123:2-16-09 Demonstration of good faith effort to include EDGE business participation.

(A) Each state agency awarding a contract for goods and services, information technology services, construction, architecture and engineering, and professional services, subject to the provisions of section 123.152 of the Revised Code shall specify in each contract the EDGE goal for subcontracts awarded to and materials and services purchased from EDGE business enterprises in order to meet the agency's overall EDGE goal.

(B) Any contractor awarded a contract for goods and services, information technology services, construction, architecture and engineering, and professional services under Chapters 123., 125., and 153. of the Revised Code shall make a good faith effort to comply with the EDGE business enterprise goal established for the contract pursuant to division (B)(2) of section 123.152 of the Revised Code, and of this chapter.

(C) Whenever a contractor is unable to comply with the EDGE goal established for a contract pursuant to division (B)(2) of section 123.152 of the Revised Code, and this chapter, for contracting with EDGE business enterprises, having made a good faith effort, the contractor may apply in writing, on a form prescribed by EOD, to the director of administrative services, or to the contract letting state agency for a waiver or modification of the goal.

(D) The director of administrative services, or for projects within a state agency for which local administration has been approved, the chief officer of that state agency authorized to enter into a contract pursuant to Chapters 123., 125., and 153. of the Revised Code, may determine that a contractor bidding on contracts authorized pursuant to Chapters 123., 125., and 153. of the Revised Code has made a good faith effort to include the appropriate level of EDGE business enterprise participation in the contract bid, as required by this chapter. For purposes of such determination, the director or the chief officer of a state agency shall consider whether the contractor has documented the following:

(1) The bidder or contractor utilized reasonable and available means to solicit all certified EDGE business enterprises that have the capability to perform the work of the contract. To demonstrate reasonable solicitation, the contractor shall provide evidence of such solicitations, including, but not limited to: fax confirmations, website notifications, bid notices, email contact lists, and invitations to bid notices.

(2) The bidder or contractor selected portions of the contracted work to increase the likelihood of participation by EDGE business enterprises. To demonstrate selected portions of the contracted work were selected to increase the likelihood of EDGE participation, the contractor shall provide documentation outlining the rationale used to determine the selected portions bid to EDGE business enterprises, and why other portions were not selected for bidding to EDGE business enterprises.

(3) The bidder or contractor provided all appropriate EDGE business enterprises with adequate information about the plans, specifications, and requirements of the contract. The information about the plans, specifications, and requirements of the contract were provided in sufficient time for EDGE business enterprises to provide a bid for the contract or project. "Sufficient time" means at least twenty-one days prior to the required bid submission date provided by the prime contractor.

(4) The bidder or contractor negotiated in good faith with interested EDGE business enterprises. To demonstrate good faith negotiations, the contractor shall provide evidence of such negotiations, including but not limited to names, addresses, dates, and telephone numbers of the EDGE business enterprises considered. The bidder or contractor shall submit bid requests and/or bid submittals of all bidders, and any correspondence related to the negotiations. A bidder or contractor using good business judgment will consider a number of factors in negotiating with EDGE business enterprises and would take an EDGE business enterprises's price and capabilities as well as contract goals into consideration. However, the fact that there may be some additional costs involved in finding and using EDGE business enterprises is not in itself sufficient reason for a contractor's or bidder's failure to meet the contract EDGE goal. In addition, the ability or desire of a contractor or bidder to perform the work with its own organization does not relieve the contractor or bidder of the responsibility to make good faith efforts.

(5) The bidder or contractor properly rejected interested EDGE business enterprise as being unqualified for the work of the contract. A contractor's rejection of an EDGE business enterprise based on standing within an appropriate industry or membership or affiliation, in a business, social or political group is not a basis for a proper rejection. To demonstrate an EDGE business enterprise was properly rejected, the contractor shall provide a copy of rejection letter with reason for rejection, names, addresses, dates, and telephone numbers of the rejected EDGE business enterprises.

(6) The bidder or contractor utilized the services of one of more organizations that provide contractor assistance in the identification and recruitment of EDGE business enterprises. To demonstrate utilization of one or more organizations providing contractor assistance, the contractor shall provide the names, phone numbers, times and method of contact relating to the contractor assistance organization.

(7) The bidder or contractor utilized the list of qualified EDGE business enterprises as provided by EOD. To demonstrate a list of qualified EDGE business enterprises provided by EOD has been utilized, the contractor shall provide a list of times, method of contact and names associated with each EDGE business enterprise included on the listing.

(E) To be granted a waiver of the EDGE goal, established pursuant to this chapter, the bidder or contractor shall submit evidence acceptable to the director of administrative services or his designee, or the chief officer of the contract-letting state agency, in the form and manner required, demonstrating that the bidder or contractor made the level of good faith effort deemed necessary to justify the granting of a waiver. In granting or denying a waiver, the director of administrative services or his designee, or the chief officer of the contract-letting state agency shall prepare a written report in a form prescribed by EOD, which report shall include an evaluation of the bidder's or contractor's specific efforts to comply with the requirements set forth in paragraphs (D)(1) to (D)(7) of this rule. This report and the decision as to waiver shall be submitted to EOD within thirty days of the grant or denial of the waiver.

(F) When a contracting agency considers an EDGE waiver request from a bidder or contractor, the agency shall make all reasonable effort to ensure that the bidder or contractor exhausted all possible opportunities to contract with an EDGE business enterprise.

Effective: 2/1/2016
Five Year Review (FYR) Dates: 11/05/2015 and 11/20/2020
Promulgated Under: 119.03
Statutory Authority: R.C. 123.152
Rule Amplifies: R.C. 123.152
Prior Effective Dates: 11/26/04, 3/19/2009