| Sec. 125.09. (A) Pursuant to section 125.07 of the Revised | 6 |
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Code, the department of administrative services may prescribe such | 7 |
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conditions under which competitive sealed bids will be received | 8 |
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and terms of the proposed purchase as it considers necessary; | 9 |
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provided, that all such conditions and terms shall be reasonable | 10 |
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and shall not unreasonably restrict competition, and bidders may | 11 |
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bid upon all or any item of the supplies or services listed in | 12 |
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such notice. Those bidders claiming the preference for United | 13 |
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States and Ohio products outlined in this chapter shall designate | 14 |
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in their bids either that the product to be supplied is an Ohio | 15 |
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product or that under the rules established by the director of | 16 |
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administrative services they qualify as having a significant Ohio | 17 |
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economic presence. | 18 |
| (4) Criteria and procedures to be used by the director to | 35 |
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qualify bidders located in states bordering Ohio who might | 36 |
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otherwise be excluded from being awarded a contract by operation | 37 |
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of this section and section 125.11 of the Revised Code. The | 38 |
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criteria and procedures shall recognize the level and regularity | 39 |
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of interstate commerce between Ohio and the border states and | 40 |
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provide that the non-Ohio businesses may qualify for award of a | 41 |
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contract as long as they are located in a state that imposes no | 42 |
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greater restrictions than are contained in this section and | 43 |
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section 125.11 of the Revised Code upon persons located in Ohio | 44 |
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selling products or services to agencies of that state. The | 45 |
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criteria and procedures shall also provide that a non-Ohio | 46 |
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business shall not bid on a contract for state printing in this | 47 |
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state if the business is located in a state that excludes Ohio | 48 |
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businesses from bidding on state printing contracts in that state. | 49 |
| (5) Criteria and procedures to be used to qualify bidders | 50 |
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whose manufactured products, except for mined products, are | 51 |
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produced in other states or in North America, but the bidders have | 52 |
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a significant Ohio economic presence in terms of the number of | 53 |
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employees or capital investment a bidder has in this state. | 54 |
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Bidders with a significant Ohio economic presence shall qualify | 55 |
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for award of a contract on the same basis as if their products | 56 |
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were produced in this state. | 57 |
| Sec. 125.11. (A) Subject to division (B) of this section, | 76 |
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contracts awarded pursuant to a reverse auction under section | 77 |
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125.072 of the Revised Code or pursuant to competitive sealed | 78 |
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bidding, including contracts awarded under section 125.081 of the | 79 |
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Revised Code, shall be awarded to the lowest responsive and | 80 |
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responsible bidder on each item in accordance with section 9.312 | 81 |
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of the Revised Code. When the contract is for meat products as | 82 |
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defined in section 918.01 of the Revised Code or poultry products | 83 |
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as defined in section 918.21 of the Revised Code, only those bids | 84 |
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received from vendors offering products from establishments on the | 85 |
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current list of meat and poultry vendors established and | 86 |
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maintained by the director of administrative services under | 87 |
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section 125.17 of the Revised Code shall be eligible for | 88 |
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acceptance. The department of administrative services may accept | 89 |
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or reject any or all bids in whole or by items, except that when | 90 |
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the contract is for services or products available from a | 91 |
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qualified nonprofit agency pursuant to sections 125.60 to 125.6012 | 92 |
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or 4115.31 to 4115.35 of the Revised Code, the contract shall be | 93 |
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awarded to that agency. | 94 |
| (B) Prior to awarding a contract under division (A) of this | 95 |
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section, the department of administrative services or the state | 96 |
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agency responsible for evaluating a contract for the purchase of | 97 |
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products shall evaluate the bids received according to the | 98 |
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criteria and procedures established pursuant to divisions (C)(1) | 99 |
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and (2) of section 125.09 of the Revised Code for determining if a | 100 |
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product is produced or mined in the United States and if a product | 101 |
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is produced or mined in this state. The department or other state | 102 |
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agency shall first remove bids that offer products that have not | 103 |
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been or that will not be produced or mined in the United States. | 104 |
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From among the remaining bids, the department or other state | 105 |
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agency shall select the lowest responsive and responsible bid, in | 106 |
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accordance with section 9.312 of the Revised Code, from among the | 107 |
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bids that offer products that have been produced or mined in this | 108 |
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state where sufficient competition can be generated within this | 109 |
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state to ensure that compliance with these requirements will not | 110 |
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result in an excessive price for the product or acquiring a | 111 |
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disproportionately inferior product.
For purposes of this | 112 |
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division, "excessive price" means a price that exceeds by more | 113 |
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than five per cent the lowest price bid, except that a price that | 114 |
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exceeds the lowest price bid by more than five per cent but not | 115 |
|
more than ten per cent shall not be considered an excessive price | 116 |
|
if the entity submitting the bid has demonstrated that the entity | 117 |
|
will create or retain jobs in Ohio as a result of being awarded | 118 |
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the contract. For purposes of this division, "lowest price bid" | 119 |
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means the lowest price submitted on a responsive and responsible | 120 |
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bid from among the bids that do not offer products that have been | 121 |
|
produced or mined in this state. | 122 |
| (E) The director of administrative services shall publish in | 127 |
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the form of a model act for use by counties, townships, municipal | 128 |
|
corporations, or any other political subdivision described in | 129 |
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division (B) of section 125.04 of the Revised Code, a system of | 130 |
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preferences for products mined and produced in this state and in | 131 |
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the United States and for Ohio-based contractors. The model act | 132 |
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shall reflect substantial equivalence to the system of preferences | 133 |
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in purchasing and public improvement contracting procedures under | 134 |
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which the state operates pursuant to this chapter and section | 135 |
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153.012 of the Revised Code. To the maximum extent possible, | 136 |
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consistent with the Ohio system of preferences in purchasing and | 137 |
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public improvement contracting procedures, the model act shall | 138 |
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incorporate all of the requirements of the federal "Buy America | 139 |
|
Act," 47 Stat. 1520 (1933), 41 U.S.C. 10a to 10d, as amended, and | 140 |
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the rules adopted under that act. | 141 |
| Before and during the development and promulgation of the | 142 |
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model act, the director shall consult with appropriate statewide | 143 |
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organizations representing counties, townships, and municipal | 144 |
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corporations so as to identify the special requirements and | 145 |
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concerns these political subdivisions have in their purchasing and | 146 |
|
public improvement contracting procedures. The director shall | 147 |
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promulgate the model act by rule adopted pursuant to Chapter 119. | 148 |
|
of the Revised Code and shall revise the act as necessary to | 149 |
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reflect changes in this chapter or section 153.012 of the Revised | 150 |
|
Code. | 151 |
| (F) An entity that has been awarded a contract under division | 157 |
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(B) of this section in part by demonstrating that the entity will | 158 |
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create or retain jobs in Ohio as a result of being awarded the | 159 |
|
contract, and that has within a reasonable time following | 160 |
|
completion of the contract failed to fulfill the obligation to | 161 |
|
create or retain jobs, is liable to the state for an amount equal | 162 |
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to the difference between the entity's bid price and the lowest | 163 |
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price submitted on a responsive and responsible bid from among the | 164 |
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bids that did not offer products that have been produced or mined | 165 |
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in this state. | 166 |
| (C) The department of administrative services may consult | 194 |
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with other state agencies in the development, establishment, | 195 |
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operation, and support of the web site required by division (B) of | 196 |
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this section. State awards shall be posted on the web site within | 197 |
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thirty days after being made. The department of administrative | 198 |
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services shall provide an opportunity for public comment as to the | 199 |
|
utility of the web site required by division (B) of this section | 200 |
|
and any suggested improvements. | 201 |
| (F) Each agency awarding a grant to an entity in fiscal year | 215 |
|
2008 and thereafter shall establish and maintain a separate web | 216 |
|
site listing the name of the entity receiving each grant, the | 217 |
|
grant amount, information on each grant, and any other relevant | 218 |
|
information determined by the department of administrative | 219 |
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services. Each agency shall provide the link to such a web site to | 220 |
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the department of administrative services within a reasonable time | 221 |
after the effective date of this sectionDecember 30, 2008, and | 222 |
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shall thereafter update its web site within thirty days of | 223 |
awarding a new grant. Not later than one year after the effective | 224 |
date of this sectionDecember 30, 2008, the department of | 225 |
|
administrative services shall establish and maintain a separate | 226 |
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web site, accessible to the public at no cost, which contains the | 227 |
|
links to the agency web sites required by this division. | 228 |
| (G) The attorney general shall monitor the compliance of an | 229 |
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entity with the terms and conditions, including performance | 230 |
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metrics, if any, of a state award for economic development | 231 |
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received by that entity. As necessary, the agency that makes and | 232 |
|
administers the state award for economic development shall assist | 233 |
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the attorney general with that monitoring. The attorney general | 234 |
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shall submit to the general assembly pursuant to section 101.68 of | 235 |
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the Revised Code an annual report regarding the level of | 236 |
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compliance of such entities with the terms and conditions, | 237 |
|
including any performance metrics, of their state awards for | 238 |
|
economic development. When the attorney general determines | 239 |
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appropriate and to the extent that an entity that receives or has | 240 |
|
received a state award for economic development does not comply | 241 |
|
with a performance metric that is specified in the terms and | 242 |
|
conditions of the award, the attorney general shall pursue against | 243 |
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and from that entity such remedies and recoveries as are available | 244 |
|
under law. For purposes of this division, "state award for | 245 |
|
economic development" means state financial assistance and | 246 |
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expenditure in any of the following forms: grants, subgrants, | 247 |
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loans, awards, cooperative agreements, or other similar and | 248 |
|
related forms of financial assistance and contracts, subcontracts, | 249 |
|
purchase orders, task orders, delivery orders, or other similar | 250 |
|
and related transactions. "State award for economic development" | 251 |
|
includes a contract awarded under division (B) of section 125.11 | 252 |
|
of the Revised Code to an entity that has demonstrated that the | 253 |
|
entity will create or retain jobs in Ohio. "State award for | 254 |
|
economic development" does not include compensation received as an | 255 |
|
employee of the state or any state financial assistance and | 256 |
|
expenditure received from the general assembly or any legislative | 257 |
|
agency, any court or judicial agency, the secretary of state, | 258 |
|
auditor of state, treasurer of state, or attorney general and | 259 |
|
their respective offices. | 260 |
