Bill Text: WV SB413 | 2017 | Regular Session | Comm Sub
Bill Title: Relating to bids on government construction contracts
Spectrum: Partisan Bill (Republican 1-0)
Status: (Engrossed - Dead) 2017-03-17 - To House Government Organization [SB413 Detail]
Download: West_Virginia-2017-SB413-Comm_Sub.html
WEST virginia legislature
2017 regular session
Committee Substitute
for
Senate Bill 413
By Senator Blair
[Originating in the Committee on Government Organization; reported on March 13, 2017]
A BILL to amend and reenact §5-22-1 of the Code of West Virginia, 1931, as amended, relating to the solicitation for bids for government construction contracts; submitting bids on government construction contracts; defining the term “alternates”; limiting the number of alternates that may be included on any solicitation of bids for government construction contracts; establishing procedures for acceptance of alternate bids and determination of the lowest qualified responsible bidder; and providing procedures for the required submission of a list of subcontractors who will perform more than $25,000 of work on certain projects.
Be it enacted by the Legislature of West Virginia:
That §5-22-1 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 22. GOVERNMENT CONSTRUCTION CONTRACTS.
§5-22-1. Bidding required; government construction contracts to go to lowest qualified responsible bidder; procedures to be followed in awarding government construction projects; penalties for violation of procedures and requirements debarment; exceptions.
(a) This section and the requirements in this section may be referred to as the West Virginia Fairness In Competitive Bidding Act.
(b) As used in this section:
(1) “Lowest qualified responsible bidder” means the bidder that bids the lowest price and that meets, as a minimum, all the following requirements in connection with the bidder’s response to the bid solicitation. The bidder must certify that it:
(A) Is ready, able and willing to timely furnish the labor and materials required to complete the contract;
(B) Is in compliance with all applicable laws of the State of West Virginia; and
(C) Has supplied a valid bid bond or other surety authorized or approved by the contracting public entity.
(2) “The state and its subdivisions” means the State of West Virginia, every political subdivision thereof, every administrative entity that includes such a subdivision, all municipalities and all county boards of education.
(3) “State spending unit” means a department, agency or institution of the state government for which an appropriation is requested, or to which an appropriation is made by the Legislature.
(4) “Alternates” means any additive options or alternative designs included in a solicitation for competitive bids that are different from and priced separately from what is included in a base bid.
(c) The state and its subdivisions shall, except as provided in this section, solicit competitive bids for every construction project exceeding $25,000 in total cost. A vendor who has been debarred pursuant to the provisions of sections thirty-three-b through thirty-three-f, inclusive, article three, chapter five-a of this code may not bid on or be awarded a contract under this section. All bids submitted pursuant to this chapter shall include a valid bid bond or other surety as approved by the State of West Virginia or its subdivisions.
(d) Following the solicitation of bids, the construction contract shall be awarded to the lowest qualified responsible bidder who shall furnish a sufficient performance and payment bond. The state and its subdivisions may reject all bids and solicit new bids on the project.
(e) Any solicitation of bids shall include no more than seven alternates. Alternates, if accepted, shall be accepted in the order in which they are listed on the bid form: Provided, That a public entity may accept an alternate out of the listed order if acceptance would not affect determination of the lowest qualified responsible bidder. Determination of the lowest qualified responsible bidder shall be based on the sum of the base bid and any alternates accepted.
(e) (f) The apparent low bidder on a
contract valued at more than $250,000 for the construction, alteration,
decoration, painting or improvement of a new or existing building or structure
with a state spending unit shall submit a list of all subcontractors who will
perform more than $25,000 of work on the project including labor and materials.
This section does not apply to other construction projects such as highway,
mine reclamation, water or sewer projects. The list shall include the names of
the bidders and the license numbers as required by article eleven, chapter
twenty-one of this code. This information shall be provided to the state
spending unit within one business day of the opening of bids for review prior
to the awarding of a construction contract. If no subcontractors who will perform
more than $25,000 of work are to be used to complete the project it will be
noted on the subcontractor list. Failure to submit the subcontractor list
within one business day after the deadline for submitting bids shall result in
disqualification of the bid. If the apparent low bidder fails to submit
the subcontractor list, the Purchasing Division shall promptly request by
telephone and electronic mail that the low bidder and second low bidder provide
the subcontractor list within one business day of the request. Failure to
submit the subcontractor list within one business day of receiving the request
shall result in disqualification of the bid. A subcontractor list may not be
required if the bidder provides notice in the bid submission or in response to
a request for a subcontractor list that no subcontractors who will perform more
than $25,000 of work will be used to complete the project.
(f) (g) Written approval must be obtained
from the state spending unit before any subcontractor substitution is permitted.
Substitutions are not permitted unless:
(1) The subcontractor listed in the original bid has filed for bankruptcy;
(2) The state spending unit refuses to approve a subcontractor in the original bid because the subcontractor is under a debarment pursuant to section thirty-three-d, article three, chapter five-a of this code or a suspension under section thirty-two of said article; or
(3) The contractor certifies in writing that the subcontractor listed in the original bill fails, is unable or refuses to perform the subcontract.
(g) (h) The contracting public entity may
not award the contract to a bidder which fails to meet the minimum requirements
set out in this section. As to a prospective low bidder which the contracting
public entity determines not to have met one or more of the requirements of
this section or other requirements as determined by the public entity in the
written bid solicitation, prior to the time a contract award is made, the
contracting public entity shall document in writing and in reasonable detail
the basis for the determination and shall place the writing in the bid file.
After the award of a bid under this section, the bid file of the contracting
public agency and all bids submitted in response to the bid solicitation shall
be open and available for public inspection.
(h) (i) A public official or other person
who individually or together with others knowingly makes an award of a contract
under this section in violation of the procedures and requirements of this
section is subject to the penalties set forth in section twenty-nine, article
three, chapter five-a of this code.
(i) (j) No officer or employee of this state
or of a public agency, public authority, public corporation or other public
entity and no person acting or purporting to act on behalf of an officer or
employee or public entity shall require that a performance bond, payment bond
or surety bond required or permitted by this section be obtained from a
particular surety company, agent, broker or producer.
(j) (k) All bids shall be open in accordance
with the provisions of section two of this article, except design-build
projects which are governed by article twenty-two-a of this chapter and are
exempt from these provisions.
(k) (l) Nothing in this section applies to:
(1) Work performed on construction or repair projects by regular full-time employees of the state or its subdivisions;
(2) Prevent students enrolled in vocational educational schools from being utilized in construction or repair projects when the use is a part of the student’s training program;
(3) Emergency repairs to building components and systems. For the purpose of this subdivision, the term emergency repairs means repairs that if not made immediately will seriously impair the use of building components and systems or cause danger to persons using the building components and systems; and
(4) A situation where the state or subdivision thereof reaches an agreement with volunteers, or a volunteer group, in which the governmental body will provide construction or repair materials, architectural, engineering, technical or other professional services and the volunteers will provide the necessary labor without charge to, or liability upon, the governmental body.
NOTE: The purpose of this bill is to limit the number of alternate proposals in bidding for government construction projects; and set forth procedures for consideration of alternate bids.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.
