§5A-3-37. Preference for resident vendors; preference for vendors employing state residents; preference for veteran residents; exceptions


Published: 2015

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WEST VIRGINIA CODE











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WVC 5 A- 3 - 37

§5A-3-37. Preference for resident vendors; preference for vendors

employing state residents; preference for veteran

residents; exceptions.

(a) Effective beginning July 1, 1992, in any instance that a

purchase of commodities or printing by the director or by a state

department is required under the provisions of this article to be

made upon competitive bids, the successful bid shall be determined

as provided in this section. The Secretary of the Department of

Revenue shall promulgate any rules necessary to: (i) Determine

that vendors have met the residence requirements described in this

section; (ii) establish the procedure for vendors to certify the

residency requirements at the time of submitting their bids; (iii)

establish a procedure to audit bids which make a claim for

preference permitted by this section and to reject noncomplying

bids; and (iv) otherwise accomplish the objectives of this section.

In prescribing the rules, the secretary shall use a strict

construction of the residence requirements set forth in this

section. For purposes of this section, a successful bid shall be

determined and accepted as follows:

(1) From an individual resident vendor who has resided in West

Virginia continuously for the four years immediately preceding the

date on which the bid is submitted or from a partnership,

association, corporation resident vendor, or from a corporation

nonresident vendor which has an affiliate or subsidiary which

employs a minimum of one hundred state residents and which has maintained its headquarters or principal place of business within

West Virginia continuously for four years immediately preceding the

date on which the bid is submitted, if the vendor's bid does not

exceed the lowest qualified bid from a nonresident vendor by more

than two and one-half percent of the latter bid, and if the vendor

has made written claim for the preference at the time the bid was

submitted: Provided, That for purposes of this subdivision, any

partnership, association or corporation resident vendor of this

state, which does not meet the requirements of this subdivision

solely because of the continuous four-year residence requirement,

shall be considered to meet the requirement if at least eighty

percent of the ownership interest of the resident vendor is held by

another individual, partnership, association or corporation

resident vendor who otherwise meets the requirements of this

subdivision, including the continuous four-year residency

requirement: Provided, however, That the Secretary of the

Department of Revenue shall promulgate rules relating to

attribution of ownership among several resident vendors for

purposes of determining the eighty percent ownership requirement;

or

(2) From a resident vendor, if, for purposes of producing or

distributing the commodities or completing the project which is the

subject of the vendor's bid and continuously over the entire term

of the project, on average at least seventy-five percent of the

vendor's employees are residents of West Virginia who have resided in the state continuously for the two immediately preceding years,

and the vendor's bid does not exceed the lowest qualified bid from

a nonresident vendor by more than two and one-half percent of the

latter bid, and if the vendor has certified the residency

requirements of this subdivision and made written claim for the

preference, at the time the bid was submitted; or

(3) From a nonresident vendor, which employs a minimum of one

hundred state residents or a nonresident vendor which has an

affiliate or subsidiary which maintains its headquarters or

principal place of business within West Virginia and which employs

a minimum of one hundred state residents, if, for purposes of

producing or distributing the commodities or completing the project

which is the subject of the vendor's bid and continuously over the

entire term of the project, on average at least seventy-five

percent of the vendor's employees or the vendor's affiliate's or

subsidiary's employees are residents of West Virginia who have

resided in the state continuously for the two immediately preceding

years and the vendor's bid does not exceed the lowest qualified bid

from a nonresident vendor by more than two and one-half percent of

the latter bid, and if the vendor has certified the residency

requirements of this subdivision and made written claim for the

preference, at the time the bid was submitted; or

(4) From a vendor who meets either the requirements of both

subdivisions (1) and (2) of this subsection or subdivisions (1) and

(3) of this subsection, if the bid does not exceed the lowest qualified bid from a nonresident vendor by more than five percent

of the latter bid, and if the vendor has certified the residency

requirements above and made written claim for the preference at the

time the bid was submitted; or

(5) From an individual resident vendor who is a veteran of the

United States Armed Forces, the Reserves or the National Guard and

has resided in West Virginia continuously for the four years

immediately preceding the date on which the bid is submitted, if

the vendor's bid does not exceed the lowest qualified bid from a

nonresident vendor by more than three and one-half percent of the

latter bid, and if the vendor has made written claim for the

preference at the time the bid was submitted; or

(6) From a resident vendor who is a veteran of the United

States Armed Forces, the Reserves or the National Guard, if, for

purposes of producing or distributing the commodities or completing

the project which is the subject of the vendor's bid and

continuously over the entire term of the project, on average at

least seventy-five percent of the vendor's employees are residents

of West Virginia who have resided in the state continuously for the

two immediately preceding years and the vendor's bid does not

exceed the lowest qualified bid from a nonresident vendor by more

than three and one-half percent of the latter bid, and if the

vendor has certified the residency requirements of this subdivision

and made written claim for the preference, at the time the bid was

submitted; or

(7) Notwithstanding any provisions of subdivisions (1), (2),

(3), (4), (5) or (6) of this subsection to the contrary, if any

nonresident vendor that is bidding on the purchase of commodities

or printing by the director or by a state department is also

certified as a small, women or minority-owned business pursuant to

section fifty-nine of this article, the nonresident vendor shall be

provided the same preference made available to any resident vendor

under the provisions of this subsection.

(b) If the Secretary of the Department of Revenue determines

under any audit procedure that a vendor who received a preference

under this section fails to continue to meet the requirements for

the preference at any time during the term of the project for which

the preference was received the secretary may: (1) Reject the

vendor's bid; or (2) assess a penalty against the vendor of not

more than five percent of the vendor's bid on the project.

(c) Political subdivisions of the state including county

boards of education may grant the same preferences to any vendor of

this state who has made a written claim for the preference at the

time a bid is submitted, but for the purposes of this subsection,

in determining the lowest bid, any political subdivision shall

exclude from the bid the amount of business occupation taxes which

must be paid by a resident vendor to any municipality within the

county comprising or located within the political subdivision as a

result of being awarded the contract which is the object of the

bid; in the case of a bid received by a municipality, the municipality shall exclude only the business and occupation taxes

as will be paid to the municipality: Provided, That prior to

soliciting any competitive bids, any political subdivision may, by

majority vote of all its members in a public meeting where all the

votes are recorded, elect not to exclude from the bid the amount of

business and occupation taxes as provided in this subsection.

(d) If any of the requirements or provisions set forth in this

section jeopardize the receipt of federal funds, then the

requirement or provisions are void and of no force and effect for

that specific project.

(e) If any provision or clause of this section or application

thereof to any person or circumstance is held invalid, the

invalidity shall not affect other provisions or applications of

this section which can be given effect without the invalid

provision or application, and to this end the provisions of this

section are severable.

(f) This section may be cited as the "Jobs for West Virginians

Act of 1990."





Note: WV Code updated with legislation passed through the 2015 Regular Session

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