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H. B. No. 229 As IntroducedAs Introduced
130th General Assembly | Regular Session | 2013-2014 |
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Cosponsors:
Representatives Adams, J., Beck, Becker, Buchy, Hood, Lynch, Roegner, Wachtmann
A BILL
To amend sections 4116.01 to 4116.04; to amend, for
the purpose of adopting a new section number as
indicated in parentheses, section 4116.04
(4116.05); and to enact new section 4116.04 and
section 4116.06 of the Revised Code to expand the
number of potential bidders for public works
funded by a state agency and not discriminate in
favor of or against labor organizations by
requiring or prohibiting certain labor
requirements as a condition of performing these
public works, and to expand the potential number
of bidders for public works conducted by a
political subdivision of the state and not reward
discrimination in favor of or against labor
organizations by the appropriation of state funds
for public works when a political subdivision
discriminates by requiring or prohibiting certain
labor requirements as a condition of performing
public works.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 4116.01, 4116.02, 4116.03, and
4116.04 be amended, section 4116.04 (4116.05) be amended for the
purpose of adopting a new section number as indicated in
parentheses, and new section 4116.04 and section 4116.06 of the
Revised Code be enacted to read as follows:
Sec. 4116.01. As used in sections 4116.01 to 4116.04 of the
Revised Code this chapter:
(A) "Public authority State agency" means any officer, board,
or commission of the state, or any political subdivision of the
state, or any institution supported in whole or in part by public
funds, authorized to enter into a contract for the construction of
a public improvement or to construct a public improvement by the
direct employment of labor, and includes a state institution of
higher education. "Public authority" shall not mean any municipal
corporation that has adopted a charter under sections three and
seven of article XVIII of the Ohio Constitution, unless the
specific contract for a public improvement includes state funds
appropriated for the purposes of that public improvement.
(B) "Construction" means all both of the following:
(1) Any new construction of any public improvement performed
by other than full-time employees who have completed their
probationary periods in the classified service of a public
authority state agency or political subdivision;
(2) Any reconstruction, enlargement, alteration, repair,
remodeling, renovation, or painting of any public improvement
performed by other than full-time employees who have completed
their probationary period in the classified civil service of a
public authority;
(3) Construction on any project, facility, or project
facility to which section 122.80, 166.02, or 1728.07 of the
Revised Code applies;
(4) Construction on any project as defined in section 122.39
of the Revised Code, any project as defined in section 165.01 of
the Revised Code, any energy resource development facility as
defined in section 1551.01 of the Revised Code, or any project as
defined in section 3706.01 of the Revised Code state agency or
political subdivision.
(C) "Public improvement" means all buildings, roads, streets,
alleys, sewers, ditches, sewage disposal plants, water works, and
other structures or works constructed by a public authority state
agency or political subdivision or by any person who, pursuant to
a contract with a public authority state agency or political
subdivision, constructs any structure or work for a public
authority state agency or political subdivision. When a public
authority rents or leases a newly constructed structure within six
months after completion of its construction, all work performed on
that structure to suit it for occupancy by a public authority is a
"public improvement."
(D) "Interested party," with respect to a particular public
improvement, means all of the following:
(1) Any person who submits a bid for the purpose of securing
the award of a contract for the public improvement;
(2) Any person acting as a subcontractor of a person
mentioned in division (D)(1) of this section;
(3) Any association having as members any of the persons
mentioned in division (D)(1) or (2) of this section;
(4) Any employee of a person mentioned in division (D)(1),
(2), or (3) of this section;
(5) Any individual who is a resident of the jurisdiction of
the public authority for whom products or services for a public
improvement are being procured or for whom work on a public
improvement is being performed this state.
(E) "Political subdivision" has the same meaning as in
section 9.23 of the Revised Code.
(F) "State institution of higher education" has the same
meaning as in section 3345.011 of the Revised Code.
Sec. 4116.02. A public authority state agency, when engaged
in procuring products or services, awarding contracts, or
overseeing procurement or construction for public improvements
undertaken by or on behalf of the state agency, shall ensure that
bid specifications issued by the public authority state agency for
the proposed public improvement, and any subsequent contract or
other agreement for the public improvement to which the public
authority state agency and a contractor or subcontractor are
direct parties, do not require or prohibit that a contractor or
subcontractor to do any of the following:
(A) Enter into agreements with any labor organization on the
public improvement;
(B) Enter into any agreement that requires the employees of
that contractor or subcontractor to do either of the following as
a condition of employment or continued employment:
(1) Become members of or affiliated with a labor
organization;
(2) Pay dues or fees to a labor organization.
Sec. 4116.03. No public authority state agency shall do any
of the following:
(A) Award a contract for a public improvement undertaken by
or on behalf of the state agency in violation of section 4116.02
of the Revised Code;
(B) Discriminate against any bidder, contractor, or
subcontractor for refusing or electing to become a party to any
agreement with any labor organization on the public improvement
undertaken by or on behalf of the state agency that currently is
under bid or on projects related to that improvement;
(C) Otherwise violate section 4116.02 of the Revised Code.
Sec. 4116.04. No state funds shall be appropriated for the
purpose of the construction of a public improvement by or on
behalf of a political subdivision, if the political subdivision,
in procuring products or services, awarding contracts, or
overseeing procurement or construction for public improvements
undertaken by or on behalf of the political subdivision, requires
in the bid specifications a contractor or subcontractor to enter
into, or prohibits in the bid specifications a contractor or
subcontractor from entering into, an agreement described in
division (A) or (B) of section 4116.02 of the Revised Code.
Sec. 4116.04 4116.05. (A) An interested party may file a
complaint against a contracting public authority state agency
alleging a violation of section 4116.02 or, 4116.03, or 4116.04 of
the Revised Code within two years after the date on which the
contract is signed for the public improvement in the court of
common pleas of the county in which the public improvement is
performed. The performance of the contract forms the basis of the
allegation of a violation. The court in which the complaint is
filed shall hear and decide the case and, upon a finding that a
violation has occurred, shall void the contract and make any
orders that will prevent further violations.
The Rules of Civil Procedure govern all actions under this
section. Any determination of a court under this section is
subject to appellate review.
(B) If, pursuant to this section, a court finds a violation
of section 4116.02 or, 4116.03, or 4116.04 of the Revised Code,
the court may award reasonable attorney's fees, court costs, and
any other fees incurred in the course of the civil action to the
prevailing plaintiff.
Sec. 4116.06. (A) Nothing in this chapter shall be construed
as regulating the conduct of a private entity. This chapter
applies only to the state or a state agency that is acting in a
proprietary capacity as a market participant.
(B) The intent of this chapter is to achieve all of the
following:
(1) To ensure that all construction contracts undertaken by
or on behalf of the state are let for bid without unnecessary
restrictions that arbitrarily may reduce the potential pool of
bidders, thereby increasing procurement and construction costs for
the taxpayers of this state;
(2) To ensure that a contract for construction undertaken by
or on behalf of a state agency is awarded to the lowest responsive
and responsible bidder or based upon any other applicable
competitive bidding standard;
(3) To prevent political kickbacks, favoritism,
discrimination, cronyism, or collusion between government
officials and any individual, employee, or organization;
(4) To prevent discrimination by a state agency based upon a
contractor's or subcontractor's relationship with a labor
organization or lack thereof;
(5) To expand job opportunities for small and disadvantaged
businesses.
Section 2. That existing sections 4116.01, 4116.02, 4116.03,
and 4116.04 of the Revised Code are hereby repealed.
Section 3. The items of law contained in this act, and their
applications, are severable. If any item of law contained in this
act, or if any application of any item of law contained in this
act, is held invalid, the invalidity does not affect other items
of law contained in this act and their applications that can be
given effect without the invalid item of law or application.
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