Ohio

Key Agency(ies):  

• The Ohio Department of Administrative Services (DAS) provides centralized procurement services for state agencies.
• DAS is authorized to establish contracts for supplies and services for these entities.

Key Statute:

• Chapters 123, 124, 125 of the Ohio Revise Code Annotated (Ohio Rev. Code Ann.) establishes DAS as the procurement authority, and describes set asides and other issues pertaining to public procurement in Ohio.
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Key Regulations:

• The Ohio Administrative Code (Ohio Admin. Code) 123:5 outlines DAS purchasing procedures, preferences, and other items related to public procurement in Ohio.
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Procurement Types/Highlights:

• Ohio law strongly favors competitive bidding, with contracts being awarded to the lowest responsive and responsible bidder.
• Emergency purchases
• Professional design services
• Minority Business Enterprise (MBE) Set-asides
  • DAS and state agencies must aside 15% of purchases for competition among MBEs

Bid Protests:

Regs Governing Bid Protests:

• Ohio Rev. Code. Ann. § 9 and Ohio Rev. Code Ann. § 153 govern protests in Ohio.

Eligible Protesters:

• Any bidder who participated in the solicitation may protest if they believe the process was unfair or unlawful.
• Ohio taxpayers who are specially affected by the bid conditions may also have standing under State ex rel. Connors v. Ohio Dept. of Transportation.

Timeliness Rules:

• The apparent low bidder must file a written protest within five days of receiving notice that the contract will not be awarded to them.

Protest Process:

• If a contracting authority intends to award a contract to someone other than the apparent low bidder, it must notify the apparent low bidder.
• The dissatisfied bidder may file a written protest within five days of receiving notice.
• The protest should include a thorough explanation of the grounds, supporting documentation, and legal analysis. It should state whether the contractor seeks award or re-solicitation.
• The contracting authority must meet with the protesting bidder before making a final award decision.
• After the meeting, the authority must affirm or reverse its initial decision before making the final award.

Appeals:

• If the contracting authority affirms its decision to award to someone other than the protesting bidder, the bidder may pursue further remedies.
• Some agencies may have additional internal steps, but those are not universally required or standardized.
• The disappointed bidder may then file suit in the appropriate court (Court of Claims or court of common pleas, depending on the relief sought).
• Courts presume public officials act properly and legally. They will not interfere unless there is a clear abuse of discretion, fraud, bad faith, or arbitrary/unreasonable conduct.
• Courts may order the agency to award the contract, re-solicit bids, or, in rare cases, award bid preparation costs. Lost profits are generally not recoverable.

Claims: 

• For construction and public improvement contracts, contractors must first attempt to resolve disputes with the agency through administrative claim procedures if such procedures are included in the contract. Only after exhausting these remedies can the contractor proceed to court.
• After exhausting administrative remedies, contractors must file claims related to state contracts in the Ohio Court of Claims. This court has exclusive jurisdiction over contract disputes with the state.

Suspension & Debarment:

• Suspension and debarment are typically imposed for serious violations such as fraud, failure to perform, or breach of contract.
• Agencies (including DAS and ODOT) have authority to suspend or debar contractors from bidding on public contracts.
• The process is governed by agency rules and contract terms.
• Contractors are notified of the proposed suspension or debarment and may have an opportunity to respond or appeal.
• Suspended or debarred contractors are excluded from participating in public procurements for the duration of the penalty.
• Debarment may be for a set period or until corrective action is taken.
• Contractors may be reinstated upon showing that the grounds for suspension or debarment have been remedied.

Interesting/Distinctions: 

• The Controlling Board, a legislative body, must approve certain purchases exceeding $50,000 that do not follow competitive selection.
• Ohio mandates 15% set-asides for Minority Business Enterprises (MBEs) and operates the EDGE program to promote diversity growthand equity in state contracting.
• Ohio’s “Buy Ohio” and “Buy American” preferences, as well as reciprocal construction preferences, ensure local and domestic businesses have competitive advantages in public contracting.