Chapter 164-1 | General Provisions

Rule 164-1-01 | Definitions.

• Effective: February 15, 2024
• Promulgated Under: 119.03

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

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

(B) "Change order" means a modification of a construction agreement to provide material or services to the project that were not specifically delineated in the project agreement or the project application.

(C) "Commission" means the Ohio public works commission.

(D) "Construction activities" include, but are not limited to, activities necessary for the erection, demolition, or rehabilitation of the facilities constituting the project including but not limited to: material handling (including off-site prefabrication), excavation, land clearance, demolition, utility relocation, grading, footings, form work, backfill, pipe installation, facility construction, repair, demolition, and associated necessary personal services. The work performed may include new work, additions, alterations, and repairs.

(E) "Construction costs" are the costs for construction activities.

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

(G) "District" means a division of the state created under section 164.03 of the Revised Code.

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

(I) "Engineering costs" are the costs for professional design and oversight of the project, including related services necessary for completing the design and assisting the applicant with construction of the project.

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

(K) "Expansion project cost" means the cost entailed in a project, or those elements of a project, that would replace existing infrastructure with infrastructure that has a designed service capacity substantially greater than the designed service capacity of the existing infrastructure, regardless of the relative physical dimensions of the existing or replacing infrastructure.

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

(M) "Local match" are the funds provided by the applicant to meet its required participation percentage which may not consist of public works funds, but may consist of applicant funds, funds received from other governmental agencies, private lenders, or consist of credits for project related expenses that the applicant paid or the value of work completed on the project by the applicant, also referred to as "local subdivision share of the cost of a capital improvement".

(N) "Mark-up costs" are costs above what was incurred by the supplier for personal property or services purchased from a third-party and invoiced to the subdivision.

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

(P) "Project" means the acquisition, construction, reconstruction, improvement, planning, and equipping of infrastructure pursuant to sections 164.01 to 164.16 of the Revised Code. In the case of funds allocated under division (B)(1) of section 164.08 of the Revised Code, "project" also includes resurfacing and improving of roads. For purposes of sections 164.20 to 164.27 of the Revised Code, this definition of project does not apply.

(Q) "Project agreement" is an agreement provided for in division (A)(1) of section 164.05 of the Revised Code or division (B)(1) of section 164.051 of the Revised Code.

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

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

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

(U) "Reimbursable prepaids" are project expenses paid by the applicant within one year of the date of the project agreement.

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

(W) "Replacement project cost" means the cost entailed in a project, or those elements of a project, that would replace existing infrastructure with infrastructure that has a designed service capacity substantially equivalent to the designed service capacity of the existing infrastructure, regardless of the relative physical dimensions of the existing or replacing infrastructure.

(X) "Scope change" means a substantive alteration of the proposed project.

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

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

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

(BB) "Subdivision", relative to any project pursuant to sections 164.01 to 164.16 of the Revised Code, means a county, municipal corporation, township, sanitary district, or regional water and sewer district.

(CC) "Workswise portal" is the online access maintained by the commission for processing applications and all appurtenant information relating to the programs administered by the commission.

Last updated February 15, 2024 at 2:18 PM

Supplemental Information

Authorized By: 164.05 Chap. 119
Amplifies: 164.01, 164.02, 164.03, 164.04, 164.05, 164.051, 164.06, 164.08, 164.16, 164.20, 164.27
Five Year Review Date: 2/15/2029
Prior Effective Dates: 9/18/1989

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

• Effective: September 10, 2018
• Promulgated Under: 119.03

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

(B) The director shall provide public notice of the hearing referred to in paragraph (A) of this rule by notifying the liaison individual designated for each district under paragraph (A) of rule 164-1-03 of the Administrative Code.

(C) The public notice referred to in paragraph (B) of this rule shall contain the following:

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

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

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

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

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

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

Last updated January 3, 2024 at 1:58 PM

Supplemental Information

Authorized By: 164.05
Amplifies: 164.05, 164.051
Five Year Review Date: 10/26/2028
Prior Effective Dates: 7/18/2013

Rule 164-1-03 | Districts; committee members.

• Effective: September 18, 1989
• Promulgated Under: 119.03

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

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

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

(a) Mailing address and telephone number;

(b) Name of committee or committees of membership;

(c) Appointment status under division (A) of section 164.04 of the Revised Code;

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

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

Last updated January 3, 2024 at 1:58 PM

Supplemental Information

Authorized By: –
Amplifies: –
Five Year Review Date:

Rule 164-1-10 | Open meeting requirements.

• Effective: April 20, 1998
• Promulgated Under: 119.03

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

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

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

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

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

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

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

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

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

Last updated January 3, 2024 at 1:59 PM

Supplemental Information

Authorized By: –
Amplifies: –
Five Year Review Date:

Rule 164-1-11 | Project selection criteria.

• Effective: February 15, 2024
• Promulgated Under: 119.03

(A) In selecting projects for submission to the director or the administrator, district committees, executive committees, and small government subcommittees, shall comply with all the requirements of divisions (B) and (D) of section 164.06 of the Revised Code. Any project application submitted for financial assistance by such a committee shall be accompanied with the committee's final score for the application. The committee shall retain the detailed scoring analysis for each application which shall be made available to the director or the administrator upon request.

(B) Each district committee, executive committee, or small government subcommittee shall only employ project selection criteria referenced in paragraph (A) of this rule, and shall not use any of the following unrelated criteria:

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

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

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

(C) Any project application that is not submitted in compliance with paragraph (A) or (B) of this rule may be disproved by the director or the administrator.

Last updated February 15, 2024 at 2:18 PM

Supplemental Information

Authorized By: 164.05, Chap. 119
Amplifies: 164.05, 164.051, 164.06
Five Year Review Date: 2/15/2029
Prior Effective Dates: 6/7/1989 (Emer.), 9/18/1989

Rule 164-1-13 | Useful life requirement.

• Effective: September 10, 2018
• Promulgated Under: 119.03

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

(B) In selecting requests for financial assistance that will be formally submitted to the director under section 164.06 of the Revised Code, a district committee or executive committee shall ensure, on a dollar-weighted basis, that the projects submitted from the district on an annual basis have, on average, a collective useful life of at least twenty years.

Last updated January 3, 2024 at 1:59 PM

Supplemental Information

Authorized By: 164.05
Amplifies: 164.05, 164.051, 164.06
Five Year Review Date: 10/26/2028
Prior Effective Dates: 6/7/1989 (Emer.)

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

• Effective: September 10, 2018
• Promulgated Under: 119.03

(A) In accordance with the requirements of division (D) of section 164.05 of the Revised Code, the director shall not approve, and the administrator shall not recommend, grants for repair and replacement of existing infrastructure in excess of ninety per cent of the estimated total cost of the repair and replacement project, or grants for new or expanded infrastructure in excess of fifty per cent of the estimated cost of the new or expansion elements of the project cost. If a project consists of expansion infrastructure cost, the entire project amount shall be subject to the fifty per cent limitation upon grant funding, unless the applicant supplies satisfactory evidence establishing a reasonable projected replacement project cost for the project. If an applicant establishes to the satisfaction of the director the replacement cost of the project, the fifty per cent limitation upon grants shall apply only to that portion of the expansion project cost which exceeds the projected replacement project cost.

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

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

Last updated January 3, 2024 at 1:59 PM

Supplemental Information

Authorized By: 164.05
Amplifies: 164.05, 164.051
Five Year Review Date: 10/26/2028

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

• Effective: February 15, 2024
• Promulgated Under: 119.03

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

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

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

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

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

(2) Expenditures or proposed expenditures for landscaping activities and improvements pertaining to infrastructure that go beyond basic requirements of post-construction repairing, stabilizing, and reseeding of land surfaces except for roundabouts for the purpose of serving as visual cues, and for green stormwater management options;

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

(4) Mark-up costs added by the subdivision;

(5) Administrative costs incurred for assessment procedures;

(6) Existing debt, except as it applies to the loan assistance program;

(7) Costs to provide temporary services to parties affected by the project except for those needed to enable the permanent infrastructure improvement;

(8) Administrative costs, including those incurred for grant management, and application and disbursement preparation.

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

Last updated February 15, 2024 at 2:18 PM

Supplemental Information

Authorized By: 164.05, Chap. 119
Amplifies: 164.05, 164.051, 164.06
Five Year Review Date: 2/15/2029
Prior Effective Dates: 6/7/1989 (Emer.), 9/18/1989, 9/10/2018

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

• Effective: September 18, 1989
• Promulgated Under: 119.03

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

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

Last updated January 3, 2024 at 1:59 PM

Supplemental Information

Authorized By: –
Amplifies: –
Five Year Review Date:

Rule 164-1-17 | Multi-subdivision projects.

• Effective: February 15, 2024
• Promulgated Under: 119.03

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

Last updated February 15, 2024 at 2:19 PM

Supplemental Information

Authorized By: 164.05, Chap. 119
Amplifies: 164.05
Five Year Review Date: 2/15/2029
Prior Effective Dates: 9/18/1989

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

• Effective: February 15, 2024
• Promulgated Under: 119.03

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

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

Last updated February 15, 2024 at 2:19 PM

Supplemental Information

Authorized By: 164.05, Chap. 119
Amplifies: 164.05, 164.051
Five Year Review Date: 2/15/2029
Prior Effective Dates: 9/18/1989

Rule 164-1-19 | Emergency projects.

• Effective: February 15, 2024
• Promulgated Under: 119.03

(A) The director will review a request for funding of an emergency project and may approve financial assistance on an emergency basis, depending on the availability of funds and the need, for any project adequately designed to rectify infrastructure conditions that pose an immediate threat to the health, safety, and welfare of the residents within the jurisdiction of the project applicant. With respect to such a project, the director may suspend any provision of Chapter 164-1 of the Administrative Code as necessary to deal with the emergency.

(B) In determining if emergency assistance is necessary, the director shall consider the following factors:

(1) The extent to which other existing infrastructure can meet the needs of the applicant's residents being served by the failing infrastructure;

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

(3) The degree to which the applicant is responsible for having created the emergency itself through neglect, inadequate maintenance, or failure to plan adequately for the replacement of infrastructure.

Last updated February 15, 2024 at 2:19 PM

Supplemental Information

Authorized By: 164.05, Chap. 119
Amplifies: 164.08
Five Year Review Date: 2/15/2029
Prior Effective Dates: 6/7/1989 (Emer.)

Rule 164-1-21 | Project agreement.

• Effective: February 15, 2024
• Promulgated Under: 119.03

(A) The chief executive officer of the project applicant shall execute a project agreement with the director pursuant to division (A)(1) of section 164.05 of the Revised Code or with the administrator pursuant to division (B)(1) of section 164.051 of the Revised Code for the purpose of implementing any project application approved pursuant to this chapter of the Administrative Code and Chapter 164. of the Revised Code.

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

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

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

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

(4) A designation of the grant funding percentage or percentages applicable to the project or to various elements of the project, which may not exceed the percentages specified in division (D) of section 164.05 of the Revised Code for repair and replacement of existing infrastructure and for new or expanded infrastructure which the commission shall pay for as a reimbursement to the applicant or direct payment to a vendor, in amounts determined by the director, up to the total grant funding provided;

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

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

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

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

(9) Provisions setting forth the scope of work for the project;

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

(C) A project agreement based upon an application for grants submitted under sections 164.01 to 164.19 of the Revised Code shall be signed and returned within forty-five days of the date it was issued by the commission, if the project agreement is not signed and returned to the commission within forty-five days the director may rescind the offer to fund the project. With respect to any project approved in connection with funds that the director allocates under division (B) of section 164.08 of the Revised Code for the second annual allocation, and for each annual allocation thereafter, the applicant shall formally certify the availability of funds regarding financing the full construction of the project with submission of the project application. If the project agreement relates to the provision of supplemental financial assistance pursuant to paragraph (B) of rule 164-1-23 of the Administrative Code, the director or the administrator may waive the provisions of this paragraph.

(D) If a project agreement provides for grant funding and loan funding, the commission has discretion regarding the order of payment of funds from either the grant or the loan, but will generally pay out grant funds first, unless the combination exceeds statutory limits for grants (i.e., ninety per cent for repair/replacement and fifty per cent for new/expansion). If a combination of grant/loan funding exceeds grant statutory limits, then with each disbursement request the commission may draw on the loan for that portion exceeding the statutory grant limit to ensure that the local match is met.

Last updated February 15, 2024 at 2:20 PM

Supplemental Information

Authorized By: 164.05, Chap. 119
Amplifies: 164.05, 164.051
Five Year Review Date: 2/15/2029
Prior Effective Dates: 6/7/1989 (Emer.)

Rule 164-1-23 | Project cost overruns and underruns.

• Effective: September 18, 1989
• Promulgated Under: 119.03

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

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

Last updated January 3, 2024 at 1:59 PM

Supplemental Information

Authorized By: –
Amplifies: –
Five Year Review Date:

Rule 164-1-24 | Project audit requirements.

• Effective: February 15, 2024
• Promulgated Under: 119.03

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

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

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

Last updated February 15, 2024 at 2:21 PM

Supplemental Information

Authorized By: 164.05, Chap. 119
Amplifies: 164.05, 164.051
Five Year Review Date: 2/15/2029

Rule 164-1-32 | Minority business enterprises.

• Effective: July 18, 2013
• Promulgated Under: 119.03

(A) In awarding contracts for projects to be financed, in whole or in part, under Chapter 164. of the Revised Code, the subdivision shall set aside a percentage of the purchases required by section 125.081 of the Revised Code for competition by only minority business enterprises, as defined in division (E)(1) of section 122.71 of the Revised Code. The percentage shall be applied to the total dollar value of equipment, materials, or supplies to be used to fund the project. The competitive selection procedures for such purchases shall be the same as for all other purchases that the subdivision is required to make, except that only minority business enterprises certified by the equal employment opportunity coordinator of the department of administrative services in accordance with the rules adopted under division (B)(1) of section 123.151 of the Revised Code shall be qualified to compete.

(B) In the case of purchases set aside pursuant to paragraph (A) of this rule, if no bid is submitted by a qualified minority business enterprise, the purchase shall be made according to usual procedures.

Last updated January 3, 2024 at 1:59 PM

Supplemental Information

Authorized By: 164.05
Amplifies: 164.07
Five Year Review Date: 10/26/2028

Rule 164-1-33 | District administrative costs.

• Effective: February 15, 2024
• Promulgated Under: 119.03

(A) The allowable expenses for each public works district that may be paid from state capital improvements fund and the local transportation improvement program fund pursuant to the district administrative costs program shall be the total of the district administrative costs in an amount as provided for by an act of the general assembly.

(B) Definitions:

(1) "District administrative costs"are the necessary direct staff and support costs, including the costs of the integrating committee contractor or the integrating committee support agency of the district integrating committees to perform their statutory responsibilities under sections 164.06 and 164.14 of the Revised Code.

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

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

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

(iii) The cost necessary for the district to comply with reporting requirements of the Ohio public works commission;

(iv) Reimbursement at the state mileage rate and the cost of any parking fees, no other travel fees will be reimbursed;

(v) The actual cost of photocopies and postage.

Allowable costs are limited to the direct costs of district administration associated with staff support and reimbursable expenses of an integrating committee supporting agency or integrating committee contractor as approved by the director. Such costs shall be set forth in the district administrative cost budget submitted to the director along with the work plan which shall delineate those services to be provided by any proposed integrating committee contractor or integrating committee supporting agency in performing the required activities of the work plan. Costs must be submitted within eighteen months of the project agreement date.

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

(i) Elected officials' salaries and benefits;

(ii) Applicant costs associated with the administration of any project considered or approved for funding by the commission;

(iii) Costs incurred by the applicant in conducting the normal business of the applicant, including proportional costs attributable to normal business activities, such as the cost of facilities, equipment, and salaries of supervisory staff.

(2) "Work plan" is the annual summary of functions and tasks to be performed on behalf of each district committee by the integrating committee contractor or the integrating committee supporting agency to meet their statutory responsibilities under sections 164.06 and 164.14 of the Revised Code.

(3) "District administrative costs budget" the estimated annual expenses to carry out the work plan of the district detailing direct costs for labor, materials, supplies, equipment, travel and support or contracted services, which are reviewed and approved by the district public works committee pursuant to section 164.04 of the Revised Code.

(4) "Integrating committee contractor" the entity nominated by the district integrating committee for approval by the director to provide administrative support to carry out its work plan and with whom the director enters into a professional services contract, or inter governmental service agreement on behalf of the district.

(5) "Integrating committee supporting agency" a local subdivision nominated by the district integrating committee for approval by the director to provide administrative support to carry out its work plan and with whom the director approves and authorizes reimbursement of allowable costs.

Last updated February 15, 2024 at 2:21 PM

Supplemental Information

Authorized By: 164.05, Chap. 119
Amplifies: 164.05, 164.06, 164.14
Five Year Review Date: 2/15/2029
Prior Effective Dates: 9/10/2018

Rule 164-1-34 | Contingency line items and change orders.

• Effective: February 15, 2024
• Promulgated Under: 119.03

If the project agreement contains a contingency line item, such funds may only be used to fund expenses incurred in change orders.

For an expense in a change order relating to quantity to be eligible for payment or reimbursement, it must be necessary and integral to complete physical scope of the project as described in the project agreement. Change order expenses eligible for funding may be for the reconciliation of estimated quantities to those quantities of work performed, adjustments for contract specified payments or deductions, changes in the contract documents or specifications, changes in materials requirements, differing site condition, and revision of a contract completion date. Change order expenses relating to material eligible for funding are changes in material requirements due to unavailability of the specified material, acceptance of a superior material at no additional cost, and acceptance of a non-specification material or a cost savings achieved using a non-specification material incorporated into the work that is performing satisfactorily.

For a change order relating to a change in scope expenses to be eligible for payment or reimbursement, it must be necessary and integral to complete the physical scope of the project as described in the project agreement. Change order expenses associated with a change in scope that are not necessary for the completion of the project specified in the project agreement, are the responsibility of the recipient, unless the district integrating committee has approved such work and the director or administrator has amended the project agreement accordingly. Change order documentation must be submitted with the disbursement request that includes the invoice containing the change order. Documentation supporting the request for funding a change order that includes a change in scope must include a description and explanation for the change order and be signed by the authorized project manager certifying the change order is necessary to complete the project as specified in the physical scope described in the project agreement. Documentation will be reviewed and, at the discretion of the director, approved for payment or reimbursement.

Last updated February 15, 2024 at 2:21 PM

Supplemental Information

Authorized By: 164.05, Chap. 119
Amplifies: 164.05
Five Year Review Date: 2/15/2029

Rule 164-1-35 | District methodologies.

• Effective: February 15, 2024
• Promulgated Under: 119.03

Districts shall, on an annual basis, create methodologies to be used in evaluating and ranking project applications submitted to the district. These methodologies shall be submitted to the director for review and approval or disapproval. If the director disapproves the submitted methodologies, the director shall communicate the reason(s) for disapproval to the district, and the district shall revise the methodologies and resubmit them to the director for approval. District methodologies must include a two-tier tiebreaker using the methodology's criteria. If a district is not going to change its methodologies, the district shall notify the director that the methodologies will not be changed. District proposed methodologies shall be submitted to the director along with the annual program schedule. The program schedule shall set forth the timing requirements for submission of applications and the processing of applications by the district and shall include a current roster of the district integrating committee and their contact information. Districts shall provide applicants with a period of no less than sixty days after the director's approval of their methodologies to accept project applications.

Last updated February 15, 2024 at 2:21 PM

Supplemental Information

Authorized By: 164.05, Chap. 119
Amplifies: 164.05
Five Year Review Date: 2/15/2029

Rule 164-1-36 | Engineering costs.

• Effective: February 15, 2024
• Promulgated Under: 119.03

Eligible project costs for engineering services will be reviewed by the commission and evaluated according to typical engineering expenses as determined by the director. The project agreement shall specify the amount of approved engineering expenses for all phases of design and inspection, with each delineated separately. Any engineering cost more than the amount approved in the project agreement shall be the responsibility of the applicant.

Last updated February 15, 2024 at 2:22 PM

Supplemental Information

Authorized By: 164.05, Chap. 119
Amplifies: 164.05
Five Year Review Date: 2/15/2029

Rule 164-1-37 | Late loan payments and access to funds.

• Effective: February 15, 2024
• Promulgated Under: 119.03

A local subdivision who receives loan funds shall take all actions necessary to ensure that timely payments are made on their loans as required in the loan documents and in response to biennial invoicing. If a local subdivision fails to make timely payments, it will not receive from the commission disbursements on its active projects and any application for funding for new projects will not be accepted in the workswise portal until payment is received and processed by the commission.

Last updated February 15, 2024 at 2:22 PM

Supplemental Information

Authorized By: 164.05, Chap. 119
Amplifies: 164.05
Five Year Review Date: 2/15/2029

Rule 164-1-38 | Loan assistance.

• Effective: February 15, 2024
• Promulgated Under: 119.03

At the recommendation of the district and approval of the director, an applicant may receive funding in the form of a grant to pay the interest accruing on construction debt during the period of construction and prior to the issuance of post construction permanent financing by the commission. To qualify for this grant, construction must have commenced within three years prior to the date of the project agreement.

This grant may be applied for as part of a project which is eligible for a grant, loan or combination of a grant and loan, but requires a separate application to be submitted to the commission for consideration.

Last updated February 15, 2024 at 2:22 PM

Supplemental Information

Authorized By: 164.05, Chap. 119
Amplifies: 164.05
Five Year Review Date: 2/15/2029

Rule 164-1-39 | Privacy policy.

• Effective: February 15, 2024
• Promulgated Under: 119.03

(A) The purpose of this rule is to establish the requirements for regulating access to confidential personal information that is maintained by the commission.

(B) For the purposes of administrative rules promulgated in accordance with section 1347.15 of the Revised Code, the following definitions apply:

(1) "Access" when used in this rule as a noun means an instance of copying, viewing, or otherwise perceiving. Access when used in this rule as a verb means to copy, view, or otherwise perceive.

(2) "Acquisition of a new computer system" means the purchase of a "computer system," as defined in this rule, that is not a computer system currently in place nor one for which the acquisition process has been initiated as of the effective date of the commission rule addressing requirements in section 1347.15 of the Revised Code.

(3) "Computer system" means a "system," as defined by section 1347.01 of the Revised Code, that stores, maintains, or retrieves personal information using electronic data processing equipment.

(4) "Confidential personal information" (CPI) has the meaning as defined by division (A)(1) of section 1347.15 of the Revised Code and identified by rules promulgated by the commission in accordance with division (B)(3) of section 1347.15 of the Revised Code that reference the federal or state statutes or administrative rules that make personal information maintained by the commission confidential.

(5) "Commission" means the Ohio public works commission.

(6) "Employee" means each commission employee regardless of whether the employee holds an elected or appointed office or position within the commission.

(7) "Incidental contact" means contact with the information that is secondary or tangential to the primary purpose of the activity that resulted in the contact.

(8) "Individual" means a natural person or the natural person's authorized representative, legal counsel, legal custodian, or legal guardian.

(9) "Information owner" means the individual appointed in accordance with division (A) of section 1347.05 of the Revised Code to be directly responsible for a system.

(10) "Person" means a natural person.

(11) "Personal information" has the same meaning as defined in division (E) of section 1347.01 of the Revised Code.

(12) "Personal information system" means a "system" that "maintains" "personal information" as those terms are defined in section 1347.01 of the Revised Code. "System" includes manual and computer systems.

(13) "Research" means a methodical investigation into a subject.

(14) "Routine" means commonplace, regular, habitual, or ordinary.

(15) "Routine information that is maintained for the purpose of internal office administration, the use of which would not adversely affect a person" as that phrase is used in division (F) of section 1347.01 of the Revised Code means personal information relating to employees and maintained by the agency for internal administrative and human resource purposes.

(16) "System" has the same meaning as defined by division (F) of section 1347.01 of the Revised Code.

(17) "Upgrade" means a substantial redesign of an existing computer system for the purpose of providing a substantial amount of new application functionality, or application modifications that would involve substantial administrative or fiscal resources to implement, but would not include maintenance, minor updates and patches, or modifications that entail a limited addition of functionality due to changes in business or legal requirements.

(C) Procedures for accessing confidential personal information for personal information systems, whether manual or computer systems.

(1) Personal information systems of the commission are managed on a need-to-know basis whereby the information owner determines the level of access required for a commission employee to fulfill the employee's job duties. The determination of access to confidential personal information shall be approved by the employee's supervisor and the information owner prior to providing the employee with access to confidential personal information within a personal information system. The commission shall establish procedures for determining a revision to an employee's access to confidential personal information upon a change to that employee's job duties including, but not limited to, transfer or termination. Whenever an employee's job duties no longer require access to confidential personal information in a personal information system, the employee's access to confidential personal information shall be removed.

(2) Individual's request for a list of confidential personal information.

Upon the signed written request of any individual for a list of confidential personal information about the individual maintained by the commission, the commission shall do all the following:

(a) Verify the identity of the individual by a method that provides safeguards commensurate with the risk associated with the confidential personal information;

(b) Provide the individual with the list of confidential personal information that does not relate to an investigation about the individual or is otherwise not excluded from the scope of Chapter 1347. of the Revised Code; and

(c) If all information relates to an investigation about that individual, inform the individual that the commission has no confidential personal information about the individual that is responsive to the individual's request.

(3) Notice of invalid access.

(a) Upon discovery or notification that confidential personal information of a person has been accessed by an employee for an invalid reason, the commission shall notify the person whose information was invalidly accessed as soon as practical and to the extent known at the time. However, the commission shall delay notification for a period necessary to ensure that the notification would not delay or impede an investigation or jeopardize homeland or national security. Additionally, the commission may delay the notification consistent with any measures necessary to determine the scope of the invalid access, including which individuals' confidential personal information invalidly was accessed, and to restore the reasonable integrity of the system.

"Investigation" as used in this paragraph means the investigation of the circumstances and involvement of an employee surrounding the invalid access of confidential personal information. Once the commission determines that notification would not delay or impede an investigation, the commission shall disclose the access to confidential personal information made for an invalid reason to the person.

(b) Notification provided by the commission shall inform the person of the type of confidential personal information accessed and the date(s) of the invalid access.

(c) Notification may be made by any method reasonably designed to accurately inform the person of the invalid access, including written, electronic, or telephone notice.

(4) Appointment and duties of a data privacy point of contact.

(a) The director of the commission shall designate an employee of the commission to serve as the data privacy point of contact.

(b) The data privacy point of contact shall work with the chief privacy officer within the Ohio commission of administrative services office of information technology to assist the commission with both the implementation of privacy protections for the confidential personal information that the commission maintains and compliance with section 1347.15 of the Revised Code and the rules adopted thereunder.

(c) The data privacy point of contact shall ensure the timely completion of the "privacy impact assessment form" developed by the Ohio commission of administrative services office of information technology.

(D) Valid reasons for accessing confidential personal information.

Pursuant to the requirements of division (B)(2) of section 1347.15 of the Revised Code, this rule contains a list of valid reasons directly related to the commission's exercise of its powers or duties, for which only employees of the commission may access confidential personal information regardless of whether the personal information system is a manual system or computer system.

Performing the following functions, as part of the employee's assigned duties on behalf of the commission, constitute valid reasons for authorized employees of the commission to access confidential personal information:

(1) Responding to a public records request;

(2) Responding to a request from an individual for the list of confidential personal information the commission maintains on that individual;

(3) Administering a constitutional provision or duty;

(4) Administering a statutory provision or duty;

(5) Administering an administrative rule provision or duty;

(6) Complying with any state or federal program requirements;

(7) Processing or payment of claims or otherwise administering a program with individual participants or beneficiaries;

(8) Auditing purposes;

(9) Licensure or certification processes;

(10) Investigation or law enforcement purposes;

(11) Administrative hearings;

(12) Litigation, complying with an order of the court, or subpoena;

(13) Human resource matters (e.g., hiring, promotion, demotion, discharge, salary/compensation issues, leave requests/issues, time card approvals/issues);

(14) Complying with an executive order or policy;

(15) Complying with a commission policy or a state administrative policy issued by the Ohio commission of administrative services, the office of budget and management or other similar state agency;

(16) Complying with a collective bargaining agreement provision; or

(17) Research in the furtherance of commission specific programs in so far as allowed by statute.

(E) The following federal statutes or regulations or state statutes and administrative rules make personal information maintained by the commission confidential and identify the confidential personal information within the scope of rules promulgated by this commission in accordance with section 1347.15 of the Revised Code:

(1) 5 U.S.C. 552a. (social security numbers).

(2) 42 U.S.C. 1320d and 45 C.F.R. parts 160 and 164 (protected health information under the Health Insurance Portability and Accountability Act).

(3) 42 U.S.C. 9501 and 42 U.S.C. 10841 (patient records).

(4) 42 C.F.R. 482.13 (patient records).

(5) 42 C.F.R. Part 2 (confidentiality of alcohol and drug abuse patient records).

(6) 42 U.S.C. 1396a(a) (medicaid records).

(7) Sections 5119.27 and 5119.28 of the Revised Code (confidentiality of records).

(8) Sections 2305.24, 2305.25, 2305.251, 2305.252, 2305.253 and 5122.32 of the Revised Code (quality assurance and peer review records).

(9) Section 5122.31 of the Revised Code (patient certificates, applications, records, and reports).

(10) Section 5122.311 of the Revised Code (notification of bureau of criminal identification and investigation of adjudication of mental illness).

(11) Paragraph (I) of rule 5122-1-31 of the Administrative Code (voter registration of consumers and absentee voting assistance in behavioral health care organizations of the integrated behavioral health care system).

(12) Paragraph (D)(3) of rule 5122-2-25 of the Administrative Code (morbidity and mortality events).

(13) Paragraph (D)(4)(e) of rule 5122-3-13 of the Administrative Code (incident reports).

(F) Restricting and logging access to confidential personal information in computerized personal information systems.

For personal information systems that are computer systems and contain confidential personal information, the commission shall do the following:

(1) Access restrictions.

Access to confidential personal information that is kept electronically shall require a password or other authentication measure.

(2) Acquisition of a new computer system.

When the commission acquires a new computer system that stores, manages or contains confidential personal information, the commission shall include a mechanism for recording specific access by employees of the commission to confidential personal information in the system.

(3) Upgrading existing computer systems.

When the commission modifies an existing computer system that stores, manages or contains confidential personal information, the commission shall make a determination whether the modification constitutes an upgrade. Any upgrades to a computer system shall include a mechanism for recording specific access by commission employees to confidential personal information in the system.

(4) Logging requirements regarding confidential personal information in existing commission computer systems.

(a) The commission shall require commission employees who access confidential personal information within computer systems to maintain a log that records their access.

(b) Access to confidential information is not required to be entered into the log under the following circumstances:

(i) The commission employee is accessing confidential personal information for official commission purposes, including research, and the access is not specifically directed toward a specifically named individual or a group of specifically named individuals.

(ii) The commission employee is accessing confidential personal information for routine office procedures and the access is not specifically directed toward a specifically named individual or a group of specifically named individuals.

(iii) The commission employee comes into incidental contact with confidential personal information and the access of the information is not specifically directed toward a specifically named individual or a group of specifically named individuals.

(iv) The commission employee accesses confidential personal information about an individual based upon a request made under either of the following circumstances:

(a) The individual requests confidential personal information about himself/herself

(b) The individual makes a request that the commission takes some action on that individual's behalf and accessing the confidential personal information is required in order to consider or process that request

(v) For purposes of this paragraph, the commission may choose the form or forms of logging, whether in electronic or paper formats.

(5) Log management.

The commission shall issue a policy that specifies the following:

(a) Who shall maintain the log;

(b) What information shall be captured in the log;

(c) How the log is to be stored; and

(d) How long information kept in the log is to be retained.

(6) Nothing in this rule limits the commission from requiring logging in any circumstance that it deems necessary.

Last updated February 15, 2024 at 2:22 PM

Supplemental Information

Authorized By: 164.05, Chap. 119
Amplifies: 1347.05
Five Year Review Date: 2/15/2029

Rule 164-1-40 | Project schedule.

• Effective: February 15, 2024
• Promulgated Under: 119.03

An application to fund a project shall provide for a schedule for construction to begin within one year of release of the project agreement. At the discretion of the director, a project may be funded that will commence in the following state fiscal year, if the circumstances relating to the project present a reasonable need to enter into a project agreement in the current fiscal year. Projects funded by the commission must commence construction in the fiscal year set forth in the project agreement. If a project does not commence in the fiscal year set forth in the project agreement, funding for the project shall be terminated. At the discretion of the director, a project that did not commence in the fiscal year set forth in the project agreement may be funded if the reason the project did not commence was due to extenuating and unforeseeable circumstances beyond the control of the applicant.

Project delays, with reason for the delay(s), must be communicated to the commission in writing as soon as possible. Written requests for an extension will be considered if the project can be completed within a reasonable time frame. Failure to meet the schedule without approval for an extension may cause the project agreement to become null and void at the sole discretion of the director.

Last updated February 15, 2024 at 2:23 PM

Supplemental Information

Authorized By: 164.05, Chap. 119
Amplifies: 164.05
Five Year Review Date: 2/15/2029

Rule 164-1-41 | Small government.

• Effective: February 15, 2024
• Promulgated Under: 119.03

District integrating committees may select from their unfunded project applications, applications to submit to the small government commission for consideration for funding. The small government program provides grants and loans to villages and townships with populations of less than five thousand. Districts may submit to the small government commission up to five applications for consideration to be funded. All five applications must be ranked and shall receive corresponding district priority points. All five applications will be scored by the small government commission.

Last updated February 15, 2024 at 2:23 PM

Supplemental Information

Authorized By: 164.05, Chap. 119
Amplifies: 164.05, 164.051, 164.02
Five Year Review Date: 2/15/2029

Rule 164-1-42 | Subdivision codes.

• Effective: February 15, 2024
• Promulgated Under: 119.03

Prior to the submission of an application for funding to the commission, the applicant must request and obtain from the commission an identification code which the commission shall use to identify the applicant. A request for an identification code shall be submitted to the commission by an email to the director from an authorized employee of the applicant. The request shall be made on the applicant's letterhead and shall be signed by such an authorized employee. The applicant must include relevant documentation or an explanation relating to the legal creation of the applicant specifying its form of government, the revised code provisions providing for the entity, and its date of formation.

Last updated February 15, 2024 at 2:23 PM

Supplemental Information

Authorized By: 164.05, Chap. 119
Amplifies: 164.05
Five Year Review Date: 2/15/2029