PROCEDURES HANDBOOK |
SECTION 6: FORMAL ACQUISITION PROCEDURES
(Purchases Exceeding $25,000)
6.0 FORMAL ACQUISITION PROCEDURES:
6.1 Definition of Authority:
All requisitions for commodities and services over $25,000 must be
submitted to the Purchasing Division using wvOASIS for formal
competitive bidding.
The Purchasing Division will perform the following tasks:
·
Review the bid specifications;
·
Select prospective bidders (in addition to those recommended by
the agency);
·
Advertise in the
·
Request and receive bids;
·
Evaluate bids*; and
·
Award the purchase to the lowest responsible bidder.
*It is important to note that the state agency may be involved in the evaluation
process by submitting a recommendation for award to the Purchasing Division.
However, for formal acquisitions, the Purchasing Division is the only entity
that has the authority to issue or modify contracts.
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.
E-mail bids are not acceptable and will be rejected.
6.2 The Bid Process:
Formal bid procedures have been developed for procurements
exceeding $25,000 which are processed through the Purchasing Division.
For
procedures relating to technology purchases, visit
Section 7:
Data Processing Equipment or Software. The steps in this process
are detailed below:
6.2.1 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.
6.2.2 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.
6.2.3 Best Value
Procurement:
Best Value Procurement is a purchasing method used to acquire primarily 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 methods include
Requests for Proposals (RFP’s) and Expressions of Interest (EOI)..
6.2.4
Requests for Proposals:
Requests for Proposals (RFPs) are limited to procurements with an estimated
value of $250,000. All procurements under this dollar amount must use another
purchasing method unless approved by the Purchasing Director.
The
Purchasing Director or his/her designee must approve the use of all RFP’s prior
to release. To acquire this
approval, prior to development of the RFP, please submit in writing the
justification for utilizing this process and if this purchase order/contract
will replace a current purchase order/contract.
If it does replace an existing purchase order/contract, the agency should
identify the current vendor and purchase order number.
Please note that the time required
to process an RFP is longer than other purchasing methods and requires
significant agency personnel time.
Agencies are
cautioned in writing specifications containing an excessive number of mandatory
requirements. Mandatory requirements
cannot be scored and cannot be waived.
If an agency establishes mandatory requirements in the RFP, vendors must
demonstrate they meet the mandatory requirements.
Failure to meet the mandatory requirements must result in
disqualification. Waiving a
mandatory response 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 should represent a minimum of thirty (30) of the one hundred (100) total
points in the criteria.
Proposal Format and
Content:
Proposals shall be requested and received in two (2) distinct parts: technical
and cost. The cost portion shall be sealed in a separate envelope and will not
be opened initially.
Proposal Submission:
West Virginia Code §5A-3-11 states that “the bid must be received
by the Purchasing Division prior to the specified date and time of the bid
opening. The failure to deliver or
the non-receipt of the bid by the Purchasing Division, prior to the appointed
date and hour, shall result in the rejection of the bid.” The Purchasing
Division will not accept bids, modification of bids, or addendum acknowledgment
forms by e-mail transmission. Acceptable delivery methods include hand-delivery,
delivery by courier or facsimile.
Technical Bid Opening:
The Purchasing Division will open only the technical proposals on the date and
time specified in the Request for Proposal. The Purchasing Division
representative will read aloud the names of those who responded to the
solicitation and confirm that the original package contained a separately sealed
cost proposal.
Technical Evaluation:
An evaluation
committee
shall review the technical proposals, assign
appropriate points and make a final written consensus recommendation to the
Purchasing Division buyer within 10 days.
All proposals submitted first are evaluated to determine if they meet all
mandatory requirements. Once it is established which proposals have met all
mandatory requirements, the proposals are evaluated for the non-mandatory
qualifications, experience, goals and objectives as outlined in the RFP. During
this evaluation, all proposals begin with the maximum score. Deficiencies are
noted through point deductions. No partial points are applied except for cost.
All deductions issued for each proposal must include justification, with
fairness and consistency.
Vendors must score a minimum of 70% (49 points in most cases) of the total
technical points possible (minimum
acceptable score) in order to be considered.
Vendors not attaining the minimum
acceptable score shall be disqualified and removed from further
consideration. If the buyer approves the committee’s recommendation, the
information will be forwarded to an internal review committee within the
Purchasing Division.
Cost Bid Opening:
Upon approval of the technical evaluation from the internal review committee,
the Purchasing Division shall schedule a time and date to publicly open and read
aloud all cost proposals, including those proposals from vendors not meeting the
minimum acceptable score. The agency
and the vendors shall be notified of this date.
Cost Evaluation Approval
and Award:
The evaluation committee will review the cost proposals, assign appropriate
points and make a final consensus recommendation to the Purchasing Division
through the Purchasing Division buyer.
Award is based upon the highest scoring vendor.
Once approved by the buyer, the contract is signed in the
Purchasing Division, forwarded to the Attorney General’s Office for approval as
to form, encumbered and mailed to the appropriate parties.
Evaluation Committee:
The Purchasing Division requires a committee of at least three (3) and
recommends no more than five (5) persons knowledgeable of the service to be
acquired. The agency must receive approval from the Purchasing Division to
request more than five (5) members to this committee. The agency may invite
individuals to serve as advisors who are subject matter experts, knowledgeable
in the area of discussion. The advisors may assist the evaluation committee
members (referred to as evaluators) in the evaluation process. The agency will
identify and justify the evaluation committee members and advisors to the
Purchasing Division prior to the release
of the RFP.
To ensure
that there is no conflict of interest, the evaluators
and advisor(s) are required by the Purchasing Division to sign a
Certification of Non-Conflict of Interest, in accordance with the West
Virginia Code §5A-3-31 (see
Appendix B). The Purchasing
Division also requires that the agency procurement officer also sign this
certification. By signing this certification, the evaluator(s), advisor(s) and
agency procurement officer attest that: (1) his or her service on the evaluation
committee is not in violation of West Virginia Code §
5A-3-31, § 6B-2-5, or any other relevant code section; (2) his or her service on
the evaluation committee does not create a conflict of interest with any of the
participating vendors; and (3) he or she has not had or will not have
contact relating to the solicitation identified herein with any
participating vendors between the time of the bid opening and the award
recommendation without prior approval of the Purchasing Division.
Agency procurement officers should discuss the non-conflict of interest
issue with potential committee members to ensure that individuals who may have a
conflict are not chosen to participate as evaluation committee members.
State
agencies must submit the signed certification to the Purchasing Division prior
to beginning the evaluation of an RFP or EOI.
The agency
procurement officer or a member of the agency procurement staff, who is skilled
in purchasing techniques and procedures, shall be present at evaluation
committee meetings and serve on the evaluation
committee as a full voting member unless the agency can provide written
justification detailing the reason(s) why this requirement cannot be met. Such
request must be approved by the Purchasing Division
prior to performing any evaluation.
(The Purchasing Division reserves the right to accept or reject agency
appointed committee members and to appoint committee members directly to provide
proper representation. A non-state employee shall not serve as voting member of
the evaluation committee.) To
ensure there is no conflict or influence on the committee members’ decision
process, the evaluation should take place with only the designated evaluators
and advisors present.
If the participating vendors are
required to conduct an oral presentation, the agency is permitted to invite
other individuals, in addition to the evaluators and advisors, to attend these
demonstrations.
The Purchasing Division buyer may observe the committee evaluation
and answer procedural issues and provide general process oversight.
The Purchasing Division has created an internal Request for
Proposal Evaluation Committee to review all agency evaluation committee
recommendations prior to making the award.
Evaluation Training:
All evaluation committee voting members must receive RFP evaluation training
prior to commencing the evaluation. This training should be completed within one
year prior to the evaluation. The Purchasing Division buyer may 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
online training module available at the Purchasing Division’s website or by
agency procurement officers as determined by the Purchasing Division.
After the training, members will review all proposals independently
and later meet to evaluate and assign points to each proposal. (See
Appendix J for Standard RFP Evaluation Format). A Purchasing
Division representative or agency procurement officer, at the discretion of the
Purchasing Director, may be present to observe and ensure that proper procedures
are followed in the final evaluation and assignment of scores.
Committee Recommendation:
The committee will meet and deduct points based on the criteria and prepare a
consensus recommendation signed by all members which is submitted to the
Purchasing Division for approval. The members shall not average points and must
reach a consensus decision. The Purchasing Director reserves the right to
appoint a new member(s) or excuse existing members, if it is determined to be in
the best interest of the state.
Since subjective criteria are used for the evaluation, it is
not uncommon for vendors to challenge the award of an RFP. A challenge is
likely to add delays to the process. If the committee’s recommendation is
acceptable to the Purchasing Division, the contract award will be processed. Any
exception to these procedures must be approved by the Purchasing Director.
6.2.5 Expression of
Interest:
The Purchasing Division uses Expressions of Interest (EOI) in the selection of
Architectural and Engineering Services.
For guidance on processing Expressions of Interest, refer to
Section 7.1 and
Appendix P
for the EOI standard format.
6.2.6 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, 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.
6.2.7 Selection of Vendors: The West Virginia Purchasing Bulletin consists of general descriptions of all requisitions expected to exceed $5,000. Vendors may access the West Virginia Purchasing Bulletin through the Vendor Self Service portal at www.wvOASIS.gov. Vendors may also request bid packages by telephone, electronic mail, fax or via the Internet. Competition is always encouraged on all requisitions.
6.2.8 Pre-Bid Conferences:
The Purchasing Division recommends agencies to consider conducting
pre-bid conferences on major acquisitions early in the bid process to provide an
opportunity to explain and clarify critical aspects of the solicitation,
eliminate misunderstandings and encourage vendor participation. These
conferences are conducted by the state agency with potential bidders when
solicitations for complex, large dollar requirements are specified.
The Purchasing Division may participate in these pre-bid
conferences. In all cases, it is very important for the agency
procurement officer or designee who is trained and knowledgeable of the state
procurement process to attend these conferences.
Vendor attendance at conferences may be optional or mandatory, as
described in the bid document. If mandatory attendance is required, only bids or
proposals from those vendors represented at the conference will be accepted. If
participating vendors sign the official “sign-in sheet” while the meeting is in
progress, then the vendors will be treated as if they were present for the
entire conference and will be deemed to have the knowledge that they would have
had if attending the entire conference. Teleconference attendance is prohibited
unless specified in the bid document.
“Sign-in sheets” for mandatory pre-bid conferences should contain
the following: name of company, person attending (signature and printed name),
address, telephone number and facsimile number. The header information on the
sheets should include the requisition number and the date and time of the
pre-bid conference. The original sheet must be submitted to the Purchasing
Division. No one (1) individual may represent more than one (1) vendor. (See
Appendix I).
It is recommended that pre-bid conferences be scheduled on Tuesdays
through Thursdays between 10 a.m. and 3 p.m. to encourage more participation.
A sample agenda for a pre-bid conference is as follows:
Conference Opening (Purchasing
Representative)
- Offers opening remarks (Welcome attendees and introduce
yourself)
-
Identify the project by RFQ or RFP number and generic scope of work
- Provide
the “sign-in sheet”
- Make available a few extra copies of the bid documents
- Remind all attendees to complete the “sign-in sheet” (Emphasize the importance of the “sign in sheet”)
- Introduce the user agency representatives
-
Review important general information items:
o
Inquiries
o
Vendor Registration
o
Oral Statements
o
Bid proposal submission process
o
Schedule of events
o
Bonding Requirements (Bid, performance, etc.)
Specification Discussion (Agency
Representatives)
Agency personnel will open the technical specifications for
discussion by item with all attendees. Items that all parties, including the
agency and Purchasing Division representatives, agree need to be amended by
addendum will be recorded by the agency to aid in preparing the addendum.
All clarifying statements and questions shall to be addressed on an
addendum. Once the discussion of the technical specifications has concluded, the
agency representative requests the Purchasing representative to discuss “General
Terms and Conditions” of the solicitation.
Questions are received and discussed.
General Terms and Conditions Discussion
(Purchasing Representatives)
Purchasing representatives will discuss the part “General Terms &
Conditions” and then proceed to discuss the format, evaluation, and, in the use
of RFPs, the cost proposals and Minimum Acceptable Score (MAS) concept.
Questions are received and discussed.
Conclusion (Both Agency and Purchasing
Representatives)
Purchasing representatives will review items to be included in the
addendum if at all possible. For items deferred, the information will be
addressed in the addendum after management has had an opportunity to consider
the issue.
Agency personnel should close with remarks and thank everyone for
attending.
6.2.9 Addenda:
During the bid process, it may be necessary to alter bidding documents.
To facilitate a change to a solicitation after issuance for bid in the
West Virginia Purchasing Bulletin, a formal written addendum is
required. The addendum is generated
by the agency to address the change and is issued to prospective bidders by the
Purchasing Division.
A formal addendum is necessary to:
add, delete or change specifications or attachments; provide a copy of
the pre-bid attendee list; answer technical questions, requests for
clarification, or requests for product substitutions
(on construction projects); extend or alter bid schedule
dates/times; or any other such change to the issued bidding documents.
The agency must submit a
Requisition (including:
description of change, amended budget amount/maximum budget amount-if
applicable, and signature of authorized agency representative) to the Purchasing
Division to issue the addendum.
The agency should also include the following where applicable:
·
Specification changes, additions, or
noted deletions
·
Pre-bid attendee list
·
An attachment listing each technical
question with a corresponding answer
·
Revised or added sketches, drawings
and/or charts
Upon receipt, review and approval, the Purchasing Division will
issue the addendum and distribute to all known bidders (those attending the
pre-bid meeting, receiving bid packages, suggested vendors, etc.).
Addenda are available in the
West Virginia Purchasing Bulletin
upon issuance. Additional bid time
may be required to distribute addenda.
Addenda should be received by the Purchasing Division from the
agency within seven (7) calendar days prior to the current scheduled bid opening
date. For complex transactions, such as construction bids, Requests for
Proposals, or complex Requests for Quotation, the Purchasing Division should
receive from the agency the addenda within 14 calendar days prior to the current
scheduled bid opening to allow bidders ample time to prepare and submit bid
responses. The Purchasing Division may, at its discretion, extend the bid
opening date if it deems to be in the best interest of the state of West
Virginia.
6.2.10 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. The Purchasing Division will not accept bids, modification of bids, or
addendum acknowledgment forms by e-mail transmission. Acceptable delivery
methods include hand-delivery, delivery by courier or facsimile.
Any bonds submitted via fax should be followed by an original bond
received by the Purchasing Division within two (2) business days.
6.2.11 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 addenda or other unforeseen factors.
At the bid opening, all bids are opened and read aloud.
Bids shall not be considered if the vendor fails to submit the respective
bid to the Purchasing Division by the specified date and time of the bid
opening.
Bids that are not received by the date and time of the bid opening
will be noted as “Bid Received Late,” maintained with the official file and
posted on this website upon receipt with the other bids.
After the bid opening, vendors may request copies of any proposal
in accordance with the Purchasing Division’s established fee for Freedom of
Information (FOIA) requests. Convenience copies received by the Purchasing
Division will be forwarded to the agency for evaluation.
6.2.12 Public Notice: The Purchasing Division is required to make public notice of purchases expected to exceed $25,000. This is accomplished by advertising the solicitation in the West Virginia Purchasing Bulletin. The standard advertisement period for non-complex procurements is 10 business days. If exceptional circumstances exist which require a shorter or longer advertisement period, the agency must indicate such at the time the requisition is submitted to the Purchasing Division.
Additionally, the Purchasing
Division requires sufficient time for our staff to perform various functions,
including but not limited to, reviewing specifications and ensuring that all
pre-approvals and other requirements have been met in advance of advertising the
solicitation in the
West Virginia Purchasing Bulletin.
Agencies should allow at least five (5) working days prior to advertisement for
this extensive review. Should the documentation received require additional
information, the
advertisement of the solicitation will not be released until all proper
supporting documentation is obtained.
6.2.13 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.
6.2.14 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 –
A
bond
in which a third party agrees to be liable to pay a certain amount of money in
the event a selected bidder fails to accept the contract as bid. This bond is
usually required for five percent (5%) of the total bid amount. Faxed bids that
contain bid bonds, or any other bond should be submitted with the bid and the
vendor should provide the original bonds within two (2) working days of the bid
opening dates.
Labor and Materials Payment Bond -
A
bond submitted by the apparent successful vendor upon request of the state to
ensure payment of labor and materials purchased or contracted for on behalf of
the state in a construction project.
Maintenance Bond -
A bond provided as a warranty of normally two (2) years, which is
required on roofing projects.
Performance Bond
-
A
bond
in which a surety agrees to be liable to pay a certain amount of money in the
event a vendor fails to perform a contract as bid. This bond is usually for the
full amount of the contract.
6.2.15 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.
6.2.16 Bonuses:
Provisions in any requisition or contract that specifies a monetary
reward for early completion of a project is prohibited and considered
illegal.
6.2.17 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 meeting specifications, in accordance with the West
Virginia Code §5A-3-11.
After a proper evaluation, if an award is made to other than the
lowest responsible bidder, a thorough written justification signed by the
evaluator(s) must be inserted into the file and retained for public record and
inspection.
If using the Request for Proposal process, certain stipulations
must be met and an evaluation committee is formed to review all proposals. (See
Section 6.2.4).
Prior to an award, a vendor must be in compliance with the
following requirements:
Verification that the vendor is not debarred by the federal government. wvOASIS automatically verifies this federal compliance prior to award. Additionally, the Purchasing Division maintains a list of vendors declared as debarred by the state of West Virginia, which may be accessed at: http://www.state.wv.us/admin/purchase/Debar.html. Agencies must verify this compliance prior to award;
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.
6.2.17.1 Additive / Alternative Options (Add-on or Deduct): In construction contracts, there are projects for which alternative options may be requested of the participating bidders. Pursuant to West Virginia Code §5-22-1(e), If the Pricing Pages contain alternates/add-ons, there must be no more than seven listed, and the alternates/add-ons will be selected in the order of priority listed on the Pricing Pages. The first alternate/add-on must be selected before the second alternate/add-on can be selected and so on. Provided, that Agency may accept an alternate out of the listed order if acceptance would not affect determination of the lowest qualified responsible bidder. Any unaccepted alternate contained within a bid shall expire one hundred fifty days after the date of the opening of bids for review.
For guidance relating to the release of contract information,
please refer to
Section 1.7.
6.2.18 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. When tie bids are received, the Purchasing Director shall break the tie by allowing the tied vendors to make a final offer, flip of a coin, draw of the cards, or any other impartial method considered prudent by the Director.
The Purchasing Division must make the final decision in tie bid
situations exceeding $25,000.
6.2.19 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 and received by the Director of Purchasing or his/her designee within five (5) working
days from the bid opening date.
West Virginia Code of State Rules, 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.
6.2.20 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. The ability to approve
and solicit multiple award contracts has not been delegated to agencies for
procurements under $25,000. Any need
for such contracts must be processed as a formal procurement.
6.2.21 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 Requisition. See Appendix B.
If the agency does not provide its budgeted amount for the requisition prior to
the bid opening, the Purchasing Division is unable to negotiate, in accordance
with West Virginia State Code, §5A-3-11a. The ability to negotiate
as described in this section has not been delegated to the agencies for
procurements under $25,000.
6.2.22 Discussion and Final Offers:
As
provided in the bid solicitation, 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.
The ability to conduct discussion and final offers has not been
delegated to the agencies for procurements under $25,000.
6.2.23 Reverse Auctions:
This purchasing process may be utilized to procure commodities,
upon approval by the Purchasing Director. The requesting agency must provide the
Purchasing Division with an explanation of how the reverse auction process would
be fair, economical and in the best interest of the state. Additionally, written
documentation must be provided by the agency verifying that the commodities to
be procured are subject to low price volatility; have specifications that are
common and not complex; vary little between suppliers; are sourced primarily
based on price, with limited ancillary considerations; require little
collaboration from suppliers; and are sold by a large, competitive supply base.
When soliciting bids for commodities, the Purchasing Division may
be considered the spending unit and may rely on information provided by one or
more agencies that will use the contract in satisfying the requirements
necessary to utilize a reverse auction.
6.2.23.1 Prequalifications:
All reverse auctions conducted must be preceded by a
prequalification of vendors. Only vendors that have completed prequalification
for the auction will be permitted to participate. Prequalification will be
completed as follows:
6.2.23.2 Reverse Auction Bidding: The prequalified vendors will be granted access to participate in
the reverse auction either physically or electronically depending upon the
format of the auction. Each prequalified vendor may submit bids until the time for
bidding has expired. Any bid that a vendor submits during the reverse auction
process will supersede all prior bids submitted by that vendor.
6.2.23.3 Award: The lowest responsible bidder within the time period allowed for the reverse auction will be awarded a contract. If the Purchasing Director determines that a vendor identified as the lowest responsible bidder has failed to meet a mandatory requirement contained in the specifications or if the vendor fails to consummate the contract after bidding, the Purchasing Director may reject the bid of that vendor or cancel an award that has been made and move to award to the next lowest responsible bidder.
6.2.24 Master Contract and Direct Ordering Process: An agency that desires to establish a master contract with
subsequent direct ordering process as defined in
West Virginia Code
§5A-3-10e(b)(4) must first provide written justification and obtain the written
approval from the Purchasing Director.
Any request by a state agency to establish a master contract must
include the following items:
·
Identification and a detailed description of the commodity to be
covered by the master contract;
· One or more requirements that each vendor must meet in order to be approved for the master contract, which may include, but are not limited to, experience, quality assurance, licensing, delivery terms and quantity terms;
·
An estimation of the quantity and price of the commodity to be
purchased over the terms of the contract;
·
Forms, if any, that will be utilized in the direct ordering
procedure bidding process.
6.2.24.1 Advertisement: Once the Purchasing Director approves a request to solicit master
contracts, the documentation contained in the request, along with any additional
documentation deemed necessary will be compiled. The vendor community will be
notified of the opportunity to obtain a master contract through the
West Virginia Purchasing Bulletin.
The justification must contain:
·
A clause stating that the state is seeking a master contract that
will permit all awarded vendors an opportunity to participate in the direct
ordering process;
·
An explanation of how bids will be submitted and evaluated through
the direct ordering process;
·
A clause limiting the master contract to a term of one year, and;
·
Language setting dollar thresholds for direct ordering process
purchases.
6.2.24.2 Evaluation and Award:
At the date and time provided in the advertisement, the Purchasing Division will
publicly open vendor responses at a bid opening. Vendors’ responses will be
evaluated and each vendor meeting all qualifications will be awarded a master
contract that allows the vendor to participate in the direct ordering process.
6.2.24.3 Direct Ordering Process:
The limitations include that no single order under the master
contract and direct ordering process is permitted to exceed $1,000,000 for
information technology commodity purchases or $50,000 for other commodities
unless a written request to exceed these limits is approved by the Purchasing
Director in writing. If all bids returned under the direct ordering process are
over the applicable order threshold, the agency must cancel the direct order
process and solicit bids through the normal competitive bidding process.
If the agency solicits bids and one or more vendors submit bids over the
dollar threshold, the agency may only award to the vendors that submit bids
under the threshold. The Purchasing Director may set lower limits for the direct
order process if determined to be appropriate.
Requests for Bids:
An agency, or the Purchasing Division when acting as a spending unit,, that
desires, to purchase a commodity identified in the master contract must notify
each vendor that has been awarded a master contract of the request. The notice
must contain any commodity specific requirements, the total quantity of the
commodity being sought, the deadline by which the vendors must submit bids, and
the location to which bids must be submitted.
Direct Order Bid Opening:
At the established date, time and place, the agency or the Purchasing Division
will open all bids in a public bid opening and announce the vendors’ bid prices
for all bids.
Evaluation and Award:
After bids have been opened, the agency, or the Purchasing Division
when acting as a spending unit, shall evaluate the bids received to ensure that
the bid submissions comply with the requirements contained in the master
contract and the rests for bids. The agency, or the Purchasing Division when
acting as a spending unit, shall award the direct order to the lowest
responsible bidder that has complied with all requirements. The agency must
reject any bid that fails to comply with the requirements contained in the
master contract and the requests for bids. The agency shall provide the
following notices related to the evaluation and award:
·
The lowest responsible bidder must be notified that it has won the
direct order process and may begin the process of filling the order;
·
The vendors that do not submit the lowest bid must be notified that
their bids were not the lowest and they will not be selected to provide the
commodity; and,
·
Any vendor that submits a bid that is rejected must be notified of
the rejection and upon request, the vendor must be provided with a reason for
that rejection.
Any agency utilizing the direct ordering process must maintain
records of all requests for bids, bids received, bids awarded, bids rejected and
other correspondence related to the direct ordering process. The Purchasing
Division may institute oversight procedures that require agencies to provide
notices to the Purchasing Division and obtain approvals from the Purchasing
Division prior to using the direct order process. The Purchasing Division may
also choose to conduct the direct order process on the agency’s behalf, if
determined additional oversight is warranted.
6.3 Vendor Preference: West Virginia Code
§5A-3-37 provides an opportunity for a qualifying vendor to request at the time
it submits its bid, preference for its residency status. This preference does
not apply to construction. Such preference is an evaluation method only and will
be applied only to the cost bid in accordance with the West Virginia Code
and as specified herein. A certificate
of application is used to request this preference. Generally, a West Virginia
vendor may be eligible for two 2.5% preferences in the evaluation process. The
Purchasing Division will make the determinations as to whether the Vendor
Preference is applicable. Please note that when applying vendor preference with
the Request for Proposal process, the preference is applied only to the bid
price prior to calculating total cost points.
There are different scenarios of eligibility using the Vendor Preference. It is
therefore strongly recommended that the Purchasing Division buyer assist the
agency in evaluating specific situations relating to this preference.
The Vendor Preference should be applied using the
following five step process shown below.
The process is also illustrated by three specific examples included in
Appendix S.
Step 1:
Calculate the effect of
each Vendor Preference (2.5% and 5%) on out-of-state bids by multiplying the
out-of-state bids by 1.025 or 1.05 as appropriate.
Step 2:
Compare resident
vendors’ bids to out-of-state vendors’ preference adjusted bids.
(A vendor that receives a 2.5% preference will have its bid compared to
the out-of-state vendors’ bids adjusted for the 2.5% preference by multiplying
the out-of-state vendors’ bids by 1.025.
Similarly, the vendor that receives a 5% preference will have its bid
compared to out-of-state vendors’ bids adjusted for the 5% preference.)
Step 3:
If an out-of-state
vendor’s bid is lower than all in-state vendors’ bids after preference
adjustments and comparisons to the in-state vendors’ bids, then the out-of-state
vendor should be declared the winning vendor.
If the out-of-state bid adjusted for preference is higher than an
in-state bid then move to Step 4.
(If multiple out-of-state vendors are lower than all in-state vendors after
preference adjustments and comparisons then award to the lowest out-of-state
vendor).
Step 4:
Compare In-State Vendor bids
without regard to preference (Only necessary if not awarded to out-of state
vendor in step 3 above).
Step 5:
Award to lowest In-State
Vendor identified in Step 4 above. (Only if not awarded to out-of state vendor
in step 3 above).
6.3.1 Preference for West Virginia Veterans:
West Virginia
Code
§5A-3-37(a)(5) & (6) provides an opportunity for qualifying resident vendors who
are a veteran of the United States armed forces, the reserves or the National
Guard to request, at the time of bid, preference for their residency status.
Resident veterans who qualify may receive a preference of 3.5%.
6.3.2 Preference for
Non-Resident Small, Woman, and Minority-Owned Businesses: West Virginia
Code
§5A-3-37(a)(7) provides that a non-resident vendor certified as a small,
women-owned, or minority-owned (“SWAM”) business, pursuant to West
Virginia Code §5A-3-59, shall be provided the same preference made
available to any resident vendor.
This certification may assist resident small, women and
minority-owned businesses when soliciting business in other states.
The SWAM rules found in West Virginia Code of State Rules
§148-22-9 further explain that a non-resident SWAM business will receive the
highest preference made available to a resident vendor in the solicitation for
which the SWAM business has submitted a bid.
In order to obtain this preference, however, a non-resident SWAM business must
identify itself as such in writing on the Vendor Preference Certificate
available from the Purchasing Division and submit with its bid. Additionally,
the vendor must have indicated on the
Vendor
Registration and Disclosure Statement and Small, Women, and Minority-owned
Business Certification Application (WV-1 or WV-1A) that they
qualify for this certification under question 4(A). The vendor must be properly
certified under the rules governing certification pursuant in West
Virginia Code of State Rules §148-22-1 et seq.
In the event that no preference is made available to a resident vendor in a
particular solicitation, the non-resident SWAM business will not receive a
preference. Additionally, any preference granted to a non-resident SWAM
business shall
not be applied between or among West Virginia resident vendors and non-resident
SWAM businesses.
Agencies are required to maintain a list on the prescribed form from the
Purchasing Division listing all SWAM vendors for which they have contracted
during the fiscal year and submit such list to the Purchasing Division.
The SWAM rules also require
State agencies to report, in a manner prescribed by the Purchasing
Director, procurement transactions in the preceding fiscal year with SWAM
businesses.
6.4. Contract Commencement: With the exception of
certain approved emergency contracts, the encumbrance date is the earliest date
that a vendor may commence work on any contract. No authority may be given to
the vendor by the agency or any other entity to commence work unless an
encumbered contract has been processed by the Purchasing Division and received
by the vendor.
In regard to construction projects, when an architectural or
engineering (A/E) firm is employed, construction does not commence until such
time as the agency 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.
A change order must be issued to cover all contract changes. For
more information on change orders, see Section 6.7.
6.5.
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.
6.5.1
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.
6.5.2 For contracts for commodities and services in an amount
exceeding $1 million, the following contract management procedures apply:
6.5.2.1. 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.
6.5.2.2 Monitoring
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.
6.5.2.3 Reports
The 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 Reports
Status 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
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.
6.5.3 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.
6.6 Encumbrances:
The Purchasing Division’s Communication and Technical Services
Section encumbers all purchase orders executed by the Purchasing Division over
$25,000. Encumbrance is the process which ensures that funding is available for
the payments relating to the specific purchase order or contract.
Requisitions submitted to the Purchasing Division are to include
proper encumbrance information for purchase orders to be encumbered by the
Purchasing Division’s Communication and Technical Services Unit. Agencies must
designate the appropriate account(s) from which funds to pay for a contract will be
taken prior to a contract being awarded, unless the contemplated contract is a
type that cannot be encumbered. Open-end contracts do not need to be encumbered.
Prior to issuing a contract, the Purchasing Division will verify
the amount of funds encumbered is appropriate and that the account being
encumbered matches what the agency has requested. Contract must be encumbered
prior to issuance in the following amounts:
· One-time Purchases in Current Fiscal Year: A contract for one-time purchase to be completed in the current fiscal year must encumber the full contract amount.
· Contract Spanning Multiple Years: A contract that will span multiple fiscal years must be encumbered at least the amount of funds that will be spent under the contract in the current fiscal year;
· Contract to Begin in a Future Year: A contract that will be awarded prior to the end of a current fiscal year but will become effective after that same fiscal year has ended is not required to encumber funds prior to issuance of the contract.
·
Open-end and Statewide Contracts:
An open-end or statewide contract issued by the Purchasing Division is not
required to have funds encumbered prior to the issuance of the contract.
6.7 Changes, Reinstatements and Cancellations:
6.7.1 Changes: Occasionally, it becomes necessary to amend,
clarify, change or cancel purchasing documents.
A contract change order is required whenever the change affects the payment
provision, time for completion of the work and/or the scope of the work.
West Virginia Code of State Rules
148-1-6.8 provides the Purchasing Director with the authority and responsibility
to review change orders as he or she reviews and approves the original contract.
A spending unit wishing to change a contract must submit a request for the
contract change to the Purchasing Division. Any change order request submitted
to the Purchasing Division that requires vendor agreement must include the
vendor’s agreement in writing. Additional documentation may be requested by the
Purchasing Director to aid in the review. If the Purchasing Director determines
the request is not properly justified, the change order may be rejected.
Changes to the original purchase order must be sequentially numbered in the
appropriate space. To effect the change, written concurrence from the vendor is
required. The explanation of change to an existing contract must be described
with sufficient detail and clarity that any individual could review and
generally understand the contract and change.
Any change to existing contracts that adds work or changes contract cost, and
were not included in the original contract, must be approved by the Purchasing
Division and the Attorney General’s Office
(as to form) prior to the implementation of the change or commencement of
work affected by the change. This requirement is codified in the
West Virginia Code of State Rules § 148-1-6.8.f. as follows:
Spending units must
not permit vendors to perform work that the spending unit anticipates will be
added to a contract through a change order until such time as the change order
has been formally approved by the Purchasing Division and the Attorney General’s
office, encumbered by the Purchasing Division, and mailed to the vendor.
Administrative changes to contracts should be made after the fact with
subsequent approval by
the Purchasing Division and the Attorney General’s Office
(as to form) prior to the
implementation of the change. Examples of administrative changes
include:
1.
Changing a vendor name
2. Changing a vendor’s address
3.
Correction of a clerical mistake made by the State
4.
Adding a renewal/extension year that was originally contemplated in the
contract, provided that no new commodities/services or increases in price are
included.
5.
Contract closeout where quantity required was originally unknown or
estimated, unit prices were included in the original contract, unit prices are
not modified as part of the change order, and the quantity required was less
than originally anticipated.
6.
Inclusion of the Notice to Proceed documentation.
8. Any other administrative change not included may be approved by the Purchasing Director on a case-by-case basis.
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 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.
6.7.2. Contract Cancellation: The Purchasing Director reserves the right to cancel any contract
or purchase order upon written notice to the vendor under any one of the
following conditions including, but not limited to:
(a) The vendor agrees to the cancellation;
(b) The vendor has obtained the contract by fraud, collusion,
conspiracy, or in conflict with any statutory or constitutional provision of the
State of West Virginia;
(c) Failure to conform to contract requirements or standard
commercial practices;
(d) The existence of an organizational conflict of interest is
identified; or
(e) Funds are not appropriated or an appropriation is discontinued
by the legislature for the acquisition.
(f) Violation of any federal, state, or local law, regulation or
ordinance.
Notwithstanding other provisions of this subsection, the Director
may cancel a purchase order or contract for any reason or for no reason, upon 30
days’ notice to the vendor.
In the event that a vendor fails to honor any contractual term or
condition, or violate any provision of federal, state, or local law, regulation,
or ordinance, the Purchasing Director may request the vendor remedy the contract
breach or legal violation within a time frame the Director determined to be
appropriate. If the vendor fails to remedy the contract breach or legal
violation or the Director determines, at his or her sole discretion, that such a
request is unlikely to yield a satisfactory result, then he or she may cancel
immediately without providing the vendor an opportunity to perform a remedy.
6.8 Protest Procedures: The Purchasing Division’s
West Virginia Code of State Rules (148 CSR 1) provide
participating vendors with the right to protest specifications and purchase
order awards.
6.8.1 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.
6.8.2 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.
All protests, regardless of dollar amount should be directed to the
Purchasing Division and any protests incorrectly submitted to the spending unit
must be forwarded by the spending unit to the Purchasing Division for further
review. A protest incorrectly
delivered to the spending unit will not be considered received until it reaches
the Purchasing Division. Responsibility for delivery of the protest to the
Purchasing Division shall remain with the protesting vendor. A spending unit’s
failure to deliver the protest to the Purchasing Division shall not be grounds
for extending the time for receipt of protests.
6.8.3 Reverse Auction Protests: A vendor desiring to submit a protest of specifications related to a reverse auction must submit the protest five (5) working days prior to the prequalification bid submission deadline. A protest of a prequalification decision must be submitted within five (5) working days of the prequalification approval or denial. A protest of award must be submitted within give (5) working days of award.
6.8.4 Master Contract and Direct Order
Protests:
Any vendor desiring to protest the specifications of a master contract or the
direct ordering process may do so prior to five (5) working days before the
master contract opening date and five (5) working days before the direct
ordering process opening date. Any vendor desiring to protest the award of a
master contract or direct order may do so within five (5) working days of the
master contract award and within five (5) working days of the direct order
award.