130th Ohio General Assembly
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Sub. S. B. No. 131  As Reported by the Senate Agriculture Committee
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 sections 125.091, 125.092, 125.093, 3345.691, and 3345.692 of the Revised Code to require that the Director of Administrative Services establish a program that ensures that supplies composed of biobased products are purchased by the Department of Administrative Services, other state agencies, and state institutions of higher education.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1.  That sections 125.04 and 5513.02 be amended and sections 125.091, 125.092, 125.093, 3345.691, and 3345.692 of the Revised Code be enacted to read as follows:
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. Except for the requirements of section 125.092 and 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.
(B)(1) As used in this division:
(a) "Chartered nonpublic school" has the same meaning as in section 3310.01 of the Revised Code.
(b) "Emergency medical service organization" has the same meaning as in section 4765.01 of the Revised Code.
(c) "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.
(d) "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, private, nonprofit emergency medical service organization, or chartered nonpublic school 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, private, nonprofit emergency medical service organization, or chartered nonpublic school 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, organization, or chartered nonpublic school. 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, private, nonprofit emergency medical service organizations, and chartered nonpublic schools 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 (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 for military supplies and services, to supplies or services purchased by a state agency directly as provided in division (A), (B), or (F) of section 125.05 of the Revised Code, or to purchases of supplies or services for the emergency management agency as provided in section 125.023 of the Revised Code.
Sec. 125.091.  As used in this section and sections 125.092 and 125.093 of the Revised Code:
(A) "Agricultural materials" means agricultural-based materials or residues, including plant, animal, and marine materials or residues, used in the manufacture of commercial or industrial nonfood products.
(B) "Biobased product" means a product determined by the United States secretary of agriculture to be a commercial or industrial product, other than food or feed, that is composed, in whole or significant part, of biological products, renewable domestic agricultural materials, or forestry material, or is an intermediate ingredient or feedstock.
(C) "Biological products" means products derived from living materials other than agricultural or forestry materials.
(D) "Designated item" means a generic grouping of biobased products identified in subpart B, 7 C.F.R. 2902.10 to 2902.42.
(E) "Forest thinnings" means woody materials removed from a dense forest to improve growth, enhance forest health, or remove trees to recover potential mortality.
(F) "Forestry materials" means materials derived from the practice of planting and caring for forests and the management of growing timber where such materials come from short-rotation woody crops that are less than ten years old, sustainably managed forests, wood residues, or forest thinnings.
(G) "Intermediate ingredient or feedstock" means a material or compound made, in whole or in significant part, from biological products, renewable agricultural materials, or forestry materials that are subsequently used to make a more complex compound or product.
(H) "Sustainably managed forests" means the practice of land stewardship that integrates the reforestation, management, growing, nurturing, and harvesting of trees for useful products while conserving soil and improving air and water quality, wildlife, fish habitat, and aesthetics.
Sec. 125.092.  (A) When purchasing equipment, material, or supplies, the department of administrative services, other state agencies, and state institutions of higher education shall purchase biobased products in accordance with the biobased product preference program established by the director of administrative services under this section.
(B) Not later than one hundred eighty days after the effective date of this section, the director shall establish a biobased product preference program, which shall ensure that the department of administrative services, other state agencies, and state institutions of higher education purchase biobased products by giving a preference to those designated items that are composed of the highest percentage of biobased content practicable or that comply with regulations adopted under 42 U.S.C. 6914b-1 by the administrator of the United States environmental protection agency. The purchase of biobased products under the program shall be consistent with sections 125.01 to 125.11 of the Revised Code.
As part of the program, the director shall adopt a policy of setting minimum biobased content specifications for awarding contracts in a manner that ensures that the biobased content of biobased products is consistent with the guidelines issued under 7 U.S.C. 8102, except when the director determines that division (C)(1), (2), or (3) of this section applies.
(C) The director may determine that it is not possible for a biobased product to be purchased in accordance with the biobased product preference program if the director determines that any of the following applies to the product:
(1) The product is not available within a reasonable period of time.
(2) The product fails to meet the performance standards set forth in the applicable specifications for the product.
(3) The product is available only at an unreasonable price. As used in division (C)(3) of this section, "unreasonable price" means a price that exceeds more than five per cent of the price of a similar product that is not a biobased product.
(D) For any biobased product offered under the biobased product preference program, a vendor shall certify that the product meets the biobased content requirements for the designated item of which the product is an exemplar. Upon request, a vendor shall provide to the director information to verify the biobased content of a biobased product qualifying for purchase in accordance with the program.
(E) The director shall adopt rules in accordance with Chapter 119. of the Revised Code that prescribe all of the following:
(1) The procedures the department of administrative services, other state agencies, and state institutions of higher education shall use to give preference to and purchase biobased products in accordance with the program;
(2) The purchasing policy the director adopts under division (B) of this section;
(3) Other requirements or procedures that are necessary to implement the biobased product preference program.
(F) The director shall maintain a list of products that qualify as designated items under the biobased product preference program.
(G) The director may enter into a pilot contract with a vendor of a biobased product that is determined by the director to be the sole provider of the biobased product for the purpose of determining if the product is feasible for use by the state. For purposes of entering into the contract, the director may negotiate pricing and the terms and conditions of the contract subject to the approval of the controlling board. Pricing for the pilot contract shall be based on the fair market value of similar products if those products are available. The term of the pilot contract may be for a length of time determined by the director, not to exceed one fiscal year, to sufficiently examine and complete testing of the biobased product. The director may renew the contract for one additional fiscal year subject to the approval of the controlling board. If the director determines the biobased product to be feasible for use by the state, all additional purchases of that product shall be made by competitive selection.
(H) This section does not apply to the purchase of motor vehicle fuel, heating oil, or electricity.
(I) As used in this section, "state institution of higher education" has the same meaning as in section 3345.011 of the Revised Code.
Sec. 125.093.  Not later than September 30, 2010, and the thirtieth day of September each year thereafter, the director of administrative services shall prepare and submit to the governor, the president of the senate, and the speaker of the house of representatives a report that describes the number and types of biobased products purchased under section 125.092 of the Revised Code and the amount of money spent by the department of administrative services and other state agencies for those biobased products.
Sec. 3345.691.  A state institution of higher education, as defined in section 3345.011 of the Revised Code, shall comply with section 125.092 of the Revised Code regarding the purchase of biobased products.
Sec. 3345.692.  (A) Not later than September 15, 2010, and the fifteenth day of September each year thereafter, a state institution of higher education shall prepare and submit to the chancellor of the board of regents a report that describes the number and types of biobased products purchased under section 125.092 of the Revised Code and the amount of money spent by the state institution of higher education for those biobased products.
(B) Not later than September 30, 2010, and the thirtieth day of September each year thereafter, the chancellor of the board of regents shall prepare and submit to the governor, the president of the senate, and the speaker of the house of representatives a report that describes the number and types of biobased products purchased under section 125.092 of the Revised Code and the amount of money spent by state institutions of higher education for those biobased products as that information is provided to the chancellor under division (A) of this section.
(C) As used in this section, "state institution of higher education" has the same meaning as in section 3345.011 of the Revised Code.
Sec. 5513.02.  (A) Specifications describing the character of the articles that the department of transportation is proposing to purchase, and the conditions governing shipment and delivery, shall be kept on file at the department and open to public inspection throughout the time during which an invitation to bidders is required to be posted. The director of transportation may require bids to be accompanied by a certified check payable to the director in an amount fixed by the director and stated in the invitation to bidders. Persons, firms, or corporations desiring to bid on more than one invitation shall be relieved from furnishing certified checks with their bids provided they first furnish a bond payable to the state, in an amount and with surety approved by the director, conditioned for the faithful performances of all contracts that may be awarded to them, and otherwise conditioned as the director requires. All bids shall be publicly opened and read at the time and place mentioned in the notice. All purchases shall be made by the director from the lowest responsive and responsible bidder for each item in accordance with section 9.312 of the Revised Code, except where the director has established in the bidding documents a provision for multiple awards for the purchase of items such as asphalt, aggregates, machinery parts, and others as the director determines necessary, and except that in the purchase of machinery, equipment, or supplies for which fixed and definite specifications cannot be prepared, the director may purchase the articles meeting the general specifications prescribed and which the director finds are most suitable for the uses intended. Sections 5513.01 to 5513.04 of the Revised Code shall apply to the exchange of machinery and equipment and in force account operations where the director desires to combine in one order the furnishing, hauling, and placing of material. The director may purchase or authorize the purchase without notice, or upon such notice as the director prescribes, of materials that in the director's judgment may be required for the immediate repair of roads or bridges destroyed or damaged by flood, landslide, or other casualty. No person shall place separate orders for the purpose of defeating such sections, and contracts of purchase shall not be valid unless made in conformity with this section.
(B) Division Section 125.092 and division (B) of section 125.11 of the Revised Code applies apply to the purchase of products by the director pursuant to sections 5513.01 to 5513.04 of the Revised Code.
Section 2.  That existing sections 125.04 and 5513.02 of the Revised Code are hereby repealed.
Section 3.  Section 125.04 of the Revised Code is presented in this act as a composite of the section as amended by both Am. Sub. H.B. 562 and Am. Sub. S.B. 268 of the 127th General Assembly. The General Assembly, applying the principle stated in division (B) of section 1.52 of the Revised Code that amendments are to be harmonized if reasonably capable of simultaneous operation, finds that the composite is the resulting version of the section in effect prior to the effective date of the section as presented in this act.
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