Chapter 123:5-1 General Provisions

123:5-1-01 Definitions.

In addition to the definitions in section 125.01 and 125.091 of the Revised Code, the following definitions shall apply:

(A) "Bid response" means all documents, whether attached or incorporated by reference, supplied by the bidder in response to an invitation to bid.

(B) "Bidder" means the person or firm that submits a bid response to an invitation to bid.

(C) "Biobased Content" shall be determined based on the amount of biobased carbon in the material or product as a percentage of weight (mass) of the total organic carbon in the material or product.

(D) "Border state" means any state that is contiguous to Ohio and that does not impose a restriction greater than Ohio imposes pursuant to sections 125.09 and 125.11 of the Revised Code on persons located in Ohio selling products or services to agencies of that state.

(E) "Competitive sealed proposal" means offering of proposals in response to a request for proposal by a state agency for the purchase of supplies and/or services.

(F) "Domestic Source End Product" means

(1) an unmanufactured end product mined or produced in the United States, or

(2) an end product manufactured in the United States, if the cost of its components mined, produced, or manufactured in the United States, exceeds fifty per cent of the cost of all its components of foreign origin of the same class or kind as those that the department determines are not mined, produced, or manufactured in sufficient and reasonably available commercial quantities of a satisfactory quality are treated as domestic. Scrap generated, collected, and prepared for processing in the United States is considered domestic.

(G) "Emergency condition" means a situation that creates a threat to public health, welfare, safety, which may arise by reason of epidemics, riots, equipment failure or such other reasons as may be proclaimed by the governor; or which interrupts the operation of production facilities maintained by Ohio penal industries in its program for employment of prisoners.

(H) "Invitation to bid" or "ITB" means all documents, whether attached or incorporated by reference, utilized for soliciting bids.

(I) "Offeree" means the state department, office, institution, board, or commission who is seeking to purchase supplies and/or services through a request for proposal.

(J) "Offeror" means the person or firm which submits a proposal in response to a request for proposal.

(K) "Ohio bid" means a bid received from a bidder offering Ohio products or a bidder demonstrating significant Ohio economic presence.

(L) "Post-consumer materials" means recovered materials that were generated by a business or consumer, have served their intended end uses, and have been separated or diverted from solid wastes for the purposes of collection, recycling and disposition.

(M) "Pre-consumer materials" means recovered materials that were production finished materials, products, or by products which did not reach the consumer for whose use they were intended, and have been diverted from solid wastes for the purposes of collection, recycling and disposition.

(N) "Proposal" means all documents, whether attached or incorporated by reference, supplied by the offeror in response to a request for proposal.

(O) "Recovered materials" means waste materials and by products that have been recovered or diverted from solid waste.

(P) "Recycled content product" means a product made from pre-consumer or post-consumer recovered materials whose portion of weight or volume of recovered materials meets or exceeds the minimum content percentage standard guidelines established by the department of administrative services.

(Q) "Request for proposal" or "RFP" means all documents, whether attached or incorporated by reference, utilized for soliciting proposals from offerors.

(R) "Significant Ohio economic presence" means business organizations that:

(1) Pay required taxes to the state of Ohio; and

(2) Are registered and licensed to do business in the state of Ohio with the office of the secretary of state; and

(3) Have ten or more employees based in Ohio, or seventy-five per cent or more of their employees based in Ohio.

(S) "State agency" has the same meaning as in section 1.60 of the Revised Code, but does not include the elected state officers, the general assembly or any legislative agency, a court or any judicial agency, or a state institution of higher education.

(T) "Specification" means any description of the physical or functional characteristics or of the nature of supplies or service to be purchased. It may include a description of any requirements for inspecting, testing, or preparing supplies or services for delivery.

Effective: 03/28/2014
R.C. 119.032 review dates: 01/02/2014 and 03/17/2019
Promulgated Under: 119.03
Statutory Authority: RC 125.08 , RC 125.082 , RC 125.09
Rule Amplifies: RC 125.01 , RC 125.08 , RC 125.082 , RC 125.09 , RC 125.11
Prior Effective Dates: 2/2/82, 11/25/82, 8/30/84, 5/5/95

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

(A) The director of the department of administrative services may delegate authority to the chief procurement officer, the state purchasing administrator, the state printing administrator, or as the director may otherwise delegate, to make purchases for supplies, services, and information technology.

Effective: 03/28/2014
R.C. 119.032 review dates: 01/02/2014 and 03/17/2019
Promulgated Under: 119.03
Statutory Authority: RC 121.07
Rule Amplifies: RC 121.07
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. Release and permits may be granted for a single purchase or for a group of similar or related purchases. The department may issue a blanket release and permit to an agency for specific types of purchases and for any length of time, not to exceed the current biennium. 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 selection;

(B) An agency shall not proceed with the purchase until the department has granted a specific release and permit or the purchase is covered by a blanket release and permit. Whenever a release and permit has been granted, the requesting agency must purchase the supplies or services in a competitive manner or with controlling board approval unless the controlling board determines that such approval is not required.

(C) A state agency may make procurements of supplies, services or information technology when an emergency condition arises and the need cannot be met through normal procurement methods. If the amount of the purchase exceeds the limitations set forth in section 125.05 of the Revised Code, the agency shall obtain a release and permit from the department of administrative services prior to the procurement. If the purchase exceeds the dollar limitations as defined in section 127.16 of the Revised Code, the agency shall obtain approval from the president of the controlling board prior to making the purchase. Whenever it is not possible or feasible to obtain a release and permit or approval from the controlling board prior to making the purchase, the agency may proceed with the purchase and provide written confirmation of the emergency situation and purchase to the department or the controlling board no later than the next regular business day following resolution of the emergency. The emergency procurement shall be limited to those supplies and services necessary to meet the emergency.

Effective: 03/28/2014
R.C. 119.032 review dates: 01/02/2014 and 03/17/2019
Promulgated Under: 119.03
Statutory Authority: RC 125.02 , RC 125.04 , RC 125.06
Rule Amplifies: RC 125.02 , RC 125.021 , RC 125.04 , RC 125.041 , RC 125.05 , RC 125.06
Prior Effective Dates: 2/2/82, 8/30/84, 5/5/95

123:5-1-04 [Rescinded] Emergency purchases.

Effective: 03/28/2014
R.C. 119.032 review dates: 01/02/2014
Promulgated Under: 119.03
Statutory Authority: RC 125.02 , RC 125.04 , RC 125.06
Rule Amplifies: RC 125.01 , RC 125.02 , RC 125.04 , RC 125.05 , RC 125.06 , 127.16
Prior Effective Dates: 2/2/82, 8/30/84, 5/5/95

123:5-1-05 [Rescinded] Bid districts.

Effective: 03/28/2014
R.C. 119.032 review dates: 01/02/2014
Promulgated Under: 119.03
Statutory Authority: RC 125.08
Rule Amplifies: RC 125.08
Prior Effective Dates: 2/2/82, 8/30/84, 5/5/95

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

(A) Procedure for applying bid preference for United States and Ohio products

(1) Bids will first be evaluated to determine whether a bid response is for a domestic source end product. Information furnished in the bid response by the bidder shall be relied upon but may be verified in making the determination. Any bid response that does not meet this requirement may be removed, except in those circumstances where the director of the department of administrative services or his designee determines compliance would result in the state paying an excessive price or acquiring an inferior product as described in paragraph (A)(3) of this rule.

(2) Following the determination at paragraph ( A)(1) of this rule, the bids shall be evaluated so as to give preference to Ohio bids for products produced or mined in Ohio or a border state. Where the preliminary analysis of bids identifies the apparent low bid as an Ohio bid or a border state bid, the director or the director'sdesignee 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 border state bid, the director or the director's designee shall apply the following preferences:

(a) If the apparent low bid is one other than an Ohio bid or border state bid offering a domestic source end product, apply five per cent to the price. For purposes of the Ohio preference, "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.

(b) If the apparent low bidder offers a foreign product, apply six per cent to the price. For purposes of Buy American, a price is excessive if the price on the lowest domestic or Ohio bid exceeds the lowest foreign price by more than six per cent.

(c) If sufficient competition does not exist or if it is determined that all prices are excessive, the department may cancel the bid in its entirety, may re-bid the intended purchase, or award the contract.

(4) After application of the preferences in paragraph (3) of this rule, wherethe director or the director's designee determines that selection of the lowest Ohio bid will not result in an excessive price or a disproportionately inferior product or service, the director or the director's designee shall propose a contract award to the lowest responsible and responsive Ohio bid at the bid price quoted. Where, otherwise, the director determines it is advantageous to propose the award of contract to other than an Ohio bid or border state bid , 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 the director's 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.

(B) "Buy American" product information

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

"Buy American certificate

The bidder hereby certifies that each end product, except the end products listed below, is a domestic source end product as defined in the Buy American Act and by this rule; 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):"

...

(C) Buy Ohio bidder and product information

All invitations to bid 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.

(D) Notice of bid preference

The department shall indicate in all its invitations to bid whether it will apply a bid preference as outlined herein in the evaluation and award of bids received. Any bidder who intentionally submits false or misleading information in an attempt to receive a bid preference will be immediately disqualified and may be subject to legal action up to and including debarment.

Effective: 03/28/2014
R.C. 119.032 review dates: 01/02/2014 and 03/17/2019
Promulgated Under: 119.03
Statutory Authority: RC 125.09
Rule Amplifies: RC 125.09 ,RC 125.11
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 that is requesting to purchase products, 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 products, supplies and/or services to be purchased;

(4) Complete and detailed specifications pertaining to the products, supplies and/or services to be purchased which may include, among others, 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 appropriate and applicable financial assurances, such as a performance 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 post a notice of all invitations to bid electronically on the department's website. Notice shall be given for the number of days determined by the department prior to the scheduled opening of the ITB.

(1) For ITB's set aside pursuant to section 125.081 of the Revised Code, notice of an invitation to bid shall be posted electronically on the department's website and shall be sent electronically to the last known email address of those competing persons whose names appear on the certified minority business enterprise listing maintained by the department.

(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 on the department's website.

(2) Bid conferences may be conducted after issuance of the ITB to explain the procurement requirements. Notice of a bid conference shall be provided on the department's website. 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 posted on the department's website.. Addenda shall be posted 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) All timely bid responses and modifications shall be opened publicly, in the presence of a representative of the department of administrative services at the time, date, and place designated in the ITB. The opened bid responses shall be available for public inspection except to the extent the bidder designates trade secrets 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, catalog 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 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 it contains 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 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 an inadvertent 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 .

(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 may award a contract in whole or in part to one or multiple bidders. Notice of any potential partial and/or multiple party award shall be provided in the ITB.

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

(1) Product, 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.

(J) 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 pursuant to section 9.312 of the Revised Code. Notice of award shall be posted on the department's website.

Effective: 03/28/2014
R.C. 119.032 review dates: 01/02/2014 and 03/17/2019
Promulgated Under: 119.03
Statutory Authority: RC 125.02 , RC 125.09 , RC 125.11
Rule Amplifies: RC 9.312 , RC 125.02 , RC 125.07 , RC 125.08 , RC 125.081 , RC 125.09 , RC 125.10 , RC 125.11
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") should 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 instructions for submitting questions and posting answers electronically;

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

(4) A description of the performance criteria may include, but are 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 financial assurances, such as a performance 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) Notice of Request for Proposal

(1) The department shall post a notice of a request for proposal electronically on the department's website. Notice shall be given 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 . Notice of a vendor conference shall be provided in the RFP.

(E) Any requests by offeror for nondisclosure of trade secrets or assertions by offeror that information in its proposal, or the entire proposal, is a trade secret shall be examined by the department 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 department 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 a trade secret, concerning the RFP process shall be open to public inspection upon award of a contract.

(F) The department reserves the right to cancel, reissue or reject all responses to an RFP, in whole or in part, 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 state; or

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

(G) The department of administrative services 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 .

(H) Notice of an award shall be provided to the successful offeror. Notice of an award shall be posted on the department's website.

Effective: 03/28/2014
R.C. 119.032 review dates: 01/02/2014 and 03/17/2019
Promulgated Under: 119.03
Statutory Authority: RC 125.02
Rule Amplifies: RC 125.02 ,RC 125.021 , RC 125.05
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.A. 6921 ;

(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.

Effective: 03/28/2014
R.C. 119.032 review dates: 01/08/2014 and 03/17/2019
Promulgated Under: 119.03
Statutory Authority: RC 125.02 , RC 125.09
Rule Amplifies: RC 125.02 , RC 125.09
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 for procurement of supplies, services, and information technology.

(B) The department may delegate to the state agency the authority to prepare specifications.

(C) The department or state agency authorized to prepare said specifications may enter into a contract 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 that the specifications are not restrictive, reflect current industry trends and promote open competition.

(D) A specification is a description of the supplies, services, or information technology that is to be purchased and what the bidder or offeror must be responsive to in order to be considered for an award of a contract. A specification may fall under one of the following categories:

(1) design specification

(2) performance specification

(3) combination specification (design and performance)

(4) brand name or approved equal specification

(5) qualified products list

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

(F) A design specification may be used when it is necessary to define the need in very prescriptive terms. A design specification must include specific details of how the item is to be manufactured to meet the needs of the agency and may include engineering plans, drawings, or blueprints.

(G) A performance specification may be used to describe the general performance characteristics required to achieve an end result or desired outcome. A performance specification does not require the bidder or offeror to comply with specific design requirements.

(H) A combination specification may be used when it is necessary to incorporate, to the extent practicable, attributes of both design and performance specifications to meet the required need.

(I) Brand name or approved equal specifications may be used when it is not practicable or cost-effective to prepare a design, performance, or combination specification or when time is critical and does not permit creation of a design, performance or combination specification. A brand name or approved equal specifications is used to establish a baseline of measurement for the supplies, services, or information technology being purchased. Use of a brand name or approved equal specification requires a minimum of two manufacturers to be considered as competition. Any brand name or approved equal that is offered in response to the bid or proposal, and that meets or exceeds the baseline of measurement, will qualify for award of a contract.

(J) A Qualified Products List (QPL) is a list of supplies, services, or information technology that have been examined and tested and determined to have satisfied all applicable specifications and requirements of the agency. A QPL is used to restrict bidders and offerors to those products appearing on the list. A QPL may be used when time does not permit development of a specification or when it is determined to be in the best interest of the state to use a QPL. A minimum of two manufacturers of equivalent supplies, services, or information technology must be solicited for inclusion on a QPL. Examination and testing of the item or services may be completed by the state or by any independent testing facility as determined by the department of administrative services. Use of a QPL requires prior approval from the department of administrative services.

(K) Brand specific specification is restrictive in that only the listed brand will satisfy the need and may only be used when authorized by the department of administrative services. A brand specific specification may be used only when;

(1) The identified brand name is the only brand that is capable of satisfying the need; or

(2) The identified brand name is a component of an existing item and it is not possible to use an item from another manufacturer to meet the need; or

(3) The agency maintains a sufficient inventory of items of one manufacturer and it is not cost-effective to purchase and inventory equivalent items from different manufactures; and

(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.

Effective: 03/28/2014
R.C. 119.032 review dates: 03/17/2019
Promulgated Under: 119.03
Statutory Authority: RC 125.02 , RC 125.09
Rule Amplifies: RC 125.02 , RC 125.09

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

The department of administrative services establishes the following model system of preferences which may be used voluntarily by counties, townships, and municipalities for purchasing 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 to determine whether a bid response is for a domestic source end product. Information furnished in the bid response shall be relied upon but may be verified in making the determination. Any bid response that does not meet this requirement may be removed, except in those circumstances where the director of the department of administrative services or his designee determines compliance would result in the payment of an excessive price or acquiring an inferior product as described in paragraph (B) of this rule.

(B) Bid preference

(1) Following the determination at paragraph (A) of this rule, the bids shall be evaluated so as to give preference to Ohio bids for products produced or mine in Ohio or a border state .

(2) Where the preliminary analysis of bids identifies the apparent low bid as an Ohio bid or a border state bid, the county, township, or municipality shall proceed with evaluation and award procedure. Where the preliminary analysis identifies the apparent low bid as one other than an Ohio bid or a border state bid, the county, township, or municipality shall apply the following preferences:

(a) if the apparent low bid is one other than an Ohio bid or border state bid offering a domestic source end product, apply five per cent to the price. For purposes of the Ohio preference, "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.

(b) if the apparent low bidder offers a foreign product, apply six per cent to the price. For purposes of Buy American, a price is excessive if the price on the lowest domestic or Ohio bid exceeds the lowest foreign price by more than six per cent.

(c) If sufficient competition does not exist or if it is determined that all prices are excessive, the county, township, or municipality may cancel the bid in its entirety, may re-bid the intended purchase, or award the contract.

(3) Where the preliminary analysis of bids identifies the apparent low bid as an Ohio bid or a border state bid , the county, township, or municipality shall proceed with its standard contract award practices and procedures. Where the preliminary analysis identifies the apparent low bid as one other than an Ohio bid or border state bid, the county, township, or municipality 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 county, township, or municipality deemed to be an excessive price ;

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

(4) 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.

(5) 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.

(6) Prior to the final contract award, the county, township, or municipality shall conduct its evaluation procedures (e.g., product compliance with bid specifications) in addition to the Buy American 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 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 American 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)."

(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.

Click to view Appendix

Effective: 03/28/2014
R.C. 119.032 review dates: 01/02/2014 and 03/17/2019
Promulgated Under: 119.03
Statutory Authority: RC 125.02 , RC 125.09
Rule Amplifies: RC 125.02 , RC 125.09
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 sections 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 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 appropriate and applicable financial assurances, such as a performance 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 post a notice electronically on the department's website. . Notice shall be given for the number of days determined by the department prior to the scheduled opening of the ITB.

(D) Addenda to the ITB shall reference the portions of the ITB it amends by posting the addenda on its web site, at its discretion.

(E) 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 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 trade secrets or assertions by the bidder that information in its qualifications summary is a trade secret shall be examined by the department 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 the department 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 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.

(F) 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.

(G) Mistakes in ITB's

(1) Correction or withdrawal of a bid response may be permitted due to an inadvertent 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 an inadvertent 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 ( G) 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.

(H) 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.

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

(1) The department shall provide written notice to each bidder through electronic means regarding the bidder's inclusion or exclusion from the qualified bidders list.

(J) 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 documentation, and training.

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

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

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

(L) 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.

(M) 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.

(N) 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.

(O) Written notice of the award shall be provided to the successful bidder. Notice of award shall be posted on the department's website.

Effective: 03/28/2014
R.C. 119.032 review dates: 01/02/2014 and 03/17/2019
Promulgated Under: 119.03
Statutory Authority: RC 125.072
Rule Amplifies: RC 125.072 , R.C. 119.032
Prior Effective Dates: 9/21/2004

123:5-1-13 Biobased products bid preference policy.

(A) The department of administrative services, other state agencies and state institutions of higher education must procure biobased products that fall within the designated item categories list in the current version of the catalog compiled by the United States department of agriculture and maintained by the department of administrative services on its website. State agencies must procure equipment, materials, and supplies in accordance with procedures set forth in rule 123:5-1-14 of the Administrative Code.

(B) Requests for proposal and invitations to bid will contain a statement that biobased products may be considered and that a preference may be applied for those biobased products meeting the specifications set forth in the bidding document.

(C) The minimum content for the anticipated biobased purchase shall be derived from the United States department of agriculture's determination of minimum content for the designated item.

Effective: 11/22/2010
R.C. 119.032 review dates: 11/22/2015
Promulgated Under: 119.03
Statutory Authority: 125.092(E)
Rule Amplifies: 125.091 , 125.092

123:5-1-14 Biobased products bid preference program procedure.

(A) For purposes of this rule, the following definitions apply:

(1) "ASTM International" means the nonprofit organization that provides a forum for the development and publication of voluntary consensus standards for materials, products, systems, and services.

(2) "Biobased Content" means the amount of biobased carbon in the material or product as a per cent of weight (mass) of the total organic carbon in the material or product.

(3) "Fair Market Value" means a market price that is representative of the range of prices that a state agency would expect to pay for the item in the marketplace.

(4) "ISO" means the international organization for standardization.

(B) The awarding of contracts under this section will be consistent with section 125.071 of the Revised Code for requests for proposals and section 125.11 of the Revised Code for invitations to bid.

(C) As applicable, when purchasing equipment, materials or supplies, first consideration must be given to the availability of such items in accordance with sections 5147.01 to 5147.26 (Ohio penal industries) or sections 125.60 to 125.6012 (community rehabilitation program) of the Revised Code. If both biobased and non-biobased products are available from these sources, state agencies shall purchase the biobased product provided such meets the need of the state agency, is available within a reasonable period of time, and is at a reasonable price.

(D) When it is determined that either a biobased or non-biobased product would be acceptable and it is determined that both biobased and nonbiobased products are available, the request for proposal or invitation to bid for purchase of equipment, material or supplies will contain a biobased bid preference provision indicating the minimum acceptable percentage of biobased content as designated by the United States department of agriculture. This procedure is not required when the request for proposal or invitation to bid specifies that only a biobased product will be considered for award of a contract.

(E) Bids or proposals received will be segregated into categories as follows:

(1) Biobased

(2) Non-biobased

(F) The biobased category shall be reviewed to determine the following:

(1) A bid or offer contains a designated item as defined in division (D) of section 125.091 of the Revised Code;

(2) The offeror or bidder is listed in the current version of the United States department of agriculture catalog as maintained by the department of administrative services on its website as a company that is offering a designated item or the bidder or offeror provides a certification according to rule 123:5-1-15 of the Administrative Code; and

(3) The percentage of biobased content.

(G) Those bids or proposals containing the highest percentage of biobased content and that contain all items listed in paragraphs (F)(1) to (F)(3) of this rule will be evaluated first in accordance with section 125.071 of the Revised Code for requests for proposals and section 125.11 of the Revised Code for invitations to bid. The information furnished by the bidder or offeror as provided for in paragraph (F) of this rule shall be solely relied upon in making the award.

(H) From among those bids or proposals offering non-biobased products, the department of administrative services or state agency will review the non-biobased bids in accordance with section 125.071 of the Revised Code for requests for proposals and section 125.11 of the Revised Code for invitations to bid.

(I) In awarding the contract, the department of administrative services or state agency will compare the lowest responsive and responsible bid or the most advantageous offer for the non-biobased product to the lowest responsive and responsible bid or most advantageous offer for the biobased product containing the highest percentage of biobased content.

(J) The department of administrative services or state agency may proceed with the award of the contract for the biobased product containing the highest percentage of biobased content unless:

(1) The biobased product containing the highest percentage of biobased content is not available within a reasonable period of time;

(2) The biobased product does not meet the performance standards set forth in the applicable specifications of the product; or

(3) The price of the biobased product is an unreasonable price as defined in division (C)(3)(a) of section 125.092 of the Revised Code. In determining if the biobased product is an unreasonable price, the biobased product price may exceed the price or fair market value of a substantially equivalent non-biobased product by up to five per cent.

(K) If the bid or proposal offering the highest percentage of biobased content does meets any one of paragraphs (J)(1) to (J)(3) of this rule, the department of administrative services or state agency may consider the other bids or proposals submitted that offer a lower percentage of biobased content and that meet all other requirements set forth in this rule in descending order beginning with the next highest percentage content of biobased material.

(L) If all biobased bids are excluded through the application of paragraphs (J)(1) to (J)(3) of this rule or through the evaluation of the bid in accordance with section 125.071 of the Revised Code for requests for proposals and section 125.11 of the Revised Code for invitations to bid, the department of administrative services or state agency may consider an award of the contract to the other non-biobased product bids or proposals submitted that are the lowest responsive and responsible bid or the most advantageous offer.

Effective: 11/22/2010
R.C. 119.032 review dates: 11/22/2015
Promulgated Under: 119.03
Statutory Authority: 125.092(E)
Rule Amplifies: 125.091 , 125.092

123:5-1-15 Bidder or offeror certification.

(A) All invitations to bid and requests for proposals shall require the bidder or offeror to complete and attest the following:

(1) I, _________ (name of certifier), am an officer or employee responsible for the performance of this contract and I hereby certify that biobased products (within the categories of items listed in the current version of the United States department of agriculture catalog as maintained by the department of administrative services on its website) to be used or delivered in the performance of the contract will comply with the applicable specifications or other contractual requirements.

(2) I further certify that biobased products being offered are listed as a designated item as determined by the United States department of agriculture and the biobased products have been tested by an ASTM/ISO compliant test facility using the ASTM international radioisotope standard method D 6866 for testing and I can verify this testing upon request of the state of Ohio.

(3) [Signature of the officer or employee]

(4) [Date]

(5) [Name of company]

Effective: 11/22/2010
R.C. 119.032 review dates: 11/22/2015
Promulgated Under: 119.03
Statutory Authority: 125.092(E)
Rule Amplifies: 125.091 , 125.092