Corrected Version

As Introduced

128th General Assembly Regular Session 2009-2010

S. B. No. 131

Senators Gillmor, Cafaro 

Cosponsors: Senators Widener, Grendell 

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A BILL

To amend sections 125.04 and 5513.02 and to enact

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sections 125.091, 125.092, and 125.093 of the

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Revised Code to require that the Director of

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Administrative Services establish a program that

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ensures that supplies composed of biobased

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products are purchased by the Department of

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Administrative Services, state agencies, and

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state-supported institutions of higher education.

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BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1.  That sections 125.04 and 5513.02 be amended and	9
sections 125.091, 125.092, and 125.093 of the Revised Code be	10
enacted to read as follows:	11

Sec. 125.04.  (A) Except as provided in division (D) of this	12
section, the department of administrative services shall determine	13
what supplies and services are purchased by or for state	14
agencies. Whenever the department of administrative services	15
makes any change or addition to the lists of supplies and	16
services that it determines to purchase for state agencies, it	17
shall provide a list to the agencies of the changes or additions.	18
Except for the requirements of section 125.092 and division (B) of	19
section 125.11 of the Revised Code, sections 125.04 to 125.08	20
and 125.09 to 125.15 of the Revised Code do not apply to or	21
affect the educational institutions of the state.	22

(B)(1) As used in this division:

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(a) "Chartered nonpublic school" has the same meaning as in	24
section 3310.01 of the Revised Code.	25

(b) "Emergency medical service organization" has the same	26
meaning as in section 4765.01 of the Revised Code.	27

(c) "Political subdivision" means any county, township,	28
municipal corporation, school district, conservancy district,	29
township park district, park district created under Chapter 1545.	30
of the Revised Code, regional transit authority, regional airport	31
authority, regional water and sewer district, or port authority.	32
"Political subdivision" also includes any other political	33
subdivision described in the Revised Code that has been approved	34
by the department to participate in the department's contracts	35
under this division.	36

(d) "Private fire company" has the same meaning as in	37
section 9.60 of the Revised Code.	38

(2) Subject to division (C) of this section, the department	39
of administrative services may permit a political subdivision,	40
county board of elections, private fire company, private,	41
nonprofit emergency medical service organization, or chartered	42
nonpublic school to participate in contracts into which the	43
department has entered for the purchase of supplies and	44
services. The department may charge the entity a reasonable fee	45
to cover the administrative costs the department incurs as a	46
result of participation by the entity in such a purchase	47
contract.	48

A political subdivision desiring to participate in such	49
purchase contracts shall file with the department a certified copy	50
of an ordinance or resolution of the legislative authority or	51
governing board of the political subdivision. The resolution or	52
ordinance shall request that the political subdivision be	53
authorized to participate in such contracts and shall agree that	54
the political subdivision will be bound by such terms and	55
conditions as the department prescribes and that it will directly	56
pay the vendor under each purchase contract. A board of elections	57
desiring to participate in such purchase contracts shall file	58
with the purchasing authority a written request for inclusion in	59
the program. A private fire company, private, nonprofit	60
emergency medical service organization, or chartered nonpublic	61
school desiring to participate in such purchase contracts shall	62
file with the department a written request for inclusion in the	63
program signed by the chief officer of the company,	64
organization, or chartered nonpublic school. A request for	65
inclusion shall include an agreement to be bound by such terms	66
and conditions as the department prescribes and to make direct	67
payments to the vendor under each purchase contract.	68

The department shall include in its annual report an	69
estimate of the cost it incurs by permitting political	70
subdivisions, county boards of elections, private fire companies,	71
private, nonprofit emergency medical service organizations, and	72
chartered nonpublic schools to participate in contracts pursuant	73
to this division. The department may require such entities to	74
file a report with the department, as often as it finds	75
necessary, stating how many such contracts the entities	76
participated in within a specified period of time, and any other	77
information the department requires.	78

(3) Purchases made by a political subdivision or a county	79
board of elections under this division are exempt from any	80
competitive selection procedures otherwise required by law. No	81
political subdivision shall make any purchase under this division	82
when bids have been received for such purchase by the subdivision,	83
unless such purchase can be made upon the same terms, conditions,	84
and specifications at a lower price under this division.	85

(C) A political subdivision as defined in division (B) of	86
this section or a county board of elections may purchase supplies	87
or services from another party, including a political	88
subdivision, instead of through participation in contracts	89
described in division (B) of this section if the political	90
subdivision or county board of elections can purchase those	91
supplies or services from the other party upon equivalent terms,	92
conditions, and specifications but at a lower price than it can	93
through those contracts. Purchases that a political subdivision or	94
county board of elections makes under this division are exempt	95
from any competitive selection procedures otherwise required by	96
law. A political subdivision or county board of elections that	97
makes any purchase under this division shall maintain sufficient	98
information regarding the purchase to verify that the political	99
subdivision or county board of elections satisfied the conditions	100
for making a purchase under this division. Nothing in this	101
division restricts any action taken by a county or township as	102
authorized by division (B)(1) of section 9.48 of the Revised Code.	103

(D) This section does not apply to supplies or services	104
required by the legislative or judicial branches, the capitol	105
square review and advisory board, the adjutant general for	106
military supplies and services, to supplies or services purchased	107
by a state agency directly as provided in division (A), (B), or	108
(F) of section 125.05 of the Revised Code, or to purchases of	109
supplies or services for the emergency management agency as	110
provided in section 125.023 of the Revised Code.	111

Sec. 125.091.  As used in this section and in sections	112
125.092 and 125.093 of the Revised Code:	113

(A) "Agricultural materials" means agricultural-based	114
materials or residues, including plant, animal, and marine	115
materials or residues, used in the manufacture of commercial or	116
industrial nonfood products.	117

(B) "Biobased product" means a product determined by the	118
United States secretary of agriculture to be a commercial or	119
industrial product, other than food or feed, that is composed, in	120
whole or significant part, of biological products, renewable	121
domestic agricultural materials, or forestry materials, or is an	122
intermediate ingredient or feedstock.	123

(C) "Biological products" means products derived from living	124
materials other than agricultural or forestry materials.	125

(D) "Designated item" means a generic grouping of biobased	126
products identified in subpart B, 7 C.F.R. 2902.10 to 2902.42.	127

(E) "Forest thinnings" means woody materials removed from a	128
dense forest to improve growth, enhance forest health, or remove	129
trees to recover potential mortality.	130

(F) "Forestry materials" means materials derived from the	131
practice of planting and caring for forests and the management of	132
growing timber, where such materials come from short-rotation	133
woody crops that are less than ten years old, sustainably managed	134
forests, wood residues, or forest thinnings.	135

(G) "Intermediate ingredient or feedstock" means a material	136
or compound made, in whole or in significant part, from biological	137
products, renewable agricultural materials, or forestry materials	138
that are subsequently used to make a more complex compound or	139
product.	140

(H) "Sustainably managed forests" means the practice of land	141
stewardship that integrates the reforestation, management,	142
growing, nurturing, and harvesting of trees for useful products	143
while conserving soil and improving air and water quality,	144
wildlife, fish habitat, and aesthetics.	145

Sec. 125.092.  (A) When purchasing equipment, material, or	146
supplies, the department of administrative services, state	147
agencies, and state-supported institutions of higher education	148
shall purchase biobased products in accordance with the biobased	149
product preference program established by the director of	150
administrative services under this section.	151

(B) Not later than one hundred eighty days after the	152
effective date of this section, the director of administrative	153
services shall establish a biobased product preference program,	154
which shall ensure that the department of administrative services,	155
state agencies, and state-supported institutions of higher	156
education purchase biobased products by giving a preference to	157
those designated items that are composed of the highest	158
percentage of biobased content practicable or that comply with	159
regulations issued under 42 U.S.C. 6914b-1 by the administrator	160
of the United States environmental protection agency. The	161
purchase of biobased products under the program shall be	162
consistent with sections 125.01 to 125.11 of the Revised Code.	163

As part of the program, the director of administrative	164
services shall adopt one of the following purchasing policies, or	165
a substantially equivalent alternative:	166

(1) A policy that a contract is to be awarded to the vendor	167
offering a biobased product composed of the highest percentage of	168
biobased content practicable, except when the director determines	169
that division (C)(1), (2), or (3) of this section applies; or	170

(2) A policy of setting minimum biobased content	171
specifications for awarding contracts in a manner that ensures	172
that the biobased content of biobased products is consistent with	173
the guidelines issued under 7 U.S.C. 8102, except when the	174
director determines that division (C)(1), (2), or (3) of this	175
section applies.	176

(C) The director of administrative services may determine	177
that it is not possible for a biobased product to be purchased in	178
accordance with the biobased product preference program if the	179
director determines that any of the following applies to the	180
product:	181

(1) The product is not available within a reasonable period	182
of time;	183

(2) The product fails to meet the performance standards set	184
forth in the applicable specifications for the product; or	185

(3) The product is available only at an unreasonable price.

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(D) For any biobased product offered under the biobased	187
product preference program, a vendor shall certify that the	188
product meets the biobased content requirements for the designated	189
item of which the product is an exemplar. Upon request, a vendor	190
shall provide to the director of administrative services	191
information to verify the biobased content of a biobased product	192
qualifying for purchase in accordance with the program.	193

(E) The director of administrative services shall adopt rules	194
under Chapter 119. of the Revised Code that prescribe all of the	195
following:	196

(1) The products that qualify as designated items under the	197
biobased product preference program;	198

(2) The procedures the department of administrative services,	199
state agencies, and state-supported institutions of higher	200
education shall use to give preference to and purchase biobased	201
products in accordance with the program;	202

(3) The purchasing policy the director adopts under division	203
(B)(1) or (2) of this section;	204

(4) Information to be submitted by vendors to verify the	205
biobased content of a biobased product; and	206

(5) Other requirements or procedures that are necessary to	207
implement the biobased product preference program.	208

(F) This section does not apply to the purchase of motor	209
vehicle fuel, heating oil, or electricity.	210

Sec. 125.093.  Not later than September 30, 2010, and the	211
thirtieth day of September each year thereafter, the director of	212
administrative services shall prepare and submit to the governor,	213
the president of the senate, and the speaker of the house of	214
representatives a report that describes the number and types of	215
biobased products purchased under section 125.092 of the Revised	216
Code and the amount of money spent by the department of	217
administrative services, state agencies, and state-supported	218
institutions of higher education for those biobased products.	219

Sec. 5513.02.  (A) Specifications describing the character of	220
the articles that the department of transportation is proposing to	221
purchase, and the conditions governing shipment and delivery,	222
shall be kept on file at the department and open to public	223
inspection throughout the time during which an invitation to	224
bidders is required to be posted. The director of transportation	225
may require bids to be accompanied by a certified check payable to	226
the director in an amount fixed by the director and stated in the	227
invitation to bidders. Persons, firms, or corporations desiring to	228
bid on more than one invitation shall be relieved from furnishing	229
certified checks with their bids provided they first furnish a	230
bond payable to the state, in an amount and with surety approved	231
by the director, conditioned for the faithful performances of all	232
contracts that may be awarded to them, and otherwise conditioned	233
as the director requires. All bids shall be publicly opened and	234
read at the time and place mentioned in the notice. All purchases	235
shall be made by the director from the lowest responsive and	236
responsible bidder for each item in accordance with section 9.312	237
of the Revised Code, except where the director has established in	238
the bidding documents a provision for multiple awards for the	239
purchase of items such as asphalt, aggregates, machinery parts,	240
and others as the director determines necessary, and except that	241
in the purchase of machinery, equipment, or supplies for which	242
fixed and definite specifications cannot be prepared, the director	243
may purchase the articles meeting the general specifications	244
prescribed and which the director finds are most suitable for the	245
uses intended. Sections 5513.01 to 5513.04 of the Revised Code	246
shall apply to the exchange of machinery and equipment and in	247
force account operations where the director desires to combine in	248
one order the furnishing, hauling, and placing of material. The	249
director may purchase or authorize the purchase without notice, or	250
upon such notice as the director prescribes, of materials that in	251
the director's judgment may be required for the immediate repair	252
of roads or bridges destroyed or damaged by flood, landslide, or	253
other casualty. No person shall place separate orders for the	254
purpose of defeating such sections, and contracts of purchase	255
shall not be valid unless made in conformity with this section.	256

(B) DivisionSection 125.092 and division (B) of section	257
125.11 of the Revised Code appliesapply to the purchase of	258
products by the director pursuant to sections 5513.01 to 5513.04	259
of the Revised Code.	260

Section 2.  That existing sections 125.04 and 5513.02 of the	261
Revised Code are hereby repealed.	262

Section 3.  Section 125.04 of the Revised Code is presented	263
in this act as a composite of the section as amended by both Am.	264
Sub. H.B. 562 and Am. Sub. S.B. 268 of the 127th General Assembly.	265
The General Assembly, applying the principle stated in division	266
(B) of section 1.52 of the Revised Code that amendments are to be	267
harmonized if reasonably capable of simultaneous operation, finds	268
that the composite is the resulting version of the section in	269
effect prior to the effective date of the section as presented in	270
this act.	271