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Ohio Laws and Rules
(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