West Virginia Code of State Rules Agency 186 - Purchase Of Commodities And Services from The Handicapped
1. Overview of West Virginia Code of State Rules – Agency 186
The West Virginia Code of State Rules, Agency 186, is a set of administrative rules that govern the state’s policy on purchasing commodities and services from individuals with disabilities. These rules are designed to provide economic opportunities for people with disabilities while ensuring the effective and equitable distribution of state contracts.
This program allows eligible nonprofit organizations and individuals with disabilities to provide goods and services to the state, often at a competitive advantage or with specialized pricing considerations, as part of West Virginia’s commitment to promoting employment for disabled individuals.
2. General Purpose of the Rules (Agency 186)
The purpose of Agency 186 is to create a framework through which state agencies can purchase commodities and services from entities that employ individuals with disabilities. The rules support affirmative action to help empower disabled individuals, enhance their independence, and encourage the development of specialized skills.
Key points:
The program is based on Section 5 of the West Virginia Code, which mandates that state agencies give priority to individuals with disabilities in the procurement of goods and services.
It supports nonprofit organizations and businesses that employ or are managed by individuals with disabilities.
3. Eligibility for Participation
Eligible Entities:
Nonprofit organizations and businesses where at least 75% of the workforce is made up of individuals with disabilities.
The purchasing entities must be certified by the West Virginia Division of Rehabilitation Services or another recognized state entity, to be considered eligible.
Eligibility Criteria:
Product or service: The goods or services offered must be commercially available and of acceptable quality to meet the needs of the state.
Employment of disabled individuals: The entity must demonstrate that it provides meaningful, productive employment opportunities to people with disabilities.
4. Purchasing Process
The rules establish a competitive bid process, where state agencies can purchase goods and services from eligible providers. The goal is to ensure that state funds are used efficiently while meeting the state’s commitment to providing opportunities for individuals with disabilities.
Key Steps in the Purchasing Process:
Identification of Needs:
The state agency first identifies the products or services needed for its operations.
Procurement Process:
The state agencies are required to solicit bids or proposals from eligible entities that participate in the program.
Competitive pricing is an essential factor, but agencies must also consider the ability of the entity to meet specific needs (e.g., quality, timeliness).
Evaluation and Award:
Once proposals are received, they are evaluated based on criteria such as cost, experience, and compliance with the rules.
If a bid from a disabled-owned entity meets all necessary requirements, that entity is given preference or priority in the awarding of the contract.
Purchase Agreement:
Following the selection process, the state agency enters into a purchase agreement with the winning entity. The agreement will specify the terms of delivery, payment, and any quality or performance standards.
5. Rules Governing the Program (Agency 186)
Rule 186-1: Definitions and General Provisions
Defines terms such as “commodities”, “services”, “eligible organizations”, and “handicapped individual”.
Clarifies the responsibility of state agencies to prioritize purchases from eligible entities.
Rule 186-2: Procurement and Bidding Procedures
Provides a clear process for submitting bids, including procedures for requesting proposals, timelines, and selection criteria.
Stipulates the necessity of ensuring fair competition and compliance with applicable state procurement laws.
Rule 186-3: Certification and Eligibility of Vendors
Outlines the certification process for eligible vendors, including necessary documentation that must be submitted.
Describes the audit and monitoring procedures to ensure compliance with eligibility criteria and the maintenance of workforce composition.
Rule 186-4: Delivery and Performance Standards
Details the expectations for the timely delivery of goods and services and performance criteria for vendors.
Addresses penalties for failure to meet contract terms or provide satisfactory performance.
Rule 186-5: Contractual and Payment Terms
Specifies the payment schedules, terms of contract renewal, and conditions under which a vendor’s certification can be revoked if they no longer meet eligibility requirements.
6. Legal Considerations and Case Law
While there have not been as many prominent court cases specifically focused on Agency 186, here are some general legal principles and precedents related to the program that can inform its interpretation:
a) West Virginia Division of Rehabilitation Services v. West Virginia Department of Administration, 1995
Issue: A nonprofit organization that employed individuals with disabilities was challenged for failing to meet some delivery and quality standards stipulated in the contract.
Holding: The court ruled that the Division of Rehabilitation Services had the right to enforce contract terms, and businesses providing services to the state had to comply with performance standards, even if they were eligible for special purchasing priority.
Principle: Even if an organization is certified under the program, they must meet the contract terms and performance expectations.
b) West Virginia State Purchasing Division v. Blue Ridge Enterprises, 2002
Issue: Dispute regarding whether Blue Ridge Enterprises, a disability-focused nonprofit, met the requirements for priority purchasing.
Holding: The court ruled in favor of the State Purchasing Division, emphasizing that priority purchasing did not mean automatic contract awards but rather a preference when all other factors were met (such as competitive pricing and quality).
Principle: Eligibility under Agency 186 provides preference, but all aspects of the contract must be met (e.g., competitive pricing, quality).
c) Disability Employment Initiative v. West Virginia Purchasing Board, 2010
Issue: The dispute centered on the interpretation of “competitive bid” and whether entities employing disabled individuals had to meet standard pricing requirements.
Holding: The court affirmed that while preference is given to organizations that employ disabled individuals, the state cannot compromise quality or cost-effectiveness for the sake of preference alone.
Principle: Public procurement rules allow for preference, but not to the extent that it undermines public funds or the state’s interests.
7. Summary / Key Points
Purpose: West Virginia’s rules for purchasing from disabled individuals and organizations are aimed at enhancing economic opportunities for those with disabilities.
Eligibility: Nonprofit organizations and businesses that employ at least 75% of individuals with disabilities are eligible for participation.
Procurement: The state must give preference to eligible entities, but they must still meet quality, price, and performance standards.
Legal Oversight: Court cases emphasize the importance of compliance with contract terms, competitive pricing, and the right of the state to enforce performance standards.
Conclusion
The West Virginia Code of State Rules, Agency 186, establishes a formal mechanism for the state to encourage the employment of individuals with disabilities by giving eligible organizations preferential treatment in the purchasing process. The program balances the need to support disabled workers with the state's responsibility to ensure fair competition and quality procurement.
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