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 TEAM or a Purchase Requisition, WV-35, for formal competitive bidding.
The Purchasing Division will perform the following tasks:
· Review the bid specifications;
· Select prospective bidders (in addition to those recommended by the agency);
· Advertise in the West Virginia Purchasing Bulletin;
· Request and receive bids;
· Evaluate bids; and,
· Award the purchase to the lowest responsible bidder.
State agencies may also be requested to review and evaluate the bids and recommend an award; however, this additional review adds time to the process.
The vendor is responsible for submitting a correct and accurate bid to the Purchasing Division 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. 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 attain this approval, prior to the development of the RFP, please submit in writing the justification for utilizing this process and if this purchasing 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 mandatory 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.”
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 will review the technical proposals, assign appropriate points and make a final written consensus recommendation to the Purchasing Division buyer within twenty-one (21) days. 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 the cost proposals. The agency and the vendors shall be notified of this date.
Cost Evaluation: The evaluation committee will review the cost proposals, assign appropriate points and make 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 Resident Vendor Preference, if applicable.
Contract Approval and Award: After the cost proposals have been opened, the evaluation committee performs its review and makes its recommendation based on the highest scoring vendor to the Purchasing Division buyer.
Once approved by the buyer, the contract is signed in the Purchasing Division, forwarded to the Attorney 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 will identify and justify the evaluation committee members to the Purchasing Division prior to the release of the RFP.
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.)
The Purchasing Division buyer will, on a pilot basis, observe the committee evaluation and answer procedural issues and provide general process oversight.
The Purchasing Division has created an internal Request for Proposal Evaluation Committee to review all agency evaluation committee recommendations prior to making the award.
Evaluation Training: All evaluation committee members must receive RFP evaluation training prior to commencing the evaluation. 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, by videotape presentation offered by the Purchasing Division or by agency procurement officers as determined by the Purchasing Division.
After the training, members will review all proposals independently and later meet to evaluate and assign points to each proposal. (See Appendix J for Standard RFP Evaluation Format). A Purchasing Division representative or agency procurement officer, at the discretion of the Purchasing Director, shall be present to observe and ensure that proper procedures are followed in the final evaluation and assignment of scores.
Committee Recommendation: The committee will meet and 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) only in the selection of Architectural and Engineering Services.
A response to an expression of interest should include a statement of the firm’s qualifications and performance data and may include anticipated concepts and proposed methods of approach to the project. Projects exceeding $250,000 (including construction costs) must be announced by public notice, in accordance with West Virginia Code, Chapter 5G.
The standard procedures for EOIs in relation to the formal evaluation and award process mirror those requirements for Requests for Proposals. For guidance, refer to 7.2.4 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 Purchasing Division buyers maintain a list of vendors who offer particular commodities and services. In addition, the West Virginia Purchasing Bulletin, which is available to all paid registered vendors, 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 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. Any bonds submitted via fax should be followed by an original bond received by the Purchasing Division within two (2) business days.
7.2.11 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 addendums 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.
After the bid opening, copies of bids received are posted on the Purchasing Division website at www.state.wv.us/admin/purchase/bids.
7.2.12 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. Although the Purchasing Division establishes cut-off dates for public notice, the agencies are required to allow at least five (5) working days prior to the publication cut-off date to permit adequate time for the buyer’s review. Those not received within this time frame will not be published in the issue currently being prepared, and will be advertised in the following issue.
7.2.13 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.
7.2.14 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 - An insurance agreement in which a third party agrees to be liable to pay a certain amount of money in the event a selected bidder fails to accept the contract as bid. This bond is usually required for five percent (5%) of the total bid amount. Faxed bids that contain bid bonds, litigation 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 valid bond submitted by the apparent successful vendor upon request of the state to ensure payment of labor and materials purchased or contracted for on behalf of the state in a construction project.
Litigation Bond - A valid bond submitted by the vendor at the time of the bid which may be used by the state to recover damages due to frivolous and groundless law suits filed by the vendor in protest of an award.
Maintenance Bond - A valid bond provided as a warranty of normally two (2) years, which is required on roofing projects.
Performance Bond - An insurance agreement in which a valid surety agrees to be liable to pay a certain amount of money in the event a vendor fails to perform a contract as bid. This bond is usually for the full amount of the contract.
7.2.15 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.
7.2.16 Bonuses: Provisions in any requisition or contract that specifies a monetary reward for early completion of a project shall be strictly prohibited and illegal.
7.2.17 Evaluation and Award: Once bids are received, they are examined by the Purchasing Division to ensure compliance with all specifications.
When the Request for Quotation process is used, competitive bids are received, properly evaluated and an award is made to the lowest responsible bidder who meets specifications, in accordance with 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 188.8.131.52.1).
Prior to an award, a vendor must be in compliance with the following:
· Properly registered with the Purchasing Division by completing the appropriate form and paying the annual fee, if applicable;
· Good standing in accordance with the West Virginia Code §21A-2-6, concerning the unemployment and Workers Compensation default account searches (to verify vendor is not in default with unemployment compensation and Workers Compensation). Agency personnel may check online at Workforce West Virginia and the Insurance Commission to ensure compliance or request a copy of a Workers Compensation insurance certificate. (See Appendix L for sample letter);
· Sign and submit the Purchasing Affidavit which is required on all contracts. (See Appendix B);
· Sign and submit the Agreement Addendum (WV-96) which is required when vendor submits alternate terms and condition with their bid. (See Appendix B). The Attorney General’s Office has provided instructions for the use of the Agreement Addendum (WV-96) for purchases processed through the formal acquisition process. The instructions are included in Appendix Q of this handbook.
State agencies may be involved in the evaluation process by reviewing bids, making recommendations and providing justification.
For guidance relating to the release of contract information, please refer to 4.7.8.
7.2.18 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.
7.2.19 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.
7.2.20 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.
7.2.21 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 Purchasing Requisition (WV35). 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.
7.2.22 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 Resident 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. Such preference is an evaluation method only and will be applied only to the cost bid in accordance with the West Virginia Code. A certificate of application is used to request this preference. Generally, a West Virginia vendor may be eligible for two 2.5% preferences in the evaluation process. The Purchasing Division will make the determinations whether the Resident Vendor Preference is applicable.
Examples of Utilizing Resident Vendor Preference:
Amount of Bids
*Assuming that the in-state vendor qualifies for both 2.5% preferences for evaluation purposes.
$74,500 (out of state bid) x 1.05 = $78,225
Result: The award would go to the in-state vendor.
Amount of Bids
* Did not request Resident Vendor Preference
**Requested 5% Resident Vendor Preference
$74,500 (out of state bid) x 1.05 = $78,225
Result: Because one of the in-state vendors applied for Resident Vendor Preference, the formula must be added to the out-of-state vendor, bringing the total bid to $78,225. Resident Vendor Preference cannot be used between in-state vendors; therefore, in-state vendor #1 is awarded the contract.
There are different scenarios of eligibility using the Resident Vendor Preference. It is strongly recommended that the Purchasing Division buyer assist the agency in evaluating specific situations relating to this preference.
Reciprocity is also applicable to all commodities and services, including construction. Exact preferences applied against West Virginia vendors bidding in other states will in turn be applied to vendors bidding in West Virginia from that state.
7.3.1 Preference for West Virginia Veterans: West Virginia State Code §5A-3-37(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%.
7.4. Contract Commencement: The encumbrance date is the earliest date that a vendor may commence work on any contract. No authority may be given to the vendor by the agency or any other entity to commence work unless an encumbered contract has been processed by the Purchasing Division and received by the vendor.
In regard to construction projects, when an 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 X-document (Type 2 Adjustment - Contract Change Order), justification from the agency and confirmation from the vendor must be submitted to the Purchasing Division specifying the exact date of the extension or completion.
7.5. 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:
184.108.40.206. 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.
220.127.116.11 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.
Requisitions submitted to the Purchasing Division are to be accompanied with a WVFIMS Purchase Order Agency Coversheet (P-document) for purchase orders to be encumbered by the Purchasing Division’s Communication and Technical Services Unit. The WVFIMS agency coversheet should contain all the information known by the agency at the time the requisition is prepared.
Open-end Contracts do not need a WVFIMS Purchase Order Coversheet.
7.7 Changes and Reinstatements:
7.7.1 Changes: Occasionally, it becomes necessary to amend, clarify, change or cancel purchasing documents. Depending upon the type of change required and the original document submitted, the document used to accomplish the change is a Purchase Requisition (WV-35). 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.
Purchase Requisition (WV-35) designated “Change Order” as the type of purchase is used to change an existing contract’s specifications, terms, prices, quantities, etc. A WVFIMS Agency Purchase Order Coversheet (X-document) may be required. If required, submit the coversheet with the Purchase Requisition to the Purchasing Division. In addition, insert the X- document number one line below the Change Order number on the WV-35.
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. Reinstatements should be processed on a Purchase Requisition (WV-35) (see Appendix B) and reflect the original purchase order number. Purchase Requisitions that are closed prior to a purchase order being issued may be reinstated in some cases. Requests must be submitted to the Purchasing Division on a Purchase Requisition and prior approval of a buyer is required.
7.7.3 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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