Title 186 W. Va. C.S.R.

Purchase Of Commodities And Services from The Handicapped Purchase Of Commodities And Services from The Handicapped

Series 01 Rules And Regulations For Fair Market Price Determination

W. Va. Code R. § 186-1-1 General

1.1. Scope. -- The scope of these legislative rules involves the determination by the Committee for the Purchase of Commodities and Services from the Handicapped, of the fair-market price of commodities and services produced or supplied by workshops and rehabilitation facilities and offered for sale by the Central Non-Profit Agency "CNA", to the State and its political subdivisions.

1.2. Authority. -- W. Va. Code §5A-3A-5.

1.3. Filing Date. -- May 21, 2009.

1.4. Effective Date. -- July 1, 2009.

W. Va. Code R. § 186-1-2 Definitions

2.1. "CNA" -- means the Central Nonprofit Agency.

2.2. "Committee" -- means the Committee for the Purchase of Commodities and Services from the Handicapped.

2.3. "Commodities" -- means supplies, material, equipment, contractual services, and any other things used by or furnished to a spending unit.

2.4. "Costing" -- means the determination made by the CNA and qualified vendors of the monies needed to be expended to produce a commodity or provide a service. This determination includes the cost of raw materials, supplies, labor costs, capital expenditures, equipment maintenance, overhead, administrative costs, CNA service charges, delivery costs, and other usual, customary, and reasonable costs of manufacturing, marketing, and distribution of a commodity or service.

2.5. "Director" -- means the director of the purchasing division of the department of administration.

2.6. “Fair Market Price” -- means a reasonable price, set by the Committee and approved by the director, which permits the qualified vendor to recover the cost of raw materials, labor, capital, overhead, CNA service charges and delivery costs.

2.7. “Functional capability” -- means an individual’s ability to perform certain activities taking into consideration factors such as mobility, communication, self-care, self-direction, work tolerance or work skills. Functional capability can be determined on the basis of an evaluation of rehabilitation potential.

2.8. “Labor Costs” -- means the wages, fringe benefits (such as holiday, sick leave, insurance, etc.), and employment taxes paid by or on behalf of an employee.

2.9. “Non Profit Workshop”, “workshop”, and “rehabilitation facility” -- mean an establishment (a) where any manufacture or handiwork is carried on, (b) which is operated either by a public agency or by a cooperative or by a nonprofit private corporation or nonprofit association, in which no part of the net earnings thereof inures, or may lawfully inure, to the benefit of any private shareholder or individual, (c) which is operated for the primary purpose of providing remunerative employment to blind or severely disabled persons who cannot be absorbed into the competitive labor market, and (d) which shall be approved, as evidenced by a certificate of approval by the state division of rehabilitation services.

2.10. “Qualified Vendor,” -- means a non profit workshop, workshop or rehabilitation facility as described in 2.9 of these rules.

2.11. "Reserved or Set Aside" -- means commodities and services that are placed on the statewide contract.

2.12. "Scope of Work" -- means the specifications, time tables, worker qualifications, materials and shipping regulations for a particular commodity or service.

2.13. "Services" -- means a product by labor when that product is not considered a tangible commodity. Services include, but are not limited to, janitorial service, printing, food service, microfilming, temporary labor, and grounds maintenance.

2.14. “Severely disabled” -- means an individual who has a severe physical, visual or mental disability resulting from injury, disease, or congenital defect, which creates a limiting condition to the person’s functional capability to engage in competitive employment over an extended period of time.

2.15. "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.

2.16. “Statewide Contract” -- means for purposes of these rules a contract between the division of purchasing and the CNA that lists all the commodities and services the committee has approved for the program and has set a fair market price.

W. Va. Code R. § 186-1-3 Responsibilities of the Committee, the CNA, and state spending units

3.1. Committee responsibility.

3.1.a. The Committee, subject to approval by the Director of Purchasing, shall determine the fair market price of all commodities and services provided by qualified vendors and offered for sale to State spending units. As outlined in 186CSR3, the Committee shall determine that the commodities and services provided by the qualified vendor are suitable for sale to the state.

3.1.b. The Committee has a duty to exercise stewardship of the State's resources as well as to the interests of people with disabilities.

3.1.c. To determine the fair market price of commodities or services the Committee must give due consideration to the following factors:

3.1.c.1. The cost of the commodities or services in similar quantities if purchased by the state from a qualified in-state vendor engaged in the business of selling or providing similar commodities or services as determined by the director;

3.1.c.2. To the extent applicable, the amount paid by the State in any recent purchases of similar commodities or services in similar quantities, making due allowance for general inflationary or deflationary trends as determined by the director;

3.1.c.3. The actual cost to the qualified vendor of manufacturing or providing the commodity or service; and

3.1.c.4. The usual, customary, and reasonable costs of manufacturing, marketing, and distribution.

3.1.d. The Committee has a duty to ensure that employee wages be at least federal minimum wage. If a qualified vendor wishes to compensate an employee more than the federal minimum wage a detailed explanation of why and how they determined the wage must be submitted to the CNA on the appropriate Committee approved form(s).

3.1.e. The fair market price may include a reasonable charge for overhead and profit, however it may not, be excessive or unreasonable.

3.2. Responsibilities of the CNA.

3.2.a. The CNA is the designated agent to represent qualified vendors to the Committee and to spending units. As such, the CNA is authorized to negotiate with spending units the prices and terms of contracts procured in accordance with provisions of the W. Va. Code. Qualified vendors may make joint presentations with the CNA to the Committee or spending unit when a matter affecting the qualified vendor is under deliberation.

3.3. Responsibilities of state spending units.

3.3.a. When the Committee is attempting to make an initial fair market price determination, and when the service or commodity has been procured competitively in the past, the spending unit shall provide to the CNA a copy of the most recent solicitation and contract for the service or commodity within ten (10) working days of receipt of request. If the spending unit does not have copies of the most recent solicitation and contract for the service or commodity, the spending unit shall authorize the Purchasing Division to release to the CNA that information, if available, within ten (10) working days of receipt of request by the CNA.

3.3.b. The spending unit must notify the CNA, in writing, of specific changes in the scope of work or other conditions which will be required during the new service period.

W. Va. Code R. § 186-1-4 Pricing guidelines established by the Committee

4.1. The guidelines are as follows:

4.1.a. The prices included in the statewide contract are the fair market prices established by the Committee.

4.1.b. Unless otherwise provided, fair market prices for commodities include shipping and handling costs charged by private couriers.

4.1.c. The fair market price established by the Committee for a service or commodity on the statewide contract remains in effect until a new fair market price is established. In addition to the criteria established in §3.1.c. of these rules, the new fair market price shall be based on (1) any changes in the scope of work or in tasks required by the procuring agency, (2) changes in labor costs, and/or (3) an increase of other costs related to the contract.

4.1.d. The fair market price shall apply for the service period determined by the contract. Until a new fair market price has been approved, the qualified vendor must continue to provide the service or commodity in accordance with the scope of work which was the basis for establishing the old fair market price.

4.1.e. During the service period, the spending unit and CNA may, by mutual written agreement, make minor modifications in the scope of work and total price of the service, provided the total price adjustment resulting from such modifications during the normal service period does not affect the total fair market price approved by the Committee by more than twenty percent (20%) or two thousand dollars ($2,000) whichever is less. A report of the agreement shall be made to the Committee by the CNA. Changes in scope which result in a change of more than twenty percent (20%) or two thousand dollars ($2,000), of the total annual price shall be processed as a price change for approval by the Committee.

W. Va. Code R. § 186-1-5 Initial Fair Market Price Determination Procedures

5.1. The CNA shall use the following procedure to develop the initial fair market price to be recommended to the Committee.

5.1.a. The CNA shall request a copy of the most recent solicitation or contract (as required under 3.3.a. of this rule) of the service or commodity from the spending unit.

5.1.b. The CNA shall request a scope of work from the spending unit.

5.1.c. The qualified vendor must submit to the CNA all costs associated with fulfilling the contract on Committee approved forms and assist the CNA in establishment of the fair market price.

5.1.d. The CNA shall review and verify all costing information submitted by the qualified vendor.

5.1.e. Prior to submission to the Committee, the CNA shall submit a copy of the suggested fair market price to the spending unit. The spending unit is to notify the CNA of any objection in writing within ten (10) working days of receipt.

5.1.f. The CNA shall submit all costing information to the committee and comments from the spending unit using the appropriate forms(s) for approval.

5.1.f.1. Base Price -- Each time the committee determines the fair market price, a new base price is established.

5.1.f.2. The qualified vendor shall project costs for at least three (3) years in order to assist state spending units in future years.

5.1.g. The Committee shall review the proposal package submitted by the CNA to determine the fair market price. If additional information or clarification is needed by the committee the appropriate party(s) will be contacted.

5.1.h. The committee shall notify the CNA of the approved fair market price. The CNA shall notify the spending unit and qualified vendor of the committee’s action.

W. Va. Code R. § 186-1-6 Fair Market Price Modifications

6.1. The following procedure is used when either a spending unit requests a change in the scope of work/specifications or costing.

6.1.a. The qualified vendor or the spending unit shall submit to the CNA a request for a price change showing a breakdown of the change in the costs using forms provided by the Committee and other appropriate documentation as requested by the CNA or Committee; or

6.1.b. The qualified vendor or the spending unit shall submit to the CNA a request to change the scope of work for a current contract and the reason(s) for the change using forms approved by the Committee and appropriate documentation as requested by the CNA or Committee.

6.1.c. The CNA shall review and verify the breakdown of the changes in the qualified vendors costs.

6.1.d. Prior to submission of the fair market price change request to the Committee, the CNA shall submits a copy of the suggested fair market price to the spending unit. The spending unit is to notify the CNA of any objection in writing within ten (10) working days of receipt of the proposed price, otherwise concurrence with the proposed price shall be assumed.

6.1.e. The CNA shall submit the fair market price change request with supporting data to the Committee. The request is to be accompanied by the following:

6.1.e.1. A breakdown of changes in the qualified vendors cost using the committee approved form(s).

6.1.e.2. The objections and/or comments of the spending unit concerning the proposed fair market price change.

6.1.f. The Committee shall review the information submitted and establish the modified fair market price.

6.1.g. The Committee shall transmit the notice of the approved modified fair market price to the CNA. The CNA shall notify the spending unit and the qualified vendor of the Committee's action.

W. Va. Code R. § 186-1-7 Miscellaneous provisions

7.1. Qualified vendors who fail to avail themselves of the protection of W. Va. Code §5A-3-10, which exempts certain workshops and rehabilitation facilities from competitive bidding, may bid competitively on commodities or services without the involvement of the CNA or Committee, provided the commodities or services have not been "reserved" on the statewide contract.

7.2. A qualified vendor may elect to discontinue consideration of a project or to discontinue services if they cannot recover their production costs. The qualified vendor must give the CNA and the committee at least sixty (60) days written notice of their intent to discontinue service.

186CSR1

186CSR1

Series 02 Violations And Grievances

W. Va. Code R. § 186-2-1 General

1.1. Scope. -- The scope of these procedural rules involves the handling of violations and grievances by the Committee for the Purchase of Commodities and Services from the Handicapped, "Committee."

1.2. Authority. -- W. Va. Code '5A-3A-4.

1.3. Filing Date. -- September 18, 1990.

1.4. Effective Date. -- October 19, 1990.

W. Va. Code R. § 186-2-2 Violations

2.1. Generally. -- When any regulation of the Committee or any of the applicable sections of the West Virginia Code has been violated, the following actions may be taken by the Committee:

2.1.1. In the event an alleged violation by a State purchasing agent is presented to the Committee, the agent shall be provided with information to correct the violation. If the alleged violation is deemed serious, the Committee, or a designee of the Committee, may conduct a conference with all parties involved, and report the findings to the Director of Purchasing for appropriate action.

2.1.2. In the event of an alleged violation by a participating workshop or rehabilitation facility, the Committee shall notify the participating workshop or rehabilitation facility of the violation and afford it an opportunity to submit a statement of facts and any other pertinent information.

2.1.2.a. Upon receipt of the statement of facts and any other pertinent information from the participating workshop or rehabilitation facility, the CNA shall also submit a statement of facts and any other pertinent information to the Committee, if requested.

2.1.2.b. The Committee shall issue a ruling on the materials submitted, unless a hearing is requested. Upon request that a hearing be held, the hearing shall be conducted in accordance with Section 4 of these regulations.

2.2. Violations by CNA. -- In the event of an alleged violation of the regulations of the Committee or the pertinent provisions of the West Virginia Code or in matters of serious breach of duty by the Central Nonprofit Agency, "CNA", the Committee may recommend appropriate disciplinary action to the Director of the Division of Rehabilitation Services.

2.3. Cancellation of Contract.

2.3.1. A contract with a workshop or rehabilitation facility may be canceled by the CNA for non-compliance with the terms and conditions of the contract, such as failure to meet State specifications, quality assurance standards, quantity or delivery requirements, or payment of obligations to materials vendors or the CNA. Prior to any contract cancellation, the facility shall be informed of the problem and given a reasonable period of time to correct the non-compliance. A facility may protest to the Committee a cancellation by the CNA in the form of a grievance.

2.3.2. If a contract with a workshop or rehabilitation facility has been canceled under this Section, the facility may present evidence to the CNA that it is capable of meeting the terms and conditions of the contract, that it has paid any and all damages incurred by the State or amounts due to vendors, and that necessary steps have been taken to avoid failures in the future. The CNA must document the readiness or capability of the facility to resume production according to the terms and conditions of the contract and present same to the Committee for resolution before the contract may be resumed.

W. Va. Code R. § 186-2-3 Grievances

3.1. Presentation of Grievances Regarding Actions of Committee by Workshop or Rehabilitation Facility.

3.1.1. A workshop or rehabilitation facility with a grievance regarding actions of the Committee under the West Virginia Code or it regulations should discuss the issue with the Chairman of the Committee. If the matter is not satisfactorily resolved within forty-eight (48) hours after the request is made, the complaining agency or the CNA may submit written appeal to the Committee Chairman who will refer the matter to the full Committee for resolution. Upon receipt of the appeal, the Committee shall decide whether to grant a hearing or support the decision rendered by the Chairman at its next regular meeting.

3.1.2. All grievances, responses and appeals to the Committee shall be in writing. In the event a hearing is granted, the hearing shall be conducted in accordance with the provisions of Section 4 of these regulations.

3.2. Presentations of Grievances Regarding Actions of the CNA by Workshop or Rehabilitation Facility.

3.2.1. A workshop or rehabilitation facility with a complaint or grievance regarding actions of the CNA under the West Virginia Code or regulations of the Committee should discuss the matter with the Executive Director of the CNA. If the matter is not satisfactorily resolved within forty-eight (48) hours after the request is made, the workshop or rehabilitation facility may submit written appeal to the CNA Executive Committee. If the matter is not resolved within ten (10) days at this level, the matter may be appealed to the Committee for resolution. Upon receipt of the appeal, the Committee shall decide whether to grant a hearing or support the decision of the CNA management or Executive Committee.

3.2.2. All grievances, responses and appeals to the Committee shall be in writing. In the event the Committee grants a hearing, the hearing shall be conducted in accordance with the provisions of Section 4 of these regulations.

3.3. Presentations of Grievances of Actions of CNA by Purchasing Agencies or Purchasing Division. -- In the event of a grievance against the action of the CNA by a Purchasing Agency, "PA", or the Purchasing Division, "PD", the PA or PD shall first attempt to resolve the matter with the CNA. If the matter is not resolved within ten (10) days, the PA or PD shall notify the Committee in writing of its position, requesting a hearing, if desired, and sending a copy of the written materials to the Director of Purchasing. The Committee shall notify the CNA of the complaint and afford it an opportunity to submit a statement of facts and other pertinent information. Upon receipt of the statement of facts and other pertinent information from both parties, the Committee shall conduct a hearing in accordance with Section 4 of these regulations.

W. Va. Code R. § 186-2-4 Hearings

4.1. Generally.

4.1.1. In the event a hearing is requested, the Committee shall determine whether a hearing shall be granted. The Committee shall have the authority to refuse to review for lack of merit.

4.1.2. In the event a hearing is granted, the Committee, or a hearing examiner designated by the Committee, shall conduct the hearing and make findings of fact and conclusions of law in issuing its ruling. If the hearing is conducted by a hearing examiner, the ruling of the examiner shall not become effective until approved by the Committee.

4.1.3. Hearings shall consider written and oral presentations, as well as objective, documented evidence supporting the grievance and attempt(s) to seek resolution. A record of the grievance hearing shall be taken by the Recorder of the Committee, shall include copies of all written evidence submitted, and shall be duly filed with the Recorder. Appeals of rulings of the Committee shall be made in accordance with the West Virginia Code.

4.2. Rulings. -- The Committee shall issue its ruling in writing within ten (10) days following the conclusion of the hearing, unless otherwise stipulated.

186CSR2

Series 03 Rules And Regulations Statewide Contract

W. Va. Code R. § 186-3-1 General

1.1. Scope. -- The scope of this legislative rule includes the determination and revision of the statewide contract by the Committee for the Purchase of Commodities and Services from the Handicapped, and the Director of the Purchasing Division of the Department of Administration.

1.2. Authority. -- W. Va. Code §5A-3A-5.

1.3. Filing Date. -- May 21, 2009.

1.4. Effective Date. -- July 1, 2009.

W. Va. Code R. § 186-3-2 Definitions

The following words and terms, when used in these regulations, shall have the following meaning, unless the context clearly indicates otherwise.

2.1. "Allocation" -- means the action taken by the CNA in designating the qualified vendor(s) that will produce definite quantities of commodities or perform specific services upon receipt of an order.

2.2. "CNA" -- means the Central Nonprofit Agency.

2.3. "Committee" -- means the Committee for the Purchase of Commodities and Services from the Handicapped.

2.4. "Commodities" -- means supplies, material, equipment and any other items used by or furnished to a spending unit.

2.5. "Contractual services" -- includes telephone, telegraph, electric light and power, water and similar services.

2.6. "Costing" -- means the determination made by the CNA and qualified vendors of the monies needed to produce a commodity or provide a service. This determination includes the cost of raw materials, supplies, labor costs, capital expenditures, equipment maintenance, overhead, administrative costs, CNA service charges, delivery costs, and other usual, customary, and reasonable costs of manufacturing, marketing, and distribution of a commodity or service.

2.7. "Director" -- means the director of the purchasing division of the department of administration.

2.8. “Fair Market Price” -- means a reasonable price, set by the Committee and approved by the director, which can recover for the qualified vendor the cost of raw materials, labor, capital, overhead, CNA service charges and delivery costs.

2.9. "Non Profit Workshop, workshop, and rehabilitation facility” -- mean an establishment (a) where any manufacture or handiwork is carried on, (b) which is operated either by a public agency or by a cooperative or by a nonprofit private corporation or nonprofit association, in which no part of the net earnings thereof inures, or may lawfully inure, to the benefit of any private shareholder or individual, (c) which is operated for the primary purpose of providing remunerative employment to blind or severely disabled persons who cannot be absorbed into the competitive labor market, and (d) which shall be approved, as evidenced by a certificate of approval by the state division of rehabilitation services.

2.10. “Qualified Vendor” -- means a non profit workshop, workshop or rehabilitation facility as described in 2.9 of this rule.

2.11. "Reserved or Set Aside" -- means commodities and services that are placed on the statewide contract.

2.12. "Services" -- means a product by labor when that product is not considered a tangible commodity. Services include, but are not limited to, janitorial service, printing, food service, microfilming, temporary labor, and grounds maintenance.

2.13. “Small Business” -- means any person, firm, corporation, partnership or association actively engaged in business in the State of West Virginia who employs no more than fifty (50) people. Companies which are affiliated companies or which are eligible to file a combined tax return for state tax purposes shall be considered one employer.

2.14. "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.

2.15. “Statewide Contract” -- for purposes of these rules a contract between the division of purchasing and the CNA which lists all the commodities and services the committee has approved for the program and has set a fair market price.

W. Va. Code R. § 186-3-3 Statewide Contract

3.1. The CNA must provide to the Committee a list of commodities and services available from qualified vendors for consideration for the statewide contract. The following information must be provided to the committee prior to making such determination:

3.1.a. All costs and pricing information for use in the determination of the fair market price by the Committee.

3.1.a.1. For commodities identify the item description, the specification identification, the lead time for purchase of materials, the delivery or completion time, the production or preparation time, the price, the state identification numbers required and other pertinent information considered necessary by the procuring agencies, purchasing division, or CNA.

3.1.a.2. For services identify the type of service to be provided, the area(s) and/or spending units to be served, as well as information on processing, the lead time for purchase of materials, the delivery or completion time, production or preparation time, the state identification numbers and other pertinent information.

3.1.b. When the current vendor is a small business and the individual service or commodity in question comprises 33% or more of the total annual sales of that business, the current vendor will not be displaced, unless the agency requests a change in a vendor or the vendor leaves the contract voluntarily. The CNA shall provide the committee with the name(s) of the small business(s) and the percentage of the impact to the business(s) if the commodity or service is lost.

3.1.b.1. The committee shall provide a 60 day notification to a current vendor of a service or commodity prior to consideration for placement on the statewide contract.

3.1.b.2. The current vendor may appear before the committee prior to the commodity or service being placed on the statewide contract.

3.2. The committee shall approve all commodities or services prior to their placement on the statewide contract.

3.3. The committee shall transmit its recommendation(s) to the director, who has final approval. If the director wants more information from the committee he/she may request it.

3.4. Commodities or services placed on the statewide contract must be purchased through the CNA if the spending unit is mandated to follow the provisions of W. Va. Code §5A-3A-1 et seq.

3.4.a. If any state spending unit intends to obtain any commodity or service, it must determine whether the commodity or service is on the statewide contract. If the needed commodity or service is on the statewide contract it shall be obtained from the contract.

3.4.b. Commodities or services placed on the statewide contract are “reserved” for the committee to assign.

3.4.c. Qualified vendors who fail to avail themselves of the protection of W. Va. Code §5-3A-10, which exempts certain workshops and rehabilitation facilities from competitive bidding, may bid competitively on commodities or services without the involvement of the CNA or Committee, provided the commodities or services have not been "reserved" on the statewide contract.

3.5. Other Institutions with Preference on the Statewide Contract. -- Except for commodities and services provided by qualified vendors under contract with the State as of July 1, 1990, commodities or services meeting state specifications which are under substantial development or in production by any other institution with preference may be placed on the procurement list with the approval of the Director of Purchasing.

3.5.a. The CNA may negotiate agreements regarding contract reservation with the Prison Industries subject to final approval by the Committee and the Director of Purchasing. The Committee may enter into direct negotiations with the Commissioner of Corrections, The Director of Purchasing and the Director of the Budget to jointly agree on procedures to coordinate the provisions of W. Va. Code §28-5B-1 et seq., the Prison Made Goods Act, and W. Va. Code §5A-3A-1 et seq. In the event of a conflict between institutions with purchasing preference under the West Virginia Code, the Director of Purchasing shall make a final determination as to which institution may be placed on the procurement list for a specific commodity or service.

W. Va. Code R. § 186-3-4 Development of Commodities and Services for the Statewide Contract

4.1. When two (2) or more qualified vendors have the ability to produce the same or similar commodities or services, the Committee has the discretion to establish the priority of commodities or services for inclusion on the statewide contract.

4.2. The qualified vendor first proposing a commodity or service through the CNA for inclusion on the statewide contract is given first choice to produce a commodity or provide a service.

4.3. Commodities or services to be considered for development may originate from a qualified vendor, the CNA, or a State spending unit.

4.3.a. A qualified vendor must submit to the Committee documentation evidencing product development within ninety (90) days, in order to be given priority for set aside.

4.3.a.1. The qualifying vendor proposing a commodity or service shall complete all action necessary to place the commodity or service on the statewide contract within nine (9) months after the request that the commodity or service be set aside. If within nine (9) months the qualified vendor has not completed action, the committee may reassign the commodity or service to another qualified vendor capable of producing the commodity or performing the service. Provided, that the qualified vendor is prepared to take prompt action to submit a proposal to place the commodity or service on the statewide contract. Priority on reassignment is determined by the order in which the qualified vendor proposed the commodity or service for addition to the statewide contract.

4.3.b. When originating from the CNA, the CNA shall distribute appropriate information about the commodity or service in a fair and equitable manner to all qualified vendors. Interested qualified vendors must provide the CNA with the information requested, as per the guidelines provided by the CNA.

4.3.c. Requests directly from the State spending units shall be in accordance with Sections 4.3.a. or 4.3.b. of this rule, as is appropriate.

4.4. The Committee assigns commodities or services to the CNA or approved qualified vendors on the basis of Sections 4.1 and 4.2 of this rule.

4.5. The Committee may require a pre- or post-production sample for the purpose of determining production capability and quality of products, at any time.

4.6. In any case where a qualified vendor sells commodities or service to a spending unit which has been reserved on the statewide contract without prior Committee approval, or any qualified vendor sells items at a price other than at the statewide contract price, the Committee may determine it is no longer eligible for participation in the program provided for under W. Va. Code §5A-3-1 et seq.

W. Va. Code R. § 186-3-5 Distribution of Orders

5.1. The CNA shall distribute orders from the State only to qualified vendors approved by the Committee to produce the commodity or to perform a service on the statewide contract.

5.2. When the Committee has approved two or more qualified vendor’s to produce a specific commodity, or to perform a particular service, the CNA shall distribute orders among those facilities in accordance with an assignment policy approved by the committee.

W. Va. Code R. § 186-3-6 Exceptions

6.1. The Director of Purchasing, upon advice of the Committee or the CNA, may grant exceptions to the requirement that commodities or services listed on the statewide contract be purchased from qualified vendors in any situation where the commodity or service so produced or provided does not meet the reasonable requirements of the spending unit or cannot be reasonably provided by a qualified vendor. No spending unit may evade the intent of this section when required commodities or services are reasonably available from qualified vendors.

6.1.a. The CNA shall grant an exception in writing for a spending unit, to procure from commercial sources commodities or services on the statewide contract when the qualified vendor cannot furnish a commodity or service within the time period specified by the spending unit or when the quantity involved is insufficient for economical production or provision by the qualified vendor. The CNA shall report exceptions to the committee.

6.1.b. A reasonable time shall be given to the CNA to determine whether a qualified vendor can produce and supply the commodity or service.

W. Va. Code R. § 186-3-7 Quality of Commodities and Services

7.1. Commodities furnished by qualified vendors shall be manufactured in strict compliance with government specifications. Where no specifications exist, commodities produced shall be of the highest quality and comparable to similar items available on the commercial market. The CNA and qualified vendors shall inspect commodities utilizing nationally recognized methods and procedures for sampling and inspection.

7.2. Services provided by qualified vendors are performed in accordance with government specifications and standards. Where no specifications or standards exist, the service is performed in accordance with good commercial practices.

W. Va. Code R. § 186-3-8 Specification Changes

8.1. Specifications cited in the statewide contract may be revised when needed to keep current with industry changes and government needs.

8.2. When a spending unit is changing the design or construction of a commodity on the statewide contract, the Committee and CNA shall be notified of the contemplated change prior to the effective date. A reasonable time shall be given to qualified vendors in which to redesign or retool and incorporate the change.

W. Va. Code R. § 186-3-9 Production of Commodities and Value Added

9.1. Qualified vendors shall seek broad competition in the purchase of raw materials and components used in the commodities and services provided to the State. Qualified vendors shall consult with the CNA before entering into multi-year contracts for raw materials or components used in the commodities and services provided to the State.

9.2. In the production of commodities, a qualified vendor shall make a value added contribution to the commodity by the reforming of raw materials, package modification, assembly of components, installation, warehousing, handling or a combination thereof. Shipments of commodities from a non-certified provider directly to the State may not be sold under the statewide contract.

W. Va. Code R. § 186-3-10 Allocation of Orders

10.1. When a qualified vendor is unable to meet specification or delivery requirements, the CNA may allocate orders to another qualified vendor. Notice of this action is given to the Executive Secretary of the Committee.

10.2. Purchase Orders.

10.2.a. Purchase orders shall contain:

10.2.a.1. For commodities -- qualified vendor's name, address and federal tax identification number; commodity class and number; the latest specifications, quantity, unit price, item description; and the place and time of delivery.

10.2.a.2. For services -- the type and location of service required; the latest specifications; the work to be performed; the estimated volume and time for completion.

10.2.b. Spending units shall issue purchase orders with sufficient time for the CNA to respond and for the order to be allocated to a qualified vendor.

10.2.c. The CNA shall make allocations to the appropriate qualified vendor upon receipt of an order from the spending unit.

10.2.d. The CNA shall promptly acknowledge purchase orders. When a purchase order provides a delivery schedule which cannot be met, the CNA shall request a revision, which the spending unit should grant, if reasonable, or the CNA shall notify the Director who may issue a purchase exception authorizing procurement from commercial sources.

10.2.e. The CNA shall keep the spending unit informed of any changes in the lead time experienced by a qualified vendor in order to keep to a minimum requests for extensions once an order is placed by an ordering office. Where, due to unusual conditions, an order does not provide sufficient lead time, the CNA may request an extension of the delivery or completion date which should be granted, if reasonable. If extension of the delivery or completion date is not reasonable, the spending unit shall first notify the CNA to reallocate or to request an exception authorizing procurement from commercial sources.

W. Va. Code R. § 186-3-11 Adjustment or Cancellation of Orders

11.1. When the CNA, or qualified vendor fails to comply with the terms and conditions of a government order, the spending unit shall make reasonable efforts to negotiate adjustments before taking action to cancel the order. When a government order is cancelled for failure to comply with its terms and conditions, the CNA is notified, and if practical, requested to reallocate the order. The CNA shall notify the Committee of any cancellation of an order and the reasons for cancellation.

W. Va. Code R. § 186-3-12 Shipping and Packing

12.1. Commodities shall be shipped freight (FOB destination). Delivery is accomplished when a shipment is received and accepted by the spending unit. Time of delivery is the date stated on the spending units purchase order.

12.2. Standard packing information shall be provided in the order, unless otherwise stated in the contract.

12.3. Subject to approval by the Committee, the CNA, when it considers necessary, may request payment from procuring agencies for set-up costs or costs incurred related to unusual delivery requests of commodities.

12.4. Unless otherwise provided, routine correspondence or inquiries concerning deliveries of commodities being shipped from or performance of service by a qualified vendor is to be maintained by the CNA.

W. Va. Code R. § 186-3-13 Payments

13.1. Payments for commodities and services of a qualified vendor are due immediately after receipt of the shipment or receipt of a correct invoice or voucher and acceptance by the spending unit.

186CSR3

186CSR3

Series 04 Rules For Qualifications For Participation

W. Va. Code R. § 186-4-1 General

1.1. Scope. -- The scope of this legislative rule is to set forth the qualifications for participation under the provisions of W. Va. Code §5A-3-10.

1.2. Authority. -- W. Va. Code §5A-3A-5.

1.3. Filing Date. -- May 21, 2009.

1.4. Effective Date. -- July 1, 2009.

W. Va. Code R. § 186-4-2 Definitions

The following words and terns, when used in this rule, have the following meanings, unless the context clearly indicates otherwise:

2.1. “Eligible Rehabilitation and Employment Oriented Organizations” -- means any nonprofit workshop or Community Rehabilitation Program (Qualified CRP) that directly provides or facilitates the provision of vocational rehabilitation services to individuals with disabilities to enable those individuals to maximize their opportunities for employment, including career advancement.

2.2. "CNA" -- means the Central Nonprofit Agency.

2.3. "Committee" -- means the Committee for the Purchase of Commodities and Services from the Handicapped.

2.4. “Commodities” -- means supplies, materials, equipment, contractual services, and any other articles or things used by or furnished to a department, agency or institution of state government.

2.5. “DRS” -- means the West Virginia Division of Rehabilitation Services.

2.6. “Functional capability” -- means an individuals ability to perform certain activities taking into consideration factors such as mobility, communication, self-care, self-direction, work tolerance or work skills. Functional capability can be determined on the basis of an evaluation of rehabilitation potential.

2.7. “Non-profit Workshops” -- shall be defined as stated in W. Va. Code §5A-1-1 and shall also include Qualified Community Rehabilitation Programs.

2.8. “Qualified Community Rehabilitation Programs (CRP)” -- means a Community Rehabilitation Program that has been approved as an acknowledged vendor of rehabilitation services by the Division of Rehabilitation Services, and has been approved as a participant in the state use program by the Committee for the Purchase of Commodities and Services from the Handicapped, as evidenced by meeting all program qualifications, including all appropriate state and federal regulations.

2.9. “Services" -- means a product by labor when that product is not considered a tangible commodity. Services include, but are not limited to, janitorial service, printing, food service, microfilming, temporary labor, and grounds maintenance.

2.10. “Worker with Disabilities” -- means an individual who has a severe physical, visual or mental disability resulting from injury, disease, or congenital defect, which creates a limiting condition to the person’s functional capability to engage in competitive employment over an extended period of time.

W. Va. Code R. § 186-4-3 Qualification for Program Participation

3.1. Requirements. -- In order for a Qualified Community Rehabilitation Program to qualify for participation in the program under the provisions of W. Va. Code §5A-3-l0, it shall file the following documents with the CNA on behalf of the Committee:

3.1.a. An appropriately signed application, which includes the following attachments:

3.1.a.1. A copy of the Internal Revenue Service letter indicating that the Qualified CRP has been accepted as a nonprofit entity for taxation purposes, or is a state agency which operates in the interest of individuals with disabilities, and that no part of its net income inures to the benefit of any shareholder or other individual.

3.1.a.2. A copy of the articles of incorporation showing date of filing and signature of the appropriate state official, if the Qualified CRP is incorporated.

3.1.a.3. A copy of the Qualified CRP’s by-laws showing certification by an officer of the corporation.

3.1.a.4. The current certificate(s) issued by the US Department of labor authorizing wage payments pursuant to 29 U.S.C. §214(c), if commensurate wages are paid.

3.1.a.5. A copy of the letter showing that the Qualified CRP is registered and in good standing with the Secretary of State as a charitable organization pursuant to WV Code §29-19-1.

3.1.a.6. A current listing of the officers of the corporation with names, addresses and telephone numbers.

3.2. As a part of the application the Qualified CRP will further attest to and adhere to the following conditions:

3.2.a. Recognize the Central Nonprofit Agency has the responsibility to represent qualified CRP’s in dealing with state purchasing agents and other bodies charged with purchasing responsibilities.

3.2.b. Maintain an ongoing placement program which includes at least pre-admission evaluation and an annual review to determine each worker’s capability for normal competitive employment and maintains a liaison with appropriate community services for the placement in such employment of any of its workers qualifying for placement.

3.2.c. Furnish commodities and/or services in strict compliance with contract specifications.

3.2.d. Make appropriate records available for inspection by the Committee or the CNA at any reasonable time.

3.2.e. Maintain records of direct labor hours performed and wages earned by each worker and reported on the approved quarterly report form(s) from the CNA.

3.2.f. Comply with the applicable occupational health and safety standards prescribed by the US Department of Labor and the State of West Virginia.

3.2.g. Maintain a file on each worker with a disability which includes reports of pre-admission evaluation, and annual re-evaluation of the individual’s capacity for normal competitive placement, prepared by a person or persons qualified by training and/or experience to evaluate the work potential, interest, aptitudes and abilities of workers with disabilities. This file will also include documentation of disability, and periodic notes related to that individual progress towards competitive placement.

3.2.h. Make full disclosure to the CNA of all facts related to the costs, overhead, or profits in the production of a commodity or provision of a service.

3.2.i. Maintain an average of 75% workers with disabilities on the sum of all state use contracts. This will be measured by the total of direct labor hours. If this condition cannot be maintained, a plan of correction must be submitted to the committee for their approval, which will establish this 75% level of utilization.

3.3. Notification. -- The Committee shall review the application letter and the DRS approval letter, and, if acceptable, shall notify the workshop or rehabilitation facility through the CNA of its eligibility to participate in the program.

3.4. Revocation. -- The Committee may revoke the rights of any Qualified Community Rehabilitation Program to participate if, at any time, the Committee determines the Qualified Community Rehabilitation Program is not in compliance with all the requirements in Section 3.1 of this rule.

3.4.a. If the CNA recommends the denial of approved status to a Qualified Community Rehabilitation Program, or the revocation or suspension of such status, for failure to comply with this rule or for other good cause, the CNA is to refer the matter to the Committee for review.

186CSR4

186CSR4

Series 05 Rules For Monitoring The Central Nonprofit Agency

W. Va. Code R. § 186-5-1 General

1.1. Scope. -- The scope of this procedural rule involves the monitoring of the Central Nonprofit Agency by the Committee for the Purchase of Commodities and Services from the Handicapped in relation to the Central Nonprofit Agency’s compliance to statutory requirements, contract requirements and other performance standards set forth by the Committee for the Purchase of Commodities and Services from the Handicapped and in other sections of the code and rules.

1.2. Authority. -- W. Va. Code §5A-3A-4.

1.3. Filing Date. -- May 21, 2004.

1.4. Effective Date -- June 21, 2004.

W. Va. Code R. § 186-5-2 Definitions

1. “Committee” - means the Committee for the Purchase of Commodities and Services from the Handicapped 2) “CNA” - means the Central Nonprofit Agency 3) “Program fee” - means the fee charged by the Central Nonprofit Agency for the administration and implementation of the program as referred to as the “CNA Service Charge” in rule 186CSR1.

2. “CRP” - also known as a Community Rehabilitation Program - means a nonprofit workshop as defined in W. Va. Code §5A-1-1.

3. “Persons With Disabilities” - means “blind or severely disabled persons” as noted in §5A-1-1; “disabled persons” as noted in W. Va. Code §5A-3A-1; “handicapped citizens” and “handicapped” as noted in W. Va. Code §5A-3A-4(b) and “handicapped workers” as noted in W. Va. Code §5A-3A-4(d).

4. “State Use Program” - means the program as defined in W. Va. Code §§5A-3-10- and Section 5A-3A-1 et seq.

W. Va. Code R. § 186-5-3 Committee Responsibilities

3.1. The Committee will develop performance standards annually, prior to the end of the calender year, for the CNA for the purpose of advancing the employment of persons with disabilities through the state use program.

3.2. The Committee will have oversight over the revenues and expenses associated with the program fee to assure that said funds are used for the promotion, development and operation of the state use program and advancing the employment of persons with disabilities.

3.3. The Committee shall develop guidelines for the assignment of contracts associated with the state use program which shall be followed by the central non-profit agency.

W. Va. Code R. § 186-5-4 CNA Responsibilities

Annually the CNA will develop and review an action plan to achieve and implement the performance standards as set forth by the Committee. The plan may include, but not be limited to goals for the following;

(1) Number of persons with disabilities to be employed (2) Sales of commodities and services (3) Wages paid to persons with disabilities (4) Hours worked by persons with disabilities (5) Responsiveness to customer inquiries and/or complaints (6) Quality standards for participating CRPs (7) Training activities to increase CRP capability and efficiency (8) Financial Controls

W. Va. Code R. § 186-5-5 Compliance To ensure compliance with the CNA action plan the Committee will conduct an ongoing review with an annual summarial review of the CNA's abilities to meet the performance standards and the implementation of the action plan. The Committee will forward a copy of this annual review to the CNA’s governing body and to the Director of the West Virginia Division of Rehabilitation Services. At the Committee’s sole discretion, it will make a recommendation to the Director of the West Virginia Division of Rehabilitation Services regarding the current organization’s status as the approved CNA

W. Va. Code R. § 186-5-6 Annual Budget The CNA shall provide to the Committee an annual budget on or before the Committee’s May meeting, which reveals all revenues, expenses and earnings prior to the beginning of the CNA’s fiscal year that must be approved by the Committee. This budget shall detail how the program fee is being allocated to directly support the program and what amounts are being devoted to expanding direct services to programs that enhance employment of persons with disabilities and what percentage of funds will be used for administrative overhead, such as salaries. Any revisions to said budget must be approved by the Committee in advance of the budgetary revision and transfer of funds

W. Va. Code R. § 186-5-7 Purpose of Annual Review The CNA will make available to the Committee for the purpose of conducting its annual review of the CNA the following:

(1) An annual action plan prior to the beginning of the fiscal year which will meet or exceed Committee performance standards.

(2) Documented outcomes of the CNA’s annual plan at the conclusion of the fiscal year.

(3) An audited financial statement at the conclusion of the fiscal year. It will include details on cash balances, earnings attributable to the program fee for the program, accounts receivable, accounts payable, cash reserves, line of credit borrowing, interest payments, bad debts, administration overhead and any detailed supporting documentation requested by the Committee.

(4) Monthly reports of categories of sales and accounts receivable in a reporting format approved by the Committee.

(5) Quarterly reports of its contracted sales of commodities and services, wages paid, and hours worked by persons with disabilities for all CRPs participating in the program.

W. Va. Code R. § 186-5-8 Independent Audit The Committee may request the appropriate office of State government to perform an independent audit of the service fee set for the CNA and the financial condition of the CNA

W. Va. Code R. § 186-5-9 Community Rehabilitation Program

A person or organization may not operate a CRP and at the same time be approved by the director of the West Virginia Division of Rehabilitation Services as the CNA.

In the event of an emergency situation, the CNA may only temporarily maintain a contract until another qualified CRP is assigned and any revenues shall benefit the state use program as directed by the Committee.

W. Va. Code R. § 186-5-10 State Use Program The services provided through the provisions of the state use program through the CNA shall be rendered impartially to all CRPs approved by the Committee in accordance with qualifications set forth in the legislative rules

W. Va. Code R. § 186-5-11 Review

The Committee must annually review the program fees charged by the CNA. The maximum charged by the CNA for its services must be computed as a percentage of the selling price of the commodity or service, and must be included in the selling price or contract price. The program fee must be remitted to the CNA at the time of payment by the customer. The fee approved by the Committee is for the management, promotion, and adherence to the requirements of the CNA as referred in applicable West Virginia Code and Legislative Rules.

W. Va. Code R. § 186-5-12 Formal Recommendation

The Committee may issue a formal recommendation to the Director of the West Virginia Division of Rehabilitation Services to approve an alterative CNA, or to issue an emergency approval of a new organization to serve as the program’s CNA if any of the following occur;

(1) The current CNA ceases operations (2) The CNA gives notice that it cannot accomplish the performance standards set forth by the Committee or implement the action plan (3) The Committee’s review of the CNA results in disapproval of its performance.

186CSR5

186CSR5

186CSR5