Chapter 5513: MATERIALS - PURCHASE; SALE; EXCHANGE

5513.01 [Effective Until 9/15/2014] Purchases of machinery, materials, and supplies - participation in contracts.

(A) All purchases of machinery, materials, supplies, or other articles that the director of transportation makes shall be in the manner provided in this section. In all cases except those in which the director provides written authorization for purchases by district deputy directors of transportation, all such purchases shall be made at the central office of the department of transportation in Columbus. Before making any purchase at that office, the director, as provided in this section, shall give notice to bidders of the director's intention to purchase. Where the expenditure does not exceed the amount applicable to the purchase of supplies specified in division (B) of section 125.05 of the Revised Code, as adjusted pursuant to division (D) of that section, the director shall give such notice as the director considers proper, or the director may make the purchase without notice. Where the expenditure exceeds the amount applicable to the purchase of supplies specified in division (B) of section 125.05 of the Revised Code, as adjusted pursuant to division (D) of that section, the director shall give notice by posting for not less than ten days a written, typed, or printed invitation to bidders on a bulletin board, which shall be located in a place in the offices assigned to the department and open to the public during business hours. Producers or distributors of any product may notify the director, in writing, of the class of articles for the furnishing of which they desire to bid and their post-office addresses, in which case copies of all invitations to bidders relating to the purchase of such articles shall be mailed to such persons by the director by regular first class mail at least ten days prior to the time fixed for taking bids. The director also may mail copies of all invitations to bidders to news agencies or other agencies or organizations distributing information of this character. Requests for invitations shall not be valid nor require action by the director unless renewed, either annually or after such shorter period as the director may prescribe by a general rule. The invitation to bidders shall contain a brief statement of the general character of the article that it is intended to purchase, the approximate quantity desired, and a statement of the time and place where bids will be received, and may relate to and describe as many different articles as the director thinks proper, it being the intent and purpose of this section to authorize the inclusion in a single invitation of as many different articles as the director desires to invite bids upon at any given time. Invitations issued during each calendar year shall be given consecutive numbers, and the number assigned to each invitation shall appear on all copies thereof. In all cases where notice is required by this section, sealed bids shall be taken, on forms prescribed and furnished by the director, and modification of bids after they have been opened shall not be permitted.

(B) The director may permit the Ohio turnpike and infrastructure commission, any political subdivision, and any state university or college to participate in contracts into which the director has entered for the purchase of machinery, materials, supplies, or other articles. The turnpike and infrastructure commission and any political subdivision or state university or college desiring to participate in such purchase contracts shall file with the director a certified copy of the bylaws or rules of the turnpike and infrastructure commission or the ordinance or resolution of the legislative authority, board of trustees, or other governing board requesting authorization to participate in such contracts and agreeing to be bound by such terms and conditions as the director prescribes. Purchases made by the turnpike and infrastructure commission, political subdivisions, or state universities or colleges under this division are exempt from any competitive bidding required by law for the purchase of machinery, materials, supplies, or other articles.

(C) As used in this section:

(1) "Political subdivision" means any county, township, municipal corporation, conservancy district, township park district, park district created under Chapter 1545. of the Revised Code, port authority, regional transit authority, regional airport authority, regional water and sewer district, county transit board, or school district as defined in section 5513.04 of the Revised Code.

(2) "State university or college" has the same meaning as in division (A)(1) of section 3345.32 of the Revised Code.

(3) "Ohio turnpike and infrastructure commission" means the commission created by section 5537.02 of the Revised Code.

Cite as R.C. § 5513.01

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

Amended by 128th General AssemblyFile No.56, HB 330, §1, eff. 3/24/2011.

Effective Date: 03-04-1998; 2008 HB562 09-22-2008

5513.01 [Effective 9/15/2014] Purchases of machinery, materials, and supplies - participation in contracts.

(A) The director of transportation shall make all purchases of machinery, materials, supplies, or other articles in the manner provided in this section. In all cases except those in which the director provides written authorization for purchases by district deputy directors of transportation, the director shall make all such purchases at the central office of the department of transportation in Columbus. Before making any purchase at that office, the director, as provided in this section, shall give notice to bidders of the director's intention to purchase. Where the expenditure does not exceed the amount applicable to the purchase of supplies specified in division (B) of section 125.05 of the Revised Code, as adjusted pursuant to division (D) of that section, the director shall give such notice as the director considers proper, or the director may make the purchase without notice. Where the expenditure exceeds the amount applicable to the purchase of supplies specified in division (B) of section 125.05 of the Revised Code, as adjusted pursuant to division (D) of that section, the director shall give notice by posting for not less than ten days a written, typed, or printed invitation to bidders on a bulletin board . The director shall locate the notice in a place in the offices assigned to the department and open to the public during business hours.

Producers or distributors of any product may notify the director, in writing, of the class of articles for the furnishing of which they desire to bid and their post-office addresses . In that circumstance, the director shall mail copies of all invitations to bidders relating to the purchase of such articles to such persons by regular first class mail at least ten days prior to the time fixed for taking bids. The director also may mail copies of all invitations to bidders to news agencies or other agencies or organizations distributing information of this character. Requests for invitations are not valid and do not require action by the director unless renewed by the director, either annually or after such shorter period as the director may prescribe by a general rule.

The director shall include in an invitation to bidders a brief statement of the general character of the article that it is intended to purchase, the approximate quantity desired, and a statement of the time and place where bids will be received, and may relate to and describe as many different articles as the director thinks proper, it being the intent and purpose of this section to authorize the inclusion in a single invitation of as many different articles as the director desires to invite bids upon at any given time. The director shall give invitations issued during each calendar year consecutive numbers, and ensure that the number assigned to each invitation appears on all copies thereof. In all cases where notice is required by this section, the director shall require sealed bids , on forms prescribed and furnished by the director . The director shall not permit the modification of bids after they have been opened .

(B) The director may permit the Ohio turnpike and infrastructure commission, any political subdivision, and any state university or college to participate in contracts into which the director has entered for the purchase of machinery, materials, supplies, or other articles. The turnpike and infrastructure commission and any political subdivision or state university or college desiring to participate in such purchase contracts shall file with the director a certified copy of the bylaws or rules of the turnpike and infrastructure commission or the ordinance or resolution of the legislative authority, board of trustees, or other governing board requesting authorization to participate in such contracts and agreeing to be bound by such terms and conditions as the director prescribes. Purchases made by the turnpike and infrastructure commission, political subdivisions, or state universities or colleges under this division are exempt from any competitive bidding required by law for the purchase of machinery, materials, supplies, or other articles.

(C) As used in this section:

(1) "Political subdivision" means any county, township, municipal corporation, conservancy district, township park district, park district created under Chapter 1545. of the Revised Code, port authority, regional transit authority, regional airport authority, regional water and sewer district, county transit board, school district as defined in section 5513.04 of the Revised Code, regional planning commission formed under section 713.21 of the Revised Code, regional council of government formed under section 167.01 of the Revised Code, or other association of local governments established pursuant to an agreement under sections 307.14 to 307.19 of the Revised Code.

(2) "State university or college" has the same meaning as in division (A)(1) of section 3345.32 of the Revised Code.

(3) "Ohio turnpike and infrastructure commission" means the commission created by section 5537.02 of the Revised Code.

Cite as R.C. § 5513.01

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

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

Amended by 128th General AssemblyFile No.56, HB 330, §1, eff. 3/24/2011.

Effective Date: 03-04-1998; 2008 HB562 09-22-2008

5513.02 Purchases with and without notice.

(A) Specifications describing the character of the articles that the department of transportation is proposing to purchase, and the conditions governing shipment and delivery, shall be kept on file at the department and open to public inspection throughout the time during which an invitation to bidders is required to be posted. The director of transportation may require bids to be accompanied by a certified check payable to the director in an amount fixed by the director and stated in the invitation to bidders. Persons, firms, or corporations desiring to bid on more than one invitation shall be relieved from furnishing certified checks with their bids provided they first furnish a bond payable to the state, in an amount and with surety approved by the director, conditioned for the faithful performances of all contracts that may be awarded to them, and otherwise conditioned as the director requires. All bids shall be publicly opened and read at the time and place mentioned in the notice. All purchases shall be made by the director from the lowest responsive and responsible bidder for each item in accordance with section 9.312 of the Revised Code, except where the director has established in the bidding documents a provision for multiple awards for the purchase of items such as asphalt, aggregates, machinery parts, and others as the director determines necessary, and except that in the purchase of machinery, equipment, or supplies for which fixed and definite specifications cannot be prepared, the director may purchase the articles meeting the general specifications prescribed and which the director finds are most suitable for the uses intended. Sections 5513.01 to 5513.04 of the Revised Code shall apply to the exchange of machinery and equipment and in force account operations where the director desires to combine in one order the furnishing, hauling, and placing of material. The director may purchase or authorize the purchase without notice, or upon such notice as the director prescribes, of materials that in the director's judgment may be required for the immediate repair of roads or bridges destroyed or damaged by flood, landslide, or other casualty. No person shall place separate orders for the purpose of defeating such sections, and contracts of purchase shall not be valid unless made in conformity with this section.

(B) Section 125.092 and division (B) of section 125.11 of the Revised Code apply to the purchase of products by the director pursuant to sections 5513.01 to 5513.04 of the Revised Code.

Cite as R.C. § 5513.02

Amended by 128th General AssemblyFile No.20, SB 131, §1, eff. 5/31/2010.

Effective Date: 09-16-1998

5513.03 Delegation of authority to purchase.

The director of transportation may authorize district deputy directors of transportation to purchase materials, small tools, repair parts for machinery and equipment, and supplies at their respective offices. Before conferring such authority upon deputies, the director shall adopt a regulation prescribing the authority to the deputies in this respect, the conditions under which and the manner in which such purchases may be made by deputies, and the notice that deputies shall give to prospective bidders. No deputy shall make any purchase except in conformity with the regulation. The notice that the deputies shall give to prospective bidders shall be at least the equal as to character and time of that required to be given by the director. Copies of all notices that deputies may be required to post shall be mailed to the director via regular first class mail not later than the first day on which such notices are required to be posted by the deputies, and upon receipt by the director such copies shall be posted on the bulletin board in the director's offices.

Cite as R.C. § 5513.03

Effective Date: 09-17-1996

5513.04 Disposition of property unfit for use or not needed by department of transportation.

(A) Notwithstanding sections 125.12 , 125.13 , and 125.14 of the Revised Code, the director of transportation may sell, transfer, or otherwise dispose of any item of personal property that is not needed by the department of transportation. The director may exchange any such item, in the manner provided for in this chapter, and pay the balance of the cost of such new item from funds appropriated to the department. The director also may accept a credit voucher or cash in an amount mutually agreed upon between a vendor and the department. The director shall apply the amount of any credit voucher to future purchases from that vendor and shall deposit any cash into the state treasury to the credit of the highway operating fund created in section 5735.291 of the Revised Code.

(B)

(1) The director may sell or transfer any structure, machinery, tools, equipment, parts, material, office furniture, or supplies unfit for use or not needed by the department of transportation to any agency of the state or a political subdivision of the state without notice of the proposed disposal and upon any mutually agreed upon terms.

(2) Before selling any passenger vehicle, van, truck, trailer, or other heavy equipment , the director shall notify each county, municipal corporation, township, and school district of the sale. The director shall similarly notify the board of trustees of any regional water and sewer district established under Chapter 6119. of the Revised Code, when the board has forwarded to the director the district's name and current business address. For the purposes of this division, the name and current business address of a regional water and sewer district shall be forwarded to the director once each year during any year in which the board wishes the notification to be given. The notice required by this division may be given by the most economical means considered to be effective. If after seven days following mailing or other issuance of the director's notice, no county, municipal corporation, township, regional water and sewer district, educational service center, or school district has notified the director that it wishes to purchase any such vehicle or other heavy equipment, the director may proceed with the sale under division (C) of this section.

In the discretion of the director, the director may transfer any vehicle or other heavy equipment that is unfit for use or not needed by the department to any agency of the state or political subdivision of the state without advertising for bids and upon mutually agreed upon terms.

(3) The director may sell or otherwise dispose of any structure or structural materials salvaged on the state highway system that in the director's judgment are no longer needed by the department, or that, through wear or obsolescence, have become unfit for use. The director may transfer the structure or materials to counties, municipal corporations, school districts, or other political subdivisions without advertising for bids and upon mutually agreed upon terms. The director may transfer the structure or structural materials to a nonprofit corporation upon being furnished a copy of a contract between the nonprofit corporation and a county, municipal corporation, or other political subdivision to which the structure is to be moved pursuant to which the nonprofit corporation must make the structure or structural materials available for rent or sale within a period of three months after becoming available for occupancy to an individual or family which has been displaced by governmental action or which occupies substandard housing as certified by such political subdivision, without advertising for bids. Any such transfers shall be for such consideration as shall be determined by the director to be fair and reasonable, and shall be upon such terms and specifications with respect to performance and indemnity as shall be determined necessary by the director.

When, in carrying out an improvement that replaces any structure or structural materials, it is advantageous to dispose of the structure or structural materials by providing in the contract for the improvement that the structure or structural materials, or any part thereof, shall become the property of the contractor, the director may so proceed.

(C)

(1) Any item that has not been sold or transferred as provided in division (B) of this section may be sold at a public sale, as determined by the director. The director may authorize such sale by the deputy directors of transportation, and the proceedings of such sale shall be conducted in the same manner as provided for sales by the director. The director may establish a minimum price for any item to be sold and may establish any other terms, conditions, and manner for the sale of a particular item, which may be on any basis the director determines to be most advantageous to the department. The director may reject any offer or bid for an item. The director may remove any item from a sale if it develops that a public authority has a use for the item. In any notice of a sale, the director shall include a brief description of the item to be sold, the terms and conditions of the sale, and a statement of the time, place, and manner of the sale.

(2)

(a) If, in the opinion of the director, any item to be sold has an estimated fair market value in excess of one thousand dollars, the director shall post a notice of the sale , for not less than ten days, on the official web site of the department. If the district where the property is located maintains a web site, notice of the sale also shall be posted on that web site. At least ten days before the sale, the director also shall publish one notice of the sale in a periodical or newspaper of general circulation in the region in which the items are located. A sale under division(C)(2)(a) of this section shall be made to the highest responsible bidder.

(b) If, in the opinion of the director, any item to be sold has an estimated fair market value of one thousand dollars or less, the director is not required to advertise the proposed sale except by notice posted on the official web site of the department. The notice shall be posted for at least five working days . A sale under division (C)(2)(b) of this section shall be made to the highest responsible bidder.

(D) Proceeds of any sale described in this section shall be paid into the state treasury to the credit of the highway operating fund or any other fund of the department as determined by the director.

(E) Once each year, the state board of education shall provide the director with a current list of the addresses of all school districts and educational service centers in the state.

(F) As used in this section:

(1) "Personal property" means any structure or structural material, machinery, tools, equipment, parts, material, office furniture, supplies, passenger vehicle, van, truck, trailer, or other heavy equipment of the department;

(2) "School district" means any city school district, local school district, exempted village school district, cooperative education school district, and joint vocational school district, as defined in Chapter 3311. of the Revised Code.

(3) "Sale" means fixed price sale, live or internet auction, or any other type of sale determined by the director.

Cite as R.C. § 5513.04

Effective Date: 06-30-1997; 03-29-2005

5513.05 Article failing to conform to specifications and conditions prescribed by director.

(A) If any article furnished by a vendor in the performance of a contract or purchase order fails to conform to the specifications and conditions prescribed by the director of transportation or to any sample of the article submitted by the vendor, the director may reject the article. Without additional expense to the department of transportation, the vendor shall reclaim and remove any rejected article that has been delivered and immediately shall replace all rejected articles with articles that conform to the specifications and conditions or samples. Notwithstanding sections 5513.01 and 5513.02 of the Revised Code, if the vendor does not immediately replace the rejected articles with conforming articles, the director may cancel the contract or purchase order and purchase the article without using a notice and bidding procedure. In an emergency situation as determined by the director, the director immediately may purchase any necessary replacement article. The director may deduct from any moneys due or that may thereafter become due to the vendor who provided the rejected article the difference between the price named in the canceled contract or purchase order with the vendor and the actual cost of the article purchased by the department in substitution for that due from the vendor.

(B) Notwithstanding sections 5513.01 and 5513.02 of the Revised Code, if a vendor fails to make prompt delivery of any article, and the delivery is delayed by circumstances other than fire, strike, freight embargo, or an act of God or a government, the director may cancel the contract or purchase order and purchase the article without using a notice and bidding procedure. The director may deduct from any moneys due or that may thereafter become due to the vendor who failed to promptly deliver the article the difference between the price named in the canceled contract or purchase order with the vendor and the actual cost of the article purchased by the department in substitution for that due from the vendor.

(C) The department may recover from a vendor who fails to promptly provide conforming articles any incidental or consequential damages as defined in section 1302.89 of the Revised Code incurred by the department in promptly obtaining the conforming articles.

(D) The rights and remedies established in this section are not exclusive and are in addition to any other available rights and remedies.

Cite as R.C. § 5513.05

Effective Date: 03-13-1997

5513.06 Debarring vendor from consideration for contract award.

(A) The director of transportation may debar a vendor from consideration for contract awards upon a finding based upon a reasonable belief that the vendor has done any of the following:

(1) Abused the solicitation process by repeatedly withdrawing bids before purchase orders or contracts are issued or failing to accept orders based upon firm bids;

(2) Failed to substantially perform a contract according to its terms, conditions, and specifications within specified time limits;

(3) Failed to cooperate in monitoring contract performance by refusing to provide information or documents required in a contract, failed to respond and correct matters related to complaints to the vendor, or accumulated repeated justified complaints regarding performance of a contract;

(4) Attempted to influence a public employee to breach ethical conduct standards;

(5) Colluded with other bidders to restrain competition by any means;

(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 vendor's business integrity;

(7) Been convicted 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) Has been debarred by another state or by any agency or department of the federal government;

(10) Violated any other responsible business practice or performed in an unsatisfactory manner as determined by the director.

(B) When the director reasonably believes that grounds for debarment exist, the director shall send the vendor a notice of proposed debarment. If the vendor is a partnership, association, or corporation, the director also may debar from consideration for contract awards any partner of the partnership, or the officers and directors of the association or corporation, being debarred. When the director reasonably believes that grounds for debarment exist, the director shall send the individual involved a notice of proposed debarment. A notice of proposed debarment shall indicate the grounds for the debarment of the vendor or individual and the procedure for requesting a hearing. The notice and hearing shall be in accordance with Chapter 119. of the Revised Code. If the vendor or individual does not respond with a request for a hearing in the manner specified in Chapter 119. of the Revised Code, the director shall issue the debarment decision without a hearing and shall notify the vendor or individual of the decision by certified mail, return receipt requested. The debarment period may be of any length determined by the director and the director may modify or rescind the debarment at any time. During the period of debarment, the director shall not include on a bidder list or consider for a contract award any partnership, association, or corporation affiliated with a debarred individual. After the debarment period expires, the vendor or individual, and any partnership, association, or corporation affiliated with the individual, may reapply for inclusion on bidder lists through the regular application process.

Cite as R.C. § 5513.06

Effective Date: 06-30-1997

5513.07 Policy of preference for American products.

(A) The director of transportation shall adopt a policy for use by the department of transportation in giving preference to United States products. The policy shall include criteria and procedures for determining that a product is produced or mined in the United States and shall address information to be submitted by bidders as to the nature of the product and the location where it is produced or mined. The policy may include waivers and such other requirements or procedures reasonably necessary to implement the system of preferences established pursuant to this section. In adopting the policy, the director shall consider, and to the extent possible and appropriate, shall conform to the requirements of the federal "Buy America Act," 47 Stat. 1520 (1933), 41 U.S.C. 10a-10 d, as amended, and to the regulations adopted thereunder.

(B) Prior to awarding a contract under section 5513.02 of the Revised Code, the director shall evaluate the bids received to determine if a product is produced or mined in the United States. The director shall first reject bids that offer products that have not been or that will not be produced or mined in the United States, provided that the director is not required to reject such bids if the rejection would result in an excessive price for the product or in acquiring a disproportionately inferior product. When the system of preferences is in effect, no person with responsibility for awarding contracts for the department shall do so in violation of the preference system.

Cite as R.C. § 5513.07

Effective Date: 03-13-1997