123:2-15-04 Application to the minority set aside review board.

(A) Whenever a contractor is unable to agree to the provision required by division (C)(2) of section 123.151 the Revised Code because, having made a good faith effort, the contractor is unable to locate qualified minority businesses available to accept subcontracts or sell materials or services, the contractor may apply to the set aside review board for a waiver or modification of the provision.

(B) If the board finds that the contractor has made a good faith effort to locate and reach agreement with minority business subcontractors and materialmen or service providers but has been unable to do so due to circumstances beyond the reasonable control or the contractor, the board may authorize the contract to include, in lieu of the provision required by division (C)(2) of section 123.151 of the Revised Code, a provision stipulating a lesser percentage of the total value of the contract to be designated for minority business subcontractors and materialmen or it may waive such provision entirely or stipulate a higher percentage of services permissible in contracts specified in division (A), (B) or (C) of section 153.02 of the Revised Code.

(C) In order for the board to find that a contractor has made a good faith effort to locate and reach agreement with minority business subcontractors and materialmen with minority business subcontractors and materialmen or service providers, the contractor must be able to document the steps taken to obtain participation in the contract by a qualified minority business enterprise.

(1) The board in determining a good faith effort to locate a qualified minority business enterprise on the part of the contractor shall consider all relevant factors. The following factors must be supported by satisfactory written evidence, where appropriate:

(a) Contact with the contracting state agency for assistance;

(b) Contact with the office of the equal employment opportunity coordinator prior to submitting a bid to obtain the list of certified minority business enterprises and for assistance in obtaining a wavier or modification after the award of a contract;

(c) Contact with the minority business development division of the department of development for assistance in locating specific minority business enterprise subcontractors to meet particular contract needs prior to the award of a contract;

(d) Contact with the appropriate minority assistance groups for assistance;

(e) Attendance at any pre-bid meeting scheduled to inform minority business enterprises of subcontracting opportunities under a given solicitation;

(f) Written notification to all appropriate certified minority business enterprises in the immediate geographic area that their interest in the contract is requested; and

(g) The location of the construction project and the availability of certified minority business enterprises in the immediate geographic area.

(2) The board in determining a good faith effort to reach agreement with qualified minority business enterprises on the part of the contractor shall consider all relevant factors. The following factors must be supported by satisfactory written evidence, where appropriate:

(a) Efforts to select portions of the work proposed to be performed by minority business enterprises in order to increase the likelihood of achieving the stated goal;

(b) Proven capability of the contractor to perform all or part of the work required by the contract with the contractor's own forces;

(c) Efforts to negotiate with minority business enterprises for specific subbids, including at a minimum:

(i) The names, addresses, and telephone numbers of minority business enterprises that were contacted, the date of contact and the date set for receipt of bids from the minority business enterprise;

(ii) A description of the information provided to minority business enterprises regarding the plans and specifications for portions of the work to be performed;

(iii) A statement from both the contractor and, if available, from the appropriate minority business enterprise as to why an agreement with a minority business enterprise was not reached; and

(iv) A statement of the reasons for requiring a bond of a minority business enterprise subcontractor if such a bond was required; and

(d) Reasons for rejecting as unqualified any minority business enterprise the contractor contacted.

(3) The burden shall be placed upon the contractor to prove to the board that the contractor has made the required good faith effort necessary to receive a waiver or modification of the provision required by division (C)(2) of section 123.151 of the Revised Code.

Eff 3-1-82; 5-7-84; 5-18-98
Rule promulgated under: RC 119.03
Rule authorized by: RC 123.151
Rule amplifies: RC 123.151
ORC 119.032 Review Date: 10/20/01