Ohio Admin. Code 123:5-1-06 - Ohio preferences

(A) Procedure for applying bid preference for United States and Ohio products

(1) Bids will first be evaluated to determine whether a bid response is for a domestic source end product. Information furnished in the bid response by the bidder shall be relied upon but may be verified in making the determination. Any bid response that does not meet this requirement may be removed, except in those circumstances where the director of the department of administrative services or his designee determines compliance would result in the state paying an excessive price or acquiring an inferior product as described in paragraph (A)(3) of this rule.

(2) Following the determination at paragraph (A)(1) of this rule, the bids shall be evaluated so as to give preference to Ohio bids for products produced or mined in Ohio or a border state. If the Ohio bid preference is determined to be applied then the preferences under rules 123:5-1-14 and 123:5-1-16 of the Administrative Code shall not be applied. Where the preliminary analysis of bids identifies the apparent low bid as an Ohio bid or a border state bid, the director or the director's designee shall proceed with evaluation and award procedure provided for in rule 123:5-1-07 of the Administrative Code.

(3) Where the preliminary analysis identifies the apparent low bid as one other than an Ohio bid or border state bid, the director or the director's designee shall apply the following preferences:

(a) If the apparent low bid is one other than an Ohio bid or border state bid offering a domestic source end product, apply five per cent to the price. For purposes of the Ohio preference, "excessive price" shall be construed to mean a price that exceeds by more than five per cent the lowest price submitted on a non-Ohio bid.

(b) If the apparent low bidder offers a foreign product, apply six per cent to the price. For purposes of "Buy American," a price is excessive if the price on the lowest domestic or Ohio bid exceeds the lowest foreign price by more than six per cent.

(c) If sufficient competition does not exist or if it is determined that all prices are excessive, the department may cancel the bid in its entirety, may rebid the intended purchase, or award the contract.

(4) After application of the preferences in paragraph (A)(3) of this rule, where the director or the director's designee determines that selection of the lowest Ohio bid will not result in an excessive price or a disproportionately inferior product or service, the director or the director's designee shall propose a contract award to the lowest responsible and responsive Ohio bid at the bid price quoted. Where, otherwise, the director determines it is advantageous to propose the award of contract to other than an Ohio bid or border state bid, the director shall propose same. The final contract award shall be made following further evaluation and award under rule 123:5-1-07 of the Administrative Code. The director or the director's designee shall at all times reserve the right to reject all bids, award partial bids and rebid if it is deemed in the best interest of the state to do so.

(B) "Buy American" product information

All invitations to bid shall require the bidder to complete and attest to the following statement:

"Buy American certificate

The bidder hereby certifies that each end product, except the end products listed below, is a domestic source end product as defined in the Buy American Act and by this rule; and that components of unknown origin have been considered to have been mined, produced, or manufactured outside the United States:

...

Excluded end products (show country of origin for each excluded end product):"

...

(C) Buy Ohio bidder and product information

All invitations to bid shall require the bidder to submit the following information:

(1) Identify each product that is not an Ohio product.

(2) Represent that all other products for which prices are submitted are Ohio products.

(3) Identify whether the bidder claims to qualify as offering an Ohio product or as having significant Ohio economic presence.

(D) Notice of bid preference

The department shall indicate in all its invitations to bid whether it will apply a bid preference as outlined herein in the evaluation and award of bids received. Any bidder who intentionally submits false or misleading information in an attempt to receive a bid preference will be immediately disqualified and may be subject to legal action up to and including debarment.

(A) Bidders and offerors may claim preferences in a procurement solicitation response for any or all of the following:offering domestic source end products; qualification as a buy Ohio supplier; or qualification as a veteran-friendly business enterprise, all as described in this rule.

Information furnished in the solicitation response by the bidder or offeror shall be relied upon in making the determination about whether a preference applies, but the state may verify such information if necessary. Any bidder or offeror who intentionally submits false or misleading information to receive a preference will be immediately disqualified and may be subject to administrative or legal action.

Preferences shall be applied except in those circumstances where the director of the department of administrative services or the director's designee determines compliance would not be in the best interest of the state or when otherwise prohibited.

(1) Buy American preference. Bidder and offeror responses will be evaluated to determine whether a response includes a domestic source end product for the buy American preference.

(2) Buy Ohio preference. Bidder and offeror responses will be evaluated to give preference to all bids and offers received from a buy Ohio supplier for products raised, grown, produced, mined or manufactured in Ohio or a border state or for products and services offered by a supplier demonstrating significant economic presence in Ohio or a border state.

(3) Veteran-friendly business enterprise preference. Bidder and offeror responses will be evaluated to give preference to all bidders and offerors who are certified veteran-friendly business enterprises. In order to qualify for this preference, a bidder or offer must have an active veteran-friendly business enterprise certification at the due date and time of bid or offer.

(B) Procedures for applying preferences

Following the initial evaluation and scoring, all bids and offers will be considered for preferences. Preferences will be calculated at a rate of five per cent for the first preference and two per cent each for the second and third preferences. The preferences shall be summed and applied as a total percentage for evaluation purposes.

Preferences will only be applied when there is at least one bidder or offeror that does not qualify for that particular preference. For purposes of qualifying for a particular preference, if a bidder or offeror fails to complete the certification for each preference, that supplier will be deemed as not qualifying for that preference.

(1) Procedure for applying preferences to bids in response to an Invitation to bid or reverse auction:

(a) For the buy American preference, if any bidder offers a product that is not a domestic source end product, reduce the cost of any other bidder's domestic source end products offered by the applicable percentage.

(b) For the buy Ohio preference, for any qualifying buy Ohio supplier claiming the preference, when there is at least one other bidder that is not a buy Ohio supplier, deduct the applicable percentage from the buy Ohio supplier's cost.

(c) If the bid contains multiple line items or multiple products, the preferences in paragraphs (B)(1)(a) and (B)(2)(b) of this rule will be applied per line item or only for that particular product.

(d) For the veteran-friendly enterprise preference, if a bidder is a certified veteran-friendly business enterprise claiming the preference and there are other bidders not claiming the preference, deduct the applicable percentage from any certified veteran-friendly enterprise bidders' cost.

(2) Procedure for applying preferences to offers in response to a request for proposals:

(a) For the buy American preference, if any offeror offers a product that is not a domestic source end product, add the applicable percentage of the total available points to the total score of each offeror offering a domestic source end product.

(b) For the buy Ohio preference, if any offeror is a buy Ohio supplier claiming the preference, and there is at least one other offer that is not a buy Ohio supplier add the applicable percentage of the total available points to each buy Ohio supplier's total score.

(c) If claiming the preferences in paragraphs (B)(2)(a) and (B)(2)(b) of this rule based on the product(s) offered, an offeror is only eligible to receive the preference if the cost of the product(s) offered exceeds fifty per cent of the total offered cost for products and services. A buy Ohio supplier is eligible to receive the buy Ohio preference solely based on its significant economic presence in Ohio or a border state regardless of the origin of any product offered.

(d) For the veteran-friendly enterprise preference, if any offeror is a certified veteran-friendly business enterprise claiming the preference and there is an offeror who is not claiming the preference, add the applicable percentage of the total available points to any certified veteran-friendly enterprise offeror's total score.

(3) After application of the preferences in this rule, the director or the director's designee shall consider for award the lowest bid or highest scoring offer as adjusted by the preferences. If the director of the department of administrative services or the director's designee determines that selection of the lowest bidder or the highest scoring offeror as adjusted by the preferences would not be in the best interests of the state, the director or the director's designee shall propose a contract award to the lowest responsible and responsive bid or to the offeror with the most advantageous offer.

The final contract award shall be made following further evaluation and award under rules 123:5-1-07 and 123:5-1-08 of the Administrative Code.

(C) Model system of preferences

This system of preferences as outlined in this rule may be used voluntarily by counties, townships, and municipalities for purchasing contracts.

Notes

Ohio Admin. Code 123:5-1-06

Effective: 7/4/2022
Five Year Review (FYR) Dates: 3/1/2025
Promulgated Under: 119.03
Statutory Authority: R.C. 125.09
Rule Amplifies: R.C. 125.09, R.C. 125.11
Prior Effective Dates: 02/02/1982, 08/30/1984, 05/05/1995, 03/28/2014, 02/29/2016