Chapter 164-1 General Provisions

164-1-01 Definitions.

For the purposes of Chapter 164-1 of the Administrative Code:

(A) "Administrator" means the administrator of the Ohio small government capital improvements commission appointed under section 164.05 of the Revised Code.

(B) "Director" means the director of the Ohio public works commission appointed under section 164.02 of the Revised Code.

(D) "District committee" means a district public works integrating committee established under division (A)(1), (A)(2), (A)(3), (A)(4), (A)(5), or (A)(6) of section 164.04 of the Revised Code.

(E) "Executive committee" means an executive committee of a district public works integrating committee established under division (A)(7) of section 164.04 of the Revised Code.

(F) "Expansion project cost" means the cost entailed in a project, or those elements of a project, that would replace existing infrastructure with infrastructure that:

(1) Has a designed service capacity substantially greater than the designed service capacity of the existing infrastructure, regardless of the relative physical dimensions of the existing or replacing infrastructure; or

(2) Except for solid waste disposal facilities, uses a substantially different service technology than is used by the existing infrastructure.

(G) "Infrastructure" means roads and bridges, waste water treatment systems, water supply systems, solid waste disposal facilities, and storm water and sanitary collection, storage, and treatment facilities, including real property, interests in real property, facilities, and equipment related or incidental to those facilities.

(H) "New project cost" means the cost entailed in a project, or those elements of a project, that would add infrastructure to a subdivision's existing infrastructure.

(I) "Project" means the acquisition, construction, reconstruction, improvement, planning, and equipping of infrastructure under Chapter 164. of the Revised Code. In the case of funds allocated under division (B)(1) of section 164.08 of the Revised Code, "project" also includes resurfacing and improving of roads.

(J) "Project applicant" or "applicant" means the subdivision or group of subdivisions which submitted a request for financial assistance to a district that a district has subsequently formally submitted to the director of the Ohio public works commission or to the administrator of the Ohio small government capital improvements commission under section 164.06 of the Revised Code.

(K) "Project application" means a request for financial assistance formally submitted by a district to the director of the Ohio public works commission or to the administrator of the Ohio small government capital improvements commission pursuant to section 164.06 of the Revised Code.

(L) "Public works commission" or "PWC" means the Ohio public works commission created by section 164.02 of the Revised Code.

(M) "Repair project cost" means the cost entailed in a project, or those elements of a project, that would repair existing infrastructure without substantially increasing designed service capacity.

(N) "Replacement project cost" means the cost entailed in a project, or those elements of a project, that would replace existing infrastructure with infrastructure that:

(1) Has a designed service capacity substantially equivalent to the designed service capacity of the existing infrastructure, regardless of the relative physical dimensions of the existing or replacing infrastructure; and

(2) Except for solid waste disposal facilities, uses substantially the same service technology that is used by the existing infrastructure.

(O) "Small government commission" or "SGC" means the Ohio small government capital improvements commission created by section 164.02 of the Revised Code.

(P) "Small government subcommittee" means a subcommittee of a district public works integrating committee appointed under division (D) of section 164.06 of the Revised Code to represent interests of villages and townships.

(Q) "State capital improvements fund" means the fund created by division (A) of section 164.08 of the Revised Code.

(R) "Subdivision" means a county, municipal corporation, township, sanitary district, or regional water and sewer district.

Eff 6-7-89 (Emer.); 9-18-89
Rule promulgated under: RC 119.03
Rule authorized by: RC 164.05
Rule amplifies: RC 164.01, 164.02, 164.03, 164.04, 164.05, 164.051, 164.06, 164.08
119.032 Review Date: 1-10-03

164-1-02 Public hearings on adoption, amendment, or rescission of rules; methods of public notice.

(A) Except in the case of an emergency rule authorized under division (F) of section 119.03 of the Revised Code, the director shall adopt, amend, or rescind no rule unless he holds a public hearing in accordance with division (C) of that section no earlier than thirty nor later than fifty days after the proposed rule, amendment, or rescission is filed under division (B) of that section.

(B) The director shall provide public notice of the hearing referred to in paragraph (A) of this rule by:

(1) Publishing such notice in one newspaper of general circulation in each of the following counties: Cuyahoga, Franklin, Hamilton, Lucas, and Washington; and

(2) Mailing a copy of such notice to the liaison individual designated for each district under paragraph (A) of rule 164-1-03 of the Administrative Code.

(1) A statement of the director's intention to consider adopting, amending, or rescinding a rule;

(2) A synopsis of the proposed rule, amendment, or rule to be rescinded or a general statement of the subject matter to which the proposed rule, amendment, or rescission relates;

(3) A statement of the reason or purpose for adopting, amending, or rescinding the rule; and

(4) The date, time, and place of the hearing referred to in paragraph (A) of this rule.

(D) Any person who requests it and pays a reasonable fee shall receive a copy of the notice referred to in paragraph (B) of this rule. The director shall set such fee at an amount no greater than needed to cover costs of copying and mailing the notice to persons so requesting a copy of the notice.

(E) The director may provide any notice beyond that required by paragraphs (B), (C), and (D) of this rule and by Chapter 119. of the Revised Code as he considers appropriate or necessary under the circumstances. Failure to give such additional notice shall not be considered as a basis for invalidating any rule, or portion of a rule, adopted, amended, or rescinded by the director.

Eff 6-7-89 (Emer.); 9-18-89
Rule promulgated under: RC 119.03
Rule authorized by: RC 164.05
Rule amplifies: RC 164.05
119.032 Review Date: 1-10-03

164-1-03 Districts; committee members.

(A) Each district committee shall provide the director with the following information:

(1) The name, official title, business mailing address, and business telephone number of an individual residing in the district designated by the district to serve as liaison between the district and the PWC and to receive oral or written communications from the director or the administrator;

(2) A roster of all members of the district's various committees, including the following information pertaining to each such member:

(a) Mailing address and telephone number;

(b) Name of committee or committees of membership;

(d) Commencement and expiration dates of term of appointment established in accordance with division (B) of section 164.04 of the Revised Code.

(B) Each district committee immediately shall inform the director of any subsequent modification to the information provided under paragraph (A) of this rule.

Eff 6-7-89 (Emer.); 9-18-89
Rule promulgated under: RC 119.03
Rule authorized by: RC 164.05
Rule amplifies: RC 164.04, 164.05, 164.051
119.032 Review Date: 1-10-03

164-1-10 Open meeting requirements.

(A) District public works integrating committees and their sub-committees, including those required by Chapter 164. of the Revised Code, county sub-committees and all other sub-committees established by a district committee are public bodies, as defined in section 121.22 of the Revised Code, whose meetings shall be open to the public at all times.

(B) A member of a district public works integrating committee, or its sub-committees, must be present in person at a meeting open to the public to be considered present or to vote at all meetings and for the purpose of determining whether a quorum is present at the meeting.

(C) Public notice of all meetings of a district public works integrating committee, or its sub-committees, shall be made by the district liaison as designated in accordance with rule 164-1-03 of the Administrative Code.

(D) Public notice of meetings of the Ohio public works commission shall be made by its director.

(E) Public notice of meetings of the Ohio small government capital improvements commission shall be made by its administrator.

(F) Public notice of meetings providing the day, time, place and purpose of the meeting shall be posted in a place available to the public during regular business hours, and shall be made orally, or in writing, to all members of the public body and to any person, or the news media, requesting notification.

(G) Notification of all meetings shall be made at least seventy-two hours prior to the scheduled meeting persons requesting notification may be charged actual reproduction and postage costs.

(H) Meeting minutes shall be promptly prepared, filed, and maintained and shall be open to public inspection.

(I) Any resolution, rule, or formal action of any kind is invalid unless adopted in an open meeting.

Eff 4-20-98
Rule promulgated under: RC 119.03
Rule authorized by: RC 164.05
Rule amplifies: RC 164.02, 164.05, 164.051, 164.06
119.032 Review Date: 01/10/03

164-1-11 Project selection criteria.

(A) In selecting projects for formal submission to the director or the administrator, district committees, executive committees, and small government subcommittees, shall comply strictly with the requirements of divisions (B) and (D) of section 164.06 of the Revised Code. In conjunction with any project application so submitted by such a committee, the committee shall provide the director or the administrator with a detailed explanation of its rationale in selecting the project application in light of each and every criterion set forth in that division, including the requirement to give priority to projects for the repair or replacement of existing infrastructure, and projects which would be unlikely to be undertaken without assistance under Chapter 164. of the Revised Code.

(B) No district committee, executive committee, or small government subcommittee shall employ project selection criteria unrelated to the criteria referred to in paragraph (A) of this rule, including, but not limited to, any of the following unrelated criteria:

(1) A preproject application determination that certain subdivisions are entitled, because of their relative population sizes or for any other reason, to awards of financial assistance up to a fixed dollar value;

(2) Formal or informal decisions to select projects for formal submission contingent upon an applicant's financial or other support for the operating expenses of the committees, staff, or agents of the district;

(3) A district-wide formula, whether formalized or not, allocating funding entitlement amongst subdivisions on a per capita basis or otherwise, except to the extent expressly authorized under division (G) of section 164.05 of the Revised Code.

(C) The director may disapprove, or the administrator may make a determination against approval for, any project application submitted in violation of the requirements of paragraph (A) or (B) of this rule.

Eff 6-7-89 (Emer.); 9-18-89
Rule promulgated under: RC 119.03
Rule authorized by: RC 164.05
Rule amplifies: RC 164.05, 164.051, 164.06
119.032 Review Date: 1-10-03

164-1-12 Maintenance of local effort.

(A) No project application shall be submitted to, or approved or recommended by, the director or administrator if it involves repair, replacement, or expansion of existing infrastructure, or the addition of new infrastructure, which a subdivision would have likely accomplished in the absence of financial assistance under Chapter 164. of the Revised Code.

(B) A project applicant, in conjunction with any project application submitted to the director or the administrator or to a district committee, executive committee, or small government subcommittee, shall supply documentation detailing its previous two years of capital improvement efforts, including brief descriptions of all projects initiated or completed within that period, or both; descriptions of all funding sources used in connection with each such project; and quantification of all funds appropriated or expended, or both, for each such project. Failure to provide such documentation shall result in disapproval of the project application.

Eff 6-7-89 (Emer.); 9-18-89; 4-20-98
Rule promulgated under: RC 119.03
Rule authorized by: RC 164.05
Rule amplifies: RC 164.05, 164.051, 164.06
119.032 Review Date: 1/10/03

164-1-13 Useful life requirement.

(A) The director shall not approve any project, or element of a project, unless it would result in infrastructure with a minimum useful life of seven years as determined in accordance with generally accepted engineering principles and practices within this state and taking into account both the specific climatic and other environmental conditions of the infrastructure's site as well as the infrastructure's full, anticipated design use loads. A statement of a proposed infrastructure's useful life bearing the official seal and signature of a licensed professional engineer must accompany any project application submitted to the director for a project proposing the infrastructure.

(B) In selecting requests for financial assistance that will be formally submitted to the director under section 164.06 of the Revised Code, a district committee or executive committee shall ensure, on a dollar-weighted basis, that the infrastructure cover by all project applications so submitted in any given year from the district have, on average, an approximate useful life of at least twenty years.

Eff 6-7-89 (Emer.); 9-18-89; 4-20-98
Rule promulgated under: RC 119.03
Rule authorized by: RC 164.05
Rule amplifies: RC 164.05, 164.051, 164.06
119.032 Review Date: 01/10/03

164-1-14 Repair or replacement projects versus new or expanded projects.

(A) In accordance with the requirements of division (D) of section 164.05 of the Revised Code, the director shall not approve, and the administrator shall not recommend, grants in excess of ninety per cent of the total repair project cost and replacement project cost involved in any project, or grants in excess of fifty per cent of the total new project cost and expansion project cost involved in any project. In the case of a project involving expansion project cost, the entire amount shall be subject to the fifty per cent limitation unless the applicant supplies satisfactory evidence establishing a reasonable projected replacement project cost for the project. In such a case, the fifty per cent limitation shall apply only to that portion of the expansion project cost which exceeds the projected replacement project cost.

(B) The director shall not approve, and the administrator shall not recommend, a project that only eliminates existing infrastructure. The director shall not approve, and the administrator shall not recommend, any project, or element of a project, that replaces existing infrastructure with infrastructure that has a designed service capacity substantially less than the designed service capacity of the existing infrastructure, regardless of the relative physical dimensions of the existing or replacing infrastructure, unless the applicant provides satisfactory proof that the reduced service capacity is both necessary and sufficient in meeting existing public needs for the infrastructure in question.

(C) The applicant shall insure that the certified cost estimate required by rule 164-1-16 of the Administrative Code identifies, in detail, the costs involved in the project in terms of each of the following categories: repair project cost, replacement project cost, new project cost, and expansion project cost. The cost estimate shall clearly identify those elements of the infrastructure proposed in the project that correspond to the categories referred to in this paragraph.

Eff 6-7-89 (Emer.); 9-18-89
Rule promulgated under: RC 119.03
Rule authorized by: RC 164.05
Rule amplifies: RC 164.05, 164.051
119.032 Review Date: 1-10-03

164-1-15 Applicant's share of project costs; ineligible costs.

(A) In calculating the dollar value of a subdivision's contribution to a project for the purposes of divisions (D)(1) and (D)(4) of section 164.05 of the Revised Code:

(1) The reasonable value of labor, materials, and equipment shall include only labor, materials, and equipment that are integral to the construction activities involved in the project; and

(2) Engineering costs shall include only engineering services that are integral to the project and shall not include any of a subdivision's ongoing overhead expenses involved in carrying out its existing engineering services capacity.

(B) For the purposes of divisions (A)(2) and (D) of section 164.05 and division (B)(2) of section 164.051 of the Revised Code, "cost" or "costs" does not include any of the following:

(1) Expenditures or proposed expenditures for aesthetic treatments, ornamentations, or adornments to infrastructure;

(2) Expenditures or proposed expenditures for landscaping activities and improvements pertaining to infrastructure that go beyond basic requirements of post-construction repairing, stabilizing, and reseeding of land surfaces;

(3) The cost of planning or administrative services related to the review, listing, study, reporting, planning, recording, and prioritizing of capital improvement projects by a subdivision;

(4) The cost of planning or administrative services of a district committee, executive committee, or small government subcommittee in reviewing, recording, approving, or disapproving project applications.

(C) Subdivisions and districts shall ensure that all project applications submitted to the director or the administrator exclude all computations or calculations based upon any expenditures, projected expenditures, or costs referred to in paragraphs (B)(1), (B)(2), (B)(3), and (B)(4) of this rule.

Eff 6-7-89 (Emer.); 9-18-89
Rule promulgated under: RC 119.03
Rule authorized by: RC 164.05
Rule amplifies: RC 164.05, 164.051, 164.06
119.032 Review Date: 1-10-03

164-1-16 Engineer's certified cost estimate.

(A) Each project application submitted to the director or the administrator shall be accompanied by a formal detailed estimate of the project's cost. The estimate must bear the official seal and signature of a professional engineer who is registered under Chapter 4733. of the Revised Code attesting as to the prudence of the dollar amounts contained in the estimate. The estimate may be based upon a tendered bid by a qualified contractor provided that the bid will remain in effect for at least forty-five days following formal submission of the application by the district and provided that the bid was solicited in accordance with the requirements of this chapter of the Administrative Code and the requirements of Chapter 164. of the Revised Code.

(B) No project application shall be approved by the director or recommended by the administrator unless the application complies with the cost estimate requirements of paragraph (A) of this rule.

Eff 6-7-89 (Emer.); 9-18-89
Rule promulgated under: RC 119.03
Rule authorized by: RC 164.05
Rule amplifies: RC 164.05, 164.051, 164.06
119.032 Review Date: 1-10-03

164-1-17 Multi-subdivision and multi-district projects.

(A) The director shall not approve, and the administrator shall not recommend, any project involving the participation of two or more subdivisions or two or more districts unless the project applicant supplies written assurances, signed by an authorized agent or representative of each such subdivision or district, that the subdivision or district will cooperate fully with the applicant, including the execution of all needed legal actions, to ensure completion of the project as planned.

Eff 6-7-89 (Emer.); 9-18-89; 4-20-98
Rule promulgated under: RC 119.03
Rule authorized by: RC 164.05
Rule amplifies: RC 164.05, 164.051
119.032 Review Date: 01/10/03

164-1-18 Funding time limitations; multi-year projects.

(A) All funding approved for projects under Chapter 164. of the Revised Code and this chapter of the Administrative Code is contingent upon existing state appropriations enacted into law. No project approval or project agreement shall be construed as obligating the director or administrator to authorize payments under division (A)(2) of section 164.05 or division (B)(2) of section 164.051 of the Revised Code beyond the biennial time limitations applicable to the state appropriation process.

(B) Subject to the limitations referred to in paragraph (A) of this rule, the director may approve, or the administrator may recommend, any multi-year phased project that an applicant can demonstrate, based upon sound engineering principles, to be an appropriate project for such phasing.

Eff 6-7-89 (Emer.); 9-18-89
Rule promulgated under: RC 119.03
Rule authorized by: RC 164.05
Rule amplifies: RC 164.05, 164.051
119.032 Review Date: 1-10-03

164-1-19 Emergency projects.

(A) The director may approve financial assistance on an emergency basis, not to exceed the funding limits set forth in division (B)(2) of section 164.08 of the Revised Code, for any project adequately designed to rectify infrastructure conditions that pose an immediate threat to the health, safety, and welfare of the residents within the jurisdiction of the project applicant. With respect to such a project, the director may suspend any provision of Chapter 164-1 of the Administrative Code as necessary to deal with the emergency.

(B) In determining whether or not emergency assistance is necessary, the director shall consider the following factors:

(1) The extent to which, if any, other existing infrastructure can be used by the applicant's residents in lieu of the infrastructure posing the threat;

(2) The capacity of the applicant to meet the emergency through the use of its own financial resources or through financial assistance programs operated by other federal, state, or local agencies;

(3) The degree to which the applicant is responsible for having created the emergency itself through neglect, inadequate maintenance, or failure to plan adequately for the evolution of hazardous infrastructure conditions that could reasonably have been predicted.

Eff 6-7-89 (Emer.); 9-18-89
Rule promulgated under: RC 119.03
Rule authorized by: RC 164.05
Rule amplifies: RC 164.05, 164.08
119.032 Review Date: 1-10-03

164-1-21 Project agreement.

(A) The chief executive officer or officers of the project applicant shall execute an agreement with the director pursuant to division (A)(1) of section 164.05 of the Revised Code or with the administrator pursuant to division (B)(1) of section 164.05 1 of the Revised Code for the purpose of implementing any project application approved pursuant to this chapter of the Administrative Code and Chapter 164. of the Revised Code.

(B) The agreement referred to in paragraph (A) of this rule shall be based upon all representations made by the applicant in the project application as approved and shall contain, at a minimum, the following provisions:

(1) A designation of a single office or official within the applicant's jurisdiction who shall serve as project manager;

(2) A designation of a single office or official within the applicant's jurisdiction who shall serve as chief fiscal officer of the applicant;

(3) A designation of a single office or official within the applicant's jurisdiction who shall serve as chief executive officer of the applicant for purposes of the project;

(4) Procedures for the payment or disbursement of funds consistent with the requirements of rule 164-1-22 of the Administrative Code;

(5) A designation of the grant percentage or percentages applicable to the project or to various elements of the project, which may not exceed the percentages specified in division (D) of section 164.05 of the Revised Code for repair and replacement of existing infrastructure and for new or expanded infrastructure;

(6) A designation of the manner or mechanisms whereby the project applicant shall provide the local share of the estimated project cost in compliance with division (D) of section 164.05 of the Revised Code;

(7) An assurance that the applicant and all contractors and subcontractors involved with the project will, to the extent practicable, use Ohio products, materials, services, and labor in the implementation of the project;

(8) An assurance that the applicant and all contractors and subcontractors involved with the project will comply with the minority business enterprise requirements of rule 164-1-32 of the Administrative Code and division (A) of section 164.07 of the Revised Code;

(9) An assurance that the applicant and all contractors and subcontractors involved with the project will comply with the prevailing wage requirements of Chapter 4115. of the Revised Code and division (B) of section 164.07 of the Revised Code;

(10) Any other provision that the director considers necessary in order to ensure that the project's implementation will comply with the requirements of Chapter 164. of the Revised Code and Chapter 164-1 of the Administrative Code.

(C) The agreement required by paragraph (A) of this rule shall be executed prior to the payment or disbursement of any funds authorized by the director under division (A)(2) of section 164.05 of the Revised Code or the administrator under division (B)(2) of section 164.051 of the Revised Code. With respect to any project approved in connection with funds that the director allocates under division (B) of section 164.08 of the Revised Code for the second annual allocation, and for each annual allocation thereafter, the agreement required by paragraph (A) of this rule shall be executed prior to any project applicant's formal certification of funds availability regarding financing the full construction of the project or the commencement of any construction activities on the project. In the event that the agreement required by paragraph (A) of this rule relates to the provision of supplemental financial assistance pursuant to paragraph (B) of rule 164-1-23 of the Administrative Code, the director or the administrator may waive the provisions of this paragraph.

Eff 6-7-89 (Emer.); 4-1-90
Rule promulgated under: RC 119.03
Rule authorized by: RC 164.05
Rule amplifies: RC 164.05, 164.051
119.032 Review Date: 1-10-03

164-1-22 Procedures for the payment and disbursement of funds.

(A) The project agreement required by rule 164-1-21 of the Administrative Code shall provide for the payment and disbursement of funds as follows:

(1) Upon completion of work as specified in his contract, a contractor promptly shall submit an invoice to the project manager designated in the agreement.

(2) Within three business days following receipt of an invoice from a contractor, the project manager shall review the invoice and, if found to be accurate, so certify in writing a copy of the invoice to the chief fiscal officer designated in the agreement.

(3) Within five business days following receipt of the invoice and certification from a project manager, the chief fiscal officer shall conduct such reviews as he considers appropriate and, if he approves such invoice, submit the contractor's invoice and the project manager's certification to the director or the administrator, along with a request for disbursement of state funds signed by both himself and the chief executive officer designated in the agreement. The dollar amount set forth in the request shall be calculated by multiplying the disbursement ratio set forth in the project agreement and applicable to the work covered by the invoice times the dollar amount set forth in the invoice.

(4) Within five business days following receipt of an invoice, a certification, and a request meeting the requirements of paragraphs (A)(1), (A)(2), and (A)(3) of this rule, the director or the administrator shall review them for accuracy and, if found to be accurate, initiate a voucher, in accordance with applicable state requirements, for payment of the amount set forth in the request. The project agreement shall specify that payment shall be made by the state either:

(a) To the contractor or his authorized representative as direct payment for the work covered by the invoice; or

(b) To a subdivision, its authorized representative or assignee, as reimbursement for payment that the subdivision, its authorized representative or assignee has previously paid to the contractor for the work covered by the invoice.

(5) Upon receipt of a warrant from the auditor of state drawn in connection with a voucher initiated under paragraph (A)(4) of this rule, the director or administrator shall forward it, by regular first-class United States mail, to the appropriate recipient designated in the disbursement request.

(B) The project agreement shall specify that no contractor may submit an invoice for payment more than once every thirty days or submit an invoice for work that has not been completed.

(C) The project applicant shall be responsible exclusively for complying with retainage requirements applicable to the project under sections 153.12, 153.13, 153.14, and any other section of Chapter 153. of the Revised Code. All such retainage amounts withheld, placed in escrow, or otherwise dealt with by a subdivision or contractor participating in the project shall come out of the local match for the project established by the project agreement in compliance with division (D) of section 164.05 of the Revised Code. No contractor may submit an invoice, and no subdivision may submit a request for disbursement of state funds, that, if paid, would result in the state having paid for any such retainage.

Eff 6-7-89 (Emer.); 4-1-90
Rule promulgated under: RC 119.03
Rule authorized by: RC 164.05
Rule amplifies: RC 164.05, 164.051
119.032 Review Date: 1-10-03

164-1-23 Project cost overruns and underruns.

(A) The director, pursuant to division (A)(2) of section 164.05 of the Revised Code, and the administrator, pursuant to division (B)(2) of section 164.051 of the Revised Code, shall authorize payments only for work covered by a project application as approved and shall authorize no payments in excess of the specific costs set forth in that application. All cost overruns associated with any such project, whether for work covered by the approved application or otherwise, shall be the sole responsibility of the project applicant, or such other subdivisions or persons as may be specified in the application. In the case of a cost underrun associated with such a project, the director shall reallocate the surplus funds to the state capital improvements fund created by division (A) of section 164.08 of the Revised Code for awarding to other eligible projects situated within the district or districts associated with the project. All restrictions originally imposed upon the use of those funds by divisions (B) and (G) of section 164.08 of the Revised Code shall continue to apply with respect to the reallocation of those funds required by this paragraph.

(B) Notwithstanding paragraph (A) of this rule, a project applicant, with the approval of the district committee or executive committee, or both, may apply to the director or the administrator for supplemental financial assistance covering a substantial cost overrun. The director shall approve, or the administrator shall recommend, such supplemental assistance only if the applicant demonstrates to the director's or administrator's satisfaction that such funding is necessary for the completion of the project and that the cost overrun was the result of circumstances beyond the applicant's control which could not have been anticipated at the time of initial application.

Eff 6-7-89 (Emer.); 9-18-89
Rule promulgated under: RC 119.03
Rule authorized by: RC 164.05
Rule amplifies: RC 164.05, 164.051, 164.06, 164.08
119.032 Review Date: 1-10-03

164-1-24 Project audit requirements.

(A) All funds paid out pursuant to division (A)(2) of section 164.05 and division (B)(2) of section 164.051 of the Revised Code shall be subject to all audit requirements applicable to state funds. All audits performed in respect to funds so paid out by the director or the administrator shall be performed in a manner, and at a frequency, consistent with policies and procedures established by the auditor of state.

(B) A project applicant shall ensure that a copy of any audit report prepared in connection with an approved project, regardless of whether the report was prepared during the pendency of the project or following its completion, is provided to the director or the administrator within ten days of the issuance of the report. The project applicant simultaneously shall provide the director or the administrator with its detailed responses to each and every negative or adverse finding pertaining to the project and contained in the report. Such responses shall indicate what steps will be taken by the applicant in remedying or otherwise satisfactorily resolving each problem identified by any such finding.

(C) If a project applicant fails to comply with the requirements of this rule or fails to institute steps designed to remedy or otherwise satisfactorily resolve problems identified by negative audit findings, the director or the administrator may bar the applicant from receiving further financial assistance under Chapter 164. of the Revised Code until the applicant so complies or until it satisfactorily resolves such findings.

Eff 6-7-89 (Emer.); 9-18-89
Rule promulgated under: RC 119.03
Rule authorized by: RC 164.05
Rule amplifies: RC 164.05, 164.051, 164.06
119.032 Review Date: 1-10-03

164-1-31 Local capital improvements reports.

Each subdivision that prepares a capital improvements report, or an annually updated report, under division (C) of section 164.06 of the Revised Code, shall supply one copy of the report to the director and one copy to the individual designated as liaison under rule 164-1-03 of the Administrative Code for the district of which the subdivision is a part. All such reports shall be prepared and organized in accordance with a form prescribed by the director under division (A)(10) of section 164.05 of the Revised Code.

Eff 6-7-89 (Emer.); 9-18-89
Rule promulgated under: RC 119.03
Rule authorized by: RC 164.05
Rule amplifies: RC 164.05, 164.06
119.032 Review Date: 1-10-03

164-1-32 Minority business enterprises.

(A) For purposes of complying with section 164.07 of the Revised Code, each local subdivision participating in the Ohio public works commission's financial assistance programs for infrastructure development established by Chapter 164. of the Revised Code must submit an affirmative plan of action to be followed by it in securing participation in proposed projects by certified minority business enterprises at the percentage levels set forth in paragraph (G) of this rule. Should the district committee, in accordance with division (A) of section 164.06 of the Revised Code, determine that the adoption of a subdivision's own plan would be neither practical nor likely to produce the required certified minority business enterprise participation objectives, the subdivision shall, individually or together with other subdivisions, participate in such an affirmative plan of action prepared and submitted by the district committee. District plans may include any number of subdivisions up to that of constituting a single district-wide plan. In the event that a subdivision participates in a district plan, rules and regulations regarding the methodology for compliance with section 164.07 of the Revised Code shall be promulgated by the director. All affirmative plans of action shall be submitted along with the district committee's annual filing of project applications with the director of the Ohio public works commission. The acceptability of any such affirmative plan of action submitted pursuant to this paragraph is subject to the approval of the director. Each plan shall include, but not be limited to, the following:

(1) The identification of the subdivision(s) participating in the plan;

(2) An explanation of the organizational framework that will be utilized to implement section 164.07 of the Revised Code, including, the persons, offices, or entities that will have responsibility for administering the plan's requirements; and

(3) An explanation of the strategy or methodology that will be employed toward achieving the required participation levels by certified minority business enterprises as set forth in paragraph (F) of this rule, including, but not limited to:

(a) The establishment of a "good faith effort" definition consistent with the requirements of paragraph (B) of this rule;

(b) The process and time frames for receiving, evaluating, and responding to contractor requests for waiver or modification of certified minority business enterprise participation requirements. In no event, shall the processing of a waiver-modification request exceed thirty days in length;

(c) The process that will be utilized for verification of information submitted in conjunction with requests for waiver or modification of certified minority business enterprise participation requirements; and

(d) The establishment of evaluation criteria for use in connection with the waiver-modification review process that are consistent with the requirements of paragraph (C) of this rule.

(B) Pursuant to paragraph (A) of this rule, and in accordance with paragraph (C) of rule 123:2-15-04 of the Administrative Code, toward achieving certified minority business enterprise participation requirements, a"good faith effort" includes, but is not limited to, performing and documenting all of the following:

(1) Contacting the equal employment opportunity coordinator within the Ohio department of administrative services, the minority business development division within the Ohio department of development, and any other appropriate minority business assistance organization for the purpose of identifying certified minority business enterprises that have the capacity to meet particular contracting or subcontracting needs or to supply materials and services needed for the performance of the project;

(2) Selecting particular portions of the project work to become contracting or subcontracting opportunities for certified minority business enterprises, and selecting particular materials and services to be purchased for the performance of the project to become supplying opportunities for certified minority business enterprises;

(3) Attending any pre-bid meeting scheduled to inform certified minority business enterprises of contracting or subcontracting opportunities, or material and services supplying opportunities under the project;

(4) Notifying all appropriate certified minority business enterprises in the immediate geographic area that their interest in contracting or subcontracting or supplying materials or services under the project is requested;

(5) Assisting those certified minority business enterprises that respond in formulating contracting or subcontracting proposals or proposals for the supply of materials or services that are consistent with project specifications;

(6) If such is the case, provide a statement of the reasons for rejecting as unqualified any certified minority business enterprise that was contacted for purposes of contracting or subcontracting work under the project;

(7) If such is the case, provide a statement of the reasons why contracting or subcontracting agreements, or purchase of materials or services agreements with certified minority business enterprises were not reached;

(8) If such is the case, provide a written statement of the reasons for requiring a bond of a certified minority business enterprise; and

(9) Any other criteria as deemed appropriate by the director to carry out the purposes of section 164.07 of the Revised Code.

(C) For the purpose of reviewing requests for waiver or modification of certified minority business enterprise participation requirements, each subdivision participating in the affirmative plan of action required pursuant to paragraph (A) of this rule shall establish evaluation criteria, including, but not limited to the following:

(1) The extent to which the requesting contractor, as an integral part of its subcontracting and/or procurement processes, formulated reasonable plans of "good faith effort" to achieve the required certified minority business enterprise participation levels;

(2) Substantial proof that the requesting contractor has diligently executed the required "good faith effort";

(3) Evidence that within ten days of being notified of contract award in a project, the prime contractor submitted to the subdivision its list of all proposed subcontractors and vendors and the dollar amounts of their respective participation in the project. Such submittal shall clearly demonstrate the resultant level of certified minority business enterprise participation in the project and indicate any need for waiver or modification of the requirements;

(4) That the request for waiver or modification, together with the necessary supporting documentation, was submitted in sufficient time for review under the provisions of the waiver-modification process;

(5) That the contracting and/or procurement processes failed to produce responses from certified minority business enterprises that were both qualified to perform the project work or supply the materials or services in question and at a cost-competitive price (cost-competitiveness shall be evaluated recognizing that such participation of certified minority business enterprises is a clear objective of Chapter 164. of the Revised Code); and

(6) That the requirements of rule 164-1-21 of the Administrative Code have been fulfilled.

(D) The director, after consultation with the equal employment opportunity coordinator within the Ohio department of administrative services, shall review and approve or disapprove an affirmative plan of action submitted pursuant to paragraph (A) of this rule. Any disapproval action by the director shall be taken at or before the time the director grants formal funding approval to the projects associated with the plan. If no disapproval action is taken, the plan shall be considered approved.

(E) Upon the granting or denial of a waiver or modification, the subdivision shall promptly submit copies of all materials related to the request, together with a written explanation of its action, to both the director and the equal employment opportunity coordinator within the Ohio department of administrative services.

(F) In awarding contracts to implement projects that are financially assisted through the programs established under Chapter 164. of the Revised Code, it is required that on a "good faith effort" basis the following participation levels by minority business enterprises certified under division (B) of section 123.151 of the Revised Code be achieved:

(1) Pursuant to paragraph (A) of this rule, and in accordance with the percentage requirements of division (C)(1) of section 123.151 and of section 125.081 of the Revised Code, subdivision prime contracting and/or procurement activities shall result in the award of no less than five per cent of the total dollar value of construction contracts and no less than fifteen per cent of the total dollar value of contracts for equipment, materials, supplies, insurance, or services to such certified minority business enterprises; and

(2) Pursuant to paragraph (A) of this rule, and in accordance with the requirements of division (C)(2) of section 123.151 of the Revised Code, prime contractor subcontracting, to the extent that it engages in subcontracting, shall result in the award of subcontracts to certified minority business enterprises in an aggregate dollar value of no less than five per cent of the prime contract. Prime contractor procurement activities, to the extent that it procures materials and/or services, shall result in the award of procurement contracts to certified minority business enterprises in an aggregate dollar value of no less than two per cent of the prime contract. In total, prime contractor subcontracting and procurement activities, to the extent that it engages in subcontracting and procures materials and/or services, shall result in the award of subcontracts and procurement contracts to certified minority business enterprises in an aggregate dollar value of no less than seven per cent of the prime contract.

Any prime contractor that is performing primarily in the following branches or classes of work, to the extent that it subcontracts its work and purchases materials and services, shall award subcontracts to and purchase such materials and services from certified minority business enterprises in an aggregate dollar value of no less than seven percent of the prime contract:

(a) Plumbing and gas fitting;

(b) Steam and hot-water heating, ventilating apparatus, and steam-power plant;

To the extent that such a prime contractor subcontracts its work, it shall award subcontracts to certified minority businesses in an aggregate dollar value of no less than two per cent of the prime contract.

(3) The percentages set forth in paragraph (F)(2) of this rule are subject to waiver or modification by the subdivision pursuant to section 164.07 of the Revised Code and paragraph (C) of this rule.

Eff 6-7-89 (Emer.); 9-27-90
Rule promulgated under: RC 119.03
Rule authorized by: RC 164.05
Rule amplifies: RC 164.07
119.032 Review Date: 1-10-03

164-1-33 District administration costs.

(A) For the purpose of complying with H.B. 201 of the 119th General Assembly, allowable and non-allowable district administrative costs are defined as follows:

(1) Allowable costs directly incurred as a result of the need for labor, materials, supplies, equipment, travel and support services to perform the statutory requirements of the district integrating committee as established by sections 164.06 and 164.14 of the Revised Code. Including:

(a) The cost necessary for the evaluation, ranking and selection of applications submitted by subdivisions.

(b) The cost necessary for the district committee to assist its subdivisions in the preparation and coordination of project plans.

Allowable costs are limited to the direct costs of district administration associated with staff support and reimbursable expenses of a supporting agency or contracted services as approved by the director in the district's work plan and budget.

(2) Non-allowable costs associated with the general governance of local subdivisions and their preparation of applications, inventories reports or plans necessary to meet the eligibility requirements of the Ohio public works commission. Including:

(a) Elected officials salaries and benefits.

(b) Specific costs of any project considered or approved for funding by the commission.

(B) Definitions:

(1) District administrative costs; necessary direct staff and support costs of district integrating committees to perform their statutory responsibilities under sections 164.06 and 164.14 of the Revised Code.

(2) Director; the director of the Ohio public works commission.

(3) Work plan; an annual summary of functions and tasks to be performed on behalf of each district committee to meet their statutory responsibilities under sections 164.06 and 164.14 of the Revised Code.

(4) Budget; the estimated annual expenses to carry out the work plan of the district detailing direct costs for labor, materials, supplies, equipment, travel and support or contracted services.

(5) Contractor; the entity nominated by the district integrating committee to carry out its work plan and with whom the director enters into a professional services contract, or inter governmental service agreement on behalf of the district.

(6) Supporting agency; a local subdivision nominated by the district integrating committee to provide administrative support to carry out its work plan and with whom the director approves and authorizes reimbursement of allowable costs.

Eff 1-7-92 (Emer.); 3-23-92
Rule promulgated under: RC Chapter 119.
Rule authorized by: RC 164.05
Rule amplifies: RC 164.05, SECTION 7 AM. SUB. H.B. 201 - 119TH G.A.
119.032 Review Date: 1-10-03