SECTION 3:  ACQUISITION PLANNING

3.0 ACQUISITION PLANNING

3.1 General: The effective purchase of needed commodities and services begins with proper planning. The first step is to determine the commodity or service that is needed, the quantity, the quality level, delivery location and time frame.

When preparing for a purchase prior to the actual bidding process, the following steps should be taken:

·         Define need

·         Consider acquisition and delivery lead time

·         Create specifications for the commodity

·         Research the market

·         Explore internal sources, considerations and approvals

·         Check mandatory resources

·         Prepare the requisition and maximum budgeted amount

·         Identify possible vendors

3.2 Define Need: Determining the exact requirements for a commodity to perform a specific function is one of the most important tasks in the procurement process. The agency must take into consideration the problem to be resolved and what alternatives or options are available to satisfy the need. See Appendix M The Purchasing Division Decision Path.

3.3 Acquisition and Delivery Lead Time

3.3.1 Administrative Lead Time: Administrative lead time is the time required to prepare documents, solicit bids, evaluate bids and make a contract award; can vary depending upon factors like the dollar value of the solicitation, agency promptness in fulfilling its role, responsiveness of vendors, and the complexity of the requisition; and is a part of all purchases.

Agencies should always consider the expiration of funds when planning administrative lead time.

3.3.2 Delivery Lead Time: Delivery Lead Time is the time required for the awarded vendor to deliver commodities or services. These times vary widely by industry, commodity, or service. Consideration must be given to market conditions which will affect delivery. Custom-made and complex items of equipment normally take longer to obtain than in-stock items.

3.4 Specifications: A specification is a concise statement explaining the type of product or service, the quality level, special requirements in design, performance, delivery and usage. Specifications must not be overly restrictive (locking in a specific vendor and limiting competition) or vague (allowing a vendor to provide a lower than acceptable quality level product or service).

Specifications must not unnecessarily inhibit competition. West Virginia Code §5A-3-3(10) states that:  The Director shall assure that the specifications and descriptions in all solicitations are prepared so as to provide all potential suppliers-vendors who can meet the requirements of the state an opportunity to bid and to assure that the specifications and descriptions do not favor a particular brand or vendor.  Similarly, West Virginia Code of State Rules, 148-1-6.5a states that no person may write specifications, or attempt to influence the drafter of specifications, to limit competition, or favor or disfavor a particular brand or vendor.

Specifications used in the procurement process shall be retained with the purchasing file for each purchase order. Written specifications are required for purchases between $5,000 and $25,000 at the agency level to ensure vendors are being provided a fair opportunity to quote comparable products.

A good specification should contain language that is the following:

·         Clearly understandable to both the buyer and the seller

·         Complete

·         Concise

·         Identifiable wherever possible with some brand or specification already on the market

·         Verifiable

·         Reasonable

·         Legible

No reference may be made in a solicitation to external published specifications without the express, written approval of the Purchasing Director. When external published specifications are referenced in a Request for Quotation or Request for Proposal, a copy of those specifications must be included with the solicitation.

3.4.1 Types of Specifications: There are three (3) types of specifications used separately and/or in combination to communicate requirements for goods and services to  
          the vendor:

3.4.1.1 A "Brand Name(s) or Equal" Specification is based upon one (1) or more manufacturer's commodity description(s), model number(s) and quality level. Spending units may not use brand or vendor names to restrict competition; however, if brand names are used to adequately describe a needed commodity or service, the brand or vendor name must be followed by the phrase "or equal" to promote and encourage competition.

A spending unit that uses a brand or vendor name to describe a needed commodity or service must also list in the specifications the mandatory components of that commodity or service that the reference to a brand or vendor name is intended to capture.  A vendor's equality with the brand or vendor name will be evaluated on the basis of the mandatory components only. 

Any spending unit request to disqualify a vendor on the grounds that the vendor has bid an unequal product must be accompanied by written justification listing the mandatory component that is unequal and explaining how the product bid is unequal.

For example:   A brand name manufacturer's commodity numbers referenced in specifications must be easily identified in a current publication that is available to most vendors and must also include the required features upon which equivalency will be evaluated.

When using a brand name specification, the words "OR EQUAL" must be inserted to inform vendors that alternate bids will be considered. The general name of the items, e.g., air blowers, automobiles, etc., should be listed first; the manufacturer and model number of the item should follow immediately. Literature should be requested to accompany any alternate bid which can verify that the alternate bid complies with the specifications.

3.4.1.2 A Performance Specification is based upon the specific performance needs of the purchaser. The performance specification places less emphasis on how the product is made, and more emphasis on how the product performs.   

3.4.1.3 A Design Specification concentrates on the dimensional and other physical requirements of an item being purchased. The design specification is used when the commodity has to be specially made to meet the purchaser's unique needs.

Combinations of the above may be used to communicate clear specifications to vendors. A performance specification may refer to a nationally accepted testing procedure for a commodity; a design specification may indicate the physical size and dimension of the commodity; and a brand name or equal specification may be used to indicate a desired quality level.

An agency may not draft specifications to match a vendor's description of its commodity or service to the exclusion of others or draft specifications that are so restrictive that only one desired vendor can meet the requirements without adequate justification for the restrictions.  Reduced need for training, maintaining consistency in inventory, staff familiarity, and other similar objectives will not be sufficient to justify restrictions in specifications. 

3.4.2 West Virginia Standard Specifications: According to West Virginia Code §5A-3-5, the Purchasing Director shall promulgate and adopt standard specifications based on scientific and technical data for appropriate commodities, which shall establish the quality to which such commodities to be purchased and services to be contracted for by the state must conform. These standard specifications, which are prepared and adopted by the Purchasing Division for various products and services, are written with the input of state agencies and vendors for products and services that are used by many state agencies. By using standard specifications, the state is assured of an acceptable quality that meets the state's needs. These standard specifications shall include information relating to the cost of maintenance and expected life of the commodities, services or printing when the Director determines there are nationally accepted standards for commodities, services or printing.

West Virginia Code of State Rules 148-1- 7.4 provides additional guidance, noting that the state may secure open-end contracts to obtain commodities, services or printing to supply the repetitive needs of the state in the form of statewide contracts, blanket orders or agency contracts. If the Purchasing Director establishes a statewide contract, all spending units covered by the contract are required to use it. The Purchasing Director may grant waivers on a case-by-case basis to a state agency to purchase outside of the mandatory contract; however, the agency must show that one of the following conditions exists:

·         Vendor is unable to deliver the commodity or service by the required delivery date, assuming that the agency is not imposing an unreasonable delivery deadline;

·         Vendor is unresponsive to ordering requests;

·         Vendor has refused to perform.

3.4.3 Preparing Specifications and Purchase Descriptions: Most state agencies have a procurement officer who is responsible and knowledgeable in state purchasing guidelines as well as their own agency procedures. It is important to note that questions from agency personnel relating to purchasing issues should be directed first to the respective agency procurement officer rather than directly to the Purchasing Division. If the agency procurement officer needs assistance, they are encouraged to contact the appropriate state buyer in the Acquisition and Contract Administration Section of the Purchasing Division for assistance in preparing specifications. (See Appendix C).

·         When preparing a Requisition, if the agency currently has a contract for the needed commodity or service, submit the existing contract number and expiration date with the Requisition when submitting to the assigned buyer in the Purchasing Division. If this is a new contract, also indicate this information to the Purchasing Division buyer. This information will assist the buyer in developing timelines for bidding and acquiring a new contract prior to the expiration of the existing contract.

·         The Requisition must include the following:

o    Maximum Budgeted Amount: This is the maximum available funding determined by the agency at the time of submitting a Request for Quotations or Proposals to the Purchasing Division. This amount is required on all Purchase Requisitions. For purposes of determining the agency's ability to negotiate, under West Virginia Code §5A-3-11a, this amount cannot be changed after bid opening. NOTE: On requisitions in wvOASIS, the Maximum Budgeted Amount field does not pre-encumber or reserve funds in any way. It is primarily used to determine whether negotiations are allowed (when all bids exceed available funds.)

Quantity

The total quantity requisitioned (or an estimated quantity amount based on past usage for an open-end contract) and the unit of measure, such as cases, each, pounds, etc., must be provided.

Type of Purchase

The type of purchase should be identified in the Requisition. For additional information on types of purchasing transactions, see Section 3.7.1. 

Description

The description of the commodity or service should be contained in the specifications.  The description shall contain the essential requirements that clarify the quality level or indicate the features that are important to the function of the item/service being purchased.

Make sure the Requisition and any attachments are in compliance with the following:

·         Appropriate for photocopying  

·         Neatly typed

·         Free of typographical errors

·         Approved by an authorized agency representative

The information entered on the requisition is a reflection on the agency and the state of West Virginia. Please insist on high quality work. Improperly completed requisitions or inferior quality will be returned to the agency for correction.

3.4.3.1 Specification Templates: Several sets of templates related to procurement transactions have been developed and are mandatory for use by state agencies to streamline processing transactions. The templates relate to such specification types as Catalog Discount Request for Quotation Standard Format, One-Time Purchase Request for Quotation Standard Format and Open-End Request for Quotation Standard Format. Other than in blank spaces where the agency must fill in information as indicated, agencies must not change the language in the templates unless expressively approved by the Purchasing Director. These templates are available on the Purchasing Division's intranet site at:

http://intranet.state.wv.us/admin/purchase/procedures.html

3.4.4 Design Services/Consultant:  Any individual, corporation, or firm (except as provided by a statewide contract) paid to custom design or write specifications for a modular office system, computer system, construction or any other project or contract shall not be permitted to competitively bid to provide the product or service that was designed. This removes the possibility of the designer developing specifications that only the designer can meet or restrict another vendor from meeting. This also prevents the appearance of any impropriety, thereby protecting the integrity of the competitive bid process.

3.4.5 Product Testing:  Any testing of specific brands of products, which may lead to future purchases restricting competition, must have pre-approval, in writing, by the Purchasing Division. 

Agencies should submit a description of the proposed testing with complete details including, but not limited to: the specific brand and names of vendors involved in the test; the brands and vendors that may be excluded in the future; the length and cost of the test; the cost of potential future purchases after the test, etc.

Agencies may call vendors for information or copies of specifications for consideration of a particular brand or manufacturer without jeopardizing the vendor's ability to compete in the bid process as long as the vendor does not receive compensation or any form of favoritism.

3.5 Research the Market: When preparing specifications, it may be necessary to research the market to gain a better understanding of equipment, its technology, compatibility and availability.

3.5.1 Request for Information (RFI): The Purchasing Division recognizes only one (1) formal method for requesting written information from vendors for the purpose of developing a Request for Quotation (RFQ) or a Request for Proposal (RFP). That method is a Request for Information (RFI).

An RFI shall be used at the discretion of the Purchasing Division; it is not a mandatory prerequisite to the issuance of an RFQ or an RFP. An RFI should be used when appropriate expertise or information is lacking to develop adequate specifications for an RFQ or RFP. This process allows for the assistance of multiple vendors who have expertise and can provide information in the area of concern.

The Purchasing Division is required to issue any and all RFIs. An RFI shall not be used to make an award of a purchase order or contract.

3.5.2 Trade-In:  The trade-in process is not delegated to agencies. In any situation where a trade-in is anticipated, the procurement must be bid as a central procurement transaction through the Purchasing Division. The trade-in process consists of multiple steps.

First, any agency desiring to utilize the trade-in process must develop specifications to accompany the Centralized Purchasing Requisition (CRQS) requesting that bids include a price for the new item only and prices that reflect the value the bidder proposes to attribute to the trade-in. The agency must receive written approval from the West Virginia State Agency for Surplus Property (WVSASP) to pursue the trade-in option; the approval must be included with the Requisition when submitting to the Purchasing Division.

Second, after the bid opening, the agency will need to obtain written approval for the trade-in from the West Virginia State Agency for Surplus Property (WVSASP) by attaching the bids submitted in response to the solicitation, along with any other required documentation. The submission must be with an FD document created in wvOASIS with the disposition method of "trade-in" identified. 

Third, if the trade-in is approved by WVSASP, the agency must submit its award recommendation to the Purchasing Division buyer who will ensure that the credit for the trade-in is properly applied on the contract document. If WVSASP approval is not granted, the Purchasing Division will proceed with the award to the lowest responsible bidder without the trade-in option.

Fourth, the agency must then submit documentation to WVSASP verifying receipt of the credit for the trade-in. WVSASP will then verify the application of the credit and complete the retirement. If the original cost of the items to be traded in is less than $1,000 and is not listed in wvOASIS, the asset must be added to wvOASIS for trade-in purposes.

Only one-for-one trade-ins will be considered and items may be traded only for the same type of item. Trade-ins will not be authorized for items purchased from statewide contracts or sole source vendors, unless it is in the best interest of the state and approved by WVSASP.

It is important to note that the value of the new items for fixed asset purposes is the full value of the new items, including money paid for the asset and the value attributed to the trade in.  The wvOASIS system automatically includes the money paid for the asset in the fixed asset system, but it does not automatically account for trade-in value.  The agency must create a Fixed Asset Increase document and use that document to add the trade-in value to the new asset.

A trade-in allowance does not allow a state agency to alter or circumvent the purchasing process.

For additional information on trading in equipment, please see the Surplus Property Operations Manual in Appendix G.

3.6 Define Sources: In the planning process, it is mandatory that agencies review all internal sources and mandatory resources as detailed below.

3.6.1 Internal Sources: Each agency must first determine that the commodity or service being sought is not offered by an internal source. Those internal sources are noted below:

3.6.1.1 Surplus Property: The West Virginia State Agency for Surplus Property operates a state and federal surplus property program.

The State Surplus Property Program consists of property no longer needed by the state government agency retiring the equipment, which is then made available to other state agencies, eligible public and nonprofit organizations, and the general public. If the State Surplus Property Program has the needed commodity at the required quality level, it must be obtained from the West Virginia State Agency for Surplus property.

In addition to the availability of surplus property, another function of the West Virgnia State Agency for Surplus Property is to approve the disposal of property no longer needed by the agencies, including trade-ins against the purchase of new property.

Agencies do not have authority to dispose of any property regardless of value without written approval from the West Virginia State Agency for Surplus Property. All methods of property disposal must be coordinated through Surplus Property.

State agencies are encouraged to refer to the West Virginia Surplus Property Operations Manual (see Appendix G) or visit its website at WVSurplus.gov.

Any questions concerning the disposal or sale of state surplus property should be directed to the West Virginia State Agency for Surplus Property at the address below:

West Virginia State Agency for Surplus Property
2700 Charles Avenue
Dunbar, West Virginia 25064

(304) 766-2626
1-800-576-7587

3.6.1.2 Commodities and Services Provided by Correctional Industries: In accordance with West Virginia Code §25-7-5, all offices, departments, institutions and agencies of the state which are supported in whole or in part by this state shall purchase, and all political subdivisions of this state may purchase, all articles or products which they require from the commissioner, if those articles or products are produced or manufactured by correctional industries, as provided by article 7 of Chapter 25 of the West Virginia Code.  No state office, department, institution or agency may purchase an article or product which correctional industries produces from any other source, unless specifically exempted from the provisions of §25-7-5 pursuant to §25-7-6.

In accordance with West Virginia Code §25-7-6, exceptions from the mandatory purchase provisions of §25-7-5 may be granted when a correctional industries article or product does not meet the reasonable requirements of the requesting state office, department, institution or agency, or when the requisition cannot be fulfilled because of insufficient supply or other reason. No state office, department, institution or agency may evade the requirements of §25-7-5, or of §25-7-6, by making insubstantial variations from the characteristics of correctional industries products or articles.

Correctional Industries offers a wide variety of products and services to state agencies. In addition to being the preferred contractor for wooden furniture, it also provides other types of furniture, Braille, welding, engraved signs, mattresses, custom signs, tags, janitorial supplies, linens, seating, detergents, inmate clothing, upholstery and decals. Correctional Industries is the sole source supplier for all printing and quick copy services.

For specific information on available commodities and services, contact Correctional Industries at (304) 558-6054 or visit http://www.wvcorrectionalindustries.com. 

3.6.1.3 Commodities and Services Provided by Sheltered Workshops: All state agencies are required by West Virginia Code §5A-3-10, to purchase commodities and services from sheltered workshops whenever such commodities and services are available and meet certain quality and price standards which are comparable to open-market sources. Use of sheltered workshops does not require bidding for commodities and services included in the WVARF statewide contract. Commodities and services not included in the WVARF statewide contract require competitive bidding.

If the West Virginia Association of Rehabilitation Facilities is unable to provide the requested commodities and services, a written notice will be provided by WVARF advising the agency that their request is unable to be met at that time and competition may be sought in accordance with the state purchasing procedures. For specific information on the sheltered workshops or the available commodities and services, contact WVARF at (304) 766-4894, or visit www.state.wv.us/admin/purchase/swc.

3.6.2 Mandatory Contracts

3.6.2.1 Statewide Contracts: West Virginia Code §5A-3-5 and West Virginia Code of State Rules §148-1-6.5.b. authorize the Purchasing Director to promulgate and adopt standard specifications based on scientific and technical data for appropriate commodities and services, which establishes the quality to which such commodities and services to be purchased and services to be contracted for by the state must conform. These standard specifications are used to establish statewide contracts for commodities that are needed on a repetitive basis and are established for the benefit of state spending units. (See Appendix E).

If the Director establishes a statewide contract, agencies are required to purchase the commodities and services available on that contract from the contract holder.  Agencies may request a waiver from a statewide contract if the vendor is unable to deliver the commodity or service by the required delivery date, assuming that the spending unit is not imposing an unreasonable delivery deadline, the vendor is unresponsive to ordering requests, or the vendor has refused to perform. When approval waiver is granted, it must be retained by the agency with the purchase order file for each transaction to which the approval applies.

3.6.2.2 Agency Open-End Contracts (Over $25,000): Upon request by the state agency, the Purchasing Division establishes agency open-end contracts through competitive bid for commodities and services needed on a repetitive basis. Once established, the agency is required to use this contract. Agencies may request a waiver from an open-end contract if the vendor is unable to deliver the commodity or service by the required delivery date, assuming that the spending unit is not imposing an unreasonable delivery deadline, the vendor is unresponsive to ordering requests, or the vendor has refused to perform.

3.7 Preparation of the Requisition

3.7.1 Types of Transactions: Identified below are six (6) types of purchases: one-time or single purchases; open-end contracts; professional service contracts; emergency purchases; and sole source purchases.

3.7.1.1 One-Time/Single Purchase: This method is used to purchase commodities or services that are not considered repetitive. State agencies must submit a Requisition to the Purchasing Division.

3.7.1.2 Open-End Contracts: The Purchasing Division issues both statewide contracts and agency open-end contracts. The Purchasing Division, at its discretion or upon request of any state agency, may establish a contract for specific commodities and services required. These open-end contracts are convenient for recurrent purchases. For agency open-end contracts, the state agency determines its specific needs and submits a Requisition to the Purchasing Division for competitive bid. Open-end contracts are processed as master agreements in wvOASIS.

After the contract is established, a "delivery order" may be required to order commodities or services.

3.7.1.2.1 Delivery Orders: All delivery orders must reference the complete open-end contract number.  

Not Requiring Purchasing Division Approval: Most delivery orders do not require advance approval from the Purchasing Division. All delivery orders of $250,000 or less may be released directly to the vendor by the agency in the form of an Agency Delivery Order (ADO), unless ordering instructions contained in the contract require Purchasing Division approval. In most cases, open-end contracts will contain ordering instructions with additional details about ordering. Agencies are required to follow any such instructions contained in open-end contracts.

Requiring Purchasing Division Approval: Any agency issuing a delivery order on an existing open-end contract that exceeds $250,000 must process the delivery order as a Central Delivery Order (CDO). No agency shall issue a series of delivery orders anticipated to cost $250,000 or less to circumvent this requirement. Delivery orders of $250,000 or less should be processed as an ADO as described in the preceding paragraph.

As noted above, some contract delivery orders, in any amount, require the advance approval of the Purchasing Division. When this is a requirement in the contract, it will be stated in the ordering procedures.

Agencies should always refer to the ordering procedures on all open-end or statewide contracts for proper instructions prior to attempting to issue a delivery order.

3.7.1.3 Professional Service Contracts: These contracts are used to obtain specific professional expertise which is not available within state government. Examples of professional services may be legal, architectural, medical, dental, engineering and other consultant services.

3.7.1.4 Emergency Purchases: In accordance with West Virginia Code §5A-3-15, purchases may be necessary when unforeseen causes arise; however, emergency purchases are not used for hardship resulting from neglect, poor planning, or lack of organization by the spending unit.

An emergency purchase is a purchase which can be made only if and after the Purchasing Director, exercising sound judgment and discretion, concludes in good faith and upon reasonable and sufficient grounds that some unforeseen or unexpected circumstance has suddenly created a situation requiring that commodities or services be immediately purchased by a state spending unit and the Purchasing Director in writing authorizes such a purchase. A report of any such purchase, together with a record of competitive bids upon which it was based, is to be submitted to the Purchasing Director.

Agencies must first examine mandatory contracts and other internal sources for availability of the product or service and utilize such. For information on mandatory contracts and internal sources, see Section 3: Acquisition Planning, 3.6 Define Sources.

·         Declared State of Emergencies by Governor: In accordance with §15-5-6 of the West Virginia Code, the governor has the authority to suspend certain laws, rules and/or regulations regarding the acquisition of commodities and services by public organizations in the event the governor declares an emergency. When emergency needs relate directly to the declared state of emergency, these procedures are available and outlined on the Purchasing Division’s website at:

http://www.state.wv.us/admin/purchase/EmergencyProcs2.html

·         Emergency Purchases $25,000 or Less: A minimum of three (3) bids, if possible, should be obtained. Original written bids and written agency justification shall be attached to the agency file. Agency Master Terms and Conditions should also be included in requests for bids in emergency situations to the extent that the emergency permits. Purchasing Division approval is not required for emergencies $25,000 or less at the agency delegated level.

·         Emergency Purchases over $25,000: When an emergency situation occurs during normal business hours, written 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 from the primary state agency designated procurement officer must be provided immediately. If an emergency occurs after business hours, on a holiday or weekend, the primary state agency designated procurement officer may proceed with the emergency purchase and provide immediate written justification of the action to the Purchasing Director on the first working day following the emergency.

A minimum of three (3) bids, if possible, shall be obtained. The awarded vendor must be properly registered with the Purchasing Division. As soon as the emergency situation allows, the original written bids or the proposed contract with the vendor, whichever applies, shall be attached to the Requisition, and submitted to the Purchasing Division with a letter of justification or a copy of the Director's or designee's written emergency approval for contract review and approval by the Purchasing Division and the Attorney General's office (as to form). Depending upon the amount of the emergency purchase, Agency Master or Purchasing Master Terms and conditions and other relevant documentation, should also be included in requests for bids in emergency situations to the extent that the emergency permits. Emergency contracts are subject to the same terms and conditions as traditional contracts so it is important to notify vendors of the requirements contained in the terms and conditions as early in the process as possible. The Purchasing Division recognizes that certain emergency situations do not allow time for written bid requests. In those situations, it is understandable that terms and conditions will not be addressed until after the emergency situation has been resolved. To access the Purchasing Master Terms and Conditions and Agency Master Terms and Conditions, please visit the Purchasing Division's website at:

http://www.state.wv.us/admin/purchase/arc/default.html

3.7.1.5 Sole Source Procurement: In a sole source situation, competition is not available. The commodity or service is only available from one (1) source.

Regardless of the dollar amount, written justification is required with the following criteria to be used by the Purchasing Division to determine validity of the request:

(a)       The item cannot be obtained through ordinary purchasing procedures;

(b)       The item is unique and not available from any other source; or

(c)        The item is available from a State spending unit or other institution with preference under the West Virginia Code, provided the price, availability, and quality are comparable to those in the open market.

Agencies are encouraged to solicit competition rather than process a sole source request. The Purchasing Director has authority to reject sole source requests whenever competition is believed to be available.

3.7.1.5.1 Sole Source Procurement $25,000 or Less: If an item is unique and possesses specific characteristics that are available from only one source, an Agency Purchase Order must be completed.

A written, signed quotation from the sole source vendor and written justification from the primary state agency designated procurement officer for purchases over $2,500 must be maintained in the agency file. Signed fax or electronic quotations are acceptable. A specific description, Agency Master Terms and Conditions, delivery terms and price must be included in the signed quotation. (A quotation may also be accepted on the vendor's letterhead).

The spending unit must maintain written documentation at their location certifying that no other sources are available and that the spending unit exhausted all attempts to secure competition.

3.7.1.5.2 Sole Source Procurements More than $25,000: Whenever an item is unique and possesses specific characteristics that the agency views as being available from only one source, the primary state agency designated procurement officer is to submit to the Purchasing Division a formal request in writing, in accordance with West Virginia Code §5A-3-10c.

This written request, Sole Source Request for Consideration (WV-65), must be completed in its entirety (with the vendor quote and any other necessary attachments) and include the basis for the sole source procurement and the specific efforts made to determine the availability of other sources.

The Purchasing Affidavit, Non-Conflict of Interest Certification, an electronic copy of the language for the sole source determination advertisement (See Appendix N), and the Purchasing Master Terms and Conditions should be submitted after the Sole Source Request for Consideration (WV-65) has been approved by the Purchasing Director and returned to the agency. The agency shall not negotiate any of the terms and conditions with the vendor until the Purchasing Division has reviewed and approved the potential purchase for advertisement.

The Purchasing Division will advertise the potential sole source purchase with the respective terms and conditions in the West Virginia Purchasing Bulletin to ensure no other vendor may provide this commodity or service. 

According to the West Virginia Code of State Rules, should the advertisement cause inquiry and concern or requests to bid by prospective bidders or other interested parties, the Purchasing Director may: (a) reject the sole source request and require the spending unit to submit a requisition for public advertisement and formal bidding; (b) accept the sole source request and process the sole source purchase; or (c) take other action as necessary.

Should no vendor respond to the sole source advertisement, the agency's Requisition will be processed as a sole source purchase. A signed bid quotation from the sole source vendor must also be submitted with the completed Requisition.  A specific description, terms, FOB shipping point, and price must be included in the signed quotation. (The quotation may be on the vendor's letterhead).

Sole Source purchases require an original signed vendor quotation, a signed letter of justification from the agency and, if the vendor offers alternative terms and conditions, an Agreement Addendum (WV96).  

If a vendor(s) does respond, indicating they can provide the commodity or services advertised and the Director determines the matter should be bid, the sole source Requisition will be canceled and the agency must resubmit a new Requisition, with detailed specifications. The Purchasing Division will process this requisition competitively and advertise in the West Virginia Purchasing Bulletin accordingly. Backdating transactions resulting from sole source determination or any other documents shall not be honored.

The Purchasing Director must issue prior approval or disapproval for the purchase of used equipment directly from the vendor without competitive bids. If disapproved, the Purchasing Director must return the request to the agency and direct another method of purchasing. Approval to purchase used equipment using this purchasing method is contingent upon meeting all requirements applicable to a sole source procurement.

3.7.2 Terms and Conditions: Terms and conditions are included to express the intent of the State of West Virginia. Purchasing Master Terms and Conditions are a part of every written solicitation issued through and contract awarded by the Purchasing Division. Agency Master Terms and Conditions are also available for use by state agencies utilizing their delegated purchasing procedures. Both the Agency Master and Purchasing Master Terms and Condition may be found in the Agency Resource Center of the Purchasing Division's website at http://www.state.wv.us/admin/purchase/arc. Information and assistance in the preparation or use of additional special terms and conditions not contained in this manual may be obtained by contacting the Purchasing Division.

3.7.2.1. Life of Contract: Contracts should be issued for no more than a twelve (12) month period or cite a specific time for completion for the project or service. A solicitation for a contract that includes an option on the part of the state to extend or renew the contract for an additional period may be advantageous and may be considered. In instances where there may be larger upfront costs or for extremely complex programs or projects where an initial contract term in excess of 12 months is needed, the agency must request approval of the longer term and must provide justification. If price adjustments are permitted during the contract period, the conditions under which they are authorized must be specified in the original solicitation and resulting contract. All contracts should be reviewed during the contract period to determine if the need still exists for the commodities or services, if prices are fair and reasonable based on the current market conditions, and if performance is satisfactory.

3.7.2.2 Renewals: The standard terms and conditions used by the Purchasing Division indicate a specified date, on which the contract becomes effective, and extends for a period of one (1) year. This contract may be renewed upon the written consent of the agency, and the vendor, with approval of the Purchasing Division and the Attorney General's office, as to form.

Any request for renewal should be submitted to the Purchasing Division 30 days prior to the expiration date of the initial contract term or appropriate renewal term. A contract renewal shall be in accordance with the terms and conditions of the original contract. Renewal of a contract is usually limited to three successive one year periods or multiple renewal periods of less than one year, provided that the multiple renewal periods do not exceed 36 months in total. Automatic renewal of any contract is prohibited. Purchasing Division approval is not required on agency delegated or exempt purchases. Attorney General approval may be required for vendor terms and conditions. Agencies are not permitted to extend any contract beyond the time that is stated in the contract.

Unless specific provisions are stipulated in the contract document, the terms, conditions and pricing established are firm for the life of the contract.

A letter of justification must also be included, stating pertinent reasons for its recommendation to renew the existing contract. These factors include, but are not limited to, vendor performance, market conditions and other analytical measures which indicate that renewing the contract is in the best interest of the state.

3.7.3 Bid Opening Date and Time: When establishing an opening date and time, buyers and/or agency personnel should allow for holiday mail disruptions as well as time required for vendors to respond. In wvOASIS, the bid opening date and time are referred to as the "bid closing." To avoid confusion from vendors, agencies are encouraged not to schedule their bid openings at the Purchasing Division's 1:30 p.m. bid opening time.

3.7.4 Evaluation Period: After bids are opened, a review and evaluation of the bids received is required. The Purchasing Division may immediately award certain open-end contracts without the necessity of the agency's review when the Purchasing Division believes this action is in the best interest of the state of West Virginia. However, when an award has not been immediately made by the Purchasing Division, state agencies may be involved in the evaluation process by reviewing bids, making recommendations and providing justification.

State agencies are encouraged to review the bids when posted online at the Purchasing Division's website. Paper copies will only be provided to the agencies if the bids are too large to post electronically.

If the state agency is involved in the evaluation process, a recommendation for award must be received in the Purchasing Division within five business days of the bid opening date, with the exception of Request for Proposals (RFP) and Expressions of Interest (EOI). RFP and/or EOI recommendations for award must be received within 10 business days.

Failure to comply with these established deadlines may result in the agency requisition being cancelled, unless extenuating circumstances exist. It is the responsibility of the agency to provide justification for keeping a requisition open after these time frames.

The Purchasing Division requires all evaluators and advisor(s) of solicitations, despite the type of transaction, and the agency procurement officer, to sign a Certification of Non-Conflict of Interest, in accordance with the West Virginia Code §5A-3-31 (see Appendix B). By signing this certification, the evaluator(s), advisor(s) and agency procurement officer attest that: (1) his or her service on the evaluation committee is not in violation of West Virginia Code § 5A-3-31, § 6B-2-5, or any other relevant code section; (2) his or her service on the evaluation committee does not create a conflict of interest with any of the participating vendors; and (3) he or she has not had or will not have  contact relating to the solicitation identified herein with any participating vendors between the time of the bid opening and the award recommendation without prior approval of the Purchasing Division.  Agency procurement officers should discuss the non-conflict of interest issue with potential committee members to ensure that individuals who may have a conflict are not chosen to participate as evaluation committee members.

Please note that this requirement applies to all transaction types. This certification must be submitted at the following time frames:

• Requests for Proposals (RFP) / Expressions of Interests (EOI): Agencies must submit this certification prior to beginning the evaluation of an RFP or EOI.       

• Requests for Quotations and All Other Transaction Types: The evaluator(s) must sign the Certification for Non-Conflict of Interest and submit, along with the recommendation for award, to the Purchasing Division.

This certification applies to all transactions processed through the Purchasing Division. In addition, it is required for agency delegated purchases exceeding $2,500. Agencies may adopt this policy at their discretion for purchases $2,500 or less.

3.7.4.1 Blackout Period: In accordance with the West Virginia Code of State Rules Section 148-1-6.6b, from the time a requisition is submitted to the Purchasing Division for public advertisement until an award is made, evaluators and spending unit personnel are not permitted to communicate with vendors about the solicitation or any component thereof without prior approval from the Purchasing Division.  All communication regarding the solicitation must be directed to the Purchasing Division until an award has been made. Nothing in this subsection, however, shall prevent the evaluators and spending unit personnel from communicating with a vendor about existing contracts or other matters unrelated to the solicitation in question.

3.8 Identify Possible Vendors: In order to achieve the goal of competitive bidding, a minimum of three (3) bids is required, when possible.

Locating vendors selling a particular product or service can be performed in a number of ways, including:

·         Reference sources, such as the telephone book's yellow pages and other business listings;

·         Supplier's catalogs, which not only offer local distributors but provides descriptive information on their products and current technology of the market;

·         Meeting with business representatives;

·         wvOASIS enterprise resource planning system; and

·         Utilizing the Internet.

Agencies should suggest to the Purchasing Division buyer at least three (3) potential vendors who may be qualified to bid on the solicitation. It is important to include the vendor's company name, contact person, mailing address, telephone number, fax number and email address. Vendors are encouraged to create an account in the Vendor Self Service (VSS) portal in wvOASIS and register for specific commodities that reflect what they sell in order to be automatically notified of upcoming bid opportunities.

3.9 Federal Funding Requirements: Any requisition utilizing federal funding which includes special requirements in addition to or different than normal purchasing requirements must be identified when submitted. All special requirements, particularly regarding advertising, must be provided in a separate memorandum and attached to the requisition.

3.10 Special Considerations

3.10.1 Special Approvals

3.10.1.1 Technology: (See Section 7.3)

3.10.1.2 Capitol Building Commission: (See Section 7.2)

3.10.1.3 Fleet Management Office: (See Section 7.12)

3.10.2 Other Considerations:  Special Forms

3.10.2.1 HIPAA and the Business Associate Addendum: The State’s Privacy Office has developed a Business Associate Addendum (“BAA”) to establish the responsibilities of the applicable parties over safeguarding and paying for damage associated with unauthorized disclosures of protected health information. This requirement only applies when the vendor will have access to protected health information.

The BAA must be properly completed by the agency and submitted to the Purchasing Division with the solicitation to be advertised.  Any agency that is unsure as to when and how to complete and include the BAA in a solicitation should coordinate with that agency’s privacy officer. Including the BAA in all solicitations whether or not it applies is not acceptable. Similarly, designating the type of protected health information on the BAA as “all health information” is not acceptable. 

 3.10.2.2 Purchasing Affidavit: A Purchasing Affidavit is a required attachment on written Request for Quotations (RFQ) for all purchases exceeding $5,000. In addition, the Vendor Preference Certificate is attached to all RFQs, with the exception of construction projects (See Appendix B).

3.10.2.3 Agreement Addendum (WV-96): The Agreement Addendums (WV-96 and WV-96A [for software]) are documents that can be utilized to counter a vendor’s submission of alternate terms and conditions. The WV-96 and WV-96A should never be included in the outgoing solicitation. It is only utilized after it is clear from the vendor’s bid that alternate terms and conditions have been proposed.

3.10.3 Other Considerations:

3.10.3.1 Construction: Certain commodities or services may have additional statutory, regulatory, or other requirements that must be considered when preparing specifications. Construction contracts require a contractor’s licenses, drug free workplace compliance; and all construction contracts require a certificate of insurance, Workers’ Compensation coverage, unemployment compensation and bonds.

3.10.3.2 Recycled Products: In accordance with West Virginia Code §22-15A-21, all agencies and instrumentalities are encouraged, to the maximum extent possible, to purchase recycled products.

Recycled paper products shall be given a price preference of ten percent, provided, however, that priority shall be given to paper products with the highest postconsumer content. Agencies should remove any language in the specifications that discriminate against recycled products. The use of disposable and single-use products should be eliminated, to the maximum extent possible. Compost in all land maintenance and landscaping activities are to be used by state agencies and the use of composted or deep stacked poultry litter products, certified by the Commissioner of Agriculture as being free from organisms that are not found in poultry litter produced in this state, have priority unless determined to be economically unfeasible by the agency.

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