(a) Contracts awarded by the Director of Public Works pursuant to Section 111.01(a), and contracts awarded by the Mayor, the Director of Public Works, the Director of Finance, the Director of Law, the Director of Planning and Development, the Director of Human Services, the Director of Human Resources, or the Procurement Officer pursuant to Section 111.02(a) which are in excess of seventy-five thousand dollars ($75,000) shall be awarded to the lowest and best bidder after advertisement for not less than once in a newspaper of general circulation within the City, except that the following contracts may be awarded without advertising and competitive bidding and without meeting other requirements imposed by this section:
(1) Contracts for professional or technical services, including, without limitation, services of engineers, architects, attorneys, accountants or other professional or technical consultants, which shall be selected on the basis of qualifications;
(2) Contracts for the services and work of a construction manager. As used in this subsection "construction manager" means a person, firm or corporation with substantial discretion and authority to manage or direct a project for the construction, demolition, alteration, repair or reconstruction of any public building, structure, street, highway or other improvement; whenever the City intends to enter into a contract to engage a construction manager, the Awarding Authority shall first advertise, in a newspaper of general circulation in Cuyahoga County, notice of its intent to engage a construction manager, which notice shall invite interested parties to submit proposals for consideration and which notice shall be published at least thirty days prior to the date for accepting such proposals; and the Awarding Authority may also advertise the information contained in the notice in appropriate trade journals, as determined by the Awarding Authority, and the Awarding Authority may otherwise notify persons, firms or corporations believed by the Awarding Authority to be interested in such engagement;
(3) Contracts which are determined by the Council to be necessary to meet an emergency arising in connection with the operation or maintenance of any City department or agency or any equipment, property, improvement or facility of the City, including, without limitation, contracts for work, services, construction, reconstruction, renovation on repairs;
(4) Contracts for the purchase or lease of real property, which contracts are specifically approved by Council;
(5) Contracts for the purchase of used personal property, material or supplies which are to be sold by the submission of written bids or at an auction open to the public;
(6) Contracts for the purchase of real or personal property, services, work, equipment, supplies or materials from any department, division, agency, political subdivision or district or authority of the State or any agency of a political subdivision or a regional council of governments;
(7) Contracts awarded pursuant to Section 111.02 for the purchase or lease of computer hardware or software where the Board of Control has determined that it is either impractical to award the contract under competitive bidding procedures, or cost effective and in the best interests of the City to award the contract without competitive bidding, and, in such cases, the Board of Control has approved a form of the contract to be awarded without competitive bidding,
(8) Contracts, including leases, which may be awarded under the statutes, or rules promulgated thereunder, of the State without competitive bidding;
(9) Contracts for such purposes which may be awarded without competitive bidding under principles of the common law or case law of the State; and
(10) Contracts under other circumstances, where the Council determines that it is either impractical to award the contract under competitive bidding procedures, or cost-effective and in the best interests of the City to award the contract without competitive bidding, and, in such cases, Council has approved a form of the Contract to be awarded without competitive bidding.
(b) As used in this section, "Awarding Authority" means:
(1) In the case of contracts awarded pursuant to Section 111.01, the Director of Public Works;
(2) In the case of contracts awarded pursuant to Section 111.02, the Mayor, the Director of Public Works, the Director of Finance, the Director of Law, the Director of Planning and Development, the Director of Human Resources, the Director of Health and Human Services or the Procurement Officer, as determined by the Board of Control.
(c) Bids shall be opened by the Awarding Authority or its designee at the time, date and place as announced in the notice to bidders, the newspaper advertising or the specifications. The time, place, and date of bid openings may be extended to a later date by the Awarding Authority provided that written or oral notice of the change shall be given to all persons who have received or requested specifications no later than ninety-six hours prior to the original time and date fixed for the opening. The Awarding Authority or its designee shall publicly read each bid. Each bid shall contain the full name of each person interested in it and shall be accompanied by a sufficient bond or certified check on a solvent bank that if the bid is accepted a contract will be entered into and its performance properly secured unless the bid is for a contract for the construction, demolition, alteration, repair or reconstruction of a public improvement, in which case it shall meet the requirements of Ohio R. C. 153.54. If the work bid embraces both labor and material, such items shall be separately stated with the price thereof.
The Awarding Authority may reject any bid. Where there is reason to believe there is collusion or combination among bidders, the bids of those concerned therein shall be rejected. Ohio R.C. 9.31, as it may be amended from time to time, or any successor statute, shall be applicable under this section with respect to the matter of the withdrawal of bids made in error.
(d) The contract shall be between the City and the bidder who is awarded the contract. The contract may provide for liquidated damages for delays beyond a specified date. When, in the opinion of the Awarding Authority it becomes necessary, in the prosecution of any work or improvement under contract, to make alterations or modifications in the contract, such alterations or modifications shall only be made upon the order of the Awarding Authority and the approval of the Board of Control, but such order shall be of no effect until the price to be paid for the work and any additional work or material, or both, under the altered or modified contract, has been agreed upon in writing and signed by the Awarding Authority on behalf of the City and the contractor.
No contractor may recover anything for work or material because of any such alteration or modification unless the contract is made in such manner, nor shall he be allowed to recover for such work or material, or either, more than the agreed price. Alterations and modifications to contracts may be made without advertising and competitive bidding.
(e) The unit or lump sum price stated in the contract shall be used in determining the amount to be paid and shall constitute full and final compensation for all the work. Partial payment to the contractor for work performed under the lump sum price shall be based on a well-balanced schedule prepared by the contractor and approved by the Awarding Authority or his designee who shall apportion the lump sum price to the principal features entering into or forming a part of the work under the lump sum price.
Partial payment to the contractor for labor performed under either a unit or lump sum price contract shall be made at the rate of ninety percent (90%) of the estimates prepared by the contractor and approved by the Awarding Authority, provided that all labor performed after the job is fifty percent (50%) completed, shall be paid for at the rate of one hundred percent (100%) of the estimates submitted by the contractor and approved by the Awarding Authority.
(f) At the time named in the contract for payment to the person, firm, corporation, partnership or association with whom or with which it is made, the Awarding Authority or his designee shall make a full, accurate, and detailed estimate of the various kinds of labor performed and materials furnished under the contract, with the amount due for each kind of labor and material and the amount due in the aggregate. The estimate shall be based upon the actual measurement of such labor and materials, and shall give the amounts of preceding estimate and the amount of labor performed and materials furnished since the last estimate. From the date of completion or either acceptance or occupancy by the City, a sufficient amount shall be retained as additional security for ninety days for the faithful performance of the contract, after which time if the contract has been faithfully performed nothing shall be retained.
(g) The estimates referred to in subsection (f) hereof shall be filed by the Awarding Authority and a certified copy thereof delivered to the Director of Finance. Unless otherwise provided in the contract or other documents incorporated into the contract, all material and equipment shall become the property of the City upon its installation or when it otherwise becomes a part of the building, construction, alteration, addition or other improvement, provided that the City reserves all of its rights and remedies against the contractor or material provider under the contract and applicable law.
All materials furnished and delivered after the job is fifty percent (50%) completed shall be paid for at the rate of ninety percent (90%) of the invoice value of the materials. The balance of such estimate shall be paid when the material is incorporated into and becomes a part of the building, construction, addition, improvement, alteration, or installation, unless the contractor does not prosecute the work with diligence and as specified or intended in the contract.
When the rate of work and amounts involved are so large that it is deemed advisable by the Awarding Authority, estimates and payments shall be made twice each month.
(h) The general laws of Ohio pertaining to the State's prevailing wage law shall be applicable under this section.
(i) The provisions of Ohio R.C. 153.59, to the extent appropriate to application to the City, shall apply to persons, firms, corporations or other entities (the "contractor") who contract with the City and the subcontractors of such contractors.
(j) The general laws of Ohio pertaining to the award of any contract for the construction, reconstruction, improvement, enlargement, alteration, repair, painting or decorating of a public improvement of the City shall, to the extent appropriate to application to the City, apply under this section; provided that:
(1) The provisions of the City's Charter, Codified Ordinances, noncodified ordinances or resolutions, and administrative rules and actions taken pursuant thereto shall prevail over the general laws of Ohio.
(2) Ohio R.C. Chapter 149 shall not be applicable to this section.
(3) Council may determine that the provisions of the general laws of Ohio, currently Ohio R.C. 153.51 to 153.53, inclusive, requiring separate bids for each trade or kind of mechanical labor, employment or business and pertaining to performance bonds and specifications of sureties, shall not apply to the City and its contracts.
(Ord. 18-2023. Passed 12-4-23.)