Chapter 123:5-1 General Provisions

Effective: 07/25/2006
R.C. 119.032 review dates: 04/25/2006 and 07/25/2011
Promulgated Under: 119.03
Statutory Authority: R.C. 125.09
Rule Amplifies: R.C. 125.09
Prior Effective Dates: 2/2/82, 8/3/84, 8/30/84, 5/5/95, 2/23/04

123:5-1-02 Delegation of procurement authority.

(A) The director of the department of administrative services may delegate authority to the state purchasing administrator, the deputy director of the division of computer services, the state printing administrator, or as the director may otherwise delegate, to make purchases for supplies and services.

R.C. 119.032 review dates: 02/23/2004 and 02/23/2009

Promulgated Under: 119.03

Statutory Authority: 125

Rule Amplifies: 125

Prior Effective Dates: 2/2/82, 11/25/82, 8/30/84, 5/5/95

123:5-1-03 Permit to make purchases when impractical through the department.

(A) No state agency other than those excepted in sections 125.02, 125.021, 125.04 and 125.041 of the Revised Code shall procure or purchase any supplies or services, except in accordance with section 125.05 of the Revised Code. When the department of administrative services determines that it is not possible or not advantageous for the department to make the purchase, the department shall grant the agency a release and permit to make the purchase. Factors to consider for issuance of a release and permit include, but are not limited to, the following:

(1) The demonstrated ability of the agency in terms of procurement knowledge and any specialized knowledge pertinent to the procurement covered by the release;

(2) The past professional experience of the agency in exercising similar authority and the degree and quality of professional analysis demonstrated and documented by the agency seeking to undertake the acquisition;

(3) The degree of economy and efficiency to be achieved in meeting the state's requirements if authority is delegated;

(4) The available resources of the department to exercise the authority if it is not delegated; and

(5) The ability of the department to complete the purchase pursuant to competitive bidding statutes;

(B) Every release and permit shall be filed with the agency to whom it is issued and one copy shall be filed with department of administrative services.

(C) An agency shall not proceed with the purchase until the department has granted a release and permit. Whenever a release and permit has been granted, the requesting agency must purchase the supplies or services pursuant to competitive selection requirements or with controlling board approval unless the controlling board determines that such approval is not required.

(D) When an emergency condition exists in the procurement of supplies or services and it is not practical for the agency to make such acquisitions by or through the department, such items may be purchased pursuant to rule 123:5-1-04 of the Administrative Code.

R.C. 119.032 review dates: 02/23/2004 and 02/23/2009

Promulgated Under: 119.03

Statutory Authority: 125

Rule Amplifies: 125

Prior Effective Dates: 2/2/82, 8/30/84, 5/5/95

123:5-1-04 Emergency purchases.

(A) A state agency may make emergency procurements of supplies or services in excess of the amounts stated in Revised Code 125.05 when an emergency condition arises and the need cannot be met through normal procurement methods, provided that whenever practical a release and permit from the department of administrative services shall be obtained prior to the procurement, and provided that such emergency purchase shall not exceed dollar limitations as defined in section 127.16 of the Revised Code. Whenever a release and permit for a demonstrable emergency purchase cannot be obtained prior to the purchase, the agency shall provide written confirmation of the emergency situation and purchase to the department no later than the next regular business day following resolution of the emergency. Emergency procurement shall be limited to those supplies and services necessary to meet the emergency.

(B) A record of each emergency procurement shall be made and shall set forth the bases of the emergency and identify the contract and particular contractor selected.

R.C. 119.032 review dates: 02/23/2004 and 02/23/2009

Promulgated Under: 119.03

Statutory Authority: 125

Rule Amplifies: 125

Prior Effective Dates: 2/2/82, 8/30/84, 5/5/95

123:5-1-05 Bid districts.

The state is hereby divided into twelve purchasing districts (see appendix of this rule) wherein services or supplies are to be delivered. The entire state functions as bid district twenty.

For Appendix 123:5-1-05 -- See Agency.

R.C. 119.032 review dates: 12/20/2001

Promulgated Under: 119.03

Statutory Authority: 125

Rule Amplifies: 125

Prior Effective Dates: 2/2/82, 8/30/84, 5/5/95

123:5-1-06 Implementation of domestic Ohio bid preference.

(A) Scope. This rule implements the Buy-Ohio Act (Amended House Bill 271, 115th General Assembly) and the policies set forth in the governor's executive order 83-1, January 10, 1983, with respect to supply and service contracts, other than construction contracts. To the extent possible, this rule conforms to the requirements of the Federal Buy America Act, 41 U.S.C.10A-10 D, as amended and to the regulations adopted thereunder.

(B) Policy. Except as further provided in paragraph (C) of this rule, bids will be evaluated so as to give preference to domestic Ohio bids. This preference shall be applied through the procedures outlined in paragraph (C) of this rule.

(C) Procedure for applying domestic Ohio bid preference

(1) Bids will first be evaluated to determine that a bidder's offering is for a "domestic source end product," as defined at 41 C.F.R. section 1 - 6. 41 C.F.R. section 101(D). Information furnished by the bidder as provided for in paragraph (D) of this rule shall be relied upon in making the determination. Any bidder's offering that does not meet this requirement shall be rejected, except in those circumstances where the director of the department of administrative services or his designee determines that certain articles, materials and supplies are not mined, produced or manufactured in the U.S. in sufficient and reasonably available commercial quantities and of a satisfactory quality.

(2) Following the determination at paragraph (C)(1) of this rule, remaining bids and proposals shall be evaluated so as to give preference to Ohio bids or bidders who are located in a border state, provided that the border state imposes no greater restrictions than contained in sections 125.09 and 125.11 of the Revised Code (hereinafter in this chapter, it is required that for a bid from a border state, the border state imposes no greater restrictions than are contained in sections 125.09 and 125.11 of the Revised Code). Where the preliminary analysis of bids identifies the apparent low bid as an Ohio bid or a bid from a border state, the director or his designee shall proceed with evaluation and award procedure provided for in rule 123:5-1-07 of the Administrative Code.

(3) Where the preliminary analysis identifies the apparent low bid as one other than an Ohio bid or bid from a border state, the director or his designee shall consider the following factors:

(a) Whether the goods or services can be procured in-state in sufficient and reasonably available quantities and of a satisfactory quality;

(b) Whether an Ohio bid has been submitted;

(c) Whether the lowest Ohio bid, if any, offers a price to the state deemed to be an excessive price;

(d) Whether the lowest Ohio bid, if any, offers a disproportionately inferior product or service.

For purposes of applying these criteria, "excessive price" shall be construed to mean a price that exceeds by more than five per cent the lowest price submitted on a non-Ohio bid.

(4) Where the director or his designee determines that selection of the lowest Ohio bid, if any, will not result in an excessive price or a disproportionately inferior product or service, the director or his designee shall propose a contract award to the low Ohio bid at the bid price quoted. The final contract award shall be made following further evaluation and award under rule 123:5-1-07 of the Administrative Code. Where, otherwise, the director determines it is advantageous to propose the award of contract to other than an Ohio bid or bid from a border state, the director shall propose same. The final contract award shall be made following further evaluation and award under rule 123:5-1-07 of the Administrative Code. The director or his designee shall at all times reserve the right to reject all bids, award partial bids and rebid if it is deemed in the best interest of the state to do so.

(D) "Buy America" product information

All invitations to bid and requests for proposals shall require the bidder to complete and attest to the following statement:

Buy American certificate

The bidder or offeror hereby certifies that each end product, except the end products listed below, is a domestic source end product as defined in the Buy America Act; and that components of unknown origin have been considered to have been mined, produced, or manufactured outside the United States:

...

Excluded end products (show country of origin for each excluded end product):"

...

(E) Buy Ohio bidder and product information

All invitations to bid and requests for proposals shall require the bidder to submit the following information:

(1) Identify each product that is not an Ohio product.

(2) Represent that all other products for which prices are submitted are Ohio products.

(3) Identify whether the bidder claims to qualify as offering an Ohio product or as having significant Ohio economic presence.

(F) Notice of domestic Ohio bid preference

The department shall indicate in all its invitations to bid that it will apply a domestic Ohio bid preference as outlined herein in the evaluation and award of bids received.

R.C. 119.032 review dates: 02/23/2004 and 02/23/2009

Promulgated Under: 119.03

Statutory Authority: 125

Rule Amplifies: 125

Prior Effective Dates: 2/2/82, 8/30/84, 5/5/95

123:5-1-07 The invitation to bid process.

(A) At a minimum, the invitation to bid ("ITB") will include the following information:

(1) Instructions and information to bidders concerning submission of bid responses, including the name and address of the department, office, institution, board or commission which is requesting to purchase supplies and/or services;

(2) Instructions governing communications, including but not limited to, the name, title and telephone number of the person(s) to whom questions concerning the response should be directed;

(3) A description of the scope of supplies and/or services to be purchased;

(4) Complete and detailed specifications pertaining to the supplies and/or services to be purchased, including but not limited to, the quantity to be purchased, submission of samples, descriptive literature, technical data, or other material deemed necessary to properly evaluate the bid response, inspection and acceptance requirements, and the delivery schedule for each such supply and/or service;

(5) The factors and criteria to be used in evaluating bid responses, and a description of the evaluation procedures to be followed for award of a contract;

(6) The contract terms and conditions including any requirement for a bond and the amount of such bond;

(7) The date, time and place for delivery of the response;

(8) Documents that may be incorporated by reference provided the ITB specifies where such documents can be obtained and the documents are readily available to all bidders;

(B) Notice of invitation to bid

The department shall provide notice of an invitation to bid to competing persons producing or dealing in the supplies or services to be purchased. Notice shall be given for the number of days determined by the department prior to the scheduled opening of the ITB and shall be provided in the following manner:

(1) For non-set aside ITB's, notice shall be provided to those persons whose names appear on the listing maintained by the department pursuant to section 125.08 of the Revised Code, which may include those persons whose names appear on the certified minority business enterprise list, or, at the discretion of the department, notice may be provided to any other persons known to produce or deal in the supplies or services to be purchased; or

(2) For ITB's set aside pursuant to section 125.081 of the Revised Code, notice shall be provided only to those competing persons whose names appear on the certified minority business enterprise listing maintained by the department.

(3) The department shall maintain in a public place in its office, a bulletin board upon which it shall post a copy of the notice for the number of days determined by the department prior to the bid opening. The failure to post a copy of the notice shall invalidate all proceedings and any contract entered into pursuant to such proceedings.

(C) ITB conferences:

The department may conduct conferences to discuss an ITB in the following manner:

(1) Pre-bid conferences may be conducted prior to issuance of the ITB to discuss proposed bid specifications. Information discussed may be used in the preparation of the ITB. Notice of pre-bid conferences shall be provided to all prospective bidders registered with the department or any bidder known to provide the required supplies or services at the determination of the department.

(2) Bid conferences may be conducted after issuance of the ITB to explain the procurement requirements. Bid conferences shall be provided to all prospective bidders known to have received an ITB. Nothing stated at the bid conference shall change the ITB unless a change is made by written addendum.

(D) Addenda to the ITB shall reference the portions of the ITB it amends and shall be provided to all prospective bidders known to have received an ITB. Addenda shall be distributed within a reasonable time to allow prospective bidders to prepare bid responses. Addenda may extend the time and date of bid opening.

(E) Receipt and opening of ITB's: the department shall consider the following upon receipt of a bid response or modification:

(1) Upon receipt, each bid response and modification shall be time and date stamped but not opened and shall be stored in a secure place until the time and date set for bid opening.

(2) Bid responses and modifications shall be opened publicly, in the presence of a representative of the office of the auditor of state and the department of administrative services at the time, date, and place designated in the ITB. The name of each bidder, the bid price, and such other information as is deemed appropriate by the department shall be read aloud or otherwise made available. The opened bid responses shall be available for public inspection except to the extent the bidder designates trade secrets or other proprietary data to be confidential as set forth in paragraph (E)(3) of this rule. Material so designated shall accompany the bid and shall be readily separable from the bid response in order to facilitate public inspection of the non confidential portion of the bid response. Prices, makes, model, catalogue numbers of the items offered, deliveries, and terms of payment shall be publicly available at the time of bid opening regardless of any designation to the contrary.

(3) The department shall examine the bid responses to determine the validity of any requests for nondisclosure of trade secrets and other proprietary data identified in writing. If the parties do not agree as to the disclosure of data, the department shall inform the bidders in writing what portions of the bid responses will be disclosed and that the bid responses will be so disclosed. The bid responses shall be open to public inspection, unless confidential, proprietary or a trade secret, upon award of a contract.

(F) Any bid response received after the time and date set for receipt of bid responses is late. Any withdrawal or modification of a bid response received after the time and date set for opening of bid responses at the place designated for opening is late. No late bid response, late modification, or late withdrawal will be considered unless received before contract award, and the bid response, modification, or withdrawal would have been timely but for the action or inaction of state personnel. When deemed as late, a bid response, modification, or withdrawal shall be marked as "late", remain sealed and shall be retained in the bid file.

(G) Mistakes in ITB's

(1) Correction or withdrawal of a bid response may be permitted due to an inadvertent, nonjudgmental mistake. If the mistake is attributable to an error in judgment, the bid response may not be corrected. Bid correction or withdrawal by reason of a nonjudgmental mistake is permissible but only if it does not affect the amount of the bid response or otherwise give the bidder a competitive advantage.

(2) A bidder may correct mistakes discovered before the time and date set for bid opening by withdrawing or correcting the bid response as provided in paragraph (F) of this rule.

(3) When the department of administrative services knows or has reason to conclude that a mistake has been made, the department will request the bidder to confirm the bid response. Situations in which confirmation will be requested include obvious, apparent errors on the face of the bid response, or a bid response unreasonably lower than other bid responses submitted, or a clarification of terms, conditions or specifications offered by the bidder.

(H) The department of administrative services reserves the right to reject any and all bid responses, award partial contracts and/or rebid when:

(1) Supplies and/or services are not in compliance with the requirements, specifications, and terms and conditions set forth in the ITB; or

(2) Pricing offered is determined to be excessive in comparison with existing market conditions, or exceeds the available funds of the procuring entity; or

(3) It is determined that awarding of any or all items will not be in the best interest of the state.

(I) Written notice of award shall be provided to the successful bidder. An apparent low bidder found not to be responsive and responsible shall be notified of that finding and the reasons for it. Notice of award shall be made available to the public.

R.C. 119.032 review dates: 02/23/2004 and 02/23/2009

Promulgated Under: 119.03

Statutory Authority: 125

Rule Amplifies: 125

Prior Effective Dates: 2/2/82, 8/30/84, 5/5/95

123:5-1-08 The request for proposal process.

(A) At a minimum, the request for proposal ("RFP") will include the following information:

(1) Instructions and information to offerors concerning submission of proposals, including the name and address of the department, office, institution, board or commission which is requesting to purchase supplies and/or services;

(2) Instructions governing communications, including but not limited to, the name, title and telephone number of the person(s) to whom questions concerning the proposal should be directed;

(3) A descriptlon of the scope of supplies and/or services to be purchased;

(4) A description of the performance criteria, including but not limited to, the quantity of the supplies and/or services to be purchased, inspection and acceptance requirements, and the delivery schedule for each such supply and/or service;

(5) The factors and criteria to be considered in evaluating proposals and the relative importance of each factor or criteria and a description of the evaluation procedures to be followed for award of a contract;

(6) The contract terms and conditions, including any requirement for a bond and the amount of such bond;

(7) The date, time and place for delivery of the proposal;

(8) Documents that may be incorporated by reference provided the RFP specifies where such documents can be obtained and the documents are readily available to all offerors;

(9) A statement that the offeree reserves the right to reject any and all proposals where the offeror takes exception to the terms and conditions of the RFP or fails to meet the terms and conditions, including but not limited to, standards, specifications, and requirements as specified in the RFP.

(10) A statement that the offeree reserves the right to reject, in whole or in part, any and all proposals where the offeree, taking into consideration factors including but not limited to, price and the results of the evaluation process, has determined that award of a contract would not be in the best interest of the offeree or the state.

(B) As provided in the RFP, discussions and/or negotiations may be conducted with offerors who submit proposals for the purpose of clarification and/or correction, including any revisions that may occur during negotiations, to assure full understanding of and responsiveness to the requirements, terms and conditions and specifications of the RFP. Offerors shall be accorded fair and equal treatment in any clarification and/or correction and/or negotiation process.

(C) Public notice

(1) Public notice of the RFP will be provided to:

(a) All prospective vendors registered with the department of administrative services pursuant to section 125.08 of the Revised Code, as applicable, and/or any vendor known to the department to provide the requested supplies and/or services; or

(b) To vendors who are known to the department to provide specialized services and/or supplies that are being requested in the RFP, whether or not such vendors are registered pursuant to section 125.08 of the Revised Code.

(2) Notice may be by electronic or paper bulletin board or by mailing of the RFP. Notice shall be advertised for the number of days determined by the department prior to the due date for submission of proposals. The notice shall state the time and place where proposals are to be received and the conditions under which proposals will be received.

(D) RFP vendor conferences may be conducted to discuss the requirements, terms and conditions, specifications, and any other aspect of the RFP and to determine potential offerors for the proposed purchase. Notice of a vendor conference shall be provided in the RFP.

(E) Any requests by offeror for nondisclosure of confidential or proprietary information or trade secrets or assertions by offeror that information in its proposal, or the entire proposal, is confidential, proprietary or a trade secret shall be examined by the offeree to determine the validity of the request or assertion. Offeror requests or assertions must be in writing. If the parties do not agree, the offeror shall be informed in writing by the offeree regarding what portions of the proposal shall be disclosed. The offeror may withdraw its proposal at any time prior to award of a contract. The RFP and all proposals, documents and other information, unless confidential, proprietary or a trade secret, concerning the RFP process shall be open to public inspection upon award of a contract.

(F) An RFP in whole or in part, may be canceled and/or reissued by the offeree when:

(1) The supplies and/or services offered are not in compliance with the requirements, specifications, and terms and conditions set forth in the RFP; or

(2) Pricing offered is considered to be excessive in comparison with existing market conditions or exceeds the available funds of the offeree; or

(3) It is determined that award of a contract would not be in the best interests of the offeree and/or the state.

(G) The offeree may award a contract in whole or in part to one or multiple offerors. Notice of any potential partial and/or multiple party award(s) shall be provided in the RFP with specificity as to the supplies and/or services that may be subject to a partial and/or multiple award.

(H) Written notice of an award shall be sent to the successful offeror. Notice of an award shall be provided to all other offerors within a reasonable period and notice of an award shall be made available to the public.

(I) The offeree shall maintain a register of all proposals received in response to a request to purchase supplies and/or services. The register shall note the topic and date of issue of the RFP and shall list the name of the offerors who submitted proposals in response to the RFP. The register shall note the recipient of a contract, if any is awarded, the amount of the contract, and the supplies and/or services being purchased.

R.C. 119.032 review dates: 02/23/2004 and 02/23/2009

Promulgated Under: 119.03

Statutory Authority: 125

Rule Amplifies: 125

Prior Effective Dates: 2/2/82, 8/30/84, 5/5/95

123:5-1-09 Purchase of recycled products.

(A) When purchasing equipment, materials, or supplies, the general assembly; the offices of all elected state officers; all departments, boards, offices, commissions, agencies, institutions, including, without limitation, state-supported institutions of higher education, and other instrumentalities of this state; the supreme court; all courts of appeals; and all courts of common pleas, may purchase recycled products when:

(1) The recycled product being offered is substantially equivalent to the non-recycled product and is commercially available in quantities sufficient to meet the needs of the procuring agency;

(2) The recycled product being offered is consistent with and substantially equivalent to any relevant regulations adopted by the administrator of the United States environmental protection agency pursuant to the "Resource Conservation and Recovery Act of 1976," 90 Stat. 2806, 42 U.S.C. 6921, as amended;

(3) It is economically feasible to purchase the recycled product. To determine if the product is economically feasible, the purchasing entity may apply a preference not to exceed five percent above the lowest price offered for the comparable non-recycled product being considered.

(B) So far as practicable and economically feasible, specifications shall:

(1) Omit virgin only material requirements;

(2) Include the minimum percentage of recycled materials the various products shall contain to be considered recycled;

(3) Include functional or performance criteria permitting use of recycled content materials and supplies.

R.C. 119.032 review dates: 02/23/2004 and 02/23/2009

Promulgated Under: 119.03

Statutory Authority: 125

Rule Amplifies: 125

Prior Effective Dates: 2/2/82, 8/30/84, 5/5/95

123:5-1-10 Specification authority.

(A) The department of administrative services shall have authority to prepare specifications to obtain supplies and services.

(B) The department may delegate to the head of any using agency the authority to prepare specifications.

(C) The department or head of a using agency authorized to prepare said specifications may enter into a contract outside the state for preparation of specifications as long as there is no substantial conflict of interest and it is in the best interest of the state. Such contractor may not provide a response or proposal on the project for which the contractor prepared specifications. The department retains authority to review, edit, and give final approval of the specifications to ensure open competition.

(D) The purpose of a specification is to serve as a basis for procuring a supply or service in a cost-effective and non restrictive manner. Accepted commercial standards may be used. Unique requirements shall be avoided to the extent practicable.

(E) A specification may include multiple descriptions of supplies or services where two or more design, functional, or performance criteria will satisfactorily meet the state's requirements.

(F) A specification for supplies or service shall not include the contract terms and conditions of sale such as a requirement for time or place of bid opening, time of delivery, payment, liquidated damages, or qualification of bidders.

(G) A specification for a common or general use item or a qualified products list, developed in accordance with paragraph (i) of this rule, may be used unless it is not in the state's best interest. A specification for common or general use supplies or services shall, to the extent practicable, be utilized when:

(1) A supply or service is used in common by several agencies or used repeatedly by one agency;

(2) The characteristics of the supply or service as commercially produced or provided remain relatively stable while the frequency or volume of procurements is significant;

(3) The state's recurring needs require uniquely designated or specially produced items; or

(4) The department or the using agency authorized to prepare such specifications finds it to be in the state's best interest.

(H) Brand name or equal specifications may be prepared to be used when:

(1) No specification for a common or general use supply or service or qualified products list is available;

(2) Time does not permit the preparation of another form of specification;

(3) The nature of the product or the nature of the state's requirements makes use of the brand name or equal specification suitable for the procurement; or

(4) Use of a brand name or equal specification is in the state's best interest.

Brand name or equal specifications to the extent practicable shall seek to designate different brands as "or equal" and shall further state that substantially equivalent products to those designated will be considered for award. Unless the department of administrative services or using agency authorized to approve specifications determines that the essential characteristics of the brand names included in the specifications are commonly known in the industry or trade, brand name or equal specifications shall include a description of a particular design, functional or performance characteristics which are required. Where a brand name or equal specification is used in a solicitation, the solicitation shall contain explanatory language that the use of a brand name is for the purpose of describing the base standard of quality, performance, and characteristics desired and is not intended to limit or restrict competition.

(I) Brand specific specification. A brand specific specification may be used only when;

(1) The identified brand name supplies or services will satisfy the state's needs in the most cost-efficient manner;

(2) The identified brand name supplies or services are necessary to protect the health and well-being of clients of the state;

(3) Emergency conditions will not permit acceptance of an alternate brand name supply or service;

(4) A minimum of two qualified authorized stocking distributors are available to provide the required brand specific supply or service. If such are not available, purchases must be completed pursuant to section 127.16 of the Revised Code.

(J) Qualified products list. A qualified products list may be developed and used as the specification when;

(1) Testing or examination of the supplies or services prior to issuance of the solicitation is desirable or necessary in order to best satisfy state requirements;

(2) Time does not permit the preparation of another form of specification;

(3) Use of the qualified products list is in the best interest of the state.

The department of administrative services may elect to utilize a qualified products list of the federal government or may develop a qualified products list applicable to the state of Ohio. When developing a qualified products list, the department shall solicit a sufficient number of suppliers to ensure maximum coverage with providers of the supplies or service. Any supplier, although not solicited, may request inclusion on the qualified products list. Potential suppliers will be required to furnish exact samples of the supply or service to be provided for testing and examination by the state. Only those supplies or services that conform to the state's requirements will be considered for inclusion on a qualified products list.

(K) Solicitations. When developing a specification for supplies or service or a qualified products list, a sufficient number of potential suppliers shall be solicited to submit products for testing and examination or to furnish whatever information is necessary to determine acceptability for use by the state or for inclusion on a qualified products list. Any potential supplier, even though not solicited, may offer its supplies or services for consideration.

(L) Testing and confidential data. Acceptance and use of specifications for supplies or services for inclusion on a qualified products list shall be based on results of tests or examinations conducted in accordance with prior published requirements. Except as otherwise provided by law, trade secrets, test data, and similar information provided by the supplier will be considered as public record unless requested, in writing, by the supplier that such information be kept confidential. When feasible, such information shall be made public but in a manner so as to protect the confidentiality of the identity of the competitors.

(M) Final approval of, revisions to, and cancellation of the specifications for supplies and services or the proposed criteria and methodology for establishing and maintaining a qualified products list, shall be the responsibility of the department or the using agency authorized to prepare such specifications.

R.C. 119.032 review dates: 02/23/2004 and 02/23/2009

Promulgated Under: 119.03

Statutory Authority: 125

Rule Amplifies: 125

Prior Effective Dates: 2/2/82, 8/30/84, 5/5/95

123:5-1-11 Model system of preference.

Pursuant to Am. Sub. H.B. 237 of the 116th General Assembly, codified in division (E) of section 125.11 of the Revised Code, the department of administrative services establishes the following model system of preferences which may be used voluntarily by counties, townships, and municipalities for purchasing and public improvement contracts. See the appendix to this rule which sets forth the model system of preferences in the form of a sample ordinance or resolution.

(A) System of preferences

(1) Subject to the system of preferences set forth in this rule, contracts for the purchase of all equipment, materials, supplies, or insurance (or for only those classes of contracts the jurisdiction so designates) shall be awarded to the lowest responsive and responsible bidder. (A jurisdiction whose statutory award criteria is not "lowest responsive and responsible" should use the award criteria statutorily assigned to it.)

(2) Prior to awarding such a contract, the county, township, or municipality shall evaluate the bids received according to criteria and procedures contained in paragraphs (b) and (c) of this rule. The county, township, or municipality shall first reject all bids that offer goods that have not been or that will not be produced or mined in the united states. From among the remaining bids, the county, township, or municipality shall select the lowest responsive and responsible bid from among the bids that offer goods that have been produced or mined in ohio where sufficient competition can be generated within ohio to ensure that compliance with these requirements will not result in an excessive price for the product or acquiring a disproportionately inferior product.

(3) Bidders whose manufactured products, except for mined products, are produced in other states or in north America, but the bidders have a significant Ohio economic presence in terms of the number of employees or capital investment it has in Ohio, shall qualify for award of a contract on the same basis as if their products were produced in Ohio.

(B) Buy Ohio Act bid preference

(1) Buy America Act compliance

(a) Bids will first be evaluated to determine that a bidder's offering is for a domestic source end product as defined in 41 C.F.R. section 1 - 6. 41 C.F.R. section 101(D). Information furnished by the bidder in paragraph (C)(2) of this rule shall be relied upon in making this determination. Any bidder's offering that does not offer a domestic source end product shall be rejected, except where the contracting authority determines that certain articles, materials and supplies are not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities and of a satisfactory quality.

(b) Following the determination as to domestic source end products, remaining bids and proposals shall be evaluated in accordance with paragraph (B)(2) of this rule, so as to give preference to Ohio bids or bidders who are located in a border state, provided that the border state imposes no greater restrictions than contained in this rule.

(2) Buy Ohio Act compliance

(a) Where the preliminary analysis of bids identifies the apparent low bid as an Ohio bid or a bid from a border state, the county, township, or municipality shall proceed with its standard contract award practices and procedures.

(b) Where the preliminary analysis identifies the apparent low bid as one other than an Ohio bid or bid from a border state, the county, township, or municipality shall consider the following factors:

(i) Whether the goods or services can be procured in-state in sufficient and reasonably available quantities and of a satisfactory quality;

(ii) Whether an Ohio bid has been submitted;

(iii) Whether the lowest Ohio bid, if any, offers a price to the county, township, or municipality deemed to be an excessive price (defined as a price that exceeds by more than five per cent the lowest non-Ohio bid submitted);

(iv) Whether the lowest Ohio bid, if any, offers a disproportionately inferior product or service.

(c) Where the county, township, or municipality determines that selection of the lowest Ohio bid, if any, will not result in an excessive price or disproportionately inferior product or service, the county, township, or municipality shall propose a contract award to the low Ohio bid at the bid price quoted.

(d) Where the county, township, or municipality otherwise determines it is advantageous to propose the award of a contract to other than an Ohio bidder or bidder from a border state, the county, township, or municipality shall propose such an award.

(3) Prior to the final contract award, the county, township, or municipality shall conduct its normal evaluation procedures (e.g., product compliance with bid specifications) in addition to the Buy America Act and Buy Ohio Act analyses.

(C) Notice to bidders; bidder certifications

(1) Notice of domestic Ohio bid. The county, township, or municipality shall indicate in all its invitations to bid that it will apply a domestic Ohio bid preference as outlined in this rule in the evaluation and award of bids received.

(2) All invitations to bid and requests for proposals shall require the bidder to complete and attest to the following "Buy America Act certificate":

"The bidder or offeror hereby certifies that each end product, except the end products listed below, is a domestic source end product as defined in the Buy America Act, 41 U.S.C.10A-10 D; and that components of unknown origin have been considered to have been mined, produced or manufactured outside the United States.

Excluded end products: (show country of origin for each excluded end product)."

(3) All bidders shall submit the following information:

(a) Identify that all other products for which prices are submitted are Ohio products.

(b) Represent that all other products for which prices are submitted are Ohio products.

(c) Identify whether the bidder claims to qualify as offering an Ohio product or as having significant Ohio economic presence.

(D) Preference for public improvement contracts

With respect to the award of any contract for the construction, reconstruction, improvement, enlargement, alteration, repair, painting or decoration of a public improvement, including any highway improvement, made by the county, township, or municipality, or in whole or in part supported by the county, township, or municipality, except for a contract for products produced or mined in Ohio or for a contract financed in whole or in part by contributions or loans from any agency of the United States government, preference shall be given to a contractor having its principal place of business in Ohio over a contractor having its principal place of business in a state which provides a preference in favor of contractors of that state for the same type of work. Where a preference is provided by another state for contractors of that state, a contractor having its principal place of business in Ohio is to be granted by the county, township, or municipality the same preference over them in the same manner and on the same basis and to the same extent as the preference is granted in letting contracts for the same type of work by the other state. If one party to a joint venture is a contractor having its principal place of business in Ohio, the joint venture shall be considered as having its principal place of business in Ohio. A county, township, or municipality may consult with the Ohio department of administrative services, division of public works, to determine the type of preference under which a jurisdiction operates.

Appendix 123:5-1-11

Be it ordained by the _____________________ of ______________

That pursuant to Revised Code section 125.11(E) of the Ohio Revised Code, the _____ of _____ is hereby authorized to adopt the Model System of Preferences, as set forth below. By adopting such a System, the _____ of _____ hereby amends its current procurement statutes and regulations to reflect the Model System of Preferences.

I.MODEL SYSTEM OF PREFERENCES

Subject to the system of preferences set forth herein, contracts for the purchase of all equipment materials, supplies, or insurance (or for only those classes of contracts specified in Exhibit I) shall be awarded to the lowest responsive and responsible bidder.*

* A Jurisdiction whose statutory award criteria is not "lowest responsive and responsible," should use the award criteria statutorily assigned to it.

Prior to awarding a contract under section ________ of the Ohio Revised Code, the _____ of _____ shall evaluate the bids received according to criteria and procedures contained in Articles II and III of this Ordinance (or Resolution). The (city, county, etc.) shall first reject all bids that offer goods that have not been or that will not be produced or mined in the United States. From among the remaining bids, the (city, country, etc.) shall select the lowest responsive and responsible bid from among the bids that offer goods that have been produced or mined in Ohio where sufficient competition can be generated within Ohio to ensure that compliance with these requirements will not result in an excessive price for the product or acquiring a disproportionately inferior product.

Bidders whose manufactured products, except for mined products, are produced in other states or in North America, but the bidders have a significant Ohio economic presence in terms of the number of employees or capital investment it has in this state, shall qualify for award of a contract on the same basis as if their products were produced in this state.

II.BUY OHIO BID PREFERENCE

A. Buy American Act Compliance

1. Bids will first be evaluated to determine that a bidder's offering is for a domestic source end product as defined at 41 C.F.R. section 1 -. 6.101(d).

Information furnished by the bidder pursuant to Article III, Section (B)(1) shall be relied upon in making this determination. Any bidder's offering that does not offer a domestic source end product shall be rejected, except where the contracting authority determines that certain articles, materials and supplies are not mined, produced or manufactured in the U.S. in sufficient and reasonably available commercial quantities and of a satisfactory quality.

2. Following the determination as to domestic source end products, remaining bids and proposals shall be evaluated in accordance with division (B) of this Article so as to give preference to Ohio bids or bidders who are located in a border state, provided that the border state imposes no greater restrictions than contained in this Model System of Preferences.

B. Buy Ohio Compliance

1. Where the preliminary analysis of bids identifies the apparent low bid as an Ohio bid or a bid from a border state, the (city, county, etc.) shall proceed with its standard contract award practices and procedures.

2. Where the preliminary analysis identifies the apparent low bid as one other than an Ohio bid or bid from a border state, the (city, county, etc.) shall consider the following factors:

(a) Whether the goods or services can be procured in-state in sufficient and reasonably available quantities and of a satisfactory quality;

(b) Whether an Ohio bid has been submitted;

(c) Whether the lowest Ohio bid, if any, offers a price to the (city, county, etc.) deemed to be an excessive price; An "excessive price" shall be a price that exceeds by more than 5% the lowest non-Ohio bid submitted.

(d) Whether the lowest Ohio bid, if any, offers a disproportionately inferior product or service.

3. Where the (city, county, etc.) determines that selection of the lowest Ohio bid, if any, will not result in an excessive price or disproportionately inferior product or service, the (city, county, etc.) shall propose a contract award to the low Ohio bid at the bid price quoted.

C. Prior to the final contract award, the (city, county, etc.) shall conduct its normal evaluation procedures (e.g. product compliance with bid specifications) in addition to the Buy America Act and Buy Ohio analyses.

III.NOTICE TO BIDDERS; BIDDER CERTIFICATIONS

A. Notice of domestic Ohio bid

The (city, county, etc.) shall indicate in all its invitations to bid that it will apply a domestic Ohio bid preference as outlined in this Ordinance (or Resolution) in the evaluation and award of bids received.

B. All invitations to bid and requests for proposals shall require the bidder to:

1) complete and attest to the following:

"Buy American Act Certificate"

The bidder or offeror hereby certifies that each end product, except the end products listed below, is a domestic source end product as defined in the Buy America Act, 41 U.S.C.10a-10 d; and that components of unknown origin have been considered to have been mined, produced or manufactured outside the United States.

Excluded end products (Show country or origin for each excluded end product):

2) submit the following information:

a) Identify each product that is not an Ohio product.

b) Represent that all other products for which prices are submitted are Ohio products.

c) Identify whether the bidder claims to qualify as offering an Ohio product or as having significant Ohio economic presence.

IV.PREFERENCE FOR PUBLIC IMPROVEMENT CONTRACTS

With respect to the award of any contract for the construction, reconstruction, improvement, enlargement, alteration, repair, painting or decoration of a public improvement, including any highway improvement, made by the (city, county, etc.) or in whole or in part supported by the (city, county, etc.), except for a contract for products produced or mined in Ohio or for a contract financed in whole or in part by contributions or loans from any agency of the United States government, preference shall be given to contractors having their principal place of business in Ohio over contractors having their principal place of business in a state which provides a preference in that state in favor of contracts of that state for the same type of work. Where a preference is provided by another state for contractors of that state, contractors having their principal place of business in Ohio are to be granted in the (city, county, etc.) the same preference over them in the same manner and on the same basis and to the same extent as the preference is granted in letting contracts for the same type of work by the other state. If one party of a joint venture is a contractor having its principal place of business in Ohio, the joint venture shall be considered as having its principal place of business in Ohio.

A city, county, etc. may consult with the Ohio Department of Administrative Services, Division of General Services Administration to determine the type of preference under which a jurisdiction operates.

V.DEFINITIONS

For purposes of this Ordinance (or Resolution) the following definitions shall apply:

1. "Border state" means any state that is contiguous to Ohio and that does not impose a restriction greater than Ohio imposes pursuant to Section 125.09 of the Revised Code.

2. "Lowest Responsive and Responsible Bidder" means a bidder on the contract whose proposal responds to the 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 provide the bidder with a competitive advantage, and whose financial condition, experience, conduct and performance on previous contracts, facilities, and management skills, support the bidder's ability to execute the contract properly.

3. "Ohio Bid" means a bid received from a bidder offering Ohio products or a bidder demonstrating a significant Ohio economic presence.

4. "Ohio business enterprise" means a domestic corporation, sole proprietorship, partnership, or joint venture whose principal place of business is located in Ohio. If one party to a joint venture has its principal place of business in Ohio, the joint venture shall be considered as having its principal place of business in Ohio.

5. "Ohio products" means products which are mined, escavated, produced, manufactured, raised, or grown in the state by a person where the input of Ohio products, labor, skill or other services constitutes no less than 25% of the manufactured cost. With respect to mined products, such products shall be mined or excavated in Ohio.

6. "Produced" means processing, mining, developing and making of a thing into a new article, with a district character in use, through the application of input within the State of Ohio or other services. Produced does not include the mere assembling or putting together of non-Ohio products, including materials, manufacturer's supplies, merchandise, goods, wares and foodstuffs.

7. "Significant Ohio economic presence" means business organizations that:

a) have sales offices, divisions, sales outlets or manufacturing facilities in Ohio or which facilities demonstrate capital investment to Ohio; and

b) pay required taxes to the State of Ohio; and

c) for corporations, are registered and licensed to do business in the State of Ohio with the offices of the Secretary of State.

R.C. 119.032 review dates: 02/23/2004 and 02/23/2009

Promulgated Under: 119.03

Statutory Authority: 125

Rule Amplifies: 125

Prior Effective Dates: 2/2/82, 8/30/84, 5/5/95

123:5-1-12 The reverse auction process.

(A) Definitions In addition to the definitions in section 125.01 and 125.072 of the Revised Code, the following definitions shall apply:

(1) "Qualifications summary" means documents required to be submitted by the bidder in order to determine responsibility and responsiveness;

(2) "Auction event" means a competitive process conducted via the internet in which prequalified responsive and responsible bidders compete to submit the lowest price;

(3) "Bid response" means all documents, whether attached or incorporated by reference, supplied by the bidder in response to an invitation to bid by reverse auction, including a qualifications summary and the lowest price submitted by the bidder during the auction event.

(B) At a minimum, the invitation to bid by reverse auction ("ITB") will contain the following information:

(1) Instructions and information to bidders concerning the submission of qualifications summaries, including the name and address of the agency, department, office, institution, board or commission which is requesting to purchase supplies and/or services;

(2) Instructions governing communications, including but not limited to instructions for submitting questions and posting answers electronically;

(3) A description of the scope of supplies and/or services to be purchased;

(4) Detailed specifications pertaining to the supplies and/or services to be purchased;

(5) The contract terms and conditions including any requirement for a bond and the amount of such bond;

(6) The date, time and place for delivery of the qualifications summary response;

(7) The estimated date and time of the reverse auction event.

(C) The department shall provide notice of an ITB to competing persons producing or dealing in the supplies or services to be purchased. Notice shall be given for the number of days determined by the department prior to the scheduled opening of the ITB. The department may fulfill this notifications requirement by posting the ITB on its web site, at its discretion.

(D) Questions and Answers Unless otherwise noted in the ITB, bidders shall submit questions electronically through the state's designated web site. Responses to questions shall be posted on the web site in a timely manner. The state reserves the right to establish a deadline prior to the bid opening, after which the state is not required to respond to questions. The deadline for submitting questions will be included in the ITB.

(E) Addenda to the ITB shall reference the portions of the ITB it amends and shall be provided to all prospective bidders known to have received an ITB. The department may fulfill this addenda distribution requirement by posting the addenda on its web site, at its discretion.

(F) Receipt and opening of qualifications summaries: the department shall consider the following upon receipt of a qualifications summary response or modification:

(1) Upon receipt, each qualifications summary response and modification shall be time and date stamped but not opened and shall be stored in a secure place until the time and date set for the opening of qualifications summaries.

(2) Qualifications summary responses and modifications shall be opened so as to avoid disclosure of contents to competing offerors. In order to ensure fair and impartial evaluation, qualifications summaries and related documents submitted in response to a reverse auction invitation to bid are not available for public inspection under section 149.43 of the Revised Code until after the award of the contract.

(3) Qualifications summary responses and modifications shall be opened in the presence of the office of the auditor of state and the department of administrative services at the time, date and place designated in the ITB. A list of respondents shall be made available.

(4) Any requests by a bidder for nondisclosure of confidential or proprietary information or trade secrets or assertions by the bidder that information in its qualifications summary is confidential, proprietary, or a trade secret shall be examined by DAS to determine the validity of the request or assertion. Bidder requests or assertions must be in writing. If the parties do not agree, the bidder shall be informed in writing by DAS regarding what portions of the qualifications summary shall be disclosed. The bidder may withdraw its qualifications summary at any time prior to the completion of the evaluation phase of the process. The qualifications summary and related documents and information, unless confidential, proprietary or a trade secret, shall be open to public inspection upon award of the contract.

(5) The signature of the bidder on the qualifications summary shall serve as the signature for the entire bid response. The qualifications summary shall include the names and contact information of the persons who will serve as the authorized representatives of the bidder during the auction event.

(G) Any qualifications summary response received after the time and date set for receipt of responses is late. Any withdrawal or modification of a qualifications summary response received after the time and date set for the opening of responses at the place designated for opening is late. No late response, late modification, or late withdrawal will be considered unless received before completion of the evaluation, and the response, modification, or withdrawal would have been timely but for the action or inaction of state personnel. When deemed as late, a qualifications summary, response, modification, or withdrawal shall be marked as "late", remain sealed and shall be retained in the bid file.

(H) Mistakes in ITB's

(1) Correction or withdrawal of a bid response may be permitted due to an inadvertent, nonjudgmental mistake. If the mistake is attributable to an error in judgment, the bid response may not be corrected. Bid correction or withdrawal by reason of a nonjudgmental mistake is permissible but only if it does not affect the amount of the bid response.

(2) A bidder may correct mistakes discovered before the time and date set for the qualifications summary opening by withdrawing or correcting the qualifications summary as provided in paragraph (F) of this rule.

(3) When the department of administrative services knows or has reason to conclude that a mistake has been made, the department will request the bidder to confirm the bid response. Situations in which confirmation will be requested include obvious, apparent errors in the qualifications summary, or a bid response during the auction event that is unreasonably lower than other bid responses submitted, or a clarification of terms, conditions or specifications offered by the bidder.

(I) The department will use information from the qualifications summaries to register bidders for the auction event. The state reserves the right to exclude bidders who are deemed not responsive or not responsible.

(J) Notice to all bidders and invitation to auction event

(1) The department shall provide written notice to each bidder through postal mail or electronic means regarding the bidder's inclusion or exclusion from the qualified bidders list. The notice to excluded bidders shall include an invitation to the auction event, with the date and time of the event an instructions for participation. The date and the time in this invitation shall supercede the estimated date and time written in the invitation to bid.

(K) The department or its agent shall work with the bidder to prepare for the auction event. Preparation may include, but is not limited to: configuration of the auction computer system, testing of the bidder interface, delivery of the event procedure manuals and other documentation, and training.

(L) Auction event

(1) Only those bidders on the qualified bidders list will be allowed to participate in the auction event.

(2) The department or its agent will provide the necessary administrative support to ensure that the integrity of the auction event is not compromised.

(3) The department or its agent will keep an event record, which will include the prices offered by the bidders. The event record will become part of the contract documents and a public record at the conclusion of the event.

(4) The bidder interface will be configured such that a bidder will not know the identity of competing bidders until the event is complete.

(5) The department or its agent will begin the event through electronic notification to all qualified bidders.

(6) Bidders may submit multiple prices during the event. The lowest price offered will become the price portion of the bid response.

(7) Bids must be submitted by, or under the direction of, an authorized representative of the bidder as designated in the qualifications summary.

(8) The auction event will have a scheduled stop time. The event may be extended if bids are received within a predetermined amount of time prior to the scheduled stop time. Specific procedures on time extension shall be contained in the event procedure manual that will be distributed to all qualified bidders.

The event will conclude at either the scheduled stop time or the time at which all extensions are completed, whichever is later.

(M) After the conclusion of the auction event, the state will consider the qualifications summary and the price offered during the auction event to determine the lowest responsive and responsible bidder.

(N) The department reserves the right to reject any and all bid responses, award partial contracts, and/or rebid when:

(1) Supplies and/or services are not in compliance with the requirements, specifications, and terms and conditions set forth in the ITB; or

(2) Pricing offered is determined to be excessive in comparison with existing market conditions, or exceeds the available funds of the procuring entity; or

(3) It is determined that awarding of any or all items will not be in the best interest of the state.

(O) An apparent low bidder found not to be responsive or responsible shall be notified by the department of that finding and the reasons for it. Such notification may be given by electronic means.

(P) Written notice of the award shall be provided to the successful bidder. Notice of award shall be made available the public.