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.A. 10A-10D, 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.

(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 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;

(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