As Reported by the Senate Agriculture Committee

128th General Assembly
Regular Session
2009-2010
Sub. S. B. No. 131


Senators Gillmor, Cafaro 

Cosponsors: Senators Widener, Grendell, Schuring, Gibbs, Carey, Faber, Morano 



A BILL
To amend sections 125.04 and 5513.02 and to enact 1
sections 125.091, 125.092, 125.093, 3345.691, and 2
3345.692 of the Revised Code to require that the 3
Director of Administrative Services establish a 4
program that ensures that supplies composed of 5
biobased products are purchased by the Department 6
of Administrative Services, other state agencies, 7
and state institutions of higher education.8


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, 125.093, 3345.691, and 3345.692 of the 10
Revised Code be 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:23

       (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 the43
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 shall62
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 an69
estimate of the cost it incurs by permitting political70
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 other77
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 division82
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 contracts89
described in division (B) of this section if the political 90
subdivision or county board of elections can purchase those91
supplies or services from the other party upon equivalent terms,92
conditions, and specifications but at a lower price than it can93
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 services104
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 sections 125.092 112
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 material, 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, other state 147
agencies, and state institutions of higher education shall 148
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 shall establish a 153
biobased product preference program, which shall ensure that the 154
department of administrative services, other state agencies, and 155
state institutions of higher education purchase biobased 156
products by giving a preference to those designated items that 157
are composed of the highest percentage of biobased content 158
practicable or that comply with regulations adopted under 42 159
U.S.C. 6914b-1 by the administrator of the United States 160
environmental protection agency. The purchase of biobased 161
products under the program shall be consistent with sections 162
125.01 to 125.11 of the Revised Code.163

       As part of the program, the director shall adopt a policy of 164
setting minimum biobased content specifications for awarding 165
contracts in a manner that ensures that the biobased content of 166
biobased products is consistent with the guidelines issued under 167
7 U.S.C. 8102, except when the director determines that division 168
(C)(1), (2), or (3) of this section applies.169

       (C) The director may determine that it is not possible for a 170
biobased product to be purchased in accordance with the biobased 171
product preference program if the director determines that any 172
of the following applies to the product:173

       (1) The product is not available within a reasonable period 174
of time.175

       (2) The product fails to meet the performance standards set 176
forth in the applicable specifications for the product.177

       (3) The product is available only at an unreasonable price. 178
As used in division (C)(3) of this section, "unreasonable price" 179
means a price that exceeds more than five per cent of the price of 180
a similar product that is not a biobased product.181

       (D) For any biobased product offered under the biobased 182
product preference program, a vendor shall certify that the 183
product meets the biobased content requirements for the designated 184
item of which the product is an exemplar. Upon request, a vendor 185
shall provide to the director information to verify the biobased 186
content of a biobased product qualifying for purchase in 187
accordance with the program.188

       (E) The director shall adopt rules in accordance with 189
Chapter 119. of the Revised Code that prescribe all of the 190
following:191

       (1) The procedures the department of administrative services, 192
other state agencies, and state institutions of higher education 193
shall use to give preference to and purchase biobased products 194
in accordance with the program;195

       (2) The purchasing policy the director adopts under division 196
(B) of this section;197

       (3) Other requirements or procedures that are necessary to 198
implement the biobased product preference program.199

       (F) The director shall maintain a list of products that 200
qualify as designated items under the biobased product preference 201
program. 202

       (G) The director may enter into a pilot contract with a 203
vendor of a biobased product that is determined by the director to 204
be the sole provider of the biobased product for the purpose of 205
determining if the product is feasible for use by the state. For 206
purposes of entering into the contract, the director may negotiate 207
pricing and the terms and conditions of the contract subject to 208
the approval of the controlling board. Pricing for the pilot 209
contract shall be based on the fair market value of similar 210
products if those products are available. The term of the pilot 211
contract may be for a length of time determined by the director, 212
not to exceed one fiscal year, to sufficiently examine and 213
complete testing of the biobased product. The director may renew 214
the contract for one additional fiscal year subject to the 215
approval of the controlling board. If the director determines the 216
biobased product to be feasible for use by the state, all 217
additional purchases of that product shall be made by competitive 218
selection.219

       (H) This section does not apply to the purchase of motor 220
vehicle fuel, heating oil, or electricity.221

       (I) As used in this section, "state institution of higher 222
education" has the same meaning as in section 3345.011 of the 223
Revised Code.224

       Sec. 125.093.  Not later than September 30, 2010, and the 225
thirtieth day of September each year thereafter, the director of 226
administrative services shall prepare and submit to the governor, 227
the president of the senate, and the speaker of the house of 228
representatives a report that describes the number and types of229
biobased products purchased under section 125.092 of the Revised 230
Code and the amount of money spent by the department of 231
administrative services and other state agencies for those 232
biobased products.233

       Sec. 3345.691.  A state institution of higher education, as 234
defined in section 3345.011 of the Revised Code, shall comply with 235
section 125.092 of the Revised Code regarding the purchase of 236
biobased products.237

       Sec. 3345.692.  (A) Not later than September 15, 2010, and 238
the fifteenth day of September each year thereafter, a state 239
institution of higher education shall prepare and submit to the 240
chancellor of the board of regents a report that describes the 241
number and types of biobased products purchased under section 242
125.092 of the Revised Code and the amount of money spent by the 243
state institution of higher education for those biobased products.244

       (B) Not later than September 30, 2010, and the thirtieth day 245
of September each year thereafter, the chancellor of the board of 246
regents shall prepare and submit to the governor, the president of 247
the senate, and the speaker of the house of representatives a 248
report that describes the number and types of biobased products 249
purchased under section 125.092 of the Revised Code and the amount 250
of money spent by state institutions of higher education for 251
those biobased products as that information is provided to the 252
chancellor under division (A) of this section.253

       (C) As used in this section, "state institution of higher 254
education" has the same meaning as in section 3345.011 of the 255
Revised Code.256

       Sec. 5513.02.  (A) Specifications describing the character of 257
the articles that the department of transportation is proposing to 258
purchase, and the conditions governing shipment and delivery, 259
shall be kept on file at the department and open to public 260
inspection throughout the time during which an invitation to261
bidders is required to be posted. The director of transportation262
may require bids to be accompanied by a certified check payable to 263
the director in an amount fixed by the director and stated in the 264
invitation to bidders. Persons, firms, or corporations desiring to 265
bid on more than one invitation shall be relieved from furnishing 266
certified checks with their bids provided they first furnish a 267
bond payable to the state, in an amount and with surety approved 268
by the director, conditioned for the faithful performances of all269
contracts that may be awarded to them, and otherwise conditioned270
as the director requires. All bids shall be publicly opened and271
read at the time and place mentioned in the notice. All purchases 272
shall be made by the director from the lowest responsive and273
responsible bidder for each item in accordance with section 9.312 274
of the Revised Code, except where the director has established in 275
the bidding documents a provision for multiple awards for the 276
purchase of items such as asphalt, aggregates, machinery parts, 277
and others as the director determines necessary, and except that 278
in the purchase of machinery, equipment, or supplies for which 279
fixed and definite specifications cannot be prepared, the director 280
may purchase the articles meeting the general specifications 281
prescribed and which the director finds are most suitable for the 282
uses intended. Sections 5513.01 to 5513.04 of the Revised Code 283
shall apply to the exchange of machinery and equipment and in 284
force account operations where the director desires to combine in 285
one order the furnishing, hauling, and placing of material. The 286
director may purchase or authorize the purchase without notice, or 287
upon such notice as the director prescribes, of materials that in 288
the director's judgment may be required for the immediate repair 289
of roads or bridges destroyed or damaged by flood, landslide, or 290
other casualty. No person shall place separate orders for the 291
purpose of defeating such sections, and contracts of purchase 292
shall not be valid unless made in conformity with this section.293

       (B) DivisionSection 125.092 and division (B) of section 294
125.11 of the Revised Code appliesapply to the purchase of 295
products by the director pursuant to sections 5513.01 to 5513.04 296
of the Revised Code.297

       Section 2.  That existing sections 125.04 and 5513.02 of the 298
Revised Code are hereby repealed.299

       Section 3.  Section 125.04 of the Revised Code is presented 300
in this act as a composite of the section as amended by both Am. 301
Sub. H.B. 562 and Am. Sub. S.B. 268 of the 127th General Assembly. 302
The General Assembly, applying the principle stated in division 303
(B) of section 1.52 of the Revised Code that amendments are to be 304
harmonized if reasonably capable of simultaneous operation, finds 305
that the composite is the resulting version of the section in 306
effect prior to the effective date of the section as presented in 307
this act.308