WEST VIRGINIA PURCHASING DIVISION
SECTION 8: SPECIAL ACQUISITIONS
8.0 SPECIAL ACQUISITIONS:
The procurement of certain commodities and services have limitations or require special procedures.
8.1 Architectural and Engineering
8.1.1 Projects Exceeding $250,000: In the procurement of architectural and engineering services, including those professional services of an architectural or engineering nature, for projects estimated to exceed $250,000 (construction cost and architectural fees), an Expression of Interest shall be requested of interested firms by the Purchasing Division. Special procedures in the selection of architectural and engineering services are required in accordance with Chapter 5G of the West Virginia Code. Agencies must use the standard EOI format for projects expected to exceed $250,000.
The expression of interest shall include a statement of qualifications and performance data and may include anticipated concepts and proposed methods of approach to the project. The project must be announced by public notice.
An evaluation committee shall consist of three (3) to five (5) representatives of the agency. The committee shall:
(a) Evaluate the statements of qualifications and performance data and other material submitted;
(b) Develop a “short list” (minimum of three  firms) which, in their opinion, are best qualified to perform the desired service; and
(c) Interview each firm on the “short list” and discuss anticipated concepts and proposed methods of approach to the assignment, including clarification of qualifications and performance data, the scope of services offered and needed time to complete project.
The committee will then rank no less than three (3) firms deemed to be the most highly qualified on the basis of the matters discussed during the interview, in order of preference, and present such list to the state agency and the Purchasing Division. The committee will then commence negotiations as to scope of service and price with the highest qualified firm. The committee will forward its recommendation to the Purchasing Division along with a written justification as to the selection of the firm. The justification must provide a score sheet with complete explanation of all points deducted to clearly indicate how the firms were ranked.
If the agency fails to negotiate a satisfactory contract with the highest qualified firm at a fee determined to be fair and reasonable, negotiations as to scope of services and price with the firm of second choice will commence. Failing that, negotiations as to scope of service and price will be undertaken with the third most qualified firm. In no situation, after negotiations have been terminated with a firm, will negotiations be reopened.
If the agency fails to negotiate a satisfactory contract with any of the selected firms, in order of their competence and qualifications, they will rebid.
8.1.2 Projects $250,000 or Less: In the procurement of architectural and engineering services for projects estimated to cost less than $250,000 (construction cost and architectural fee), competition shall be sought by the agency.
The agency shall conduct discussions with three (3) or more firms solicited on the basis of known or submitted qualifications for the assignment and the scope of services prior to the awarding of any contract. Price may not be discussed prior to selecting the highest rated firm.
The agency and the initially selected firm shall further develop the scope of services and, at this time, discuss price. If negotiations fail to result in a satisfactory contract, the agency may commence negotiations with the next ranked firm in the same manner, continuing until a satisfactory contract is negotiated.
If a judgment is made that special circumstances exist and that seeking competition is not practical, the agency may, with the prior approval of the Purchasing Director, select a firm on the basis of previous satisfactory performance and knowledge of the facilities and agency’s needs.
8.2 Capitol Improvements
8.2.1 State Capitol Complex: Pursuant to the West Virginia Code §4-8-5, “No contract or contracts which will result in physical changes to the state Capitol or any approaches, structures or facilities incidental thereto shall be let, nor shall any physical changes be made not requiring a contract, until approval of the commission has been obtained.”
The Code requires the Capitol Building Commission to review and either approve or reject all plans recommending substantial physical changes inside or outside the state Capitol or surrounding complex, including the public meeting rooms, hallways and grounds which affect the appearance thereof. The surrounding complex shall include the governor’s mansion and other buildings used by the governor as part of his residence; the state science and cultural center; all state office buildings located in the immediate vicinity of the state Capitol and the roadways, structures and facilities which are incidental to such buildings. Substantial physical change means any permanent physical changes that alter the appearance of the public areas of the Capitol and surrounding complex.
The approval of the Capitol Building Commission is mandatory before any contract may be bid for work requiring a substantial physical change, or before changes are initiated if the work is not done under a contract.
8.2.2 State-Owned Office Buildings: Pursuant to the West Virginia Code §4-8-4, “The Capitol Building Commission shall review and approve or reject all plans recommending substantial physical changes inside or outside the state capitol building or surrounding complex, including the public meeting rooms, hallways and grounds, which affect the appearance thereof. The approval of the commission is mandatory before a contract may be let for work which constitutes a substantial physical change, or before changes are started if the work is not done under a contract. As used in this article, the surrounding complex shall include the governor's mansion and other buildings used by the governor as part of his residence, the state science and cultural center, all state office buildings located in the immediate vicinity of the state capitol, and the roadways, structures and facilities which are incidental to such buildings. As used in this article, substantial physical change shall include, but not be limited to, permanent physical changes that alter the appearance of the public areas of the capitol building and surrounding complex. The secretary of the department of administration shall promulgate rules and regulations, pursuant to the provisions of chapter twenty-nine-a of this code, which rules and regulations shall be subject to the approval of the capitol building commission, to implement the provisions of this article.” In addition, West Virginia Code §4-8-4 states that no contract or contracts which will result in physical changes to the capitol building or any approaches, structures or facilities incidental thereto shall be let, nor shall any physical changes be made not requiring a contract, until approval of the commission has been obtained.
8.3 Data Processing Equipment or Software
The West Virginia Code §5A-6-4 (3), requires that the Chief Technology Office (CTO), in conjunction with the Information Services & Communications Division (IS&C) of the Department of Administration, review and approve all data processing procurements for state agencies.
All infrastructure purposes, regardless of dollar value, require CTO approval. All state entities, with the exception of Constitutional Officers, Higher Education and K-12, shall request approval for, at a minimum, but not limited to, the purchase of servers, storage devices, routers, hubs, switches, firewalls, video conferencing and telephone equipment, including PBX system. The applicable infrastructure purchases also include infrastructure software of all types, whether it is e-mail applications, anti-virus software or any other interoperability application.
State agencies may procure computer application software and other non-infrastructure software, as well as IT consulting services with an estimated value of less than $10,000 without CTO approval, but must provide copies of agency purchase orders to the CTO. All purchases of computer hardware, software and consulting services in excess of $10,000 must have prior approval of the CTO before it can be processed. Such proposed purchases must be submitted to the Office of Technology for review and evaluation, and the results will be forwarded to the CTO for final approval.
8.4 Design Services or Consultant: Any individual, corporation, or firm (except as provided by a statewide contract) paid to custom design or write specifications for a modular office system, computer system, construction or any other project or contract shall not be permitted to competitively bid to provide the product or service that was designed. This removes the possibility of the designer developing specifications that only the designer can meet or restrict another vendor from meeting. This also prevents the appearance of any impropriety, thereby protecting the integrity of the competitive bid process.
Agencies may call vendors for information or copies of specifications for consideration of a particular brand or manufacturer without jeopardizing the vendor's ability to compete in the bid process as long as the vendor does not receive compensation or any form of favoritism.
8.5 Direct Purchase: A direct purchase is a transaction in which a purchase is made for a commodity or service that is unique and possesses specific characteristics that are available from only one (1) known source.
To assure that there is no competition for such commodities or services, the Purchasing Division, upon a request from an agency for a sole source purchase, will advertise the potential sole source acquisition in the West Virginia Purchasing Bulletin. If a vendor acknowledges that they may fulfill the solicitation, the Purchasing Division may pursue competitively bidding out the solicitation and will notify the requesting agency of this action.
If no vendor states that it can provide the commodity or service, the Purchasing Division will notify the agency.
Written justification must be provided with the Purchase Requisition. The following criteria will be used by the Purchasing Division to determine validity of the request:
A. Requested vendor is the only known source; or
B. The items are of a unique or special nature; and
C. The request is not an attempt to circumvent the normal bidding procedures.
Quotations from the sole source vendor must also be submitted with the completed Purchase Requisition and agency justification. Signed fax bids are permitted. A specific description, terms, FOB shipping point and price must be included in the signed quotation. (The quotation may be on the vendor's letterhead).
8.6 Emergency Purchases: In accordance with the West Virginia Code §5A-3-15, purchases may be necessary to be made when unforeseen causes arise; however, emergency purchases are not used for hardship resulting from neglect, poor planning or lack of organization by the spending unit.
An emergency purchase is a purchase which can be made only after the Purchasing Director, exercising sound judgment and discretion, concludes in good faith and upon reasonable and sufficient grounds that some unforeseen or unexpected circumstance has suddenly created a situation requiring that commodities or services be immediately purchased by a state spending unit and the Purchasing Director in writing authorizes such a purchase. A report of any such purchase, together with a record of competitive bids upon which it was based, is to be submitted to the Purchasing Director.
When an emergency situation occurs during normal business hours, verbal approval of the Purchasing Director or his/her designee must be obtained prior to making a purchase or execution of any work. A written explanation must be provided immediately via facsimile which should include the estimated cost. If an emergency occurs after business hours, on a holiday or weekend, the state agency may proceed with the emergency purchase and provide immediate written justification of the action to the Purchasing Director on the first working day following the emergency.
A minimum of three (3) bids shall be obtained, if possible. Original, signed written bids shall be attached to the Purchase Requisition, and submitted to the Purchasing Division with a letter of justification or a copy of the Director's or designee's written approval.
Agencies must first examine statewide contracts for availability of the product or service and utilize such, if available.
8.7 Lease or Lease Purchase of Equipment: Lease or lease purchase of equipment are methods by which a state agency may obtain equipment and make payments for the use of the equipment over a period of time.
Leases and lease purchases are subject to annual funding authority of the Legislature. The state agency must provide the required funding over the life of the agreement. A reduction in funds or an administrative freeze shall not be sufficient justification to cancel a lease or lease purchase agreement. No lease or lease purchase can be canceled without approval of the Purchasing Division.
State agencies may be authorized by the Purchasing Division to purchase equipment currently under lease if the Purchasing Division competitively bid the lease originally. Each request will be evaluated on its own merits by the Purchasing Division. Approval is required by the Purchasing Division.
The minimum purchase price for this method should be $100,000. Borrowing money is discouraged; however, if it is critical to the operation to gain financial assistance, it is vital to prepare a letter of justification and submit to the Purchasing Division. A mandatory statewide contract for financing is available to all agencies.
8.8 Piggybacking Contracts: In accordance with the West Virginia Code §5A-3-19, the Purchasing Director “may, upon the recommendation of a state spending unit, participate in, sponsor, conduct, or administer a cooperative purchasing agreement or consortium for the purchase of commodities or services with agencies of the federal government, agencies of other states, other public bodies or other state agencies, if available and financially advantageous.”
These contracts or cooperative arrangements shall be from valid properly awarded contracts and considered by the Purchasing Director to be available and financially advantageous and comparable to what can be obtained by competitive bid. The Director shall require spending units to prove that their requests to use such contracts:
• Do not conflict with existing state of West Virginia contracts unless the prices on the contracts issued by other public agencies and entities is substantially lower than the state contracts based on an equal comparison. No price comparison may be based on differing specifications as determined by the Director.
• Will not cause a West Virginia vendor that offers like products and services to lose substantial business, unless the Director determines based on submitted documentation from the spending unit that the difference in price is so great that the state’s best interest is served by using the contracts issued by other public agencies and entities; and
• Does not cause extensive hardship to any spending unit offered preference under the West Virginia Code.
The following guidelines and requirements relate to these types of purchases and must be submitted in writing sufficiently in advance of the proposed purchase:
· A written justification explaining how the use of the contract is financially advantageous and comparable to what has been competitively bid.
· A complete copy of the contract to be used.
· Evidence that the issuing agency and vendor will allow a West Virginia spending unit to use the contract.
· A complete copy of the order to be submitted.
· Proof that use of the contract does not conflict with an existing contract unless prices on the non-West Virginia contract are substantially lower.
· Proof that use of the contract will not cause a hardship on a West Virginia vendor.
· Does not conflict with any spending unit set aside preference.
· The proposed vendor must be properly registered with the Purchasing Division.
· Notice of any fees or terms and conditions that are applicable.
Please note that certain Purchasing Division forms, such as the (WV-96) Agreement Addendum, Purchasing Affidavit, Certificate of Non-Conflict, may be applicable.
8.9 Prevailing Wage Rates: Prevailing wage rates are hourly labor and fringe benefit rates established annually by the West Virginia Division of Labor on a county by county basis to be paid for all work involving various crafts and labor.
8.10 Printing and Printing Equipment: All printing and binding services must be performed by Correctional Industries or a letter of refusal must be attached to the Purchase Requisition (over $25,000), or maintained with agency invoice or purchase order file ($25,000 or less).
8.11 Professional Services: Professional service contracts provide a mechanism to acquire specific professional expertise. Unless specifically covered in Section 9, professional services shall be competitively bid.
8.12 Rentals: Rentals require an Agreement Addendum (WV-96) and shall not exceed thirty (30) days.
8.13 Telecommunications Systems: All telephone systems with a total cost (purchase price or total of lease purchase payments, including maintenance if selected by the agency at the time of award) over $25,000 must be bid through the Purchasing Division. Upgrading of existing systems may be considered a sole source purchase, if the displaced equipment represents less than 50% of the present day dollar value of the existing equipment, and the equipment remains under the terms and conditions of its original maintenance agreement. Expansion of existing systems not involving an upgrade and/or added features may be considered sole source purchases if the equipment remains under the terms and conditions of its original maintenance agreement.
All telecommunications systems, upgrades and expansions, regardless of cost, must be approved prior to bidding by the Information Services and Communications Division. All telecommunications purchase orders greater than $25,000 must be approved by the Chief Technology Officer of the Governor’s Office of Technology. Evaluation of bids will include installation, training and post-warranty maintenance. This policy is vitally important to maintain the integrity and compatibility of the state’s massive voice and data telecommunications system.
8.14 Vehicles: Approval by the Fleet Management Office is required to purchase vehicles, unless statutorily exempt. Any request to increase an agency’s fleet size must be approved by the Purchasing Director. Vehicles ordered from the statewide contract, with options not included on the statewide contract, require a written quote (dealer cost) from the vendor, written agency justification, and approval of the Purchasing Director. All vehicle purchases, regardless of dollar amount, must be processed through the Purchasing Division. Purchases of vehicles from Surplus Property are exempt from Purchasing Division approval.
8.15 Used Property: State agencies may purchase used property through the normal competitive bid process after first checking the item availability with the West Virginia State Agency for Surplus Property. In accordance with the Code of State Rules, 148CSR7.5.6, the Purchasing Director shall issue prior approval or disapproval for used equipment to be purchased directly without competitive bids. If disapproved, the Purchasing Director shall return the request to the spending unit and direct another method of purchasing.
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