(A) General purpose and
applicability
(1) County family
services agencies (CFSAs) and Workforce Innovation and Opportunity Act (WIOA)
local areas may enter into procurement contracts to acquire goods and services
for the administration of a federal program. Where applicable, WIOA local areas
shall include workforce development boards (WDB). CFSAs and WIOA local areas
follow procurement standards established in 2 C.F.R. 200.317 to 200.327.
Specific methods of procurement are outlined in rule 5101:9-4-07.1 of the
Administrative Code.
(2) Subgrant agreements
as outlined in rule 5101:9-4-88 of the Administrative Code funded in whole or
in part with federal funds do not represent acquisitions and are not subject to
the requirements contained in this rule provided that such relationships are
documented between the entities. CFSAs and WIOA local areas shall inform
sub-grantees of applicable procurement requirements in any contract or other
applicable types of agreements used in awarding the contract or
grant.
(3) Unless applicable
local requirements are more restrictive, acquisitions that are made in whole or
in part with federal funds, including instances where state or county funds are
used as a match for state/federal funds, CFSAs and WIOA local areas shall
procure pursuant to rule 5101:9-4-02 of the Administrative Code and the federal
requirements set forth in this rule.
(a) Pursuant to division (D) of section 307.86 of the Revised
Code, acquisitions made under section 329.04 of the Revised Code are exempt
from state competitive bidding requirements. However, acquisitions made under
section 307.86 of the Revised Code are not exempt from applicable federal
requirements, including those referenced in this rule.
(b) Acquisitions listed that are procured with federal block
grants authorized by the Omnibus Budget Reconciliation Act of 1981 and the
"Child Care and Development Block Grant of 1990," as amended, are
excluded from the requirements of this rule. However, CFSAs and WIOA local
areas shall adhere to requirements contained in rule 5101:9-4-02 of the
Administrative Code and local standards of acquisition.
(B) General procurement
requirements
The following are general procedural requirements
applicable to all procurements unless deemed exempt:
(1) Contract cost and
price analysis
(a) CFSAs and WIOA local areas shall perform a cost or price
analysis in connection with every procurement action in excess of either the
local small purchase threshold or, the simplified acquisition threshold (as set
by 48 C.F.R. subpart 2.1) including contract modification. The method and
degree of analysis is dependent on the facts surrounding the particular
procurement situation, but as a starting point the CFSA and WIOA local area
must make independent estimates before receiving bids or proposals. The CFSA
and WIOA local area must maintain written documentation to support any
procurement action based on cost or price analysis.
(i) A cost analysis shall
be performed when the bidder is required to submit elements of the estimated
cost, (e.g., under professional consulting and architectural engineering
services contracts.) A cost analysis is the verification of proposed cost data
and projections of the data, and the evaluation of the specific elements of
costs and profits. A cost analysis will be necessary when adequate price
competition is lacking. A cost analysis will also be necessary for sole source
procurements, including contract modifications or change orders, unless price
reasonableness can be established on the basis of catalog or market price of
commercial product sold in substantial quantities to the general public; or
based on prices set by law or regulation.
(ii) A price analysis
will be used in all other instances to determine the reasonableness of the
proposed contract price.
(b) CFSAs and WIOA local areas shall negotiate profit as a
separate element of the price for each contract in which there is no price
competition and in all cases where cost analysis is performed. To establish a
fair and reasonable profit, consideration will be given to the complexity of
the work to be performed; the risk borne by the contractor; the
contractor's investment; the amount of subcontracting; the quality of its
record of past performance; and industry profit rates in the surrounding
geographical area for similar work.
(c) Costs or prices based on estimated costs for contracts under
grants will be allowable only to the extent that costs incurred or cost
estimates included in negotiated prices are consistent with federal cost
principles. CFSA's and WIOA local areas may reference their own cost
principles that comply with the applicable federal cost
principles.
(d) The cost plus a percentage of cost and percentage of
construction cost methods of contracting shall not be used.
(2) Competition
All procurement transactions will be conducted
in a manner providing full and open competition consistent with the standards
of 45 C.F.R. 75.328 (U.S. department of health and human services (HHS)), and 2
C.F.R. 200.319 (U.S. department of labor (DOL) and U.S. department of
agriculture (USDA) food and nutrition service (FNS)). In order to ensure
objective contractor performance and eliminate unfair competitive advantage,
contractors that develop or draft specifications, requirements, statements of
work, invitations for bids or requests for proposals must be excluded from
competing for such procurements. Some of the situations considered to be
restrictive of competition include but are not limited to:
(a) Placing unreasonable requirements on firms in order for them
to qualify to do business;
(b) Requiring unnecessary experience and excessive
bonding;
(c) Non-competitive pricing practices between firms or between
affiliated companies;
(d) Non-competitive awards to consultants that are on retainer
contracts;
(e) Organizational conflicts of interest;
(f) Specifying only a "brand name" product instead of
allowing an "equivalent" product to be offered and describing the
performance of other relevant requirements of procurement; and
(g) Any arbitrary action in the procurement process.
(3) Selection
procedures
All CFSAs and WIOA local areas shall have
written selection procedures for all procurement transactions.
(a) Written procedures must ensure that all
solicitations:
(i) Incorporate a clear
and accurate description of the technical requirements for the materials,
products or services to be procured. Such description shall not, in competitive
procurements, contain features which unduly restrict competition. The
description may include a statement of the qualitative nature of the material,
product or service to be procured, and when necessary, shall set forth those
minimum essential characteristics and standards to which it must conform if it
is to satisfy its intended use. Detailed product specifications should be
avoided if at all possible. When it is impractical or uneconomical to make a
clear and accurate description of technical requirements, a "brand name or
equivalent" description may be used as a means to define the performance
or other salient requirements of procurement. The specific features of the
brand name which must be met by bidders must be clearly stated.
(ii) Identify all
requirements that the offerors must fulfill and all other factors to be used in
evaluating bids or proposals.
(b) CFSAs and WIOA local areas shall ensure that all
pre-qualified lists of persons, firms or products, which are used in acquiring
goods and services, are current and include enough qualified sources to ensure
maximum open and free competition. CFSAs and WIOA local areas must not preclude
potential bidders from qualifying during the solicitation period.
(c) CFSA and WIOA local area procedures shall include a review of
proposed procurements to avoid purchase of unnecessary or duplicative items.
Consideration should be given to consolidating or breaking out procurements to
obtain a more economical purchase. Where appropriate, the CFSA and WIOA local
area shall conduct an analysis of lease versus purchase alternatives and any
other appropriate analysis to determine the most economical approach. Breaking
out procurements should only be done to obtain a more economical price and
shall not be done to avoid procedural requirements.
(4) Non-profit agencies
for persons with severe disabilities
(a) If permissible under federal law for procurements involving
federal funds, then before determining which method of procurement to use,
CFSAs and WIOA local areas shall determine whether a product or service is on
the procurement list for products and services provided by persons with severe
disabilities as described in section 4115.33 of the Revised Code. If the
product or service is on the procurement list and is available within the
period required by that agency, the agency must procure the product or service
at the price established by the state use committee from a qualified nonprofit
agency.
(b) If the provision of the product or service cannot be made in
either the time period required or in the amount specified by the agency, the
CFSAs and WIOA local areas may pursue a method of procurement outlined in rule
5101:9-4-07.1 of the Administrative Code.
(5) Small and minority
businesses, women's business enterpise and labor surplus area
firms
The CFSA and WIOA local area shall make efforts
to utilize small and minority-owned businesses, women's business
enterprises, and labor surplus area firms, when they are potential resources
for supplies, equipment, construction and services as established in 2 C.F.R.
Part 200.321. These efforts include:
(a) Placing qualified small and minority businesses and
women's business enterprises on solicitation lists and assuring that those
businesses are solicited whenever they are potential resources.
(b) Dividing total requirements into small tasks or
quantities to permit maximum small and minority businesses and women's
business enterprises participation when economically feasible. When tasks are
divided to allow small businesses and women's business enterprises to
compete, the separation cannot be done to avoid competitive bidding
requirements.
(c) Establishing delivery schedules to encourage
participation by small and minority businesses and women's business
enterprises, where the requirement permits.
(d) Using the services and assistance of the small business
administration, the office of minority business development agency of the U.S.
department of commerce, the community services administration and other
entities, as appropriate.
(e) Requiring the prime contractor to take affirmative
steps as listed in paragraphs (B)(5)(a) to (B)(5)(d) of this rule if any
subcontracts are to be let.
(6) Geographic preference
(a) For purchases made in whole or in part with federal funds, or
with state or local funds required for match, CFSAs and WIOA local areas shall
conduct procurement in a manner that prohibits the use of statutorily or
administratively imposed in-state or local geographical preferences in
evaluation of bids or proposals, except in those cases where applicable federal
statutes expressly mandate or encourage geographic preference. Nothing in
paragraph (B) of this rule preempts state licensing laws. When contracting for
architectural and engineering (A/E) services, geographic location may be a
selection criteria provided its application leaves an appropriate number of
qualified firms, given the nature and size of the project, to compete for the
contract.
(b) When only state and/or local funds are used for a purchase,
the board of county commissioners, by resolution, may adopt the model system of
preferences for products mined or produced in Ohio and for Ohio-based
contractors (formerly "Buy-Ohio"). The resolution shall specify the
class or classes of contracts to which the system of preferences apply. While
the system of preferences is in effect, no county officer or employee shall
award a contract in violation of the preference system.
(7) As appropriate and to the extent
consistent with law, the non-federal entity should, to the greatest extent
practicable under a federal award, provide a preference for the purchase,
acquisition, or use of goods, products, or materials produced in the United
States (including but not limited to iron, aluminum, steel, cement, and other
manufactured products). The requirements of this paragraph shall be included in
all subawards including all contracts and purchase orders for work or
products.
(8) CFSAs and WIOA local areas are
prohibited from obligating or expending loan or grant funds to procure, obtain,
or enter into a contract (or extend or renew a contract) to procure or obtain
equipment, services, or systems that uses covered telecommunications equipment
or services as a substantial or essential component of any system, or as
critical technology as part of any system. As described in Public Law 115-232,
section 889, covered telecommunications equipment is telecommunications
equipment produced by "Huawei Technologies Company" or "ZTE
Corporation" (or any subsidiary or affiliate of such
entities).
(9) Debarment and suspension
(a) CFSA and WIOA local area procedures shall include
requirements to ensure that no contracts are entered into with or purchases
made from a person or entity which is debarred or suspended or is otherwise
ineligible for participation in federal assistance programs under executive
orders 12549 and 12689, debarment and suspension, and other applicable
regulations and statutes, including 2 C.F.R. parts 180, 200, and 417, 29 C.F.R.
part 98, and 45 C.F.R. part 75.
(b) CFSA and WIOA local area procedures shall also include
provisions that purchases will be made in conformance with section 9.24 of the
Revised Code which prohibits the awarding of contracts, paid for in whole or in
part with state funds, to a person against whom a finding for recovery has been
issued by the auditor of state on or after January 1, 2001, if the finding for
recovery is unresolved.
(10) Monitoring
CFSAs and WIOA local areas shall maintain a
contract administration system that ensures that contractors perform in
accordance with the terms, conditions, and specifications of their contracts or
purchase orders.
(C) 2 C.F.R. general contract
requirements
CFSA and WIOA local area contracts shall contain
the following provisions which are fully detailed and outlined in appendix II
to part 200.
(1) Administrative,
contractual, or legal remedies in instances where contractors violate or breach
contract terms, and provide for such sanctions and penalties as may be
appropriate. This applies to all contracts in excess of the either local small
purchase threshold or the simplified acquisition threshold (as set by 48 C.F.R.
subpart 2.1).
(2) Termination for cause
and for convenience by the CFSA and local WIOA area including the manner by
which it will be affected and the basis for settlement. This applies to all
contracts in excess of ten thousand dollars.
(3) Compliance with
executive order 11246 of September 24, 1965, entitled "Equal Employment
Opportunity," as amended by executive order 11375 of October 13, 1967, and
as supplemented in DOL regulations (41 C.F.R. chapter 60). This applies to all
federally assisted construction contracts awarded in excess of ten thousand
dollars by CFSAs and local WIOA areas and their contractors or
sub-grantees.
(4) Compliance with the
Copeland "Anti-Kickback" Act (18 U.S.C. 874 and 40 U.S.C. 3145) as
supplemented by DOL regulations (29 C.F.R. part 3).
(5) Compliance with the
Davis-Bacon Act as amended (40 U.S.C. 3141-3148) as supplemented by DOL
regulations (29 C.F.R. part 5). This applies to all construction contracts in
excess of two thousand dollars.
(6) Compliance with
sections 3702 and 3704 of the Contract Work Hours and Safety Standards Act (40
U.S.C. 3701-3708) as supplemented by DOL regulations (29 C.F.R. part
5).
(7) Compliance with
"Rights to Inventions" clause 37 C.F.R. part 401 pertaining to patent
rights with respect to any discovery or invention which arises or is developed
in the course of or under such contract.
(8) Compliance with all applicable
standards, orders, or requirements issued pursuant to the Clean Air Act as
amended (42 U.S.C. 7401-7671) and the Federal Water Pollution Control Act as
amended (33 U.S.C. 1251-1387). This is applicable with any contract in excess
of one hundred fifty thousand dollars).
(9) Certification that a contractor has
not and will not use federal funds to pay for any lobbying activities as
defined in the "Byrd Anti-lobbying Amendment" (31 U.S.C. 1352).
Certification is required for contractors that apply or bid for an award of one
hundred thousand dollars or more.
(D) ODJFS general contract
requirements
(1) The Ohio department
of job and family services (ODJFS), the CFSA and the WIOA local area, the
federal grantor agency, the comptroller general of the United States, or any of
their duly authorized representatives shall have access to any books,
documents, papers, and records of the contractor which are directly pertinent
to that specific contract for the purpose of making audit, examination,
excerpts, and transcriptions.
(2) Financial,
programmatic, statistical, and recipient records and supporting documents shall
be retained for a minimum of three years after the submittal of the final
expenditure report for the grant or as otherwise provided by any minimum
retention requirements specified by applicable state or federal law. If any
litigation, claim, negotiation, audit or other action involving the records has
started before the expiration of the three-year period, the records shall be
retained until the completion of the action and resolution of all issues that
arise from it, or until the end of the regular three-year period, whichever is
later.