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H. B. No. 37 As IntroducedAs Introduced
128th General Assembly | Regular Session | 2009-2010 |
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Cosponsors:
Representatives Hagan, Boyd, Harris, Luckie
A BILL
To amend section 9.312 and to enact section 125.112
of the Revised Code to require the Department of
Administrative Services to maintain a web site
database including apparent low bidders who failed
to be awarded a contract because they were found
not to be "responsible," and to require public
entities to conduct investigations when apparent
low bidders are suspected of failing or fail to
meet the "responsible" prong of the "responsive
and responsible" competitive bidding threshold.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That section 9.312 be amended and section 125.112
of the Revised Code be enacted to read as follows:
Sec. 9.312. (A) If a state agency or political
subdivision
is required by law or by an ordinance or resolution
adopted under
division (C) of this section to award a contract to
the lowest
responsive and responsible bidder, a bidder on the
contract shall
be considered responsive if
the bidder's
proposal responds
to
bid
specifications in all material respects and contains no
irregularities or deviations from the specifications which would
affect the amount of the bid or otherwise give
the bidder a
competitive
advantage. The factors that the state agency or
political
subdivision shall consider in determining whether a
bidder on the
contract is responsible include the experience of
the bidder,
the bidder's
financial condition,
conduct and
performance on
previous
contracts,
facilities,
management
skills,
and
ability
to execute the contract properly.
For purposes of this division, the provision of a bid
guaranty in accordance with divisions (A)(1) and (B) of section
153.54 of the Revised Code issued by a surety licensed to do
business in this state is evidence of financial responsibility,
but a state agency or political subdivision may request additional
financial information for review from an apparent low bidder after
it opens all submitted bids. A state agency or political
subdivision shall keep additional financial information it
receives pursuant to a request under this division confidential,
except under proper order of a court. The additional financial
information is not a public record under section 149.43 of the
Revised Code.
An apparent low bidder found
not to be responsive and
responsible shall be notified by the
state agency or political
subdivision of that finding and the
reasons for it. Except for
contracts awarded by the department
of administrative services
pursuant to section 125.11 of the Revised Code, the
notification
shall be given in writing and
by certified mail. When awarding
contracts pursuant to section 125.11
of the Revised Code, the
department may send such notice in writing by first class mail.
(B) Where a state agency or a political subdivision that
has
adopted an ordinance or resolution under division (C) of this
section determines to award a contract to a bidder other than the
apparent low bidder or bidders for the construction,
reconstruction, improvement, enlargement, alteration, repair,
painting, or decoration of a public improvement, it shall meet
with the apparent low bidder or bidders upon a filing of a timely
written protest. The protest must be received within five days
of
the notification required in division (A) of this section. No
final award shall be made until the state agency or political
subdivision either affirms or reverses its earlier determination.
Notwithstanding any other provisions of the Revised Code, the
procedure described in this division is not subject to Chapter
119. of the Revised Code.
(C) A municipal corporation, township, school district,
board
of county commissioners, any other county board or
commission, or
any other political subdivision required by law to
award contracts
by competitive bidding may by ordinance or
resolution adopt a
policy of requiring each competitively bid
contract it awards to
be awarded to the lowest responsive and
responsible bidder in
accordance with this section.
(D) The state agency or political subdivision shall conduct
and complete an investigation before, or within thirty days after,
finding an apparent low bidder not to be a responsible bidder. The
purpose of the investigation shall be to substantiate the reasons
for which the apparent low bidder is suspected of not being a
responsible bidder, or to determine the reasons for which the
apparent low bidder was found not to be a responsible bidder. The
state agency or political subdivision shall send the results of
the investigation to the director of administrative services for
entry on the department's web site under section 125.112 of the
Revised Code. The state agency or political subdivision may not
conduct more than one investigation of an apparent low bidder.
Sec. 125.112. (A)(1) The director of administrative services,
not later than the date that is two months after the effective
date of this section, shall create and thereafter maintain on the
department of administrative services web site a database that
identifies each apparent low bidder who has been found not to be a
responsible bidder and reports the results of the investigation
under section 9.312 of the Revised Code.
(2) For contracts awarded on or after January 1, 2000, and
before the effective date of this section, in the case of a school
district, or on or after July 1, 1999, and before the effective
date of this section, in the case of a state agency or a political
subdivision other than a school district, the director of
administrative services, not later than the date that is six
months after the effective date of this section, shall create and
thereafter maintain on the department of administrative services
web site a database that identifies each apparent low bidder who
was found not to be a responsible bidder and reports the reasons
for which the bidder was found not to be a responsible bidder
under section 9.312 of the Revised Code.
(B) An entry in a database under divisions (A)(1) and (2) of
this section shall be maintained on the department of
administrative services web site for a period of ten years after
the date the entry was made. The information contained in an entry
is a public record for purposes of section 149.43 of the Revised
Code.
Section 2. That existing section 9.312 of the Revised Code is
hereby repealed.
Section 3. (A) The amendment by this act of section 9.312 and
division (A)(1) of section 125.112 of the Revised Code apply to
contracts that are opened for bidding on or after the effective
date of this section.
(B) A state agency or political subdivision that, as
contemplated by division (A)(2) of section 125.112 of the Revised
Code, found an apparent low bidder on a contract not to be a
responsible bidder shall provide the director of administrative
services with the information required by that division not later
than the date that is four months after the effective date of this
section.
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