H. B. No. 436 As Introduced

(B) Initial appointments to the council shall be made on or

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before January 1, 2011. Of the initial appointments made to the

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council, the term of office of one member engaged in private

288

enterprise appointed by the governor, by the president of the

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senate, and by the speaker of the house of representatives shall

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be for a term ending December 31, 2011. The remaining initial

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appointments shall be for terms ending December 31, 2012.

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Thereafter, terms of office shall be for two years, with each term

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ending on the thirty-first day of December. The member appointed

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under division (A)(1) of this section shall be a member only so

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long as the member is the chief executive or head administrative

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officer of a state agency. Each member shall hold office from the

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date of appointment until the end of the term for which the member

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was appointed. Members may be reappointed one time. Vacancies

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shall be filled in the same manner provided for original

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appointments. Any member appointed to fill a vacancy occurring

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prior to the expiration of the term for which the member's

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predecessor was appointed shall hold office for the remainder of

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that term. A member shall continue in office subsequent to the

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expiration date of the member's term until the member's successor

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takes office, or until a period of sixty days has elapsed,

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whichever occurs first.

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Section 1. That sections 107.35, 121.80, 121.81, 121.82,	15
121.83, 121.84, 121.85, 121.86, 121.87, and 121.88 of the Revised	16
Code be enacted to read as follows:	17

Sec. 107.35. (A) As used in this section, "state agency" has	18
the same meaning as in section 121.80 of the Revised Code.	19

(B) Beginning July 1, 2012, the governor, at least once every	20
two fiscal years, shall select at least three goods or services	21
that are being provided by a state agency, the provision of which	22
the governor believes could be contracted out to a private	23
contractor. The governor shall submit the selections to the	24
council on efficient government for its review and evaluation	25
under section 121.86 of the Revised Code.	26

Sec. 121.80. As used in sections 121.81 to 121.88 of the	27
Revised Code, "state agency" means every department, board,	28
bureau, commission, council, office, institution of higher	29
education, or other organized body established by the constitution	30
or laws of this state for the exercise of any function of state	31
government. "State agency" does not include the office of the	32
governor, attorney general, auditor of state, secretary of state,	33
treasurer of state, the general assembly or any legislative	34
agency, or a court or any judicial agency. In the case of the	35
department of transportation, "state agency" does not include	36
contracts in support of the planning, development, implementation,	37
operation, or maintenance of the department's road, bridge, and	38
public transportation construction program.	39

Sec. 121.81. (A) A state agency, in accordance with this	40
section and with sections 121.82 to 121.84 of the Revised Code,	41
may contract out to a private contractor the state agency's duty	42
to provide a good or service. The state agency shall select the	43
private contractor by issuing a request for proposals. The request	44
for proposals shall state the relative importance of price and	45
other evaluation criteria selected by the state agency. The state	46
agency shall develop a process to be used in issuing the request	47
for proposals, receiving responses to the request, and evaluating	48
the responses on a competitive basis. The award of a contract	49
under this section may be made to the private contractor whose	50
proposal is determined to be the most advantageous to the state,	51
taking into consideration factors such as price, the evaluation	52
criteria set forth in the request for proposals, and the advisory	53
report of the council on efficient government issued under	54
division (A) of section 121.83 of the Revised Code.	55

(B) To ensure fair and impartial evaluation, proposals and	56
related documents submitted in response to a request for proposals	57
are not available for public inspection and copying under section	58
149.43 of the Revised Code until after the award of the contract.	59

Sec. 121.82. (A) A state agency proposing to contract out	60
the provision of a good or service shall prepare a written	61
business case that justifies the proposal to contract out and	62
shall submit the business case to the council on efficient	63
government on or before the time required by section 121.83 of the	64
Revised Code. The business case shall include all of the	65
following:	66

(1) A detailed description of the good or service proposed to	67
be contracted out;	68

(2) An analysis of the state agency's current performance and	69
costs incurred in providing the good or service, if the state	70
agency currently is providing the good or service;	71

(3) Identification of statutory amendments or enactments, if	72
any, needed to authorize the contracting out of the provision of	73
the good or service;	74

(4) The goals desired to be achieved by contracting out the	75
provision of the proposed good or service and the rationale for	76
the goals;	77

(5) A description of available options for achieving those	78
goals, including at least one option where the state agency	79
provides the good or service, if the state agency is currently	80
providing the good or service;	81

(6) An analysis of the advantages and disadvantages of each	82
option described under division (A)(5) of this section, including,	83
at a minimum, the potential performance improvements resulting	84
from, and the risks of, contracting out the provision of a good or	85
service;	86

(7)(a) A cost-benefit analysis that specifies all of the	87
following:	88

(i) The direct and indirect estimated savings, baseline	89
costs, and qualitative and quantitative benefits that would be	90
involved in or would be the result of implementing each option	91
described under division (A)(5) of this section;	92

(ii) The time schedule that must be adhered to in order to	93
achieve the estimated savings;	94

(iii) The costs of the option, supported by records and	95
reports.	96

(i) "Costs" means reasonable, relevant, and verifiable costs,	104
including cost elements such as personnel, materials and supplies,	105
services, equipment, capital depreciation, rent, maintenance and	106
repairs, utilities, insurance, personnel travel, overhead, and	107
interim and final payments. The appropriate cost elements included	108
in "costs" shall depend on the nature of the specific good or	109
service proposed to be contracted out.	110

(b) The head of the state agency proposing to contract out	97
the provision of a good or service shall attest that, based on the	98
data and information underlying the business case and to the best	99
of the state agency head's knowledge, all estimated savings,	100
costs, and benefits specified under division (A)(7)(a) of this	101
section are valid and achievable.	102

(ii) "Savings" means the difference between the direct and	111
indirect actual annual baseline costs of an option compared to the	112
projected annual costs for providing a good or service in any	113
succeeding state fiscal year during the term of the contract to	114
contract out the provision of the good or service.	115

(8) A description of the current market for the goods or	116
services the provision of which is proposed to be contracted out;	117

(9) A description of the specific performance standards a	118
private contractor, at a minimum, must meet to ensure adequate	119
performance under a contract to contract out;	120

(10) The projected time frame for key events, from the	121
beginning of the proposed contracting out through the expiration	122
of the contract to contract out;	123

(11) A plan to ensure a private contractor's compliance with	124
section 149.43 of the Revised Code and with any other public	125
records law that applies to the state agency contracting out the	126
provision of a good or service;	127

(12) A specific and feasible contingency plan addressing	128
private contractor nonperformance, and a description of the tasks	129
involved in and costs required for the plan's implementation;	130

(13) The state agency's transition plan for addressing	131
changes in the number of agency personnel, affected business	132
processes, employee transition issues, and communication with	133
affected stakeholders, such as agency clients and the public. The	134
transition plan must contain a re-employment and retraining	135
assistance plan for employees who are not retained by the state	136
agency or are not employed by the private contractor.	137

(14) A plan for ensuring access to the private contractor's	138
place of business by persons with disabilities, in compliance with	139
applicable state and federal laws; and	140

(15) A description of legislative budgetary actions, if any,	141
necessary to accomplish contracting out the provision of the good	142
or service.	143

(B) A business case prepared under this section shall not be	144
subject to challenge or protest by any person.	145

Sec. 121.83. (A)(1) At least sixty days before a state	146
agency issues a request for proposals to contract out the	147
provision of a good or service having a projected cost of more	148
than ten million dollars in any fiscal year, the state agency	149
shall submit its business case to the council on efficient	150
government for its review under section 121.86 of the Revised	151
Code. The council shall evaluate the business case and issue an	152
advisory report to the state agency not later than thirty days	153
after receiving the business case.	154

(2) The state agency shall submit a final business case to	155
the council at least thirty days before execution of a contract to	156
contract out. The final business case shall reflect any changes to	157
the business case submitted under division (A)(1) of this section	158
as the result of contract negotiations.	159

(B)(1) At least thirty days before a state agency issues a	160
request for proposals to contract out the provision of a good or	161
service having a projected cost of at least one million dollars	162
but not more than ten million dollars in any fiscal year, the	163
state agency shall submit its business case to the council for its	164
review under section 121.86 of the Revised Code.	165

(C) After the conclusion of contract negotiations regarding	171
contracting out the provision of a good or service having a	172
projected cost of less than one million dollars in any fiscal	173
year, but at least thirty days before the execution of a contract	174
to contract out, the state agency shall submit a final business	175
case to the council for its review under section 121.86 of the	176
Revised Code. The final business case is the business case	177
prepared under section 121.82 of the Revised Code, as amended to	178
reflect any changes to it as the result of contract negotiations.	179

Sec. 121.84. Each contract to contract out the provision of	180
a good or service under section 121.81 of the Revised Code shall,	181
at a minimum, include all of the following articles:	182

(A) A scope-of-work article that clearly specifies and	183
describes each quantifiable, measurable, and verifiable good or	184
service to be provided by the private contractor. This article	185
shall include a clause stating that if a particular good or	186
service is inadvertently omitted or not clearly specified, but is	187
determined to be operationally necessary and is verified to have	188
been performed by the state agency within the twelve-month period	189
before execution of the contract, the good or service will be	190
provided by the contractor by amending the contract through the	191
amendment process under division (B) of this section.	192

(B) A quality level article that describes all goods or	193
services to be provided by the private contractor under the terms	194
of the contract; the quality level of the goods or services and	195
the service requirements to be met by the contractor; the specific	196
responsibilities of the state agency and the contractor; and the	197
process for amending any portion of the article. The article shall	198
contain an exclusivity clause that allows the state agency to	199
retain the right to provide the good or service directly, or to	200
contract with another contractor, if quality levels or service	201
requirements are not being met or specific responsibilities are	202
not performed.	203

(C) An article that identifies all required performance	204
standards to be met by the private contractor, which shall	205
include, at a minimum, all of the following:	206

(1) Detailed and measurable acceptance criteria for each good	207
and service to be provided to the state agency under the terms of	208
the contract;	209