§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

Published: 2015

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WVC 5 - 22 - 1

§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


     (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.

     (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) 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.

     (f) 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


     (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, article

three, chapter five-a of this code; 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) 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) 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 the Code of West


     (i) 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


     (j) 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) 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: WV Code updated with legislation passed through the 2015 Regular Session

The WV Code Online is an unofficial copy of the annotated WV Code, provided as a convenience. It has NOT been edited for publication, and is not in any way official or authoritative.