WEST
VIRGINIA PURCHASING DIVISION
PROCEDURES HANDBOOK
PROCEDURES HANDBOOK |
Non-Competitive / Exempt List of Commodities and Services
In accordance with §5A-3-10
of the West Virginia Code:
“...a purchase of and
contract for commodities, printing and services shall be based, whenever
possible, on competitive bids.”
In accordance with the Code
of State Rules 148CSR1-4,
The Director shall:
(a) Ensure that
purchases and contracts for commodities, services or printing are based on
competitive bid where possible. The
Director may establish a list of commodities and services that are not possible
to submit for competitive bid. The Director shall approve the list before the
beginning of each fiscal year and shall make the list available for public
review. Spending unit may purchase the commodities and services on the list
directly from the vendor and are not required to have contracts for purchase of
those items approved by the Purchasing Division.
A spending unit’s request to add
commodities and services to the list must be accompanied by written
justification and an explanation of why competitive bids are not possible.
Nothing in this section supersedes or replaces the Attorney General’s authority
to approve contracts as to form.
In accordance with
West Virginia Code §5A-3-10 and
the
West Virginia
Code of State Rules §148-1-4,
the Director has determined that it is not possible to obtain certain
commodities and services through the competitive bidding process.
The Director has identified those items that cannot be competitively bid
in the Non-Competitive/Exempt List of Commodities and Services (hereinafter
“Exempt List”) shown below.
Purchasing Division
approval is not required for these Exempt List procurements, unless specifically
noted. Vendor registration and all other requirements for the dollar amount of
the purchase are mandatory for contracts for these commodities and services;
however, under the authority granted by the Director of Purchasing in the
West Virginia Code of State Rules 148-1-6.1.c.5, the Director has
determined that waiving the vendor registration fee for all vendors providing
commodities or services under Section 9 of the
Purchasing Division Procedures Handbook is in the best interest of the
State. Accordingly, the vendor registration fee is waived and, therefore, not
required for a vendor providing commodities or services under Section 9 of this
handbook.
Except as outlined in the preceding paragraph,
spending units purchasing from vendors under the Exempt List must continue to
observe the standard purchasing procedure associated with a normal (non-Exempt
List) purchase of the same dollar amount.
For example, the use of a purchase order is required on all purchases
over $2,500. Similarly, spending
units must continue to submit contracts to the Attorney General’s office for
approval, as to form.
Should agencies need
guidance as to the usage of a Section 9 exemption, the Section 9 Exemption
Opinion Request Form (WV-68) may be used to formally inquire about the
Purchasing Division’s opinion on whether a particular transaction is included in
one of the existing categories of the Section 9 Exempt List. This form is only
to be used when the applicability of a Section 9 exemption is questionable or
unclear.
The following items
comprise the non-competitive/exempt list of commodities and services that may be
purchased directly by spending units without advertisement or bid.
1.
Advertising:
This exemption includes any advertisement placed directly with newspapers, trade
magazines,
internet publications, social media or billboards.
This exemption includes broadcast television and radio advertisements placed
directly with the broadcaster or publisher. Additionally, this exemption
includes participation fees for trade shows, conferences or conventions. This
exemption does not include any indirect placement, promotional items or
advertising consultant services.
2.
Artwork and Historical Items: This exemption includes the purchase of and service to artwork and
historical items, i.e. restoring governors’ portraits, refurbishing chandeliers,
etc. An agency attempting to procure commodities and services under this
exemption must obtain written approval from the Purchasing Division prior to
making any purchase.
3.
Attorneys and Law Firms: This exemption includes hiring attorneys and law firms in an
official attorney-client capacity. Nothing in this exemption eliminates the
approval or oversight residing within the Attorney General’s office.
4.
Aviation Fuel:
This exemption includes the purchase of
aviation fuel, but excludes bulk purchases for delivery to
state dispensing stations.
5.
Governmental Agencies:
This exemption only includes: 1) contracts between governmental agencies and
spending units when a state or federal law requires the commodity or service be
obtained from the governmental agency (any contract or purchase order issued
must cite the law and maintain a copy on file); and 2) regulatory fees legally
imposed by government agencies
6. Court Ordered Placements: This exemption includes when placing children at various educational and/or behavioral centers when ordered by West Virginia courts or the West Virginia Department of Health and Human Resources.
7.
Entertainers:
This exemption includes individuals and/or groups contracted at the request of
the state to entertain or to assist in the production of entertainment.
8.
Hospitality:
This exemption includes expenses for
food, beverages, facility rental and entertainment relating to conducting
state business.
9.
Media License Fees:
This exemption includes program license fees for
radio or television.
10. Medical Fees:
Included in this exemption are fees
for medical services (behavioral and physical) from individual doctors,
dentists, clinics, hospitals, laboratory testing facilities, audiologists,
county medical examiners, physical and occupational therapists, behavioral
counseling and evaluations, etc. for individual
patients, inmates, students and clients where the state is responsible
for payment for this one-time service. This exemption also includes programs
designed for low income / uninsured patient care on an individual basis provided
that the program is open to all service providers. Also, included in this
exemption is body transportation for corpses and indigent burial expenses and
sole source medical and psychological consultants for the purpose of determining
Federal Social Security Administration Disability by the Disability
Determination Services of the WV Division of Rehabilitation Services. Also
included are medical fees for the purposes of determining vocational
rehabilitation needs of clients of the Division of Rehabilitation Services.
This exemption does not include inmate health care management,
hospital management, consulting services or agreements to provide services for
groups of patients, inmates, students or clients, etc. for state agencies.
11.
Postage:
This exemption includes stamps
and other non-competitive mailing services from the United States Postal
Service, but this does not include services available from statewide contracts.
12.
Professional Association Dues:
This exemption includes membership fees
or association dues for professional associations that perform a licensing,
certification or accreditation function for state employees or agencies (i.e.,
West Virginia State Bar, West Virginia Board of Accountancy, etc.).
13.
Railroad Car Hire Fees:
This exemption includes national
association fees required from all railroads to monitor the location and use of
railroad cars for the owners.
14.
Resale Items:
This exemption includes items
that are acquired specifically for resale by the state agency to the general
public that should be selected on the basis of
quality and
delivery constraints due to customer demand.
15.
Investigative Services; Subject Matter Experts and Witnesses for
Administrative Hearing and Legal Proceedings: This exemption includes obtaining investigative services and the
services of a subject matter expert or witness. This exemption does not include
agency consulting services or former employees retained by their agency or hired
by another agency.
16.
Subscriptions and publications:
This exemption includes
newspapers, textbooks and publications – electronic and hard copy – purchased
directly from the publisher.
18.
Utilities Regulated by the Public Service Commission:
This exemption includes natural gas, water, sewage, electric, telephone,
garbage, cable television service, connection fees, trash hauling and dumpster
rental [if only one
19.
Department of Agriculture Exemptions:
Approved exemptions for the West Virginia
Department of Agriculture include purchase of livestock, the acquisition of bees for repopulation purposes,
and commodity processing services for USDA donated foods.
20. Court Ordered Payments:
This exemption includes
court order payment. A copy of the court order must be maintained in the agency
file, unless sealed and restricted by the respective judge. If the order is
sealed and restricted, an explanation must be maintained in the agency file
referencing the court order. Court ordered payments are exempt from the vendor
registration requirement.
21. Intellectual Property:
This exemption includes
the West Virginia Lottery’s purchase of licenses to intellectual property, such
as copyrighted or trademarked material, for creative use in the development of
lottery products, promotions, or advertising when the license can be obtained
from only one source. This exemption in no way applies to software.
22.
Emergency Services (Non-Construction and Non-Architectural/Engineering
“A/E”):
This exemption includes non-construction and non-A/E services that must be
procured on an emergency basis when (1) formal bidding would cause the
government to lose the ability to perform some critical function for itself or
citizens of the State of West Virginia or (2) formal bidding would delay a
response to a declared state of emergency. Any use of this exemption must
be approved by the Purchasing Division Director in advance in accordance with
the procedures for commodities outlined in
West Virginia Code § 5A-3-15, related rules, and the
Purchasing Division Procedures Handbook. (For more information on
emergencies related to construction or A/E services, please review the
applicable law and Section 3 of the
Purchasing Division Procedures
Handbook).
This exemption includes vaccines purchased through contracts issued by the Centers for Disease Control (CDC).
24. Transcripts from Court Reporters Employed by Court, Judge or Opposing Counsel
This exemption includes transcripts procured from court reporters who are employed by the court, judge or opposing counsel.