130th Ohio General Assembly
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Sub. S. B. No. 268  As Passed by the Senate
As Passed by the Senate

127th General Assembly
Regular Session
2007-2008
Sub. S. B. No. 268


Senator Seitz 

Cosponsors: Senators Niehaus, Gardner, Schuler, Schuring, Cates, Fedor, Roberts, Buehrer, Harris, Kearney, Mumper, Spada, Wilson 



A BILL
To amend sections 9.48, 125.04, 307.86, and 3313.46 and to enact section 307.862 of the Revised Code to allow a county contracting authority to use competitive sealed proposals instead of competitive sealed bidding when doing so would be advantageous to the county, to extend the current county and township joint purchasing authority to other political subdivisions, and to authorize boards of education to forgo the second newspaper publication of bid advertisement in lieu of an internet web site posting.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 9.48, 125.04, 307.86, and 3313.46 be amended and section 307.862 of the Revised Code be enacted to read as follows:
Sec. 9.48. (A) As used in this section, "political subdivision" has the same meaning as in section 2744.01 of the Revised Code.
(B) A county or township political subdivision may do any of the following:
(1) Permit one or more other counties or townships political subdivisions to participate in contracts into which it has entered for the acquisition of equipment, materials, supplies, or services, and may charge such participating counties or townships political subdivisions a reasonable fee to cover any additional costs incurred as a result of their participation;
(2) Participate in a joint purchasing program operated by or through a national or state association of political subdivisions in which the purchasing county or township political subdivision is eligible for membership.
(3) Participate in contract offerings from the federal government that are available to a county or township political subdivision including, but not limited to, contract offerings from the general services administration.
(B)(C) Acquisition by a county or township political subdivision of equipment, material, supplies, or services, through participation in a contract of another county or township political subdivision or participation in an association program under division (A)(B)(1) or (2) of this section, is exempt from any competitive selection requirements otherwise required by law, if the contract in which it is participating was awarded pursuant to a publicly solicited request for a proposal or a competitive selection procedure of another political subdivision within this state or in another state. Acquisition by a county or township political subdivision of equipment, materials, supplies, or services pursuant to division (A)(B)(3) of this section is exempt from any competitive selection requirements otherwise required by law. No county or township political subdivision shall acquire equipment, materials, supplies, or services by participating in a contract under this section if it has received bids for such acquisition, unless its participation enables it to make the acquisition upon the same terms, conditions, and specifications at a lower price.
(C)(D) A county or township political subdivision that is eligible to participate in a joint purchasing program operated by or through a national or state association of political subdivisions in which the purchasing county or township political subdivision is eligible for membership may purchase supplies or services from another party, including another political subdivision, instead of through participation in contracts authorized by division (A)(B)(2) of this section if the county or township political subdivision can purchase those supplies or services from the other party upon equivalent terms, conditions, and specifications but at a lower price than it can through those contracts. Purchases that a county or township political subdivision makes under this division are exempt from any competitive selection procedures otherwise required by law. A county or township political subdivision that makes any purchase under this division shall maintain sufficient information regarding the purchase to verify that the county or township it satisfied the conditions for making a purchase under this division. Nothing in this division restricts any action taken by a county or township political subdivision as authorized by division (A)(B)(1) of this section.
(E) The authorization granted to a municipal corporation under this section shall be in addition to, and not in derogation of, the powers and authority granted by state law, the Ohio Constitution, and the provisions of a municipal charter, ordinance, or resolution.
Sec. 125.04.  (A) Except as provided in division (D) of this section, the department of administrative services shall determine what supplies and services are purchased by or for state agencies. Whenever the department of administrative services makes any change or addition to the lists of supplies and services that it determines to purchase for state agencies, it shall provide a list to the agencies of the changes or additions and indicate when the department will be prepared to furnish each item listed. Except for the requirements of division (B) of section 125.11 of the Revised Code, sections 125.04 to 125.08 and 125.09 to 125.15 of the Revised Code do not apply to or affect the educational institutions of the state. The department shall not include the bureau of workers' compensation in the lists of supplies, equipment, and services purchased and furnished by the department.
Nothing in this division precludes the bureau from entering into a contract with the department for the department to perform services relative to supplies, equipment, and services contained in this division for the bureau.
(B)(1) As used in this division:
(a) "Emergency medical service organization" has the same meaning as in section 4765.01 of the Revised Code.
(b) "Political subdivision" means any county, township, municipal corporation, school district, conservancy district, township park district, park district created under Chapter 1545. of the Revised Code, regional transit authority, regional airport authority, regional water and sewer district, or port authority. "Political subdivision" also includes any other political subdivision described in the Revised Code that has been approved by the department to participate in the department's contracts under this division.
(c) "Private fire company" has the same meaning as in section 9.60 of the Revised Code.
(2) Subject to division (C) of this section, the department of administrative services may permit a political subdivision, county board of elections, private fire company, or private, nonprofit emergency medical service organization to participate in contracts into which the department has entered for the purchase of supplies and services. The department may charge the entity a reasonable fee to cover the administrative costs the department incurs as a result of participation by the entity in such a purchase contract.
A political subdivision desiring to participate in such purchase contracts shall file with the department a certified copy of an ordinance or resolution of the legislative authority or governing board of the political subdivision. The resolution or ordinance shall request that the political subdivision be authorized to participate in such contracts and shall agree that the political subdivision will be bound by such terms and conditions as the department prescribes and that it will directly pay the vendor under each purchase contract. A board of elections desiring to participate in such purchase contracts shall file with the purchasing authority a written request for inclusion in the program. A private fire company or private, nonprofit emergency medical service organization desiring to participate in such purchase contracts shall file with the department a written request for inclusion in the program signed by the chief officer of the company or organization. A request for inclusion shall include an agreement to be bound by such terms and conditions as the department prescribes and to make direct payments to the vendor under each purchase contract.
The department shall include in its annual report an estimate of the cost it incurs by permitting political subdivisions, county boards of elections, private fire companies, and private, nonprofit emergency medical service organizations to participate in contracts pursuant to this division. The department may require such entities to file a report with the department, as often as it finds necessary, stating how many such contracts the entities participated in within a specified period of time, and any other information the department requires.
(3) Purchases made by a political subdivision or a county board of elections under this division are exempt from any competitive selection procedures otherwise required by law. No political subdivision shall make any purchase under this division when bids have been received for such purchase by the subdivision, unless such purchase can be made upon the same terms, conditions, and specifications at a lower price under this division.
(C) A political subdivision as defined in division (B) of this section or a county board of elections may purchase supplies or services from another party, including a political subdivision, instead of through participation in contracts described in division (B) of this section if the political subdivision or county board of elections can purchase those supplies or services from the other party upon equivalent terms, conditions, and specifications but at a lower price than it can through those contracts. Purchases that a political subdivision or county board of elections makes under this division are exempt from any competitive selection procedures otherwise required by law. A political subdivision or county board of elections that makes any purchase under this division shall maintain sufficient information regarding the purchase to verify that the political subdivision or county board of elections satisfied the conditions for making a purchase under this division. Nothing in this division restricts any action taken by a county or township as authorized by division (A)(B)(1) of section 9.48 of the Revised Code.
(D) This section does not apply to supplies or services required by the legislative or judicial branches, the capitol square review and advisory board, the adjutant general, to supplies or services purchased by a state agency directly as provided in division (A) or (E) of section 125.05 of the Revised Code, to purchases of supplies or services for the emergency management agency as provided in section 125.023 of the Revised Code, or to purchases of supplies or services for the department of rehabilitation and correction in its operation of the program for the employment of prisoners established under section 5145.16 of the Revised Code that shall be made pursuant to rules adopted by the director of administrative services and the director of rehabilitation and correction in accordance with Chapter 119. of the Revised Code. The rules may provide for the exemption of the program for the employment of prisoners from the requirements of division (A) of this section.
Sec. 307.86.  Anything to be purchased, leased, leased with an option or agreement to purchase, or constructed, including, but not limited to, any product, structure, construction, reconstruction, improvement, maintenance, repair, or service, except the services of an accountant, architect, attorney at law, physician, professional engineer, construction project manager, consultant, surveyor, or appraiser, by or on behalf of the county or contracting authority, as defined in section 307.92 of the Revised Code, at a cost in excess of twenty-five thousand dollars, except as otherwise provided in division (D) of section 713.23 and in sections 125.04, 125.60 to 125.6012, 307.022, 307.041, 307.861, 339.05, 340.03, 340.033, 4115.31 to 4115.35, 5119.16, 5513.01, 5543.19, 5713.01, and 6137.05 of the Revised Code, shall be obtained through competitive bidding. However, competitive bidding is not required when any of the following applies:
(A) The board of county commissioners, by a unanimous vote of its members, makes a determination that a real and present emergency exists, and that determination and the reasons for it are entered in the minutes of the proceedings of the board, when either of the following applies:
(1) The estimated cost is less than fifty thousand dollars.
(2) There is actual physical disaster to structures, radio communications equipment, or computers.
For purposes of this division, "unanimous vote" means all three members of a board of county commissioners when all three members are present, or two members of the board if only two members, constituting a quorum, are present.
Whenever a contract of purchase, lease, or construction is exempted from competitive bidding under division (A)(1) of this section because the estimated cost is less than fifty thousand dollars, but the estimated cost is twenty-five thousand dollars or more, the county or contracting authority shall solicit informal estimates from no fewer than three persons who could perform the contract, before awarding the contract. With regard to each such contract, the county or contracting authority shall maintain a record of such estimates, including the name of each person from whom an estimate is solicited. The county or contracting authority shall maintain the record for the longer of at least one year after the contract is awarded or the amount of time the federal government requires.
(B)(1) The purchase consists of supplies or a replacement or supplemental part or parts for a product or equipment owned or leased by the county, and the only source of supply for the supplies, part, or parts is limited to a single supplier.
(2) The purchase consists of services related to information technology, such as programming services, that are proprietary or limited to a single source.
(C) The purchase is from the federal government, the state, another county or contracting authority of another county, or a board of education, township, or municipal corporation.
(D) The purchase is made by a county department of job and family services under section 329.04 of the Revised Code and consists of family services duties or workforce development activities or is made by a county board of mental retardation and developmental disabilities under section 5126.05 of the Revised Code and consists of program services, such as direct and ancillary client services, child care, case management services, residential services, and family resource services.
(E) The purchase consists of criminal justice services, social services programs, family services, or workforce development activities by the board of county commissioners from nonprofit corporations or associations under programs funded by the federal government or by state grants.
(F) The purchase consists of any form of an insurance policy or contract authorized to be issued under Title XXXIX of the Revised Code or any form of health care plan authorized to be issued under Chapter 1751. of the Revised Code, or any combination of such policies, contracts, or plans that the contracting authority is authorized to purchase, and the contracting authority does all of the following:
(1) Determines that compliance with the requirements of this section would increase, rather than decrease, the cost of the purchase;
(2) Employs a competent consultant to assist the contracting authority in procuring appropriate coverages at the best and lowest prices;
(3) Requests issuers of the policies, contracts, or plans to submit proposals to the contracting authority, in a form prescribed by the contracting authority, setting forth the coverage and cost of the policies, contracts, or plans as the contracting authority desires to purchase;
(4) Negotiates with the issuers for the purpose of purchasing the policies, contracts, or plans at the best and lowest price reasonably possible.
(G) The purchase consists of computer hardware, software, or consulting services that are necessary to implement a computerized case management automation project administered by the Ohio prosecuting attorneys association and funded by a grant from the federal government.
(H) Child care services are purchased for provision to county employees.
(I)(1) Property, including land, buildings, and other real property, is leased for offices, storage, parking, or other purposes, and all of the following apply:
(a) The contracting authority is authorized by the Revised Code to lease the property.
(b) The contracting authority develops requests for proposals for leasing the property, specifying the criteria that will be considered prior to leasing the property, including the desired size and geographic location of the property.
(c) The contracting authority receives responses from prospective lessors with property meeting the criteria specified in the requests for proposals by giving notice in a manner substantially similar to the procedures established for giving notice under section 307.87 of the Revised Code.
(d) The contracting authority negotiates with the prospective lessors to obtain a lease at the best and lowest price reasonably possible considering the fair market value of the property and any relocation and operational costs that may be incurred during the period the lease is in effect.
(2) The contracting authority may use the services of a real estate appraiser to obtain advice, consultations, or other recommendations regarding the lease of property under this division.
(J) The purchase is made pursuant to section 5139.34 or sections 5139.41 to 5139.46 of the Revised Code and is of programs or services that provide case management, treatment, or prevention services to any felony or misdemeanant delinquent, unruly youth, or status offender under the supervision of the juvenile court, including, but not limited to, community residential care, day treatment, services to children in their home, or electronic monitoring.
(K) The purchase is made by a public children services agency pursuant to section 307.92 or 5153.16 of the Revised Code and consists of family services, programs, or ancillary services that provide case management, prevention, or treatment services for children at risk of being or alleged to be abused, neglected, or dependent children.
(L) The purchase is to obtain the services of emergency medical service organizations under a contract made by the board of county commissioners pursuant to section 307.05 of the Revised Code with a joint emergency medical services district.
(M) The county contracting authority determines that the use of competitive sealed proposals would be advantageous to the county and the contracting authority complies with section 307.862 of the Revised Code.
Any issuer of policies, contracts, or plans listed in division (F) of this section and any prospective lessor under division (I) of this section may have the issuer's or prospective lessor's name and address, or the name and address of an agent, placed on a special notification list to be kept by the contracting authority, by sending the contracting authority that name and address. The contracting authority shall send notice to all persons listed on the special notification list. Notices shall state the deadline and place for submitting proposals. The contracting authority shall mail the notices at least six weeks prior to the deadline set by the contracting authority for submitting proposals. Every five years the contracting authority may review this list and remove any person from the list after mailing the person notification of that action.
Any contracting authority that negotiates a contract under division (F) of this section shall request proposals and renegotiate with issuers in accordance with that division at least every three years from the date of the signing of such a contract.
Any consultant employed pursuant to division (F) of this section and any real estate appraiser employed pursuant to division (I) of this section shall disclose any fees or compensation received from any source in connection with that employment.
Sec. 307.862.  (A) When a county contracting authority uses competitive sealed proposals pursuant to section 307.86 of the Revised Code, the county contracting authority shall do all of the following:
(1) Develop factors and criteria to evaluate each proposal, specify the relative importance of each factor or criterion in writing, and describe the evaluation procedures the contracting authority shall follow when awarding a contract to an offeror.
(2) Solicit competitive sealed proposals through a request for proposals;
(3) Include, at a minimum, all of the information described in division (B) of this section in the request for proposals;
(4) Give notice of the request for proposals in the same manner that notice must be given for competitive bidding pursuant to section 307.87 of the Revised Code;
(5) Open proposals that the contracting authority receives in a manner that prevents the disclosure of contents of competing offers to competing offerors;
(6) Rank each proposal using the factors and criteria the contracting authority develops pursuant to division (A)(1) of this section;
(7) If necessary, conduct discussions with offerors for the purpose of ensuring full understanding of, and responsiveness to, the requirements specified in the request for proposals, and accord fair and equal treatment with respect to any opportunity for discussion with offerors to provide any clarification, correction, or revision of proposals;
(8) If the contracting authority determines that discussions described in division (A)(7) of this section are necessary, avoid disclosing any information derived from proposals submitted by competing offerors during those discussions;
(9) Negotiate with the offeror who submits the proposal that the contracting authority determines is the most advantageous to the county based on the rankings performed by the contracting authority pursuant to division (A)(6) of this section and including any adjustment to those rankings based on discussions conducted pursuant to division (A)(7) of this section;
(10) Conduct negotiations with only one offeror at a time;
(11) Except as provided in division (F) of this section, award a contract in accordance with division (E) of this section.
(B) A contracting authority shall include, at a minimum, all of the following information in the contracting authority's request for proposals:
(1) The name and address of the department, office, institution, board, or commission that is requesting to purchase supplies, services, or both;
(2) Instructions for offerors to follow when submitting proposals;
(3) Instructions governing communications between an offeror and the contracting authority, including, but not limited to, the name, title, and telephone number of the person to whom questions concerning the request for proposals should be directed;
(4) A description of the scope of work that the contracting authority requests an offeror to perform or supplies the contracting authority plans to purchase;
(5) To the extent possible, a description of the performance criteria the contracting authority shall require an offeror to satisfy, including but not limited to, the quantity of the supplies, services, or both, to be purchased; the requirements the contracting authority shall follow for inspection and acceptance of the supplies, services, or both; and the delivery schedule for each such supply or service;
(6) The factors and criteria the contracting authority shall consider in evaluating proposals received;
(7) Any terms and conditions that the contracting authority is required by law to include in the contract the contracting authority awards, including any requirement for a bond and the amount required for that bond;
(8) The date and time by which, and the place to which an offeror must deliver the offeror's proposal to the contracting authority in order to be considered for the contract;
(9) A list of any documents that the contracting authority incorporates by reference in the request for proposals, provided that the contracting authority specifies in the request for proposals that the documents are readily available to all offerors and the location where an offeror may obtain those documents;
(10) A statement that includes all of the following information:
(a) That the contracting authority reserves the right to reject any proposal in which the offeror takes exception to the terms and conditions of the request for proposals; fails to meet the terms and conditions of the request for proposals, including but not limited to, the standards, specifications, and requirements specified in the request for proposals; or submits prices that the contracting authority considers to be excessive, compared to existing market conditions, or determines exceed the available funds of the contracting authority;
(b) That the contracting authority reserves the right to reject, in whole or in part, any proposal that the county contracting authority has determined, using the factors and criteria the contracting authority develops pursuant to division (A)(1) of this section, would not be in the best interest of the county;
(c) That the contracting authority may conduct discussions with offerors who submit proposals for the purpose of clarifications or corrections regarding a proposal to ensure full understanding of, and responsiveness to, the requirements specified in the request for proposals.
(11) Information concerning any potential partial or multiple party awards that the contracting authority may include in the contract, and a description of the supplies, services, or both that may be subject to a partial award or multiple awards;
(12) Any additional information the contracting authority considers necessary for its purposes in determining to whom to award the contract.
(C) In order to ensure fair and impartial evaluation, proposals and any documents or other records related to a subsequent negotiation for a final contract that would otherwise be available for public inspection and copying under section 149.43 of the Revised Code shall not be available until after the award of the contract.
(D) An offeror may withdraw the offeror's proposal at any time prior to the award of a contract. A contracting authority may terminate negotiations with an offeror at any time during the negotiation process if the offeror fails to provide the necessary information for negotiations in a timely manner or fails to negotiate in good faith. If the contracting authority terminates negotiations with an offeror, the contracting authority shall negotiate with the offeror whose proposal is ranked the next most advantageous to the county according to the factors and criteria developed pursuant to division (A)(1) of this section.
(E) A county contracting authority may award a contract to the offeror whose proposal is determined to be the most advantageous to the county, taking into consideration the evaluation factors and criteria developed pursuant to division (A)(1) of this section and set forth in the request for proposals. A contracting authority may award a contract in whole or in part to one or more offerors. The contracting authority shall include a written statement in the contract file stating the basis on which the award is made.
The contracting authority shall send a written notice to the offeror to whom it wishes to award the contract and shall make that notice available to the public. Within a reasonable time period after the award is made, the contracting authority shall notify all other offerors that the contract has been awarded to another offeror.
(F) A contracting authority may cancel or reissue a request for proposals if any of the following apply:
(1) The supplies or services offered through all of the proposals submitted to the contracting authority are not in compliance with the requirements, specifications, and terms and conditions set forth in the request for proposals;
(2) The prices submitted by the offerors are excessive compared to existing market conditions or exceed the available funds of the contracting authority;
(3) The contracting authority determines that award of a contract would not be in the best interest of the county.
(G) A county contracting authority shall not use competitive sealed proposals for contracts for construction, design, demolition, alteration, repair, or reconstruction of a building, highway, drainage system, water system, road, street, alley, sewer, ditch, sewage disposal plant, waterworks, and all other structures or works of any nature by a county contracting authority.
Sec. 3313.46.  (A) In addition to any other law governing the bidding for contracts by the board of education of any school district, when any such board determines to build, repair, enlarge, improve, or demolish any school building, the cost of which will exceed twenty-five thousand dollars, except in cases of urgent necessity, or for the security and protection of school property, and except as otherwise provided in division (D) of section 713.23 and in section 125.04 of the Revised Code, all of the following shall apply:
(1) The board shall cause to be prepared the plans, specifications, and related information as required in divisions (A), (B), and (D) of section 153.01 of the Revised Code unless the board determines that other information is sufficient to inform any bidders of the board's requirements. However, if the board determines that such other information is sufficient for bidding a project, the board shall not engage in the construction of any such project involving the practice of professional engineering, professional surveying, or architecture, for which plans, specifications, and estimates have not been made by, and the construction thereof inspected by, a licensed professional engineer, licensed professional surveyor, or registered architect.
(2) The board shall advertise for bids once each week for a period of at least not less than two consecutive weeks in a newspaper of general circulation in the district prior to before the date specified by the board for receiving bids. The board may also cause notice to be inserted in trade papers or other publications designated by it or to be distributed by electronic means, including posting the notice on the board's internet web site. If the board posts the notice on its web site, it may eliminate the second notice otherwise required to be published in a newspaper of general circulation within the school district, provided that the first notice published in such newspaper meets all of the following requirements:
(a) It is published at least two weeks before the opening of bids.
(b) It includes a statement that the notice is posted on the board of education's internet web site.
(c) It includes the internet address of the board's internet web site.
(d) It includes instructions describing how the notice may be accessed on the board's internet web site.
(3) Unless the board extends the time for the opening of bids they shall be opened at the time and place specified by the board in the advertisement for the bids.
(4) Each bid shall contain the name of every person interested therein. Each bid shall meet the requirements of section 153.54 of the Revised Code.
(5) When both labor and materials are embraced in the work bid for, the board may require that each be separately stated in the bid, with the price thereof, or may require that bids be submitted without such separation.
(6) None but the lowest responsible bid shall be accepted. The board may reject all the bids, or accept any bid for both labor and material for such improvement or repair, which is the lowest in the aggregate. In all other respects, the award of contracts for improvement or repair, but not for purchases made under section 3327.08 of the Revised Code, shall be pursuant to section 153.12 of the Revised Code.
(7) The contract shall be between the board and the bidders. The board shall pay the contract price for the work pursuant to sections 153.13 and 153.14 of the Revised Code. The board shall approve and retain the estimates referred to in section 153.13 of the Revised Code and make them available to the auditor of state upon request.
(8) When two or more bids are equal, in the whole, or in any part thereof, and are lower than any others, either may be accepted, but in no case shall the work be divided between such bidders.
(9) When there is reason to believe there is collusion or combination among the bidders, or any number of them, the bids of those concerned therein shall be rejected.
(B) Division (A) of this section does not apply to the board of education of any school district in any of the following situations:
(1) The acquisition of educational materials used in teaching.
(2) If the board determines and declares by resolution adopted by two-thirds of all its members that any item is available and can be acquired only from a single source.
(3) If the board declares by resolution adopted by two-thirds of all its members that division (A) of this section does not apply to any installation, modification, or remodeling involved in any energy conservation measure undertaken through an installment payment contract under section 3313.372 of the Revised Code or undertaken pursuant to division (G) of section 133.06 of the Revised Code.
(4) The acquisition of computer software for instructional purposes and computer hardware for instructional purposes pursuant to division (B)(4) of section 3313.37 of the Revised Code.
(C) No resolution adopted pursuant to division (B)(2) or (3) of this section shall have any effect on whether sections 153.12 to 153.14 and 153.54 of the Revised Code apply to the board of education of any school district with regard to any item.
Section 2. That existing sections 9.48, 125.04, 307.86, and 3313.46 of the Revised Code are hereby repealed.
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