Chapter 153: PUBLIC IMPROVEMENTS

153.01 Architect must submit accurate plans, estimates, bills of materials, and details to scale.

(A) Whenever any building or structure for the use of the state or any institution supported in whole or in part by the state or in or upon the public works of the state that is administered by the Ohio facilities construction commission or by any other state officer or state agency authorized by law to administer a project, including an educational institution listed in section 3345.50 of the Revised Code, is to be erected or constructed, whenever additions, alterations, or structural or other improvements are to be made, or whenever heating, cooling, or ventilating plants or other equipment is to be installed or material supplied therefor, the estimated cost of which amounts to two hundred thousand dollars or more, or the amount determined pursuant to section 153.53 of the Revised Code or more, each officer, board, or other authority upon which devolves the duty of constructing, erecting, altering, or installing the same, referred to in sections 153.01 to 153.60 of the Revised Code as the public authority, shall cause to be made, by an architect or engineer whose contract of employment shall be prepared and approved by the attorney general, the following:

(1) Full and accurate plans, suitable for the use of mechanics and other builders in the construction, improvement, addition, alteration, or installation;

(2) Details to scale and full-sized, so drawn and represented as to be easily understood;

(3) Definite and complete specifications of the work to be performed, together with directions that will enable a competent mechanic or other builder to carry them out and afford bidders all needful information;

(4) A full and accurate estimate of each item of expense and the aggregate cost of those items of expense;

(5) A life-cycle cost analysis;

(6) Further data as may be required by the Ohio facilities construction commission.

(B)

(1) Division (A) of this section shall not be required with respect to a construction management contract entered into with a construction manager at risk as described in section 9.334 of the Revised Code or a design-build contract entered into with a design-build firm as described in section 153.693 of the Revised Code.

(2) Nothing in this chapter shall interfere with the power of the director of transportation to prepare plans for, acquire rights-of-way for, construct, or maintain roads, highways, or bridges, or to let contracts for those purposes.

Amended by 130th General Assembly File No. 7, HB 51, §101.01, eff. 7/1/2013.

Amended by 129th General AssemblyFile No.127, HB 487, §101.01, eff. 9/10/2012.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Effective Date: 09-14-2000

153.011 Using domestic steel products in state supported projects.

(A) Except as provided in division (D) of this section, whenever any building or structure, including highway improvements, in whole or in part supported by state capital funds, including moneys from the education facilities trust fund, is to be erected or constructed, or whenever additions, alterations, or structural or other improvements are to be made, if any steel products are to be purchased for or provided in the construction, repair, or improvement project, only steel products as defined in division (F) of this section shall be purchased for or provided in the project.

(B)

(1) No person shall purchase or provide steel products in violation of division (A) of this section.

(2) Notwithstanding division (B) of section 153.99 of the Revised Code, no person who purchases steel products in violation of division (A) of this section shall be held liable in a civil action commenced under division (C) of this section, or pay a civil penalty under division (B) of section 153.99 of the Revised Code, if that person can demonstrate the person's compliance with division (E) of this section.

(C) Whenever the executive director of the Ohio facilities construction commission has reasonable cause to believe that any person has purchased or provided steel products in violation of division (A) of this section, the executive director shall conduct an investigation to determine whether the person has purchased or provided or is purchasing or providing steel products in violation of division (A) of this section. Upon conducting the investigation, if the executive director finds that the person has purchased or provided or is purchasing or providing steel products in violation of division (A) of this section, the executive director shall request the attorney general to commence a civil action under this section against the person for violating division (A) of this section. The remedy provided in this section is concurrent with any other remedy provided in this chapter, and the existence or exercise of one remedy does not prevent the exercise of any other. Upon collection of the civil penalty under division (B) of section 153.99 of the Revised Code, pursuant to an action authorized under this section, the attorney general shall pay the money collected to the treasurer of the board of education of the city, local, or exempted village school district and joint vocational school district, if one exists, in which the construction, repair, or improvement project for which the steel products used in violation of division (A) of this section is located. The treasurer shall deposit the civil penalty in equal amounts into the school district's general fund and the joint vocational school district's general fund. If a joint vocational school district does not exist where the violation occurred, then the entire sum of the civil penalty shall be deposited into the school district's general fund.

(D) Pursuant to section 5525.21 of the Revised Code, the director of transportation may authorize the purchase or provision or both of a minimal amount of foreign steel products for use in contracts for public bridge projects.

The executive director of the Ohio facilities construction commission may waive the requirements of division (A) of this section if the executive director determines that either division (A) or (B) of section 5525.21 of the Revised Code is true in connection with a public bridge project. The executive director shall issue this determination in writing.

(E) The following notice shall be included in boldface type and capital letters in all bid notifications and specifications between all parties to any contract authorized under Chapter 153. of the Revised Code or subject to this section and section 153.99 of the Revised Code: "Domestic steel use requirements as specified in section 153.011 of the Revised Code apply to this project. Copies of section 153.011 of the Revised Code can be obtained from the office of the Ohio facilities construction commission."

(F) As used in this section:

(1) "Steel products" means products rolled, formed, shaped, drawn, extruded, forged, cast, fabricated or otherwise similarly processed, or processed by a combination of two or more of such operations, and used for load-bearing structural purposes, from steel made in the United States by the open hearth, basic oxygen, electric furnace, bessemer or other steel making process.

(2) "United States" means the United States of America and includes all territory, continental or insular, subject to the jurisdiction of the United States.

Amended by 129th General AssemblyFile No.127, HB 487, §101.01, eff. 9/10/2012.

Effective Date: 03-29-2001

153.012 Preference to contractors having principal place of business in Ohio.

With respect to the award of any contract for the construction, reconstruction, improvement, enlargement, alteration, repair, painting or decoration of a public improvement, including any highway improvement, made by the state or in whole or in part supported by the state, except for a contract for products produced or mined in Ohio or for a contract financed in whole or in part by contributions or loans from any agency of the United States government, preference shall be given to contractors having their principal place of business in Ohio over contractors having their principal place of business in a state which provides a preference in that state in favor of contractors of that state for the same type of work. Where a preference is provided by another state for contractors of that state, contractors having their principal place of business in Ohio are to be granted in Ohio the same preference over them in the same manner and on the same basis and to the same extent as the preference is granted in letting contracts for the same type of work by the other state. If one party to a joint venture is a contractor having its principal place of business in Ohio, the joint venture shall be considered as having its principal place of business in Ohio.

Effective Date: 10-10-1983

153.013 Compliance with regulations or ordinances of political subdivisions for certain projects.

If a project for the construction, alteration, or other improvement of a building or structure is administered by the executive director of the Ohio facilities construction commission or by another state agency authorized to administer a project under this chapter, if the project is located in a municipal corporation with a population of at least four hundred thousand that is in a county with a population of at least one million two hundred thousand, and if a political subdivision contributes at least one hundred thousand dollars to the project, then a contractor for the project shall comply with regulations or ordinances of the political subdivision that are in effect before July 1, 2009, and that specifically relate to the employment of residents and local businesses of the political subdivision in the performance of the work of the project, and such ordinances or regulations shall be included by reference unambiguously in the contract between the administering state agency and the contractor for the project.

Amended by 129th General AssemblyFile No.127, HB 487, §101.01, eff. 9/10/2012.

Added by 128th General AssemblyFile No.9, HB 1, §101.01, eff. 1/1/2010.

153.02 Debarment of contractor from contract awards.

(A) The executive director of the Ohio facilities construction commission, may debar a contractor from contract awards for public improvements as referred to in section 153.01 of the Revised Code or for projects as defined in section 3318.01 of the Revised Code, upon proof that the contractor has done any of the following:

(1) Defaulted on a contract requiring the execution of a takeover agreement as set forth in division (B) of section 153.17 of the Revised Code;

(2) Knowingly failed during the course of a contract to maintain the coverage required by the bureau of workers' compensation;

(3) Knowingly failed during the course of a contract to maintain the contractor's drug-free workplace program as required by the contract;

(4) Knowingly failed during the course of a contract to maintain insurance required by the contract or otherwise by law, resulting in a substantial loss to the owner, as owner is referred to in section 153.01 of the Revised Code, or to the commission and school district board, as provided in division (F) of section 3318.08 of the Revised Code;

(5) Misrepresented the firm's qualifications in the selection process set forth in sections 153.65 to 153.71 or section 3318.10 of the Revised Code;

(6) Been convicted of a criminal offense related to the application for or performance of any public or private contract, including, but not limited to, embezzlement, theft, forgery, bribery, falsification or destruction of records, receiving stolen property, and any other offense that directly reflects on the contractor's business integrity;

(7) Been convicted of a criminal offense under state or federal antitrust laws;

(8) Deliberately or willfully submitted false or misleading information in connection with the application for or performance of a public contract;

(9) Been debarred from bidding on or participating in a contract with any state or federal agency.

(B) When the executive director reasonably believes that grounds for debarment exist, the executive director shall send the contractor a notice of proposed debarment indicating the grounds for the proposed debarment and the procedure for requesting a hearing on the proposed debarment. The hearing shall be conducted in accordance with Chapter 119. of the Revised Code. If the contractor does not respond with a request for a hearing in the manner specified in Chapter 119. of the Revised Code, the executive director shall issue the debarment decision without a hearing and shall notify the contractor of the decision by certified mail, return receipt requested.

(C) The executive director shall determine the length of the debarment period and may rescind the debarment at any time upon notification to the contractor. During the period of debarment, the contractor is not eligible to bid for or participate in any contract for a public improvement as referred to in section 153.01 of the Revised Code or for a project as defined in section 3318.01 of the Revised Code. After the debarment period expires, the contractor shall be eligible to bid for and participate in such contracts.

(D) The executive director shall maintain a list of all contractors currently debarred under this section. Any governmental entity awarding a contract for construction of a public improvement or project may use a contractor's presence on the debarment list to determine whether a contractor is responsible or best under section 9.312 or any other section of the Revised Code in the award of a contract.

Amended by 129th General AssemblyFile No.127, HB 487, §101.01, eff. 9/10/2012.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Effective Date: 09-29-2005

153.03 Contracts to require drug-free workplace program.

(A) As used in this section:

(1) "Contracting authority" means any state agency or other state instrumentality that is authorized to award a public improvement contract.

(2) "Bidder" means a person who submits a bid to a contracting authority to perform work under a public improvement contract.

(3) "Contractor" means any person with whom a contracting authority has entered into a public improvement contract to provide labor for a public improvement and includes a construction manager at risk and a design-build firm.

(4) "Subcontractor" means any person who undertakes to provide any part of the labor on the site of a public improvement under a contract with any person other than the contracting authority, including all such persons in any tier.

(5) "Construction manager" has the same meaning as in section 9.33 of the Revised Code.

(6) "Construction manager at risk" has the same meaning as in section 9.33 of the Revised Code.

(7) "Design-build firm" has the same meaning as in section 153.65 of the Revised Code.

(8) "Labor" means any activity performed by a person that contributes to the direct installation of a product, component, or system, or that contributes to the direct removal of a product, component, or system.

(9) "Public improvement contract" means any contract that is financed in whole or in part with money appropriated by the general assembly, or that is financed in any manner by a contracting authority, and that is awarded by a contracting authority for the construction, alteration, or repair of any public building, public highway, or other public improvement.

(10) "State agency" means every organized body, office, or agency established by the laws of this state for the exercise of any function of state government.

(B) A contracting authority shall not award a public improvement contract to a bidder, and a construction manager at risk or design-build firm shall not award a subcontract, unless the contract or subcontract contains both of the following:

(1) The statements described in division (E) of this section;

(2) Terms that require the contractor or subcontractor to be enrolled in and be in good standing in the drug-free workplace program of the bureau of workers' compensation or a comparable program approved by the bureau that requires an employer to do all of the following:

(a) Develop, implement, and provide to all employees a written substance use policy that conveys full and fair disclosure of the employer's expectations that no employee be at work with alcohol or drugs in the employee's system, and specifies the consequences for violating the policy.

(b) Conduct drug and alcohol tests on employees in accordance with division (B)(2)(c) of this section and under the following conditions:

(i) Prior to an individual's employment or during an employee's probationary period for employment, which shall not exceed one hundred twenty days after the probationary period begins;

(ii) At random intervals while an employee provides labor or on-site supervision of labor for a public improvement contract. The employer shall use the neutral selection procedures required by the United States department of transportation to determine which employees to test and when to test those employees.

(iii) After an accident at the site where labor is being performed pursuant to a public improvement contract. For purposes of this division, "accident" has the meaning established in rules the administrator of workers' compensation adopts pursuant to Chapters 4121. and 4123. of the Revised Code for the bureau's drug-free workplace program, as those rules exist on March 30, 2007.

(iv) When the employer , construction manager, construction manager at risk, or design-build firm has reasonable suspicion that prior to an accident an employee may be in violation of the employer's written substance use policy. For purposes of this division, "reasonable suspicion" has the meaning established in rules the administrator adopts pursuant to Chapters 4121. and 4123. of the Revised Code for the bureau's drug-free workplace program, as those rules exist on March 30, 2007.

(v) Prior to an employee returning to a work site to provide labor for a public improvement contract after the employee tested positive for drugs or alcohol, and again after the employee returns to that site to provide labor under that contract, as required by either the employer, construction manager, construction manager at risk, design-build firm, or conditions in the contract.

(c) Use the following types of tests when conducting a test on an employee under the conditions described in division (B)(2)(b) of this section:

(i) Drug and alcohol testing that uses the federal testing model that the administrator has incorporated into the bureau's drug-free workplace program;

(ii) Testing to determine whether the concentration of alcohol on an employee's breath is equal to or in excess of the level specified in division (A)(1)(d) or (h) of section 4511.19 of the Revised Code, which is obtained through an evidentiary breath test conducted by a breath alcohol technician using breath testing equipment that meets standards established by the United States department of transportation, or, if such technician and equipment are unavailable, a blood test may be used to determine whether the concentration of alcohol in an employee's blood is equal to or in excess of the level specified in division (A)(1)(b) or (f) of section 4511.19 of the Revised Code.

(d) Require all employees to receive at least one hour of training that increases awareness of and attempts to deter substance abuse and supplies information about employee assistance to deal with substance abuse problems, and require all supervisors to receive one additional hour of training in skill building to teach a supervisor how to observe and document employee behavior and intervene when reasonable suspicion exists of substance use;

(e) Require all supervisors and employees to receive the training described in division (B)(2)(d) of this section before work for a public improvement contract commences or during the term of a public improvement contract;

(f) Require that the training described in division (B)(2)(d) of this section be provided using material prepared by an individual who has credentials or experience in substance abuse training;

(g) Assist employees by providing, at a minimum, a list of community resources from which an employee may obtain help with substance abuse problems, except that this requirement does not preclude an employer from having a policy that allows an employer to terminate an employee's employment the first time the employee tests positive for drugs or alcohol or if an employee refuses to be tested for drugs, alcohol, or both.

(C) Any time the United States department of health and human services changes the federal testing model that the administrator has incorporated into the bureau's drug-free workplace program in a manner that allows additional or new products, protocols, procedures, and standards in the model, the administrator may adopt rules establishing standards to allow employers to use those additional or new products, protocols, procedures, or standards to satisfy the requirements of division (B)(2)(c) of this section, and the bureau may approve an employer's drug-free workplace program that meets the administrator's standards and the other requirements specified in division (B)(2) of this section.

(D) A contracting authority shall ensure that money appropriated by the general assembly for the contracting authority's public improvement contract or, in the case of a state institution of higher education, the institution's financing for the public improvement contract, is not expended unless the contractor for that contract is enrolled in and in good standing in a drug-free workplace program described in division (B) of this section. Prior to awarding a contract to a bidder, a contracting authority shall verify that the bidder is enrolled in and in good standing in such a program.

(E) A contracting authority shall include all of the following statements in the public improvement contract entered into between the contracting authority and a contractor for the public improvement:

(1) "Each contractor shall require all subcontractors with whom the contractor is in contract for the public improvement to be enrolled in and be in good standing in the Bureau of Workers' Compensation's Drug-Free Workplace Program or a comparable program approved by the Bureau that meets the requirements specified in section 153.03 of the Revised Code prior to a subcontractor providing labor at the project site of the public improvement."

(2) "Each subcontractor shall require all lower-tier subcontractors with whom the subcontractor is in contract for the public improvement to be enrolled in and be in good standing in the Bureau of Workers' Compensation's Drug-Free Workplace Program or a comparable program approved by the Bureau that meets the requirements specified in section 153.03 of the Revised Code prior to a lower-tier subcontractor providing labor at the project site of the public improvement."

(3) "Failure of a contractor to require a subcontractor to be enrolled in and be in good standing in the Bureau of Workers' Compensation's Drug-Free Workplace Program or a comparable program approved by the Bureau that meets the requirements specified in section 153.03 of the Revised Code prior to the time that the subcontractor provides labor at the project site will result in the contractor being found in breach of the contract and that breach shall be used in the responsibility analysis of that contractor or the subcontractor who was not enrolled in a program for future contracts with the state for five years after the date of the breach."

(4) "Failure of a subcontractor to require a lower-tier subcontractor to be enrolled in and be in good standing in the Bureau of Workers' Compensation's Drug-Free Workplace Program or a comparable program approved by the Bureau that meets the requirements specified in section 153.03 of the Revised Code prior to the time that the lower-tier subcontractor provides labor at the project site will result in the subcontractor being found in breach of the contract and that breach shall be used in the responsibility analysis of that subcontractor or the lower-tier subcontractor who was not enrolled in a program for future contracts with the state for five years after the date of the breach."

(F) In the event a construction manager, construction manager at risk, or design-build firm intends and is authorized to provide labor for a public improvement contract, a contracting authority shall verify, prior to awarding a contract for construction management services or design-build services, that the construction manager, construction manager at risk, or design-build firm was enrolled in and in good standing in a drug-free workplace program described in division (B) of this section prior to entering into the public improvement contract. The contracting authority shall not award a contract for construction manager services or design-build services if the construction manager, construction manager at risk, or design-build firm is not enrolled in or in good standing in such a program.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Effective Date: 03-30-2007

153.031 RC 153.03 requirements limited to state improvements.

The general assembly intends the drug-free workplace programs required by section 153.03 of the Revised Code to be limited to the constructing, altering, or repairing of public improvements of the state and to be of assistance in ensuring that such public improvements are constructed, altered, or repaired in a manner that protects the safety of the citizens of this state.

Effective Date: 03-30-2007

153.04 Forms for providing bidding information - life-cycle costs.

The plans, details, bills of material, specifications of work, estimates of cost in detail and in the aggregate, life-cycle cost analysis, form of bid, bid guaranty, and other data that may be required shall be prepared on such material and in such manner and form as are prescribed by the Ohio facilities construction commission. The life-cycle costs shall be a primary consideration in the selection of a design. The same shall be deposited and safely kept in the office of the owner as defined in section 153.01 of the Revised Code as the property of the state.

Amended by 129th General AssemblyFile No.127, HB 487, §101.01, eff. 9/10/2012.

Effective Date: 03-18-1999

153.05 Actions to enforce bond.

The bond required by section 153.08 of the Revised Code may be enforced against the person executing such bond, by any claimant for labor or material, and suit may be brought on such bond in the name of the state on relation of the claimant within one year from the date of delivering or furnishing such labor or material, in the court of common pleas of the county wherein such labor or material was furnished or delivered. Such bond shall not be released by the execution of any additional security, notes, retentions from estimates, or other instrument on account of such claim, or for any reason, except the full payment of such claim for labor or material.

Effective Date: 03-18-1999

153.06 Form of bids.

After the proceedings required by sections 153.01 and 153.04 of the Revised Code have been complied with, the owner referred to in section 153.01 of the Revised Code shall give public notice of the time and place when and where bids will be received for performing the labor and furnishing the materials of such construction, improvement, alteration, addition, or installation, and a contract awarded, except for materials manufactured by the state or labor supplied by a county department of job and family services that may enter into the same. The form of bid approved by the Ohio facilities construction commission shall be used, and a bid shall be invalid and not considered unless such form is used without change, alteration, or addition. Bidders may be permitted to bid upon all the branches of work and materials to be furnished and supplied, or upon any thereof, or alternately upon all or any thereof.

Amended by 129th General AssemblyFile No.127, HB 487, §101.01, eff. 9/10/2012.

Effective Date: 07-01-2000

153.07 Publishing notice of bids.

The notice provided for in section 153.06 of the Revised Code shall be published once each week for three consecutive weeks in a newspaper of general circulation, or as provided in section 7.16 of the Revised Code, in the county where the activity for which bids are submitted is to occur and in such other newspapers as ordered by the Ohio facilities construction commission, the last publication to be at least eight days preceding the day for opening the bids, and in such form and with such phraseology as the commission orders. Copies of the plans, details, estimates of cost, and specifications shall be open to public inspection at all business hours between the day of the first publication and the day for opening the bids, at the office of the commission where the bids are received, and such other place as may be designated in such notice.

Amended by 129th General AssemblyFile No.127, HB 487, §101.01, eff. 9/10/2012.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Effective Date: 03-18-1999

153.08 Opening bids and awarding contract.

On the day and at the place named in the notice provided for in section 153.06 of the Revised Code, the owner referred to in section 153.01 of the Revised Code shall open the bids and shall publicly, with the assistance of the architect or engineer, immediately proceed to tabulate the bids upon duplicate sheets. The public bid opening may be broadcast by electronic means pursuant to rules established by the Ohio facilities construction commission. A bid shall be invalid and not considered unless a bid guaranty meeting the requirements of section 153.54 of the Revised Code and in the form approved by the commission is filed with such bid. For a bid that is not filed electronically, the bid and bid guaranty shall be filed in one sealed envelope. If the bid and bid guaranty are filed electronically, they must be received electronically before the deadline published pursuant to section 153.06 of the Revised Code. For all bids filed electronically, the original, unaltered bid guaranty shall be made available to the public authority after the public bid opening. After investigation, which shall be completed within thirty days, the contract shall be awarded by such owner to the lowest responsive and responsible bidder in accordance with section 9.312 of the Revised Code.

No contract shall be entered into until the industrial commission has certified that the person so awarded the contract has complied with sections 4123.01 to 4123.94 of the Revised Code, until, if the bidder so awarded the contract is a foreign corporation, the secretary of state has certified that such corporation is authorized to do business in this state, until, if the bidder so awarded the contract is a person nonresident of this state, such person has filed with the secretary of state a power of attorney designating the secretary of state as its agent for the purpose of accepting service of summons in any action brought under section 153.05 of the Revised Code or under sections 4123.01 to 4123.94 of the Revised Code, and until the contract and bond, if any, are submitted to the attorney general and the attorney general's approval certified thereon.

No contract shall be entered into unless the bidder possesses a valid certificate of compliance with affirmative action programs issued pursuant to section 9.47 of the Revised Code and dated no earlier than one hundred eighty days prior to the date fixed for the opening of bids for a particular project.

Amended by 129th General AssemblyFile No.127, HB 487, §101.01, eff. 9/10/2012.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Effective Date: 03-18-1999

153.09 New proposals when necessary - change in work or materials.

If in the opinion of the owner referred to in section 153.01 of the Revised Code, the award of a contract to the lowest responsive and responsible bidder is not in the best interests of the state, the owner may accept another bid so opened or reject all bids, and advertise for other bids. Such advertisement shall be for such time, in such form, and in such newspaper as the Ohio facilities construction commission directs. All contracts shall provide that such owner may make any change in work or materials on the conditions and in the manner provided in sections 153.10 and 153.11 of the Revised Code.

Amended by 129th General AssemblyFile No.127, HB 487, §101.01, eff. 9/10/2012.

Effective Date: 03-18-1999

153.10 No change in plans without approval of owner.

After the plans, bills of material, specifications of work, estimates of cost in detail and in the aggregate, life-cycle cost analysis, form of bid, bid guaranty, and other data that may be required are approved and filed with the owner as defined in section 153.01 of the Revised Code, no change of plans, details, bills of material, or specifications shall be made or allowed unless the same are approved by the owner as defined in section 153.01 of the Revised Code. When so approved, the plans of the proposed change, with detail to scale and full size, specifications of work, and bills of material shall be filed with the original papers. If such change affects the price, the amount thereof shall likewise receive such approval.

Effective Date: 03-18-1999

153.11 Change of plans becomes part of original contract.

Whenever the change referred to in section 153.10 of the Revised Code is approved by the owner as defined in section 153.01 of the Revised Code, accepted in writing by the contractor, and filed, the same shall be considered as being a part of the original contract, and the bond theretofore executed shall be increased or decreased accordingly to include and cover the change in the contract.

Amended by 129th General AssemblyFile No.127, HB 487, §101.01, eff. 9/10/2012.

Effective Date: 03-18-1999

153.12 Awarding and executing contract.

(A) With respect to award of any contract for the construction, reconstruction, improvement, enlargement, alteration, repair, painting, or decoration of a public improvement made by the state, or any county, township, municipal corporation, school district, or other political subdivision, or any public board, commission, authority, instrumentality, or special purpose district of or in the state or a political subdivision or that is authorized by state law, the award, and execution of the contract, shall be made within sixty days after the date on which the bids are opened. The failure to award and execute the contract within sixty days invalidates the entire bid proceedings and all bids submitted, unless the time for awarding and executing the contract is extended by mutual consent of the owner or its representatives and the bidder whose bid the owner accepts and with respect to whom the owner subsequently awards and executes a contract. The public owners referred to in this section shall include, in the plans and specifications for the project for which bids are solicited, the estimate of cost. The bid for which the award is to be made shall be opened at the time and place named in the advertisement for bids, unless extended by the owner or its representative or unless, within seventy-two hours prior to the published time for the opening of bids, excluding Saturdays, Sundays, and legal holidays, any modification of the plans or specifications and estimates of cost for the project for which bids are solicited is issued and mailed or otherwise furnished to persons who have obtained plans or specifications for the project, for which the time for opening of bids shall be extended one week, with no further advertising of bids required. The contractor, upon request, is entitled to a notice to proceed with the work by the owner or its representative upon execution of the contract. No contract to which this section applies shall be entered into if the price of the contract, or, if the project involves multiple contracts where the total price of all contracts for the project, is in excess of ten per cent above the entire estimate thereof, nor shall the entire cost of the construction, reconstruction, repair, painting, decorating, improvement, alteration, addition, or installation, including changes and estimates of expenses for architects or engineers, exceed in the aggregate the amount authorized by law.

The unit or lump sum price stated in the contract shall be used in determining the amount to be paid and shall constitute full and final compensation for all the work.

Partial payment to the contractor for work performed under the lump sum price shall be based on a schedule prepared by the contractor and approved by the architect or engineer who shall apportion the lump sum price to the major components entering into or forming a part of the work under the lump sum price.

Partial payments to the contractor for labor performed under either a unit or lump sum price contract shall be made at the rate of ninety-two per cent of the estimates prepared by the contractor and approved by the architect or engineer. All labor performed after the job is fifty per cent completed shall be paid for at the rate of one hundred per cent of the estimates submitted by the contractor and approved by the architect or engineer.

The amounts and time of payments of any public improvements contract made by the state or any county, township, municipal corporation, school district, or other political subdivision, or any public board, commission, authority, instrumentality, or special purpose district of or in the state or a political subdivision or that is authorized by state law, except as provided in section 5525.19 of the Revised Code, shall be governed by this section and sections 153.13 and 153.14 of the Revised Code. If the time for awarding the contract is extended by mutual consent, or if the owner or its representative fails to issue a timely notice to proceed as required by this section, the owner or its representative shall issue a change order authorizing delay costs to the contractor, which does not invalidate the contract. The amount of such a change order to the owner shall be determined in accordance with the provisions of the contract for change orders or force accounts or, if no such provision is set forth in the contract, the cost to the owner shall be the contractor's actual costs including wages, labor costs other than wages, wage taxes, materials, equipment costs and rentals, insurance, and subcontracts attributable to the delay, plus a reasonable sum for overhead. In the event of a dispute between the owner and the contractor concerning such change order, procedures shall be commenced under the applicable terms of the contract, or, if the contract contains no provision for resolving the dispute, it shall be resolved pursuant to the procedures for arbitration in Chapter 2711. of the Revised Code, except as provided in division (B) of this section. Nothing in this division shall be construed as a limitation upon the authority of the director of transportation granted in Chapter 5525. of the Revised Code.

(B) If a dispute arises between the state and a contractor concerning the terms of a public improvement contract let by the state or concerning a breach of the contract, and after administrative remedies provided for in such contract and any alternative dispute resolution procedures provided in accordance with guidelines established by the executive director of the Ohio facilities construction commission are exhausted, the contractor may bring an action to the court of claims in accordance with Chapter 2743. of the Revised Code. The state or the contractor may request the chief justice of the supreme court to appoint a referee or panel of referees in accordance with division (C)(3) of section 2743.03 of the Revised Code. As used in this division, "dispute" means a disagreement between the state and the contractor concerning a public improvement contract let by the state.

Amended by 129th General AssemblyFile No.127, HB 487, §101.01, eff. 9/10/2012.

Effective Date: 03-18-1999

153.13 Estimates of labor and materials - funds in escrow account.

At the time named in the contract for payment to the person with whom it is made, the owner referred to in section 153.01 or 153.12 of the Revised Code shall approve a full, accurate, and detailed estimate of the various kinds of labor performed and material furnished under the contract, with the amount due for each kind of labor and material and the materials and amount due in the aggregate, which estimate shall be based upon actual measurement of such labor and materials, and shall give the amounts of the preceding estimate, and the amount of labor performed and materials furnished since the last estimate. From the date the contract is fifty per cent complete, as evidenced by payments in the amount of at least fifty per cent of the contract to the person with whom the owner has contracted, except in the case of contracts the total cost of which is less than fifteen thousand dollars, all funds retained pursuant to sections 153.12 and 153.14 of the Revised Code for the faithful performance of work shall be deposited in the escrow account designated in section 153.63 of the Revised Code. After the contract is fifty per cent complete, no further funds shall be retained. When the major portion of the project is substantially completed and occupied, or in use, or otherwise accepted, and there exists no other reason to withhold retainage, the retained percentages held in connection with such portion shall be released from escrow and paid to the contractor, withholding only that amount necessary to assure completion. Funds in the escrow account not heretofore paid, with accumulated interest, shall be paid to the person with whom the owner has contracted thirty days from the date of completion or either acceptance or occupancy by the owner. Such payments shall be in accordance with division (A)(2) of section 153.63 of the Revised Code. Nothing in this section shall be construed as a limitation upon the authority of the director of transportation granted in Chapter 5525. of the Revised Code.

Effective Date: 02-11-1982

153.14 Estimates to be filed with executive director - payment on materials delivered - payment procedure.

For the construction of those projects, improvements, and public buildings over which the Ohio facilities construction commission has general supervision pursuant to section 123.21 of the Revised Code, the estimates referred to in section 153.13 of the Revised Code shall be filed with the executive director by the owner referred to in section 153.01 or 153.12 of the Revised Code. Upon completion of a project referred to in section 153.13 of the Revised Code or any divisible part thereof, the maintenance and repair of such project or divisible part shall be assumed by the owner referred to in section 153.01 or 153.12 of the Revised Code.

In addition to all other payments on account of work performed, there shall be allowed by the owner referred to in section 153.01 or 153.12 of the Revised Code and paid to the contractor a sum at the rate of ninety-two per cent of the invoice costs, not to exceed the bid price in a unit price contract, of material delivered on the site of the work, or a railroad station, siding, or other point in the vicinity of the work, or other approved storage site, provided such materials have been inspected and found to meet the specifications. The balance of such invoiced value shall be paid when such material is incorporated into and becomes a part of such building, construction, addition, improvement, alteration, or installation. When an estimate is allowed on account of material delivered on the site of the work or in the vicinity thereof or under the possession and control of the contractor but not yet incorporated therein, such material shall become the property of the owner under the contract, but if such material is stolen, destroyed, or damaged by casualty before being used, the contractor shall be required to replace it at the contractor's own expense.

When the rate of work and amounts involved are so large that it is considered advisable by the owner or contractor, estimates and payments shall be made twice each month.

Payment on approved estimates filed with the owner or its representative shall be made within thirty days. Upon the failure of the owner or its representative to make such payments within thirty days, or upon an unauthorized withholding of retainage, there shall be allowed to the contractor, in addition to any other remedies allowed by law, interest on such moneys not paid within thirty days. Interest on the unauthorized withholding of retainage shall be in addition to any interest earned in the escrow account set forth in section 153.13 of the Revised Code. The rate of such interest shall be the average of the prime rate established at the commercial banks in the city of over one hundred thousand population that is nearest the construction project. Nothing in this section shall be construed as a limitation upon the authority of the director of transportation granted in Chapter 5525. of the Revised Code.

Amended by 129th General AssemblyFile No.127, HB 487, §101.01, eff. 9/10/2012.

Effective Date: 07-01-1985

153.15 Assessment of asbestos hazard.

(A) Whenever an asbestos hazard abatement activity is being performed in a building or structure supported in whole or in part by the state, an asbestos hazard evaluation specialist certified under Chapter 3710. of the Revised Code shall assess the hazard and determine appropriate response actions. Enclosure or encapsulation, rather than removal, shall be implemented if the asbestos hazard evaluation specialist determines that both of the following apply:

(1) Enclosure or encapsulation would be an appropriate response action;

(2) The cost of encapsulating or enclosing the asbestos hazard would be less than removing it.

(B) As used in this section, "enclosure" and "encapsulation" have the meanings given in section 3710.01 of the Revised Code.

(C) The requirements of this section do not apply to school districts.

Effective Date: 07-22-1994

153.16 Policy and procedure guidelines for contract documents in conjunction with administration of public works contracts.

(A) The executive director of the Ohio facilities construction commission shall establish policy and procedure guidelines for contract documents in conjunction with the administration of public works contracts that the state or any institution supported in whole or in part by the state enters into for any project subject to sections 153.01 to 153.11 of the Revised Code.

(B) Notwithstanding any contract provision to the contrary, any claim submitted under a public works contract that the state or any institution supported in whole or in part by the state enters into for any project subject to sections 153.01 to 153.11 of the Revised Code shall be resolved within one hundred twenty days. After the end of this one hundred twenty-day period, the contractor shall be deemed to have exhausted all administrative remedies for purposes of division (B) of section 153.12 of the Revised Code.

Amended by 129th General AssemblyFile No.127, HB 487, §101.01, eff. 9/10/2012.

Effective Date: 03-18-1999

153.17 Requisition upon contractor for additional specific force or materials.

(A) When in the opinion of the owner referred to in section 153.01 of the Revised Code, the work under any contract made under any law of the state is neglected by the contractor or such work is not prosecuted with the diligence and force specified or intended in the contract, such owner may make requisition upon the contractor for such additional specific force or materials to be brought into the work under such contract or to remove improper materials from the grounds as in their judgment the contract and its faithful fulfillment requires.

Not less than five days' notice in writing of such action shall be served upon the contractor or the contractor's agent in charge of the work. If the contractor fails to comply with such requisition within fifteen days, such owner with the written consent of the Ohio facilities construction commission, may employ upon the work the additional force, or supply the special materials or such part of either as is considered proper, and may remove improper materials from the grounds.

(B) When the original contractor has defaulted on a contract and the surety has declined to take over the project, the owner may contract with one or more takeover contractors to complete work that was not finished because of the default of the original contractor. The owner may enter into a contract with a takeover contractor without competitive bidding or controlling board approval. Upon execution of a takeover contract, the owner shall notify the director of budget and management.

When the owner has taken over a project after a default has occurred, any moneys that the owner receives from the surety as a settlement for completion of the project shall be deposited in the original fund from which the capital appropriation for the project was made. The executive director, without controlling board approval, may authorize specified additional uses for the moneys related to completion of the project and may increase the appropriation authority in the appropriation line item used to fund the project by an amount equal to the moneys received from the surety.

Amended by 129th General AssemblyFile No.127, HB 487, §101.01, eff. 9/10/2012.

Effective Date: 03-18-1999

153.18 Certification of additional force or materials.

The owner referred to in section 153.01 of the Revised Code shall make separate estimates of all additional force or materials employed or supplied as provided by section 153.17 of the Revised Code, and payment shall be provided for by the director of budget and management. The amount so paid shall be charged against the contractor and be deducted from his next or any subsequent estimate. The amount or any part thereof not so paid may be recovered by action from such contractor and his sureties.

Effective Date: 07-01-1985

153.19 Contract shall contain provision as to time of completion.

All contracts under sections 153.01 to 153.60 , inclusive, of the Revised Code, shall contain provision in regard to the time when the whole or any specified portion of work contemplated therein shall be completed and that for each day it shall be delayed beyond the time so named the contractor shall forfeit to the state a sum to be fixed in the contract, which shall be deducted from any payment due or to become due to the contractor.

Effective Date: 10-01-1953

153.20 Duty of attorney general.

The attorney general shall have charge of and direct the proceedings necessary to enforce contracts authorized by sections 153.01 to 153.19 , inclusive, of the Revised Code.

Effective Date: 10-01-1953

153.21 Building commission.

When the board of county commissioners has determined to erect a courthouse or other county building, or to make an addition to, or to make an improvement of any existing county owned building, the board may appoint four suitable and competent freehold electors of the county, who shall, together with the board, constitute a building commission and serve until the courthouse or other county building, or the addition thereto, or the improvements thereof are completed. Not more than two of such appointees shall be of the same political party.

Effective Date: 09-20-1965

153.22 Compensation of commissioners.

The persons appointed under section 153.21 of the Revised Code after August 22, 1951, shall receive a reasonable compensation for the time actually employed, to be fixed by the court of common pleas, and on its approval paid from the county treasury. Their compensation in the aggregate shall not exceed eight thousand dollars.

Effective Date: 10-01-1953

153.23 Expenses of building commission.

The necessary expenses for stationery, postage, correspondence, and travel out of the county required in the discharge of the duties of the building commission shall be paid from the county treasury on the order of the board of county commissioners and the warrant of the county auditor.

Effective Date: 10-01-1953

153.24 Oath and bond.

Before entering upon the discharge of their duties, the persons appointed to the building commission shall each take an oath of office and give bond for the faithful and honest discharge of his duties in the same amount as required of members of the board of county commissioners, with sureties approved by the judge of the court of common pleas. Such bond shall be delivered to the county treasurer and kept in his office.

Effective Date: 10-01-1953

153.25 Vacancies.

In case of the death, resignation, or removal of any member of the building commission, the vacancy shall be filled by appointment by the judge of the court of common pleas as provided in section 153.21 of the Revised Code.

Effective Date: 10-01-1953

153.26 Contracts.

After adopting plans, specifications, and estimates, the building commission shall invite bids and award contracts in accordance with sections 307.86 to 307.92 , inclusive, of the Revised Code, for the building and for furnishing, heating, lighting, and ventilating it, and for the sewerage thereof. Until the building is completed and accepted by the commission, the commission may determine all questions connected therewith. The commission shall be governed by sections 153.01 to 153.60 , inclusive, of the Revised Code, relating to the erection of public buildings of the county.

Effective Date: 12-09-1967

153.27 Architects - superintendents - employees.

The building commission may employ architects, superintendents, and other necessary employees during the construction of a courthouse or other county building and fix their compensation and bond.

Effective Date: 10-01-1953

153.28 Plans, drawings, and cost estimates filed with county auditor.

When approved by the building commission, the plans, drawings, representations, bills of material, specifications of work, and estimates of cost thereof shall be filed by the county auditor in his office and shall not be altered, unless such alteration is first drawn, specified, and estimated as required by law for the original plans and approved by the commission. No such change shall be made until the price to be paid therefor has been agreed upon in writing between the commission and the contractor.

Effective Date: 10-01-1953

153.29 Proceedings of building commission.

Resolutions for the adoption or alteration of plans or specifications, or for the award of contracts, hiring of architects, superintendent, or other employees and the fixing of their compensation, the approval of bonds or bid guaranties, and the allowance of estimates shall be in writing and shall require for their adoption the votes of five members of the building commission, taken by yeas and nays recorded on the journal of the board of county commissioners. When signed by five members of the commission, the county auditor shall draw his warrant on the county treasurer for the payment of all bills and estimates of such commission.

Effective Date: 08-01-1980

153.30 Record of proceedings.

Full and accurate records of all proceedings of the building commission shall be kept by the county auditor upon the journal of the board of county commissioners. He shall carefully preserve in his office all plans, drawings, representations, bills of material, specifications of work, and estimates of costs in detail and in the aggregate pertaining to the building.

Effective Date: 10-01-1953

153.31 Plans and estimates for construction - construction project manager or consultants.

When it becomes necessary for the board of county commissioners of a county to erect or cause to be erected a public building, or a substructure for a bridge, or an addition to or alteration thereof, before entering into any contract therefor or repair thereof or for the supply of any materials therefor, they shall cause to be made by a registered architect or registered professional engineer the following:

(A) Full and accurate plans showing all necessary details of the work and materials required, with working plans suitable for the use of mechanics or other builders in the construction thereof, drawn so as to be easily understood;

(B) Accurate bills, showing the exact amount of the different kinds of material, necessary for the construction, to accompany the plans;

(C) Full and complete specifications of the work to be performed showing the manner and style required to be done, with such directions as will enable a competent builder to carry them out, and which will afford to bidders all needful information;

(D) A full and accurate estimate of each item of expense, and of the aggregate cost thereof.

In connection with the planning and construction of any public building project, the board may employ a construction project manager or consultants, and fix their compensation. Such construction project manager or consultants shall be expert and qualified in their respective fields. The cost of such services may be paid from the proceeds of bonds and notes issued to pay the cost of such project.

This section does not prevent the board from receiving from bidders on iron or reinforced concrete substructures for bridges the necessary plans and specifications therefor.

Effective Date: 10-24-1975

153.311 Construction of public building in stages.

Nothing contained in Chapter 153. of the Revised Code shall prevent a board of county commissioners from constructing a public building in stages and letting contracts from time to time for various portions of the work, so long as the total cost of construction of a project, which may include more than one building, is reasonably estimated by the board to exceed fifteen million dollars.

Effective Date: 09-13-1972

153.32 Contracts for erection and repair of superstructures.

When it becomes necessary to erect a bridge, the board of county commissioners shall determine the length and width of the superstructure, and whether it shall be single or double track, and it shall advertise for bids for performing the labor and furnishing the materials necessary to the erection thereof in accordance with sections 307.86 to 307.92 of the Revised Code.

Effective Date: 03-18-1999

153.33 Bids on other plans may be considered.

The board of county commissioners may also invite, receive, and consider bids on any other plan at the option of bidders, and shall require that any such plan together with specifications shall be filed in the office of the county auditor for a period of fifteen days prior to the date for receiving bids. Such plans and specifications shall show the number of spans, the length of each, the nature, quality, and size of the materials to be used, the length of the structure when completed, and whether there is any patent on the bid plan, or any part thereof, and if so, on what part thereof.

Effective Date: 03-18-1999

153.34 Contents of advertisement.

In its advertisement, the board of county commissioners shall invite bidders to make bids for furnishing all the materials and performing all the work, or for such parts thereof as bidders deem proper, and include such other matter as is required in section 307.87 of the Revised Code.

Effective Date: 03-18-1999

153.35 Plans shall be kept on file in county auditor's office.

The plans and specifications upon which the contracts are awarded, shall be kept on file in the office of the county auditor and made a part of the contract with the successful bidder. When it is necessary to alter, repair, or make an addition to a bridge, the board of county commissioners in making contracts therefor, shall conform to sections 153.01 to 153.60 , inclusive, of the Revised Code, in relation to the erection of bridges as nearly as the nature of the case will permit.

Effective Date: 10-01-1953

153.36 Approval of plans for courthouse or jail.

If the plans, drawings, representations, bills of material, and specifications of work, and estimates of the cost thereof in detail and in the aggregate, required in sections 153.31 to 153.35 , inclusive, of the Revised Code, relate to the building of a courthouse or jail, or an addition to or alteration, repair, or improvement thereof, they shall be submitted to the board of county commissioners, together with the clerk of the court of common pleas, the sheriff, and probate judge, and one person to be appointed by the judge of the court of common pleas, for their approval. If approved by a majority of them, a copy thereof shall be deposited with the county auditor and kept in his office.

Effective Date: 10-01-1953

153.37 Approval of plans for county home.

If the plans, drawings, representations, bills of material, and specifications of work and estimates of the cost thereof relate to the building, addition to, or alteration of a county home, they shall be submitted to the board of county commissioners. If approved by a majority of the board, a copy thereof shall be deposited in the office of the county auditor and kept for the inspection and use of parties interested.

Effective Date: 10-01-1953

153.38 Approval of plans for bridge.

If the plans, drawings, representations, bills of material, specifications of work, and estimates relate to the building of a bridge, they shall be submitted to the board of county commissioners, county auditor, and the county engineer. If approved by a majority of them, a copy thereof shall be deposited with the auditor and kept for the inspection of parties interested.

Effective Date: 10-01-1953

153.39 Approval of plans for children's home.

If the plans, drawings, representations, bills of material, specifications of work, and estimates relate to the building of a children's home, they shall be submitted to the board of county commissioners and three citizens of the county, to be appointed by a resident judge of the court of common pleas, or a judge residing in the same subdivision of the judicial district. If approved by a majority of them, a copy thereof shall be deposited with the county auditor and kept by the auditor for the inspection of interested parties. Before such plans are adopted, they shall be submitted to the department of job and family services for suggestions and criticism. The boards of counties composing a district for the purpose of establishing a district children's home, in letting contracts for the necessary buildings or the repair or alteration thereof, shall be governed by the law relating to letting contracts for erecting, repairing, or altering other public buildings.

Effective Date: 07-01-2000

153.40 [Repealed].

Effective Date: 12-09-1967

153.41 [Repealed].

Effective Date: 10-02-1953

153.42, 153.43 [Repealed].

Effective Date: 12-09-1967

153.44 Contracts submitted to prosecuting attorney.

Before work is done or material furnished, all contracts that exceed one thousand dollars in amount shall be submitted by the board of county commissioners to the prosecuting attorney of the county. If found by him to be in accordance with sections 153.01 to 153.60 , inclusive, of the Revised Code, and his certificate to that effect is indorsed thereon, such contracts shall have full effect, otherwise they shall be void.

Effective Date: 10-01-1953

153.45 Commissioners may annul old and make new contracts.

If a contractor fails or refuses to proceed with the work specified in his contract in accordance with the plans, descriptions, and specifications attached to and made part thereof, the board of county commissioners may annul such contract, and shall proceed to make another contract for the completion thereof, in accordance with sections 153.01 to 153.60 , inclusive, of the Revised Code.

Effective Date: 10-01-1953

153.46 to 153.48 [Repealed].

Effective Date: 08-27-1976

153.49 Duty of county treasurer.

The county treasurer shall pay the warrants drawn for materials and labor furnished on county contracts pursuant to estimates prepared under section 153.14 of the Revised Code, place them on file and keep a register of the names of the persons to whom they are paid.

Effective Date: 08-27-1976

153.50 Separate bids for work and materials.

(A) As used in sections 153.50 to 153.52 of the Revised Code:

(1) "Construction manager at risk" has the same meaning as in section 9.33 of the Revised Code.

(2) "Design-assist services" means monitoring and assisting in the completion of the plans and specifications.

(3) "Design-assist firm" means a person capable of providing design-assist services.

(4) "Design-build firm" has the same meaning as in section 153.65 of the Revised Code.

(5) "General contracting" means constructing and managing an entire public improvement project, including the branches or classes of work specified in division (B) of this section, under the award of a single aggregate lump sum contract.

(6) "General contracting firm" means a person capable of performing general contracting.

(B) Except for contracts made with a construction manager at risk, with a design-build firm, or with a general contracting firm, an officer, board, or other authority of the state, a county, township, municipal corporation, or school district, or of any public institution belonging thereto, authorized to contract for the erection, repair, alteration, or rebuilding of a public building, institution, bridge, culvert, or improvement and required by law to advertise and receive bids for furnishing of materials and doing the work necessary for the erection thereof, shall require separate and distinct bids to be made for furnishing such materials or doing such work, or both, in their discretion, for each of the following branches or classes of work to be performed, and all work kindred thereto, entering into the improvement:

(1) Plumbing and gas fitting;

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

(3) Electrical equipment.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Effective Date: 03-18-1999

153.501 Subcontracts awarded by construction manager at risk, design-build firm, or general contracting firm; utilization of design-assist firm; self-performed portions of work.

(A) A public authority may accept a subcontract awarded by a construction manager at risk, a design-build firm, or a general contracting firm, or may reject any such subcontract if the public authority determines that the bidder is not responsible.

(B) A public authority may authorize a construction manager at risk or design-build firm to utilize a design-assist firm on any public improvement project without transferring any design liability to the design-assist firm.

(C) If the construction manager at risk or design-build firm intends and is permitted by the public authority to self-perform a portion of the work to be performed, the construction manager at risk or design-build firm shall submit a sealed bid for the portion of the work prior to accepting and opening any bids for the same work.

Added by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

153.502 Construction management or design-build contracts; prequalification of bidders.

(A) Each construction manager at risk and design-build firm shall establish criteria by which it will prequalify prospective bidders on subcontracts awarded for work to be performed under the construction management or design-build contract. The criteria established by a construction manager at risk or design-build firm shall be subject to the approval of the public authority involved in the project and shall be consistent with the rules adopted by the Ohio facilities construction commission pursuant to section 153.503 of the Revised Code.

(B) For each subcontract to be awarded, the construction manager at risk or design-build firm shall identify at least three prospective bidders that are prequalified to bid on that subcontract, except that the construction manager at risk or design-build firm shall identify fewer than three if the construction manager at risk or design-build firm establishes to the satisfaction of the public authority that fewer than three prequalified bidders are available. The public authority shall verify that each prospective bidder meets the prequalification criteria and may eliminate any bidder it determines is not qualified.

(C) Once the prospective bidders are prequalified and found acceptable by the public authority, the construction manager at risk or design-build firm shall solicit proposals from each of those bidders. The solicitation and selection of a subcontractor shall be conducted under an open book pricing method. As used in this division, "open book pricing method" has the same meaning as in section 9.33 of the Revised Code, in the case of a construction manager at risk, and the same meaning as in section 153.65 of the Revised Code, in the case of a design-build firm.

(D) A construction manager at risk or design-build firm shall not be required to award a subcontract to a low bidder.

Amended by 129th General AssemblyFile No.127, HB 487, §101.01, eff. 9/10/2012.

Added by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

153.503 Adoption of rules.

The Ohio facilities construction commission, pursuant to Chapter 119. of the Revised Code , shall adopt rules to do all of the following:

(A) Prescribe the procedures and criteria for determining the best value selection of a construction manager at risk or design-build firm;

(B) Set forth standards to be followed by construction managers at risk and design-build firms when establishing prequalification criteria pursuant to section 153.502 of the Revised Code;

(C) Prescribe the form for the contract documents to be used by a construction manager at risk, design-build firm, or general contractor when entering into a subcontract;

(D) Prescribe the form for the contract documents to be used by a public authority when entering into a contract with a construction manager at risk or design-build firm.

Amended by 129th General AssemblyFile No.127, HB 487, §101.01, eff. 9/10/2012.

Added by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

153.51 Separate contracts - single, aggregate contract.

(A) If separate and distinct bids are required pursuant to section 153.50 of the Revised Code , no contract for the entire job, or for a greater portion thereof than is embraced in one such branch or class of work may be awarded, unless the separate bids do not cover all the work and materials required or the bids for the whole or for two or more kinds of work or materials are lower than the separate bids in the aggregate.

(B)

(1) If the public authority awards a single, aggregate contract for the entire project pursuant to division (A) of this section , the award shall be made to the bidder who is the lowest responsive and responsible bidder or the lowest and best bidder, as applicable, as specified in section 153.52 of the Revised Code.

(2) The public authority may assign all or any portion of its interest in the contract of the lowest responsive and responsible bidder or the lowest and best bidder, as applicable, to another successful bidder as an agreed condition for an award of the contract for the amount of its respective bid. Such assignment may include, but is not limited to, the duty to schedule, coordinate, and administer the contracts.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Effective Date: 04-09-1996

153.52 Awarding of contracts to separate bidders.

A contract for general contracting or for doing the work belonging to each separate branch or class of work specified in division (B) of section 153.50 of the Revised Code, or for the furnishing of materials therefor, shall be awarded by the public authority referred to in section 153.50 of the Revised Code, in its discretion, to the lowest responsive and responsible separate bidder therefor, in accordance with section 9.312 of the Revised Code in the case of any public authority of the state or any public institution belonging thereto, and to the lowest and best separate bidder in the case of a county, township, or municipal corporation, or any public institution belonging thereto, and to the lowest responsive and responsible bidder in the case of a school district, and shall be made directly with the bidder in the manner and upon the terms, conditions, and limitations as to giving bond or bid guaranties as prescribed by law.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Effective Date: 04-09-1996

153.53 Adjusting threshold in section 153.01 for inflation.

(A) As used in this section, "rate of inflation" has the same meaning as in section 107.032 of the Revised Code.

(B) Five years after September 29, 2011, and every five years thereafter, the executive director of the Ohio facilities construction commission shall evaluate the monetary threshold specified in section 153.01 of the Revised Code and adopt rules adjusting that amount based on the average rate of inflation during each of the previous five years immediately preceding such adjustment.

Amended by 129th General AssemblyFile No.127, HB 487, §101.01, eff. 9/10/2012.

Added by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

153.54 Bid guaranty to be filed with bid.

(A) Except with respect to a contract described in section 9.334 or 153.693 of the Revised Code, each person bidding for a contract with the state or any political subdivision, district, institution, or other agency thereof, excluding therefrom the department of transportation, for any public improvement shall file with the bid, a bid guaranty in the form of either:

(1) A bond in accordance with division (B) of this section for the full amount of the bid;

(2) A certified check, cashier's check, or letter of credit pursuant to Chapter 1305. of the Revised Code, in accordance with division (C) of this section. Any such letter of credit is revocable only at the option of the beneficiary state, political subdivision, district, institution, or agency. The amount of the certified check, cashier's check, or letter of credit shall be equal to ten per cent of the bid.

(B) A bid guaranty filed pursuant to division (A)(1) of this section shall be conditioned to:

(1) Provide that, if the bid is accepted, the bidder, after the awarding or the recommendation for the award of the contract, whichever the contracting authority designates, will enter into a proper contract in accordance with the bid, plans, details, and specifications. If for any reason, other than as authorized by section 9.31 of the Revised Code or division (G) of this section, the bidder fails to enter into the contract, and the contracting authority awards the contract to the next lowest bidder, the bidder and the surety on the bidder's bond are liable to the state, political subdivision, district, institution, or agency for the difference between the bid and that of the next lowest bidder, or for a penal sum not to exceed ten per cent of the amount of the bond, whichever is less. If the state, political subdivision, district, institution, or agency does not award the contract to the next lowest bidder but resubmits the project for bidding, the bidder failing to enter into the contract and the surety on the bidder's bond, except as provided in division (G) of this section, are liable to the state, political subdivision, district, institution, or agency for a penal sum not to exceed ten per cent of the amount of the bid or the costs in connection with the resubmission of printing new contract documents, required advertising, and printing and mailing notices to prospective bidders, whichever is less.

(2) Indemnify the state, political subdivision, district, institution, or agency against all damage suffered by failure to perform the contract according to its provisions and in accordance with the plans, details, and specifications therefor and to pay all lawful claims of subcontractors, material suppliers, and laborers for labor performed or material furnished in carrying forward, performing, or completing the contract; and agree and assent that this undertaking is for the benefit of any subcontractor, material supplier, or laborer having a just claim, as well as for the state, political subdivision, district, institution, or agency.

(C)

(1) A bid guaranty filed pursuant to division (A)(2) of this section shall be conditioned to provide that if the bid is accepted, the bidder, after the awarding or the recommendation for the award of the contract, whichever the contracting authority designates, will enter into a proper contract in accordance with the bid, plans, details, specifications, and bills of material. If for any reason, other than as authorized by section 9.31 of the Revised Code or division (G) of this section, the bidder fails to enter into the contract, and the contracting authority awards the contract to the next lowest bidder, the bidder is liable to the state, political subdivision, district, institution, or agency for the difference between the bidder's bid and that of the next lowest bidder, or for a penal sum not to exceed ten per cent of the amount of the bid, whichever is less. If the state, political subdivision, district, institution, or agency does not award the contract to the next lowest bidder but resubmits the project for bidding, the bidder failing to enter into the contract, except as provided in division (G) of this section, is liable to the state, political subdivision, district, institution, or agency for a penal sum not to exceed ten per cent of the amount of the bid or the costs in connection with the resubmission, of printing new contract documents, required advertising, and printing and mailing notices to prospective bidders, whichever is less.

If the bidder enters into the contract, the bidder, at the time the contract is entered to, shall file a bond for the amount of the contract to indemnify the state, political subdivision, district, institution, or agency against all damage suffered by failure to perform the contract according to its provisions and in accordance with the plans, details, and specifications and to pay all lawful claims of subcontractors, material suppliers, and laborers for labor performed or material furnished in carrying forward, performing, or completing the contract; and agree and assent that this undertaking is for the benefit of any subcontractor, material supplier, or laborer having a just claim, as well as for the state, political subdivision, district, institution, or agency.

(2) A construction manager who enters into a contract pursuant to sections 9.33 to 9.333 of the Revised Code, if required by the public authority at the time the construction manager enters into the contract, shall file a letter of credit pursuant to Chapter 1305. of the Revised Code, bond, certified check, or cashier's check, for the value of the construction management contract to indemnify the state, political subdivision, district, institution, or agency against all damage suffered by the construction manager's failure to perform the contract according to its provisions, and shall agree and assent that this undertaking is for the benefit of the state, political subdivision, district, institution, or agency. A letter of credit provided by the construction manager is revocable only at the option of the beneficiary state, political subdivision, district, institution, or agency.

(D) Where the state, political subdivision, district, institution, or agency accepts a bid but the bidder fails or refuses to enter into a proper contract in accordance with the bid, plans, details, and specifications within ten days after the awarding of the contract, the bidder and the surety on any bond, except as provided in division (G) of this section, are liable for the amount of the difference between the bidder's bid and that of the next lowest bidder, but not in excess of the liability specified in division (B)(1) or (C) of this section. Where the state, political subdivision, district, institution, or agency then awards the bid to such next lowest bidder and such next lowest bidder also fails or refuses to enter into a proper contract in accordance with the bid, plans, details, and specifications within ten days after the awarding of the contract, the liability of such next lowest bidder, except as provided in division (G) of this section, is the amount of the difference between the bids of such next lowest bidder and the third lowest bidder, but not in excess of the liability specified in division (B)(1) or (C) of this section. Liability on account of an award to any lowest bidder beyond the third lowest bidder shall be determined in like manner.

(E) Notwithstanding division (C) of this section, where the state, political subdivision, district, institution, or agency resubmits the project for bidding, each bidder whose bid was accepted but who failed or refused to enter into a proper contract, except as provided in division (G) of this section, is liable for an equal share of a penal sum in connection with the resubmission, of printing new contract documents, required advertising, and printing and mailing notices to prospective bidders, but no bidder's liability shall exceed the amount of the bidder's bid guaranty.

(F) All bid guaranties filed pursuant to this section shall be payable to the state, political subdivision, district, institution, or agency, be for the benefit of the state, political subdivision, district, institution, or agency or any person having a right of action thereon, and be deposited with, and held by, the board, officer, or agent contracting on behalf of the state, political subdivision, district, institution, or agency. All bonds filed pursuant to this section shall be issued by a surety company authorized to do business in this state as surety approved by the board, officer, or agent awarding the contract on behalf of the state, political subdivision, district, institution, or agency.

(G) A bidder for a contract with the state or any political subdivision, district, institution, or other agency thereof, excluding therefrom the Ohio department of transportation, for a public improvement costing less than one-half million dollars may withdraw the bid from consideration if the bidder's bid for some other contract with the state or any political subdivision, district, institution, or other agency thereof, excluding therefrom the department of transportation, for the public improvement costing less than one-half million dollars has already been accepted, if the bidder certifies in good faith that the total amount of all the bidder's current contracts is less than one-half million dollars, and if the surety certifies in good faith that the bidder is unable to perform the subsequent contract because to do so would exceed the bidder's bonding capacity. If a bid is withdrawn under authority of this division, the contracting authority may award the contract to the next lowest bidder or reject all bids and resubmit the project for bidding, and neither the bidder nor the surety on the bidder's bond are liable for the difference between the bidder's bid and that of the next lowest bidder, for a penal sum, or for the costs of printing new contract documents, required advertising, and printing and mailing notices to prospective bidders.

(H) Bid guaranties filed pursuant to division (A) of this section shall be returned to all unsuccessful bidders immediately after the contract is executed. The bid guaranty filed pursuant to division (A)(2) of this section shall be returned to the successful bidder upon filing of the bond required in division (C) of this section.

(I) For the purposes of this section, "next lowest bidder" means, in the case of a political subdivision that has adopted the model Ohio and United States preference requirements promulgated pursuant to division (E) of section 125.11 of the Revised Code, the next lowest bidder that qualifies under those preference requirements.

(J) For the purposes of this section and sections 153.56 , 153.57 , and 153.571 of the Revised Code, "public improvement," "subcontractor," "material supplier," "laborer," and "materials" have the same meanings as in section 1311.25 of the Revised Code.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Effective Date: 11-24-1995; 03-30-2007

153.55 Dividing project into parts to avoid threshold prohibited; costs included in threshold amount.

(A) For purposes of calculating the amount of a public improvement project to determine whether it is subject to section 153.01 of the Revised Code, no officer, board, or other authority of the state or any institution supported by the state shall subdivide a public improvement project into component parts or separate projects in order to avoid the threshold of that section, unless the component parts or separate projects thus created are conceptually separate and unrelated to each other, or encompass independent or unrelated needs.

(B) In calculating the project amount for purposes of the threshold in section 153.01 of the Revised Code, the following expenses shall be included as costs of the project:

(1) Professional fees and expenses for services associated with the preparation of plans;

(2) Permit costs, testing costs, and other fees associated with the work;

(3) Project construction costs;

(4) A contingency reserve fund.

Added by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Effective Date: 08-01-1980

153.56 Creditor shall furnish statement of amount due - service of notice of furnishing.

(A) Any person to whom any money is due for labor or work performed or materials furnished in a public improvement as provided in section 153.54 of the Revised Code, at any time after performing the labor or work or furnishing the materials, but not later than ninety days after the completion of the contract by the principal contractor or design-build firm and the acceptance of the public improvement for which the bond was provided by the duly authorized board or officer, shall furnish the sureties on the bond, a statement of the amount due to the person.

(B) A suit shall not be brought against sureties on the bond until after sixty days after the furnishing of the statement described in division (A) of this section. If the indebtedness is not paid in full at the expiration of that sixty days, and if the person complies with division (C) of this section, the person may bring an action in the person's own name upon the bond, as provided in sections 2307.06 and 2307.07 of the Revised Code, that action to be commenced, notwithstanding section 2305.12 of the Revised Code, not later than one year from the date of acceptance of the public improvement for which the bond was provided.

(C) To exercise rights under this section, a subcontractor or materials supplier supplying labor or materials that cost more than thirty thousand dollars, who is not in direct privity of contract with the principal contractor or design-build firm for the public improvement, shall serve a notice of furnishing upon the principal contractor or design-build firm in the form provided in section 1311.261 of the Revised Code.

(D) A subcontractor or materials supplier who serves a notice of furnishing under division (C) of this section as required to exercise rights under this section has the right of recovery only as to amounts owed for labor and work performed and materials furnished during and after the twenty-one days immediately preceding service of the notice of furnishing.

(E) For purposes of this section:

(1) "Design-build firm" has the same meaning as in section 153.65 of the Revised Code.

(2) "Principal contractor" has the same meaning as in section 1311.25 of the Revised Code, and may include a "construction manager at risk" as defined in section 9.33 of the Revised Code.

Amended by 130th General Assembly File No. TBD, HB 483, §101.01, eff. 9/15/2014.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Effective Date: 02-12-2001

153.57 Form of bond.

(A) The bond provided for in division (C)(1) of section 153.54 of the Revised Code shall be in substantially the following form, and recovery of any claimant thereunder shall be subject to sections 153.01 to 153.60 of the Revised Code, to the same extent as if the provisions of those sections were fully incorporated in the bond form:

"KNOW ALL PERSONS BY THESE PRESENTS, that we, the undersigned ............................ as principal and ................... as sureties, are hereby held and firmly bound unto ................... in the penal sum of ............. dollars, for the payment of which well and truly to be made, we hereby jointly and severally bind ourselves, our heirs, executors, administrators, successors, and assigns.

Signed this ............. day of ................, ....

THE CONDITION OF THE ABOVE OBLIGATION IS SUCH, that whereas the above named principal did on the ................ day of ....................., ...., enter into a contract with ................., which said contract is made a part of this bond the same as though set forth herein;

Now, if the said ....................... shall well and faithfully do and perform the things agreed by .................. to be done and performed according to the terms of said contract; and shall pay all lawful claims of subcontractors, material suppliers, and laborers, for labor performed and materials furnished in the carrying forward, performing, or completing of said contract; we agreeing and assenting that this undertaking shall be for the benefit of any material supplier or laborer having a just claim, as well as for the obligee herein; then this obligation shall be void; otherwise the same shall remain in full force and effect; it being expressly understood and agreed that the liability of the surety for any and all claims hereunder shall in no event exceed the penal amount of this obligation as herein stated.

The said surety hereby stipulates and agrees that no modifications, omissions, or additions, in or to the terms of the said contract or in or to the plans or specifications therefor shall in any wise affect the obligations of said surety on its bond."

(B) The bond provided for in division (C)(2) of section 153.54 of the Revised Code shall be in substantially the following form:

"KNOW ALL PERSONS BY THESE PRESENTS, that we, the undersigned ......... as principal and ............. as sureties, are hereby held and firmly bound unto ............. in the penal sum of .............. dollars, for the payment of which well and truly be made, we hereby jointly and severally bind ourselves, our heirs, executors, administrators, successors, and assigns.

Signed this ......... day of ........., .......

THE CONDITION OF THE ABOVE OBLIGATION IS SUCH, that whereas the above named principal did on the ........ day of ........, ......, entered into a contract with ............... which said contract is made a part of this bond the same as though set forth herein;

Now, if the said ................ shall well and faithfully do and perform the things agreed by ............. to be done and performed according to the terms of the said contract; we agreeing and assenting that this undertaking shall be for the benefit of the obligee herein; then this obligation shall be void; otherwise the same shall remain in full force and effect; it being expressly understood and agreed that the liability of the surety for any and all claims hereunder shall in no event exceed the penal amount of the obligation as herein stated.

The surety hereby stipulates and agrees that no modifications, omissions, or additions, in or to the terms of the contract shall in any way affect the obligation of the surety on its bond."

Effective Date: 11-24-1995; 03-30-2007

153.571 Form of bond.

The bond provided for in division (B) of section 153.54 of the Revised Code shall be in substantially the following form, and recovery of any claimant thereunder shall be subject to sections 153.01 to 153.60 of the Revised Code, to the same extent as if the provisions of such sections were fully incorporated in the bond form:

"KNOW ALL PERSONS BY THESE PRESENTS, that we, the undersigned . . . . . . . . . . as principal and . . . . . . . . . . as sureties, are hereby held and firmly bound unto . . . . . . . . . . as obligee in the penal sum of the dollar amount of the bid submitted by the principal to the obligee on . . . . . . . . . . to undertake the project known as . . . . . . . . . .. The penal sum referred to herein shall be the dollar amount of the principal's bid to the obligee, incorporating any additive or deductive alternate bids made by the principal on the date referred to above to the obligee, which are accepted by the obligee. In no case shall the penal sum exceed the amount of . . . . . dollars. (If the foregoing blank is not filled in, the penal sum will be the full amount of the principal's bid, including alternates. Alternatively, if the blank is filled in, the amount stated must not be less than the full amount of the bid including alternates, in dollars and cents. A percentage is not acceptable.) For the payment of the penal sum well and truly to be made, we hereby jointly and severally bind ourselves, our heirs, executors, administrators, successors, and assigns.

Signed this . . . . . day of . . . . . . . ., . . .. THE CONDITION OF THE ABOVE OBLIGATION IS SUCH, that whereas the above named principal has submitted a bid for . . . . . . . . . ..

Now, therefore, if the obligee accepts the bid of the principal and the principal fails to enter into a proper contract in accordance with the bid, plans, details, specifications, and bills of material; and in the event the principal pays to the obligee the difference not to exceed ten per cent of the penalty hereof between the amount specified in the bid and such larger amount for which the obligee may in good faith contract with the next lowest bidder to perform the work covered by the bid; or in the event the obligee does not award the contract to the next lowest bidder and resubmits the project for bidding, the principal pays to the obligee the difference not to exceed ten per cent of the penalty hereof between the amount specified in the bid, or the costs, in connection with the resubmission, of printing new contract documents, required advertising, and printing and mailing notices to prospective bidders, whichever is less, then this obligation shall be null and void, otherwise to remain in full force and effect; if the obligee accepts the bid of the principal and the principal within ten days after the awarding of the contract enters into a proper contract in accordance with the bid, plans, details, specifications, and bills of material, which said contract is made a part of this bond the same as though set forth herein;

Now also, if the said . . . . . . . . . . shall well and faithfully do and perform the things agreed by . . . . . . . . . . to be done and performed according to the terms of said contract; and shall pay all lawful claims of subcontractors, materials suppliers, and laborers, for labor performed and materials furnished in the carrying forward, performing, or completing of said contract; we agreeing and assenting that this undertaking shall be for the benefit of any materials suppliers or laborer having a just claim, as well as for the obligee herein; then this obligation shall be void; otherwise the same shall remain in full force and effect; it being expressly understood and agreed that the liability of the surety for any and all claims hereunder shall in no event exceed the penal amount of this obligation as herein stated.

The said surety hereby stipulates and agrees that no modifications, omissions, or additions, in or to the terms of the said contract or in or to the plans or specifications therefor shall in any wise affect the obligations of said surety on its bond."

Effective Date: 05-09-2000

153.58 Prohibition.

No officers shall violate sections 153.01 to 153.57 , inclusive, of the Revised Code.

Effective Date: 10-01-1953

153.581 Contracts for construction definitions.

As used in sections 153.581 and 153.591 of the Revised Code:

(A) "Public works contract" means any contract awarded by a contracting authority for the construction, engineering, alteration, or repair of any public building, public highway, or other public work.

(B) "Contracting authority" means the state, any township, county, municipal corporation, school board, or other governmental entity empowered to award a public works contract, and any construction manager at risk as defined in section 9.33 of the Revised Code or design-build firm as defined in section 153.65 of the Revised Code awarding a subcontract.

(C) "Contractor" means any person, partnership, corporation, or association that has been awarded a public works contract.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Effective Date: 06-01-1967

153.59 Discrimination and intimidation on account of race, religion, sex, disability, national origin or ancestry.

Every contract for or on behalf of the state, or any township, county, or municipal corporation of the state, for the construction, alteration, or repair of any public building or public work in the state shall contain provisions by which the contractor agrees to both of the following:

(A) That, in the hiring of employees for the performance of work under the contract or any subcontract, no contractor, subcontractor, or any person acting on a contractor's or subcontractor's behalf, by reason of race, creed, sex, disability or military status as defined in section 4112.01 of the Revised Code, or color, shall discriminate against any citizen of the state in the employment of labor or workers who is qualified and available to perform the work to which the employment relates;

(B) That no contractor, subcontractor, or any person on a contractor's or subcontractor's behalf, in any manner, shall discriminate against or intimidate any employee hired for the performance of work under the contract on account of race, creed, sex, disability or military status as defined in section 4112.01 of the Revised Code, or color.

The department of administrative services shall ensure that no capital moneys appropriated by the general assembly for any purpose shall be expended unless the project for which those moneys are appropriated provides for an affirmative action program for the employment and effective utilization of disadvantaged persons whose disadvantage may arise from cultural, racial, or ethnic background, or other similar cause, including, but not limited to, race, religion, sex, disability or military status as defined in section 4112.01 of the Revised Code, national origin, or ancestry.

In awarding contracts for capital improvement projects, the department shall ensure that equal consideration be given to contractors, subcontractors, or joint venturers who qualify as a minority business enterprise. As used in this section, "minority business enterprise" means a business enterprise that is owned or controlled by one or more socially or economically disadvantaged persons who are residents of this state. "Socially or economically disadvantaged persons" means persons, regardless of marital status, who are members of groups whose disadvantage may arise from discrimination on the basis of race, religion, sex, disability or military status as defined in section 4112.01 of the Revised Code, national origin, ancestry, or other similar cause.

Effective Date: 05-04-2004; 2007 HB372 03-24-2008

153.591 Hiring hall contract or agreement.

Any provision of a hiring hall contract or agreement which obligates a contractor to hire, if available, only employees referred to the contractor by a labor organization shall be void as against public policy and unenforceable with respect to employment under any public works contract unless at the date of execution of the hiring hall contract or agreement, or within thirty days thereafter, the labor organization has in effect procedures for referring qualified employees for hire without regard to race, color, religion, national origin, military status as defined in section 4112.01 of the Revised Code, or ancestry and unless the labor organization includes in its apprentice and journeyperson's membership, or otherwise has available for job referral without discrimination, qualified employees, both whites and non-whites (including African-Americans).

Effective Date: 05-04-2004; 2007 HB372 03-24-2008

153.60 Forfeiture.

The contract referred to in section 153.59 of the Revised Code shall provide as a forfeiture for any breach of the provisions against discrimination:

(A) That there shall be deducted from the amount payable to the contractor by the state or by any township, county, or municipal corporation thereof, under this contract, a forfeiture of twenty-five dollars for each person who is discriminated against or intimidated in violation of this contract;

(B) That the contract shall be canceled or terminated by the state or by any township, county, or municipal corporation thereof, and all money to become due hereunder may be forfeited, for a second or subsequent violation of the terms of this section of the contract.

Effective Date: 10-01-1953

153.61 Agreement for joint construction and management.

Any county or counties and any municipal corporation or municipal corporations may enter into an agreement providing for the joint construction, acquisition, or improvement of any public work, public building, or other permanent improvement benefiting the parties thereto and providing for the joint management, occupancy, maintenance, and repair thereof. Any such agreement shall be approved by resolution or ordinance passed by the legislative authority of each of the parties to such agreement, which resolution or ordinance shall set forth the agreement in full and shall authorize the execution thereof by designated official or officials of each of such parties, and such agreement, when so approved and executed, shall be in full force and effect.

Any agreement entered into under authority of this section shall contain the following provisions:

(A) The method by which the work, building, or improvement, to be specified therein, shall be constructed, acquired, or improved, and specifically a designation of one of the parties to take and have exclusive charge of any and all details of construction, acquisition, or improvement, including any advertising for bids and the award of any construction or improvement contract. Except as otherwise provided in this division, the procedure generally applicable to the party so designated shall be followed in the use of force account or the advertising for bids and awarding of a contract. section 153.36 of the Revised Code does not apply to the building or the addition to or alteration, repair, or improvement of a jail undertaken pursuant to a joint agreement provided for in this section.

(B) The manner in which the title to the public work, building, or improvement including the site and interests in real estate necessary therefor, is to be held;

(C) The manner in which the public work, building, or improvement is to be managed, occupied, maintained, and repaired, and specifically a designation of the person, officer, or body to be responsible for such management, maintenance, and repair. If the public work, building, or improvement involves only a multicounty, municipal-county, or multicounty-municipal jail, workhouse, or correctional facility, the agreement may delegate management, maintenance, and repair responsibilities to a corrections commission established pursuant to section 307.93 of the Revised Code.

(D) An apportionment among the parties of the cost of jointly constructing, acquiring, or improving such work, building, or improvement and of jointly managing, maintaining, and repairing it.

Each party to such an agreement may issue securities for its portion of the cost of such construction, acquisition, or improvement if Chapter 133. or other provisions of the Revised Code would authorize the issuance of such securities by such party alone for the purpose for which it then intends to use the work, building, or improvement.

As used in this section, "construction, acquisition, or improvement" includes acquisition of real estate and interests in real estate therefor, site improvements, and furniture, furnishings, and equipment therefor.

The authority granted under this section shall not extend to the construction, acquisition, improvement, or management of any public utility facility.

Public works, public buildings, or improvements constructed, acquired, or improved under this section may be used for any lawful purpose by each party so long as the use thereof is an authorized proper use for that party.

Effective Date: 10-30-1989

153.62 Issuing change order for additional work.

All contracts for the erection, construction, repair, or alteration of any building, highway, or other work or improvement of any nature by an officer, board, or other authority of the state, a county, township, municipal corporation, school district, or any political subdivision, or any public institution belonging thereto, are subject to all applicable federal, state, and local statutes, ordinances, and regulations, including, but not limited to, those dealing with the prevention of environmental pollution that affect or are affected by such contracts. If the bidder to whom the work is awarded must undertake additional work due to the enactment or amendment of statutes or rules occurring after the submission of the successful bid, the awarding body shall issue a change order setting forth the additional work that must be undertaken and authorizing additional cost to the contractor, which shall not invalidate the contract. The cost of such a change order to the awarding agency shall be determined in accordance with the provisions of the contract for change orders or force accounts or, if no such provision is set forth in the contract, then the cost to the awarding agency shall be the contractor's actual costs including wages, labor costs other than wages, wage taxes, materials, equipment costs and rentals, insurance, and subcontracts attributable to the additional activity, plus a reasonable sum for overhead. Such additional costs to undertake work not specified in the invitation for bids shall not be approved unless written authorization is given the successful bidder prior to the successful bidder's undertaking such additional activity. If a dispute arises between the awarding agency and the successful bidder, procedures shall be commenced under the applicable terms of the construction contract, or, if the contract contains no provision for resolving the dispute, it shall be resolved pursuant to the procedures for arbitration in Chapter 2711. of the Revised Code.

Effective Date: 03-18-1999

153.63 Agreement for escrow account for contractor.

(A) Any money which is due from the public owner referred to in section 153.12 of the Revised Code under a contract entered into under this chapter or entered into under other applicable sections of the Revised Code for the construction, reconstruction, improvement, enlargement, alteration, repair, painting, or decoration of a public improvement shall, on the day it is due, be paid to the contractor or deposited in an escrow account, whichever is applicable, with one or more banks or building and loan associations in the state selected by mutual agreement between the contractor and the public owner. The agreement shall contain the following provisions:

(1) The money shall be deposited in a savings account or the escrow agent shall promptly invest all of the escrowed principal in obligations selected by the escrow agent, as stipulated in the agreement.

(2) The escrow agent shall hold the escrowed principal and income until receipt of notice from the public owner and the contractor, or until receipt of an arbitration order or an order of the court of claims specifying the amount of the escrowed principal to be released and the person to whom it is to be released. Upon receipt of the notice or order, the agent shall promptly pay such amount of principal and a proportionate amount of the escrowed income to the person indicated.

(3) The escrow agent shall be compensated for its services as agreed to by the public owner and the contractor from the income from the escrow account.

The agreement may include other provisions not inconsistent with this section, including, but not limited to granting authority for the escrow agent to commingle the escrowed funds with funds held pursuant to other escrow agreements and limiting the liability of the escrow agent.

(B) When the public owner, as defined in division (B) of section 2743.01 of the Revised Code, and the contractor disagree as to the conditions under which money is to be paid under this section, the parties shall apply for a decision by arbitration under the procedures of Chapter 2711. of the Revised Code. When an application is made, neither party shall initiate, and no court shall permit the maintenance of, an action in court for decision of the same issues sought to be determined in the arbitration application. The award made by the arbitrator may include the costs of arbitration. The arbitration shall be binding on all parties.

(C) When the public owner, as defined in division (A) of section 2743.01 of the Revised Code, and the contractor disagree as to the conditions under which money is to be paid under this section the contractor shall file an action in the court of claims.

(D) If the money required to be paid or deposited under division (A) of this section is not paid or deposited, the governmental entity shall pay to the contractor an amount equal to eight per cent annual interest compounded daily.

Effective Date: 02-11-1982

153.64 Protecting underground utility facilities during construction of public improvement.

(A) As used in this section:

(1) "Public improvement" means any construction, reconstruction, improvement, enlargement, alteration, or repair of a building, highway, drainage system, water system, road, street, alley, sewer, ditch, sewage disposal plant, water works, and all other structures or works of any nature by a public authority.

(2) "Public authority" includes the following:

(a) The state, or a county, township, municipal corporation, school district, or other political subdivision ;

(b) Any public agency, authority, board, commission, instrumentality, or special district of or in the state or a county, township, municipal corporation, school district, or other political subdivision;

(c) A designer as defined in section 3781.25 of the Revised Code who is acting on behalf of any entity described in division (A)(2)(a) or (b) of this section.

(3) "Underground utility facilities" includes any item buried or placed below ground or submerged under water for use in connection with the storage or conveyance of water or sewage; or electronic, telephonic, or telegraphic communications; electricity; petroleum products; manufactured, mixed, or natural gas; synthetic or liquified natural gas; propane gas; or other substances. "Underground utility facilities" includes, but is not limited to, all operational underground pipes, sewers, tubing, conduits, cables, valves, lines, wires, manholes, and attachments, whether owned by any public or private or profit or nonprofit person, firm, partnership, company, corporation, joint stock association, joint venture, or voluntary association, wherever organized or incorporated, except for a private septic system in a single- or multi-family dwelling utilized only for that dwelling and not connected to any other system.

(4) " Protection service" means a notification center not an owner of an underground utility facility that complies with the following:

(a) It exists for the purpose of receiving notice from public authorities and from other persons that plan to prepare plans and specifications for, or engage in, public improvements involving digging, blasting, excavating, or other underground construction activities ;

(b) It distributes the information described in division (A)(4)(a) of this section to its members and participants;

(c) It has registered by March 14, 1989, with the secretary of state and the public utilities commission under former division (F) of this section as it existed on that date.

(5) "Construction area" means the area delineated on the plans and specifications for the public improvement within which the work provided for in the contract will be performed.

(B)

(1) In any public improvement which may involve underground utility facilities, the public authority, prior to preparing plans and specifications, shall contact a protection service and any owners of underground utility facilities that are not members of a protection service for the existence and location of all underground utility facilities within the construction area.

(2) If requested by the public authority, each owner of underground utility facilities within the construction area, other than real property owners listed in divisions (C)(1) to (4) of section 3781.25 of the Revised Code, shall do one of the following within ten days of receiving notice from the public authority or a protection service:

(a) Mark the location of the underground utility facilities, other than those facilities serving single-family or two-, three-, or four-unit dwellings, within the construction area in accordance with the marking standards described in division (C) of section 3781.29 of the Revised Code;

(b) Provide digital or paper drawings, or both, that meet both of the following requirements:

(i) They are drawn to scale and include locatable items. Locatable items may include poles, pedestals, back of curb, sidewalk, edge of pavement, centerline of ditch, property lines, and other similar items.

(ii) They depict the location of the underground utility facilities.

Compliance with division (B)(2) of this section does not relieve an owner of underground utility facilities from compliance with the marking requirements of section 3781.29 of the Revised Code.

(3) The public authority shall include, in the plans and specifications for such improvement, the identity and location of the existing underground utility facilities located in the construction area as provided to the public authority by the owner of the underground utility facility and the name, address, and telephone number of each owner of any underground utility facilities in the construction area that does not subscribe to a protection service.

(4) Any anticipated temporary or permanent relocation of underground utility facilities deemed necessary by the public authority shall be negotiated or arranged by the public authority with the owners of the underground utility facilities prior to the start of construction. If a temporary or permanent relocation of utility facilities is necessary, the owner of the underground utility facility shall be given a reasonable time to move such utility facilities unless the contractor to whom the contract for a public improvement is awarded or its subcontractor agrees with the owner of the underground utility facility to coordinate relocation with construction operations.

(5) The public authority, within ten calendar days after award of a contract for a public improvement, shall notify in writing all owners of underground utility facilities known to be located in the construction area of the public improvement of the name and address of the contractor to whom the contract for the public improvement was awarded. Where notice is given in writing by certified mail, the return receipt, signed by any person to whom the notice is delivered, shall be conclusive proof of notice.

(C) The contractor to whom a contract for a public improvement is awarded or its subcontractor, at least two working days, excluding Saturdays, Sundays, and legal holidays, but no more than ten working days, prior to commencing construction operations in the construction area which may involve underground utility facilities, shall cause notice to be given to a protection service and the owners of underground utility facilities shown on the plans and specifications who are not members of a protection service. The owner of the underground utility facility, within forty-eight hours, excluding Saturdays, Sundays, and legal holidays, after notice is received, shall stake, mark, or otherwise designate the location of the underground utility facilities in the construction area in such a manner as to indicate their course together with the approximate depth at which they were installed.

(D) If the public authority fails to comply with the requirements of division (B) of this section, the contractor to whom the work is awarded or its subcontractor complies with the requirements of division (C) of this section, and the contractor or its subcontractor encounters underground utility facilities in the construction area that would have been shown on the plans and specifications for such improvement had a protection service or owner of the underground utility facility who is not a member of a protection service whose name, address, and telephone number is provided by the public authority been contacted, then the contractor, upon notification to the public authority, is entitled to an increase to the contract price for itself or its subcontractor for any additional work that must be undertaken or additional time that will be required and is entitled to an extension of the completion date of the contract for the period of time of any delays to the construction of the public improvement.

In the event of a dispute as to the application of this section, procedures may be commenced under the applicable terms of the construction contract, or if the contract contains no provision for final resolution of the dispute, pursuant to the procedures for arbitration in Chapter 2711. of the Revised Code.

This section does not affect rights between the contractors and the public authority for any increase in contract price or additional time to perform the contract when the public authority complies with division (B) of this section.

Any public authority who complies with the requirements of division (B) of this section and any contractor or its subcontractor who complies with the requirements of division (C) of this section shall not be responsible to the owner of the underground utility facility if underground utility lines are encountered not as marked in accordance with the provisions of division (C) of this section by the owner of the underground utility facility, unless the contractor or its subcontractor has actual notice of the underground utility facility. Except as noted in this division, this section does not affect rights between the contractor or its subcontractor and the owner of the underground utility facility for failure to mark or erroneously marking utility lines. The public authority shall not make as a requirement of any contract for public improvement any change in responsibilities between the public authority and the owners of the underground utility facilities in connection with damage, injury, or loss to any property in connection with underground utility facilities.

The contractor or its subcontractor shall alert immediately the occupants of nearby premises as to any emergency that the contractor or subcontractor may create or discover at or near such premises. The contractor or its subcontractor shall report immediately to the owner or operator of the underground facility any break or leak on its lines or any dent, gouge, groove, or other damage to such lines or to their coating or cathodic protection, made or discovered in the course of their excavation.

(E) This section does not affect rights between the public authority and the owners of the underground utility facilities for responsibility for costs involving removal, relocation, or protection of existing underground utility facilities, or for costs for delays occasioned thereby.

Amended by 129th General AssemblyFile No.198, HB 458, §1, eff. 3/27/2013.

Effective Date: 01-08-1993; 2007 SB117 09-24-2007

153.65 Professional design services definitions.

As used in sections 153.65 to 153.73 of the Revised Code:

(A)

(1) "Public authority" means the state, a state institution of higher education as defined in section 3345.011 of the Revised Code, a county, township, municipal corporation, school district, or other political subdivision, or any public agency, authority, board, commission, instrumentality, or special purpose district of the state or of a political subdivision.

(2) "Public authority" does not include the director of transportation when exercising the director's authority to prepare plans for, acquire rights-of-way for, construct, or maintain roads, highways, or bridges.

(B) "Professional design firm" means any person legally engaged in rendering professional design services.

(C) "Professional design services" means services within the scope of practice of an architect or landscape architect registered under Chapter 4703. of the Revised Code or a professional engineer or surveyor registered under Chapter 4733. of the Revised Code.

(D) "Qualifications" means all of the following:

(1)

(a) For a professional design firm, competence to perform the required professional design services as indicated by the technical training, education, and experience of the firm's personnel, especially the technical training, education, and experience of the employees within the firm who would be assigned to perform the services;

(b) For a design-build firm, competence to perform the required design-build services as indicated by the technical training, education, and experience of the design-build firm's personnel and key consultants, especially the technical training, education, and experience of the employees and consultants of the design-build firm who would be assigned to perform the services, including the proposed architect or engineer of record.

(2) Ability of the firm in terms of its workload and the availability of qualified personnel, equipment, and facilities to perform the required professional design services or design-build services competently and expeditiously;

(3) Past performance of the firm as reflected by the evaluations of previous clients with respect to such factors as control of costs, quality of work, and meeting of deadlines;

(4) Any other relevant factors as determined by the public authority;

(5) With respect to a design-build firm, compliance with sections 4703.182, 4703.332, and 4733.16 of the Revised Code, including the use of a licensed design professional for all design services.

(E) "Design-build contract" means a contract between a public authority and another person that obligates the person to provide design-build services.

(F) "Design-build firm" means a person capable of providing design-build services.

(G) "Design-build services" means services that form an integrated delivery system for which a person is responsible to a public authority for both the design and construction, demolition, alteration, repair, or reconstruction of a public improvement.

(H) "Architect or engineer of record" means the architect or engineer that serves as the final signatory on the plans and specifications for the design-build project.

(I) "Criteria architect or engineer" means the architect or engineer retained by a public authority to prepare conceptual plans and specifications, to assist the public authority in connection with the establishment of the design criteria for a design-build project, and, if requested by the public authority, to serve as the representative of the public authority and provide, during the design-build project, other design and construction administration services on behalf of the public authority, including but not limited to, confirming that the design prepared by the design-build firm reflects the original design intent established in the design criteria package.

(J) "Open book pricing method" means a method in which a design-build firm provides the public authority, at the public authority's request, all books, records, documents, contracts, subcontracts, purchase orders, and other data in its possession pertaining to the bidding, pricing, or performance of a contract for design-build services awarded to the design-build firm.

Amended by 130th General Assembly File No. 7, HB 51, §101.01, eff. 7/1/2013.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Effective Date: 09-26-2003

153.66 Submitting statement of qualifications.

(A) Each public authority planning to contract for professional design services or design-build services shall encourage professional design firms and design-build firms to submit a statement of qualifications and update the statements at regular intervals.

(B) Notwithstanding any contrary requirements in sections 153.65 to 153.70 of the Revised Code, for every design-build contract, each public authority planning to contract for design-build services shall evaluate the statements of qualifications submitted by design-build firms for the project, including the qualifications of the design-build firm's proposed architect or engineer of record, in consultation with the criteria architect or engineer before selecting a design-build firm pursuant to section 153.693 of the Revised Code.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Effective Date: 11-24-1995

153.67 Announcing contracts available for professional design or design-build services.

Each public authority planning to contract for professional design services or design-build services shall publicly announce all contracts available from it for such services. The announcements shall:

(A) Be made in a uniform and consistent manner and shall be made sufficiently in advance of the time that responses must be received from qualified professional design firms or design-build firms for the firms to have an adequate opportunity to submit a statement of interest in the project;

(B) Include a general description of the project, a statement of the specific professional design services or design-build services required, and a description of the qualifications required for the project;

(C) Indicate how qualified professional design firms or design-build firms may submit statements of qualifications in order to be considered for a contract to design or design-build the project;

(D) Be sent to any of the following that the public authority considers appropriate:

(1) Design-build firms, including contractors or other entities that seek to perform the work as a design-build firm;

(2) Architect, landscape architect, engineer, and surveyor associations ;

(3) The news media ;

(4) Any publications or other public media , including electronic media.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Effective Date: 11-24-1995

153.68 Instituting prequalification requirements.

Any public authority planning to contract for professional design services may institute prequalification requirements for professional design firms seeking to provide services to the public authority and may require that each prequalified firm maintain a current statement of qualifications on file with the public authority. The prequalification requirements shall be based on factors such as those set out in division (D) of section 153.65 of the Revised Code.

Effective Date: 11-24-1995

153.69 Evaluating and selecting firms.

For every professional design services contract, each public authority planning to contract for professional design services shall evaluate the statements of qualifications submitted by professional design firms specifically regarding the project, and may hold discussions with individual firms to explore further the firms' statements of qualifications, the scope and nature of the services the firms would provide, and the various technical approaches the firms may take toward the project. Following this evaluation, the public authority shall:

(A) Select and rank no fewer than three firms which it considers to be the most qualified to provide the required professional design services, except when the public authority determines in writing that fewer than three qualified firms are available in which case the public authority shall select and rank those firms;

(B) Negotiate a contract with the firm ranked most qualified to perform the required services at a compensation determined in writing to be fair and reasonable to the public authority. Contract negotiations shall be directed toward:

(1) Ensuring that the professional design firm and the agency have a mutual understanding of the essential requirements involved in providing the required services;

(2) Determining that the firm will make available the necessary personnel, equipment, and facilities to perform the services within the required time;

(3) Agreeing upon compensation which is fair and reasonable, taking into account the estimated value, scope, complexity, and nature of the services.

(C) If a contract is negotiated with the firm ranked to perform the required services most qualified, the public authority shall, if applicable under section 127.16 of the Revised Code, request approval of the board to make expenditures under the contract.

(D) Upon failure to negotiate a contract with the firm ranked most qualified, the public authority shall inform the firm in writing of the termination of negotiations and may enter into negotiations with the firm ranked next most qualified. If negotiations again fail, the same procedure may be followed with each next most qualified firm selected and ranked pursuant to division (A) of this section, in order of ranking, until a contract is negotiated.

(E) Should the public authority fail to negotiate a contract with any of the firms selected pursuant to division (A) of this section, the public authority may select and rank additional firms, based on their qualifications, and negotiations may continue as with the firms selected and ranked initially until a contract is negotiated.

(F) Nothing in this section affects a public authority's right to accept or reject any or all proposals in whole or in part.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Effective Date: 11-24-1995

153.691 No fee estimate on contract for professional design services.

No public authority planning to contract for professional design services under section 153.69 of the Revised Code shall require any form of fee estimate, fee proposal, or other estimate or measure of compensation prior to selecting and ranking professional design firms, except in instances when firms are selected and ranked by a state agency from a list of prequalified firms created under section 153.68 of the Revised Code and the state agency's payment of funds for the professional design services has been preapproved by the controlling board.

Effective Date: 09-26-2003

153.692 Obtaining services of criteria architect or engineer.

For every design-build contract, the public authority planning to contract for design-build services shall first obtain the services of a criteria architect or engineer by doing either of the following:

(A) Contracting for the services consistent with sections 153.65 to 153.70 of the Revised Code;

(B) Obtaining the services through an architect or engineer who is an employee of the public authority and notifying the Ohio facilities construction commission before the services are performed.

Amended by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Added by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

153.693 Evaluation of design-build firms.

(A) For every design-build contract, the public authority planning to contract for design-build services, in consultation with the criteria architect or engineer, shall evaluate the statements of qualifications submitted by design-build firms specifically regarding the project, including the design-build firm's proposed architect or engineer of record. Following this evaluation, the public authority shall:

(1) Select and rank not fewer than three firms which it considers to be the most qualified to provide the required design-build services, except that the public authority shall select and rank fewer than three firms when the public authority determines in writing that fewer than three qualified firms are available;

(2) Provide each selected design-build firm with all of the following:

(a) A description of the project and project delivery;

(b) The design criteria produced by the criteria architect or engineer under section 153.692 of the Revised Code;

(c) A preliminary project schedule;

(d) A description of any preconstruction services;

(e) A description of the proposed design services;

(f) A description of a guaranteed maximum price, including the estimated level of design on which such guaranteed maximum price is based;

(g) The form of the design-build services contract;

(h) A request for a pricing proposal that shall be divided into a design services fee and a preconstruction and design-build services fee. The pricing proposal of each design-build firm shall include at least all of the following:

(i) A list of key personnel and consultants for the project;

(ii) Design concepts adhering to the design criteria produced by the criteria architect or engineer under section 153.692 of the Revised Code;

(iii) The design-build firm's statement of general conditions and estimated contingency requirements;

(iv) A preliminary project schedule.

(3) Evaluate the pricing proposal submitted by each selected firm and, at its discretion, hold discussions with each firm to further investigate its pricing proposal, including the scope and nature of the firm's proposed services and potential technical approaches;

(4) Rank the selected firms based on the public authority's evaluation of the value of each firm's pricing proposal, with such evaluation considering each firm's proposed costs and qualifications;

(5) Enter into contract negotiations for design-build services with the design-build firm whose pricing proposal the public authority determines to be the best value under this section.

(B) In complying with division (A)(5) of this section, contract negotiations shall be directed toward:

(1) Ensuring that the design-build firm and the public authority mutually understand the essential requirements involved in providing the required design-build services, the provisions for the use of contingency funds, and the terms of the contract, including terms related to the possible distribution of savings in the final costs of the project;

(2) Ensuring that the design-build firm shall be able to provide the necessary personnel, equipment, and facilities to perform the design-build services within the time required by the design-build construction contract;

(3) Agreeing upon a procedure and schedule for determining a guaranteed maximum price using an open book pricing method that shall represent the total maximum amount to be paid by the public authority to the design-build firm for the project and that shall include the costs of all work, the cost of its general conditions, the contingency, and the fee payable to the design-build firm.

(C) If the public authority fails to negotiate a contract with the design-build firm whose pricing proposal the public authority determines to be the best value as determined under this section, the public authority shall inform the design-build firm in writing of the termination of negotiations. The public authority may then do the following:

(1) Negotiate a contract with a design-build firm ranked next highest under this section following the negotiation procedure described in this section;

(2) If negotiations fail with the design-build firm under division (C)(1) of this section, negotiate a contract with the design-build firm ranked next highest under this section following the negotiation procedure described in this section and continue negotiating with the design-build firms selected under this section in the order of their ranking until a contract is negotiated.

(D) If the public authority fails to negotiate a contract with a design-build firm whose pricing proposal the public authority determines to be the best value as determined under this section, it may select additional design-build firms to provide pricing proposals to the public authority pursuant to this section or may select an alternative delivery method for the project.

(E) The public authority may provide a stipend for pricing proposals received from design-build firms.

(F) Nothing in this section affects a public authority's right to accept or reject any or all proposals in whole or in part.

Added by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

153.694 Conflicts of interest.

If a professional design firm selected as the criteria architect or engineer creates the preliminary criteria and design criteria for a project and provides professional design services to a public authority to assist that public authority in evaluating the design-build requirements provided to the public authority by a design-build firm pursuant to section 153.692 of the Revised Code, that professional design firm shall not provide any design-build services pursuant to the design-build contract under section 153.693 of the Revised Code for the project for which the professional design firm was selected as the criteria architect or engineer.

Added by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

153.70 Requiring professional liability insurance.

(A) Except for any person providing professional design services of a research or training nature, any person rendering professional design services to a public authority or to a design-build firm, including a criteria architect or engineer and person performing architect or engineer of record services, shall have and maintain, or be covered by, during the period the services are rendered, a professional liability insurance policy or policies with a company or companies that are authorized to do business in this state and that afford professional liability coverage for the professional design services rendered. The insurance shall be in amount considered sufficient by the public authority. At the public authority's discretion, the design-build firm shall carry contractor's professional liability insurance and any other insurance the public authority considers appropriate.

(B) The requirement for professional liability insurance set forth in division (A) of this section may be waived by the public authority for good cause, or the public authority may allow the person providing the professional design services to provide other assurances of financial responsibility.

(C) Before construction begins pursuant to a contract for design-build services with a design-build firm, the design-build firm shall provide a surety bond to the public authority in accordance with rules adopted by the director of administrative services under Chapter 119. of the Revised Code.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Effective Date: 11-24-1995

153.71 Administrative rules.

Any public authority planning to contract for professional design services or design-build services may adopt, amend, or rescind rules, in accordance with Chapter 119. of the Revised Code, to implement sections 153.66 to 153.70 of the Revised Code. Sections 153.66 to 153.70 of the Revised Code do not apply to either of the following:

(A) Any project with an estimated professional design fee of less than fifty thousand dollars if both of the following requirements are met:

(1) The public authority selects a single design professional or firm from among those that have submitted a current statement of qualifications within the immediately preceding year, as provided under section 153.68 of the Revised Code, based on the public authority's determination that the selected design professional or firm is the most qualified to provide the required professional design services;

(2) The public authority and the selected design professional or firm comply with division (B) of section 153.69 of the Revised Code with respect to the negotiation of a contract.

(B) Any project determined in writing by the public authority head to be an emergency requiring immediate action including, but not limited to, any projects requiring multiple contracts let as part of a program requiring a large number of professional design firms of the same type

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Effective Date: 11-24-1995

153.72 Authority of design-build firm.

A design-build firm contracted for design-build services by a public authority may do either of the following:

(A) Perform design, construction, demolition, alteration, repair, or reconstruction work pursuant to such contract;

(B) Perform professional design services when contracted by a public authority for design-build services even if the design-build firm is not a professional design firm.

Added by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

153.73 Construction of statutes.

The requirements set forth in sections 153.65 to 153.72 of the Revised Code for the bidding, selection, and award of a contract for professional design services or design-build services by a public authority prevail in the event of any conflict with any other provision of this chapter.

Added by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

153.80 Reducing bond.

(A) A contract for the construction, demolition, alteration, repair, or reconstruction of a public improvement entered into on or after April 16, 1993, shall be deemed to include the provisions contained in division (B) of this section.

(B)

(1) In regard to any bond filed by the contractor for the work contracted, the contracting authority, in its sole discretion, may reduce the bond required by twenty-five per cent of the total amount of the bond after at least fifty per cent of the work contracted for has been completed and by fifty per cent after at least seventy-five per cent of the work contracted for has been completed provided that all of the following conditions are met:

(a) The contracting authority determines that the percentage of the work that has been completed at the time of determination has been satisfactorily performed and meets the terms of the contract, including a provision in regard to the time when the whole or any specified portion of work contemplated in the contract must be completed;

(b) The contracting authority determines that no disputed claim caused by the contractor exists or remains unresolved;

(c) The successful bid upon which the contract is based was not more than ten per cent below the next lowest bid or not more than ten per cent below a cost estimate for the work as published by the contracting authority.

(2) In regard to the amount of any funds retained, the contracting authority, in its sole discretion, may reduce the amount of funds retained pursuant to sections 153.12 and 153.14 of the Revised Code for the faithful performance of work by fifty per cent of the amount of funds required to be retained pursuant to those sections, provided that the surety on the bond remains liable for all of the following that are caused due to default by the contractor:

(a) Completion of the job;

(b) All delay claims;

(c) All liquidated damages;

(d) All additional expenses incurred by the contracting authority.

(C) As used in this section:

(1) "Contracting authority" means an officer, board, or other authority of the state, a county, township, municipal corporation, or school district, or of any other political subdivision of the state, authorized to contract for the construction, demolition, alteration, repair, or reconstruction of a public improvement, and any construction manager at risk as defined in section 9.33 of the Revised Code or design-build firm as defined in section 153.65 of the Revised Code awarding a subcontract, but does not include an officer, board, or other authority of the department of transportation.

(2) "Delay claim" means a claim that arises due to default on provisions in a contract in regard to the time when the whole or any specified portion of work contemplated in the contract must be completed.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Effective Date: 04-16-1993

153.99 Penalty.

(A) Whoever violates section 153.58 of the Revised Code shall be fined not more than one thousand dollars.

(B) A person who purchases or provides steel products in violation of division (A) of section 153.011 of the Revised Code shall pay a civil penalty equal to one and one-half times the purchase price of the steel products purchased or provided in violation of that section.

Effective Date: 03-29-2001