West Virginia

Key Agency(ies): West Virginia’s Executive procurement is managed by the Purchasing Division within the Department of Administration. The Purchasing Division is headed by the State Purchasing Director.

Key Statute: The primary statutes governing procurement are located at Chapter 5A, Article 3 of the West Virginia Code (W. Va. Code).

Key Regulations: The principal regulations for procurement are located at Title 148, Series 1 of the West Virginia Code of State Rules (W. Va. Code R.)

Procurement Types/Highlights: Under W. Va. Code § 5A-3-10, competitive sealed bidding (IFB) is the default method of procurement for purchases of commodities and services, unless another procurement method is determined to be in the best interest of the state. All purchases exceeding $25,000 must be awarded by competitive methods. For complex services and procurements where factors other than price are necessary to be considered, purchasing may be done through a “Best Value Procurement” (RFP) to allow evaluation on qualitative criteria.

Purchases at or below $25,000 may be handled by individual agencies under delegated authority and using simplified procedures. Agencies must still obtain competitive quotes for smaller purchases.

Bid Protests:

Regs Governing Bid Protests:

• West Virginia’s bid protest procedures are governed by 148 W. Va. Code R. 1-8.
• Protests must be in writing and directed to the State Purchasing Director.

Timeliness Rules:

• Protests of solicitation terms or specifications must be filed no later than five business days prior to bid opening.
• Protests of a contract award must be filed no later than five working days after the award is made.
• Late protests may be rejected at the option of the Purchasing Director.

Protest Process:

• The Purchasing Director or their designee will review the protest and must issue a written decision on the issues.
• The Director has authority to conduct an informal hearing at their discretion.
• The Purchasing Director’s decision is the final administrative remedy available to vendors.

Claims: Contractors who seek to file a claim regarding disputes that arise during contract performance must file their claim at the West Virginia Legislative Claims Commission. The Claims Commission is the tribunal authorized under Chapter 14 of the West Virginia Code to hear claims against the state.

West Virginia state contracts include a standard “venue” clause that provides that legal actions for damages brought by the vendor against the state must be brought to the Claims Commission. Contractors must file a notice of claim with the Commission, the agency will respond, and the claim may proceed to a hearing. The Claims Commission will determine if the state is liable, and if so, will issue an award or a recommended award for damages. Large awards generally must be approved by the legislature.

West Virginia has not waived sovereign immunity for breach of contract. For that reason, the Claims Commission is the exclusive remedy for contract damages against the state.

Suspension & Debarment: West Virginia’s suspension and debarment procedures are governed by W. Va. Code § 5A-3-33. The State Purchasing Director may suspend contractors from bidding on state purchases for no more than a year if there is reason to believe the contractor violated state procurement laws or rules. The Director must notify the contractor of the suspension and the reasons for it. A suspended vendor has the right to an administrative review by the Secretary of Administration, who can “set aside” a suspension if it is determined to be unwarranted.

For longer-term exclusion, the Purchasing Director can initiate debarment proceedings if there is probable cause of grounds for debarment, and the Director must initiate proceedings if a state agency has requested debarment and cause exists. The vendor must be given notice of the proposed debarment, including the reasons and statutory grounds, and the vendor has 30 business days to submit arguments in their defense. A vendor is entitled to an administrative hearing where it can present evidence, and an independent hearing officer or the Director will make findings. After the hearing, the Director must issue a debarment decision that must be based on clear and convincing evidence establishing the grounds for debarment. The Director may determine the length of the debarment, there is no fixed minimum or maximum in the statute.

Interesting/Distinctions: W. Va. Code § 5A-3-10a prohibits awarding a contract to any vendor that owes a delinquent tax or other debt of $1,000+ to the state or a political subdivision, or that is in default on state workers’ compensation or unemployment compensation premiums. Vendors must certify they are not in default of obligations.