Rules 148-1-4.17, the director has determined that waiving the vendor registration fee for all vendors providing commodities or services under Section 9 is in the best interest of the State. Accordingly, the vendor registration fee is waived and, therefore, not required for a vendor providing commodities or services under Section 9.
Except as outlined in the preceding paragraph, spending units purchasing from vendors under the Exempt List must continue to observe the standard purchasing procedure associated with a normal (non-Exempt List) purchase of the same dollar amount. For example, the use of a purchase order is required on all purchases over $2,500. Similarly, spending units must continue to submit contracts to the Attorney General's office for approval, as to form.
Vendors providing commodities and services under the Exempt List must complete the necessary vendor registration forms; but the vendor registration fee is waived if the vendor only provides commodities or services to the spending unit under the Exempt List.
The following items comprise the non-competitive/exempt list of commodities and services that may be purchased directly by spending units without advertisement or bid.
1. Advertising: This exemption includes any advertisement placed directly with newspapers, trade magazines, internet publications, etc. This exemption does not include broadcast television, cable television, or radio, with the exception of statewide radio advertising purchased directly from the broadcaster. It also does not include any indirect placement, promotional items, advertising consultant services, broadcast of Lottery prize drawings, etc.
2. Artwork and Historical Items: This exemption includes the purchase of and service to artwork and historical items, i.e. restoring governors' portraits, refurbishing chandeliers, etc. An agency attempting to procure commodities and services under this exemption must obtain written approval from the Purchasing Division prior to making any purchase.
3. Attorneys and Law Firms: This exemption includes attorneys, law firms, temporary hearing examiners, administrative law judges and court reporters for any agency. The term of a contract made pursuant to this exemption for temporary hearing examiners, administrative law judges or court reporters shall not exceed one year. The selection of attorneys and law firms must be pre-approved by the West Virginia Attorney General's Office. Such pre-approval is not required for hearing examiners, administrative law judges or court reporters; however, approval "as to form" by the Attorney General's Office is required for hearing examiners and administrative law judges. The selection of bond counsel is exempt.
4. Aviation Fuel: This exemption includes the purchase of aviation fuel, but excludes bulk purchases for delivery to state dispensing stations.
5. Cash Advances: In accordance with the West Virginia Code, §5A-3-17(2), the head of any spending unit, or the financial governing board of any institution, may, with the approval of the Purchasing Director, make requisitions upon the State Auditor for a sum to be known as an advance allowance account, in no case to exceed five percent (5%) of the total of the appropriations for any such spending unit, and the State Auditor shall draw his warrant upon the State Treasurer for such account; and all such advance allowance accounts shall be accounted for by the head of the spending unit or institution once every thirty (30) days or more often if required by the State Auditor or Purchasing Director.
6. Contracts Between Governmental Agencies: This exemption includes any contract between a state agency and any other governmental agency (state, local, federal) where no competition is available and the other governmental agency directly or indirectly provides the service. Examples include water line projects with local communities and environmental studies with federal agencies. This exemption does not include piggybacking existing contracts or any contracts with research corporations.
7. Court Ordered Placements: This exemption includes when placing children at various educational and/or behavioral centers when ordered by West Virginia courts or the West Virginia Department of Health and Human Resources.
8. Employee Expense Accounts and Reimbursements: This exemption covers payments to employee expense accounts and to employees as reimbursement. All vendor registration requirements are waived unless the employee is working as a contractor for the agency.
9. Entertainers: This exemption includes individuals and/or groups contracted at the request of the state to entertain or to assist in the production of entertainment.
10. Fees Imposed by Other Government Entities (i.e., licenses, permits): This exemption includes payment of fees imposed by other governmental entities (i.e., licenses, permits, etc.)
11. Governor's Mansion Furnishings: This exemption includes the purchase of any unique or handmade items used in the mansion purchased with public funds, donated, or that remain in the mansion for subsequent administrations. This exemption does not include commercially available items from more than one source.
12. Grants: Grants and Cooperative Agreements as defined in Section 2 of this Procedures Handbook are included in this exemption if the Grant or Cooperative Agreement meets the following requirements: (1) the principal purpose of the relationship must be the transfer of money, property, services or anything of value to the local government or other recipient in order to accomplish a public purpose of support or stimulation authorized by federal and/or state statute, (2) the relationship must not be to facilitate an acquisition, by purchase, lease or barter, of property or services for the direct benefit or use of the state government, and (3) the Grant or Cooperative Agreement must be targeted at specific recipients thereby making competition unavailable.
13. Hospitality: This exemption includes food, beverages, facility rental, entertainment and other expenses relating to conducting state business. A Request for Hospitality Form TMO 3.0, signed by the agency head or designee, must accompany the invoice regardless of the amount. The Purchasing Division does not need to approve TMO.3
14. Media License Fees: This exemption includes program license fees for radio or television.
15. Medical Fees: Included in this exemption are fees for medical services (behavioral and physical) from individual doctors, dentists, clinics, hospitals, laboratory testing facilities, audiologists, county medical examiners, physical and occupational therapists, behavioral counseling and evaluations, etc. for individual patients, inmates, students and clients where the state is responsible for payment for this one-time service. This exemption also includes programs designed for indigent patient care on an individual basis provided that the program is open to all service providers. Also, included in this exemption is body transportation for corpses and indigent burial expenses and sole source medical and psychological consultants for the purpose of determining Federal Social Security Administration Disability by the Disability Determination Services of the WV Division of Rehabilitation Services. This exemption does not include inmate health care management, hospital management, consulting services or agreements to provide services for groups of patients, inmates, students or clients, etc. for state agencies.
16. Medical Fees, Emergency Trauma Reimbursement: This exemption provides for the Department of Health and Human Resources to remit fees to State of West Virginia Level I or Level II Emergency Medical Services trauma physicians for services rendered to supplement insurance premiums and other costs when required to maintain certain levels of certification. Limited to qualified trauma physicians that meet the overall trauma performance requirements determined by the Office of Emergency Medical Service guidelines. The physicians to be contracted with will have credentials to meet the identified needs of a Level I or Level II trauma center.
17. NASCAR: This exemption only applies to NASCAR licensing or license plate manufacturing for West Virginia Division of Motor Vehicles.
18. Postage: This exemption includes stamps, metering, overnight services (i.e., Federal Express, Airborne, UPS, etc.), but this does not include postage available from statewide contracts.
19. Professional Association Dues: This exemption includes membership fees or association dues for professional associations (i.e., West Virginia Bar Association, West Virginia Board of Accountancy, etc.).
20. Railroad Car Hire Fees: This exemption includes national association fees required from all railroads to monitor the location and use of railroad cars for the owners. Bar codes on railroad cars are scanned into a computer database which in turn notifies the owner of the location and remits the user fees to the appropriate owner.
21. Resale Items: This exemption includes items that are acquired specifically for resale by the state agency to the general public (or for use by Correctional Industries in producing items for resale) that should be selected on the basis of quality and delivery constraints due to customer demand.
22. Shipping Charges and Freight: This exemption applies only to shipping charges and freight for items shipped or received that are not included in a contract or purchase order.
23. System Maintenance: This exemption applies to maintenance on all non-competitive proprietary software or bundled hardware/software system maintenance. This exemption does not include the purchase of new software, and does not apply to hardware or software maintenance, where multiple vendors are authorized by the manufacturer to provide service without voiding system warranties. The Office of Technology must pre-approve any purchase under this exemption.
24. Student Activities: This exemption includes lecturers, entertainers, athletic events, referees, teachers [for services requiring teacher certification by the West Virginia Department of Education], etc.
25. Investigative Services; Subject Matter Experts and Witnesses: This exemption includes obtaining investigative services and the services of a subject matter expert or witness for administrative hearings and legal procedures. This exemption does not include agency consulting services or former employees retained by their agency or hired by another agency.
26. Subscriptions and publications: This exemption includes newspapers, textbooks and publications electronic and hard copy purchased directly from the publisher.
27. Training Activities: This exemption includes lecturers, honorariums, copyrighted test and training materials, test monitors/examination proctors, etc., where competition is not available.
28. Tuition, Stipends, Accreditations and Registration Fees: This exemption includes payment of tuition, stipends, accreditations and registration fees. This exemption also includes students who are receiving monetary awards by a state agency.
29. Utilities (Regulated Services by the Public Service Commission): This exemption includes natural gas, water, sewage, electric, telephone, garbage, cable television service, connection fees, trash hauling and dumpster rental [if only one PSC approved hauler is in the area]. An Agency Purchase Order, Centralized Purchase Order or Agreement, WV-48, is required for cable service and trash hauling in excess of $2,500 per year. This exemption does not include propane gas and coal, both of which must be competitively bid.
30. Department of Agriculture Exemptions: Approved exemptions for the West Virginia Department of Agriculture include purchase of livestock for sale to state institutions and the acquisition of bees for repopulation purposes.
31. Court Ordered Payments: This exemption includes court order payment. A copy of the court order must be maintained in the agency file, unless sealed and restricted by the respective judge. If the order is sealed and restricted, an explanation must be maintained in the agency file referencing the court order.
32. Intellectual Property: This exemption includes the West Virginia Lottery’s purchase of licenses to intellectual property, such as copyrighted or trademarked material, for creative use in the development of lottery products, promotions, or advertising when the license can be obtained from only one source. This exemption in no way applies to software.
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