Trending
CHARLESTON -- A 2020 law requiring state agencies exempt from oversight by the West Virginia purchasing watchdog to submit reports on their procedures was ignored, and part of the law could hinder agencies during states of emergency.
The Legislature's Post Audit Division released a report Friday reviewing state agency compliance with House Bill 4042, which requires state agencies exempt from some or all of state purchasing requirements to adopt procedural rules.
The purpose of the law was to require state agencies with certain exemptions to make public their purchasing procedures. The West Virginia Purchasing Division handles purchasing for all non-exempt state government agencies.
Those purchasing rules were due to the West Virginia Secretary of State's Office by Sept. 1, 2020.
Agencies that did not comply with the deadline would then lose their exempt status and return to the oversight of the Purchasing Division.
According to the legislative auditors, the state agencies with 14 exemptions submitted purchasing rules for their exemptions by the Sept. 1 deadline. Since the deadline, agencies with 13 exemptions submitted purchasing rules to the Secretary of State, leaving agencies with 12 exemptions that have not complied with HB 4042.
"The Legislative Auditor recommends that any agency, spending unit or other governmental entity responsible for one or more purchasing exemptions file the appropriate procedural rule without delay and strictly adhere to the requirements of the West Virginia Purchasing Division until compliance is achieved," the auditors wrote.
Reasons for the delay by some agencies in complying with the purchasing law included the COVID-19 pandemic. Six agencies within the Department of Health and Human Resources did not meet the Sept. 1 deadline but are in compliance. Much of DHHR's focus the last 11 months has been on combating the coronavirus, including the DHHR Office of Lab Services and direct patient care at state-owned hospitals.
Other state agencies cited a failure of communication on whether the rules were supposed to be filed. The State Treasurer's Office cited an executive order from Gov. Jim Justice that suspended all new rules.
"When the (State Treasurer's Office) began work on (HB 4042) in May, I was told there was no need to issue a rule because all 'Rules [were] suspended by the State of Emergency Proclamation due to the COVID-19 virus,'" said an unnamed State Treasurer's Office employee cited in the Post Audit report. "My expectation was that someone would be able to give me a definitive answer on the issue of whether or not we needed to issue the rule, but that did not happen."
The state agencies that have not complied at all were the Department of Environmental Protection, the Department of Agriculture, the Department of Homeland Security, the Department of Revenue, the Department of Transportation and the Parkways Authority. According to the report, most of these agencies planned to file the appropriate rule as soon as possible, other agencies were not definitive in their plans to do so.
The Post Audit Division also found an issue with HB 4042 that could hinder the state's COVID-19 response if enforced. The way the law is written, any state agency given an emergency exemption from Purchasing Division rules would have to file a procedural rule before the emergency exemption could be exercised.
The governor's state of emergency powers allows the office to suspend provisions of regulatory statute, such as Purchasing Division rules, to speed up purchases to deal with disasters and other emergencies. Justice issued a state of emergency March 16 at the start of the COVID-19 pandemic in the state. The state has used the state of emergency to purchase personal protective gear and COVID-19 testing supplied during the pandemic.
"The Legislative Auditor notes that the statutes establishing the governor's special exemption powers, particularly those related to declared states of emergency, are intended to facilitate greater flexibility and speed in the procurement of goods and services necessary to appropriately respond to emergencies," the auditors wrote. "As such, the provisions...could negatively impact the Governor's ability to provide that flexibility if specially exempted agencies are required to file procurement rules before the exemptions take effect."
The Legislative Auditor's Office recommends the legislature consider clarifying the law to ensure the bill doesn't interfere with the governor's state of emergency powers.
(Adams can be contacted at sadams@newsandsentinel.com)