(a) Applicability of Policy. Except as otherwise required by applicable statute, or local law or resolution, the Director of Public Safety/Service and other appointing authorities shall perform all duties required by law and shall have the powers and duties prescribed by this policy in conjunction with the procurement of goods, material, supplies, equipment, services and labor on behalf of the City of Greenville, Ohio. The term "Contracting Officer", as used herein, shall include the Director of Public Safety/Service and all other appointing authorities.
(b) Purchase Within Appropriation. No goods, materials, supplies, equipment, services, labor or other related procurement item shall be purchased and/or contracted for purchase, and no financial liability therefor shall be created, without first obtaining signed confirmation from the City Auditor that sufficient funds are available to meet the financial liability anticipated to be created by virtue of any such procurement.
(c) Duties and Powers of Contracting Officer or Officers.
(1) The Contracting Officer or a Contracting Officer shall assist all of the department heads of the various departments of the City in the purchase of goods, materials, supplies, equipment, services, labor, rentals and leases in the manner set forth herein.
(2) Any amendment of this policy shall be in writing and promulgated with the advice and approval of the Mayor, Auditor and Law Director.
(3) The Auditor shall prescribe and maintain such forms as are reasonably necessary to the operation of this policy, or any regulations promulgated under this policy. Nothing herein shall be construed to contravene the Auditor's right to establish the form of payment request required to be submitted to initiate payment of a debt or obligation incurred under this policy.
(d) Contracts, Material and Labor (ORC 735.05).
(1) The Director of Public Service, or contracting officer may make any contract to purchase supplies or materials, to provide labor, or to provide safety and service, involving not more than fifty thousand dollars ($50,000) and as previously included within the annual appropriations for the departments under the Director's supervision. When an expenditure within the department, other than the compensation of persons employed therein, exceeds fifty thousand dollars ($50,000), the expenditure shall first be authorized and directed by resolution or ordinance passed by City Council. When so authorized, the Director of Public Service or Contracting Officer shall make a written contract with the lowest and best bidder after advertisement for not less than two nor more than four consecutive weeks in a newspaper in general circulation in the City. Among the factors that may be considered in determining whether a bidder is lowest and best include, but are not limited to, the bidder's experience, the bidder's financial condition, the bidder's conduct and performance on previous contracts, the bidder's management skills and the bidder's ability to execute the contract properly.
(2) The form of contract to be referred in conjunction with any procurement hereunder shall be as authorized by the Law Director.
(3) Prior to entering into any contract for, or authorizing the acquisition of, any goods, materials, supplies, equipment, services, labor or other related procurement items, a vendor's code shall be obtained from the City Auditor and a purchase order submitted evidencing the anticipated fiscal obligation to be so incurred. The form of purchase order shall be as directed by the City Auditor. In certain instances, the use of blanket purchase orders which are effective for ninety days may be appropriate in conjunction with certain vendors, thus obviating the need for individual purchase orders for each act performed or for goods, and services, etc., supplied by a vendor. The City Auditor shall determine where the use of a various purchase order may be permitted.
(4) The Contracting Officer or a Contracting Officer shall present to the City Auditor all invoices, packing slips or other requests for payment, upon the receipt thereof, to insure timely payment. Payment to vendors is generally made two times per month and payment of vendor invoices shall be made in accordance with such payment cycle, unless otherwise requested by the Contracting Officer or a Contracting Officer and approved by the City Auditor.
(5) If formal action by City Council is required to authorize procurement pursuant to this policy, no contract shall be entered into until after the effective date of the relevant authorizing legislation, and no contract shall be executed until the requested purchase order, under paragraph (d)(3) hereof, has been requested, prepared and executed.
(6) Except as provided in paragraph (d)(1) hereof, when the estimated cost of supplies, materials, labor, service, etc., exceeds ten thousand dollars ($10,000), such expenditure shall first be authorized and directed by resolution or ordinance passed by City Council. When so authorized and directed, except where the contract is for equipment, services, materials or supplies to be purchased under Ohio R.C. 125.04, 715.23(D) or 5513.01, the Contracting Officer or a Contracting Officer shall make a written contract with the lowest and best bidder after advertisement for not less than two nor more than four consecutive weeks in a newspaper in general circulation within the City.
(e) Conditions Obviating Formal Bidding and Advertising for Contracts.
(1) In the case of a real and present emergency arising in connection with the operation and maintenance of any department, division, commission, bureau or board of the City, City Council may, by a two-thirds vote of all members elected thereto, authorize the duly authorized contracting officer, commission, board or authority to enter into a contract for work to be done or for the purchase of supplies or materials without formal bidding.
(2) Subject to the requirement of authorization by Council for procurement expenditures in excess of ten thousand dollars ($10,000), it shall be unnecessary for the City to engage in the competitive bidding process for the following:
A. Contracts for utility service, postage stamps or other goods, services, material supplies or equipment, and for labor, where fixed prices prevail;
B. Contracts for personal service of a specialized nature requiring the exercise of peculiar skill and aptitude;
C. Contracts for the purchase of supplies, services, equipment and certain materials, if such purchases are made in accordance with the Ohio Cooperative Purchasing Act (Ohio R.C. 125.04);
D. Contracts for the purchase of machinery, materials, supplies or other articles, if such purchases are made in accordance with Ohio R.C. 5513.01(B);
E. Contracts for the purchase of supplies, services, equipment or materials if the City is participating in an existing valid and lawful contract between a vendor and another Ohio county or municipality as an additional purchaser from that vendor. The foregoing exception from the competitive bidding requirements for the City shall apply only when the other Ohio county or municipality which is a party to the contract has procured and entered into such contract in accordance with the applicable competitive bidding provisions of Ohio R.C. Chapter 307 in the case of a municipality, or a substantially similar competitive bidding process adopted pursuant to the authority of the other municipality under Article XVIII, Section 3, of the Ohio Constitution (Home Rule Amendment); or
F. When the Contracting Officer determines that only a single source exists for the purchase of the relevant goods, materials, etc.
(f) Purchase of Used Equipment Without Bid. (ORC 735.052). City Council may authorize, by ordinance, a Contracting Officer or a board, commission or authority to enter into a contract, without advertising and bidding, for the purchase of used equipment or supplies at an auction open to the public, or at a sale at which such used equipment or supplies are to be sold upon submission of written bids to the vendor thereof where the vendor has invited the public to submit written bids or when more than one bid is submitted. The ordinance authorizing such contracts shall:
(1) Designate the authority of the officer, commission, board or other contracting authority to make such contract;
(2) Set forth the maximum amount that may be bid as the purchase price of such used equipment or supplies;
(3) Describe the type of used equipment or supplies that may be purchased;
(4) Appropriate sufficient funds to meet the maximum amount that may be bid as the purchase price for such used equipment or supplies, unless funds have previously been appropriated for such purpose.
(g) Purchase From Other Subdivision Without Bid (ORC 735.053). City Council may authorize by ordinance a Contracting Officer or duly authorized board, commission or authority to enter into a contract, without advertising and bidding, for services or the purchase of material, equipment or supplies from any department, division, agency or political subdivision as set forth in Ohio R.C. 713.23(D). The ordinance authorizing such contracts shall:
(1) Designate the authority of the officer, commission, board or other contracting authority to make such contract;
(2) Set forth the maximum amount that may be bid as the purchase price of such used equipment or supplies;
(3) Describe the type of used equipment or supplies that may be purchased;
(4) Appropriate sufficient funds to meet the maximum amount that may be bid as the purchase price for such used equipment or supplies, unless funds have previously been appropriated for such purpose.
(h) Proceeding on Opening of Bids. Bids for work under the supervision of the Dpartment of Public Safety/Service shall be opened at the time, date and place specified in the notice to bidders or specifications and shall be publicly read by the Director of Public Safety/Service or a person designated by such Director. The time, place and date of bid openings may be extended to a later date by the Director of Public Safety/Service, 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. Each bid shall contain the full name of each person interested in it and shall be accompanied by a sufficient bond or certified check, cashier's check or money order on a solvent bank or savings and loan association 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 director 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.
(i) Contract Alterations or Modifications (ORC 735.07). The contract referred to in subsection (c) hereof shall be between the City and the bidder. Where a bonus is offered for completion of a contract prior to a specified date, the City may exact a prorated penalty in like sum for every day of delay beyond a specified date.
When, in the opinion of the Contracting Officer or other duly authorized contracting authority, it becomes necessary, in the prosecution of any work or improvement under contract, to make modifications, the same shall only be made upon the order of the City, but such order shall be of no effect until the price to be paid for the work and material, or both, under the altered or modified contract, has been agreed upon in writing and signed by the Contracting Officer or a Contracting Officer or other duly authorized contracting authority on behalf of the City and the contractor, and approved by the Board of Control.
No contractor may recover anything for work or material because of any such alteration or modification unless the contract is made in such manner as to authorize the same, nor shall he or she be allowed to recover for such work and material, or either, more than the agreed price. The law relating to the requirement of bids and the awarding of contracts for public buildings and improvements, so far as it applies, shall remain in full force and effect.
(j) Execution of Contracts (ORC 735.09).
(1) All contracts made by the City shall be executed by the Contracting Officer or other authorized contracting authority in the name of the City. One copy shall be filed in his or her office and the original with the City Auditor. No contract of modification thereto shall be signed by the Contracting Officer or other authorized contracting authority unless it has been approved as to form by the Law Director or the Law Director's designee. No liability shall be created against the City as to any matters under the supervision of such Director, except by the said Director's express authority.
(2) No City employee shall be interested in any contract made with the City.
(3) No contract shall be awarded under this section unless the contractor has agreed in writing to permit the City Auditor or the Auditor's designee to inspect and copy at all reasonable times all of the financial records in the possession or control of the contractor which pertain in any way to the contract in question.
(4) Notwithstanding payment of the full purchase price or contract price, the performance bond, if applicable, shall not be released, and acceptance of the performance shall not be deemed to have been made, until the goods, materials, work product, etc., have been fully inspected and found to comply in all respects with the specifications therefor, and until any required maintenance bond has been properly posted with the City.
(5) No department head, supervisor or employee shall be authorized to accept performance unless a determination has been made that all contract specifications have been satisfactorily met and that the requisite maintenance bond, if applicable, has been posted.
(6) When deemed necessary by the Law Director, a contract shall provide satisfactory evidence of the existence of a comprehensive policy of general liability insurance coverage, in an amount specified by the bidding or other relevant documents, or as specified by the Law Director, naming therein the City of Greenville, Ohio, as an additional insured thereon, to provide indemnity against liability in the performance of the relevant contract.
(k) Award and Execution of Contracts; Price; Partial Payments (ORC 153.12).
(1) With respect to the award of any contract for the construction, reconstruction, improvement, enlargement, alteration, repair, painting or decoration of a public improvement made by the City, the award and execution of the contract shall be made within sixty days after the date on which the bids are opened. The failure to award and execute the contract within sixty days invalidates the entire bid proceedings and all bids submitted, unless the time for awarding and executing the contract is extended by mutual consent of the City and the bidder whose bid the City accepts and with respect to whom the City subsequently awards and executes a contract. The bid for which the award is to be made shall be opened at the time and place named in the advertisement for bids, unless extended by the City or unless, within ninety-six hours prior to the published time for the opening of bids, excluding Saturdays, Sundays and legal holidays, any modification of the plans or specifications and estimates of the cost for the project for which bids are solicited is issued and mailed or otherwise furnished to persons who have obtained plans or specifications for the project, for which the time for opening of bids shall be extended one week, with no further advertising of bonds required. The contractor, upon request, is entitled to a notice to proceed with the work by the City upon execution of the contract.
No contract to which this section applies shall be entered into if the price of the contract, or, if the project involves multiple contracts, where the total price of all contracts for the project, is in excess of ten percent above the entire estimate thereof, nor shall the entire cost of the construction, reconstruction, repair, painting, decorating, improvement, alteration, addition or installation, including changes and estimates of expense for architects or engineers, exceed in the aggregate the amount authorized by law.
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.
(2) Partial payment to the contractor for work performed under the lump sum price shall be based on a schedule prepared by the contractor and approved by the architect or engineer who shall apportion the lump sum price to the major components entering into or forming a part of the work under the lump sum price. Further, partial payments for labor performed under either a unit or lump sum contract shall be governed by the applicable provisions of the Ohio Revised Code as to the retainage of contract payments, creation of escrow accounts and payment of retainer funds.
(l) Bid Guaranties on Construction Contracts (ORC 153.54).
(1) Each person bidding for a contract with the City, for the construction, demolition, alteration, repair or reconstruction of any public improvement, is required to file with the bid a bid guaranty in the form of either:
A. A bond in accordance with paragraph (l)(2) hereof for the full amount of the bid;
B. A certified check, cashier's check or letter of credit pursuant to Ohio R.C. Chapter 1305, in accordance with paragraph (l)(3) hereof. Any such letter of credit shall be revocable only at the option of the City. The amount of the certified check, cashier's check or letter of credit shall be equal to ten percent of the bid.
(2) A bid guaranty filed pursuant to paragraph (l)(1) hereof shall be conditioned to:
A. Provide that if the bid is accepted, the bidder will, after the awarding or the recommendation for the award of the contract, whichever the City designates, enter into a proper contract in accordance with the bid, plans, details, specifications and bills of material. If, for any reason, the bidder fails to enter into the contract, and the City awards the contract to the next lowest bidder, the bidder and the surety on such bidder's bond shall be liable to the City for the difference between such bidder's bid and that of the next lowest bidder, or for a penal sum not to exceed ten percent of the amount of the bond, whichever is less.
If the City does not award the contract to the next lowest bidder, but resubmits the project for bidding, the bidder failing to enter into the contract and the surety on his or her bond shall be liable to the City for a penal sum not to exceed ten percent of the amount of the bid or the costs in connection with the resubmission of printing new contract documents, required advertising, and printing and mailing notices to prospective bidders, whichever is less.
B. Indemnify the City against all damage suffered by failure to perform the contract according to its provisions and in accordance with the plans, details, specifications and bills of material therefor and to pay all lawful claims of subcontractors, materialmen and laborers for labor performed or material furnished in carrying forward, performing or completing the contract; and agree and assent that this undertaking shall be for the benefit of any subcontractor, materialman or laborer having a just claim, as well as for the City.
(3) A bid guaranty filed pursuant to paragraph (l)(1)B. hereof shall be conditioned to provide that if the bid is accepted, the bidder will, after the awarding or the recommendation for the award of the contract, whichever the City designates, enter into a proper contract in accordance with the bid, plans, details, specifications and bills of material. If, for any reason, the bidder fails to enter into the contract, and the City awards the contract to the next lowest bidder, the bidder shall be liable to the City for the difference between his or her bid and that of the next lowest bidder, or for a penal sum not to exceed ten percent of the amount of the bid, whichever is less. If the City does not award the contract to the next lowest bidder, but resubmits the project for bidding, the bidder failing to enter into the contract shall be liable to the City for a penal suhall be determi ten n like manner.
(4) Notwithstanding paragraph (l)(3) hereof, where the City resubmits the project for bidd
If the bidder enters into the contract, the bidder shall, at the time the bidder enters into the contract, file a bond for the amount of the contract to indemnify the City against all damage suffered by failure to perform the contract according to its provisions and in accordance with the plans, details, specifications and bills of material therefor and to pay all lawful claims of subcontractors, materialmen and laborers for labor performed or material furnished in carrying forward, performing or completing the contract; and agree and assent that this undertaking shall be for the benefit of any subcontractor, materialman or laborer having a just claim, as well as for the City.
(5) Where the City accepts a bid but the bidder fails or refuses to enter into a proper contract in accordance with the bid plans, details, specifications and bills of material within ten days after the awarding of the contract, the bidder and the surety on any bond shall be liable for the amount of the difference between the high bid and that of the next lowest bidder, and if such next lowest bidder also fails or refuses to enter into a proper contract in accordance with the bid, plans, details, specifications and bills of material within ten days after the awarding of the contract, the liability of such next lowest bidder shall be the amount of the difference between the bids of such next lowest bidder and the third lowest bidder, but not in excess of liability specified in paragraph (l)(2) or (3) hereof. Liability on account of an award to any lowest bidder beyond the third lowest bidder shall be determined in like manner.
(6) Notwithstanding paragraph (l)(3) hereof, where the City resubmits the project for bidding, each bidder whose bid was accepted but who failed or refused to enter into a proper contract shall be liable for an equal share of a penal sum in connection with the resubmission of printing new contract documents, required advertising, and printing and mailing notices to prospective bidders, but no bidder's liability shall exceed the amount of his or her bid guaranty.
(7) All bid guaranties filed pursuant to this section shall be payable to the City, shall be for the benefit of the City, or any person having a right of action thereon, and shall be deposited with and held by the City Auditor. All bonds filed pursuant to this section shall be issued by a surety company authorized to do business in the State as surety and approved by the Law Director.
(m) Withdrawing Bids Made in Error on Construction Contracts (ORC 9.31).
(1) A bidder for a contract with the City, for the construction, demolition, alteration, repair or reconstruction of any public building, structure, highway or other improvement, may withdraw his or her bid from consideration if the price bid was substantially lower than the other bids, provided the bid was submitted in good faith, and the reason for the price bid being substantially lower was a clerical mistake as opposed to a judgment mistake, and was actually due to an unintentional and substantial arithmetic error or an unintentional omission of a substantial quantity of work, labor or material made directly in the compilation of the bid. Notice of a claim of right to withdraw such bid must be made in a writing filed with the City within two business days after the conclusion of the bid opening procedure.
(2) No bid may be withdrawn under this subsection when the result would be the awarding of the contract on another bid of the same bidder.
(3) No bidder who is permitted to withdraw a bid shall, for compensation, supply any material or labor to, or perform any subcontract or other work agreement for, the person to whom the contract is awarded, or otherwise benefit, directly or indirectly, from the performance of the project for which the withdrawn bid was submitted, without the approval of the City. The person to whom the contract was awarded and the withdrawing bidder are jointly liable to the City in an amount equal to any compensation paid to or for the benefit of the withdrawing bidder without such approval, in addition to the penalty provided in Ohio R.C. 2913.31.
(4) If a bid is withdrawn under authority of this section, the City may award the contract to the next lowest bidder or reject all bids and resubmit the project for bidding. In the event the City resubmits the project for bidding, the withdrawing bidder shall pay the costs, in connection with the resubmission, of printing new contract documents, required advertising, and printing and mailing notices to prospective bidders, if the City finds that such costs would not have been incurred but for such withdrawal.
(5) The City, if it intends to contest the right of a bidder to withdraw a bid, shall hold a hearing thereon within ten days after the opening of such bids and issue any order allowing or denying the claim of such right within five days after such hearing is concluded. The City shall give to the withdrawing bidder timely and reasonable notice of the time and place of any such hearing. The City shall make a stenographic record of all testimony, other evidence and rulings on the admissibility of evidence presented at the hearing. The bidder shall pay the costs of the hearing.
(6) In the event the City denies the claim for withdrawal and the bidder elects to appeal or otherwise refuses to perform, the City may reject all bids or award to the next lowest bidder.
(n) Performance Bonds (ORC 153.57). The bond provided for in Ohio R.C. 153.54(C) shall be in substantially the following form:
"KNOW ALL MEN BY THESE PRESENTS, that we, the undersigned, as principal and as sureties, are hereby held and firmly bound unto ...... in the penal sum of ......... dollars, for the payment of which well and truly to be made, we hereby jointly and severally bind ourselves, our heirs, executors, administrators, successors and assigns.
Signed this day of 19 .
THE CONDITIONS OF THE ABOVE OBLIGATION ARE SUCH that whereas the above-named principal did on the day of 19 , enter into a contract with , which said contract is made a part of this bond the same as though set forth herein;
Now, if the said shall well and faithfully do and perform the things agreed by to be done and performed according to the terms of said contract; and shall pay all lawful claims of subcontractors, materialmen and laborers, for labor performed and materials furnished in the carrying forward, performing or completing of said contract; we agreeing and assenting that this undertaking shall be for the benefit of any materialman or laborer having a just claim, as well as for the obligee herein; then this obligation shall be void; otherwise the same shall remain in full force and effect; it being expressly understood and agreed that the liability of the surety for any and all claims hereunder shall in no event exceed the penal amount of this obligation as herein stated.
The said surety hereby stipulates and agrees that no modifications, omissions or additions in or to the terms of the said contract or in or to the plans or specifications therefor shall in any wise affect the obligations of said surety on its bond."
(o) Form of Bid Bond (ORC 153.571). The bond provided for in Ohio R.C. 153.54(B) shall be in substantially the following form:
"KNOW ALL MEN BY THESE PRESENTS, that we, the undersigned as principal and as sureties, are hereby held and firmly bound unto as obligee in the penal sum of the dollar amount of the bid submitted by the principal to the obligee on to undertake the project known as . The penal sum referred to herein shall be the dollar amount of the principal's bid to the obligee, incorporating any additive or deductive alternative proposals made by the principal on the date referred to above to the obligee, which are accepted by the obligee. In no case shall the penal sum exceed the amount of
dollars. (If the foregoing blank is not filled in, the penal sum will be the full amount of the principal's bid, including alternatives. Alternatively, if the blank is filled in, the amount stated must not be less than the full amount of the bid, including alternatives, in dollars and cents. A percentage is not acceptable.) For the payment of the penal sum well and truly to be made, we hereby jointly and severally bind ourselves, our heirs, executors, administrators, successors and assigns.
Signed this day of 19 .
THE CONDITION OF THE ABOVE OBLIGATION IS SUCH that whereas the above named principal has submitted a bid for .
Now, therefore, if the obligee accepts the bid of the principal and the principal fails to enter into a proper contract in accordance with the bid, plans, details, specifications and bills of material; and in the event the principal pays to the obligee the difference, not to exceed ten percent of the penalty hereof, between the amount specified in the bid and such larger amount for which the obligee may in good faith contract with the next lowest bidder to perform the work covered by the bid, or in the event the obligee does not award the contract to the next lowest bidder and resubmits the project for bidding, the principal pays to the obligee the difference, not to exceed ten percent (10%) of the penalty hereof, between the amount specified in the bid, or the costs, in connection with the resubmission, of printing new contract documents, required advertising, and printing and mailing notices to prospective bidders, whichever is less, then this obligation shall be null and void, otherwise to remain in full force and effect; if the obligee accepts the bid of the principal, and the principal, within ten (10) days after the awarding of the contract, enters into a proper contract in accordance with the bid, plans, details, specifications and bills of material, which said contract is made a part of this bond the same as though set forth herein;
Now also, if the said shall well and faithfully do and perform the things agreed by to be done and performed according to the terms of said contract; and shall pay all lawful claims of subcontractors, materialmen and laborers, for labor performed and materials furnished in the carrying forward, performing or completing of said contract; we agreeing and assenting that this undertaking shall be for the benefit of any materialman or laborer having a just claim, as well as for the obligee herein; then this obligation shall be void; otherwise the same shall remain in full force and effect; it being expressly understood and agreed that the liability of the surety for any and all claims hereunder shall in no event exceed the penal amount of this obligation as herein stated.
The said surety hereby stipulates and agrees that no modifications, omissions or additions in or to the terms of the said contract or in or to the plans or specifications therefor shall in any wise affect the obligations of said surety on its bonds.
(p) Appropriations. No expenditures shall be authorized unless an appropriation has been made pursuant to Ohio R.C. Chapter 5705.
(q) Public Information (ORC 149.43). Procurement information shall be a public record to the extent provided in Ohio R.C. 149.43 and shall be available to the public as provided in that section.
(r) Unlawful Interest in a Public Contract (ORC 2921.42).
(1) No public official shall knowingly do any of the following:
A. Authorize, or employ the authority or influence of his or her office to secure authorization of, any public contract in which he or she, a member of his or her family, or any of his or her business associates, has an interest;
B. Authorize, or employ the authority or influence of his or her office to secure, the investment of public funds in any share, bond, mortgage or other security, with respect to which he or she, a member of his or her family, or any of his or her business associates, either has an interest, is an underwriter, or receives any brokerage, origination or servicing fees;
C. During his or her term of office or within one year thereafter, occupy any position of profit in the prosecution of a public contract authorized by him or her or by a legislative body, commission or board of which he or she was a member at the time of authorization, unless the contract was let by competitive bidding to the lowest and best bidder;
D. Have an interest in the profits or benefits of a public contract entered into by or for the use of the political subdivision or governmental agency or instrumentality with which he or she is connected;
E. Have an interest in the profits or benefits of a public contract that is not let by competitive bidding if required by law and that involves more than one hundred fifty dollars ($150.00).
(2) In the absence of bribery or a purpose to defraud, a public official, member of his or her family, or any of his or her business associates, shall not be considered as having an interest in a public contract or the investment of public funds, if all of the following apply:
A. The interest of that person is limited to owning or controlling shares of the corporation, or being a creditor of the corporation or other organization, that is the contractor on the public contract involved, or that is the issuer of the security in which public funds are invested;
B. The shares owned or controlled by that person do no exceed five percent of the outstanding shares of the corporation, and the amount due that person as creditor does not exceed five percent of the total indebtedness of the corporation or other organization;
C. That person, prior to the time the public contract is entered into, files with the political subdivision or governmental agency or instrumentality involved, an affidavit giving his or her exact status in connection with the corporation or other organization.
(3) This subsection does not apply to a public contract in which a public official, member of his or her family, or one of his or her business associates has an interest, when all of the following apply:
A. The subject of the public contract is necessary supplies or services for the political subdivision or governmental agency or instrumentality involved;
B. The supplies or services are unobtainable elsewhere for the same or lower cost, or are being furnished to the political subdivision or governmental agency or instrumentality as part of a continuing course of dealing established prior to the public official's becoming associated with the political subdivision or governmental agency or instrumentality involved;
C. The treatment accorded the political subdivision or governmental agency or instrumentality is either preferential to or the same as that accorded other customers or clients in similar transactions;
D. The entire transaction is conducted at arm's length, with full knowledge by the political subdivision or governmental agency or instrumentality involved, of the interest of the public official, member of his or her family, or business associate, and the public official takes no part in the deliberations or decision of the political subdivision or governmental agency or instrumentality with respect to the public contract.
(4) Paragraph (r)(1)D. hereof does not prohibit participation by a public employee in any housing program funded by public moneys if the public employee otherwise qualifies for the program and does not use the authority or influence of his or her office or employment to secure benefits from the program and if the moneys are to be used on the primary residence of the public employee. Such participation does not constitute an unlawful interest in a public contract in violation of this subsection.
(5) Whoever violates this subsection is guilty of having an unlawful interest in a public contract. Violation of paragraph (r)(1)A. or B. hereof is a felony of the fourth degree. Violation of paragraph (r)(1)C., D. or E. hereof is a misdemeanor of the first degree.
(6) It is not a violation of this subsection for a prosecuting attorney to appoint assistants and employees in accordance with Ohio R.C. 309.06 and 2921.421, for a chief legal officer of a municipal corporation or an official designated as prosecutor in a municipal corporation to appoint assistants and employees in accordance with Ohio R.C. 733.621 and 2921.421, or for a township law director appointed under Ohio R.C. 504.15 to appoint assistants and employees in accordance with Ohio R.C. 504.151 and 2921.421.
(7) As used in this subsection;
A. "Public contract" means any of the following:
1. The purchase or acquisition, or a contract for the purchase or acquisition, of property or services by or for the use of the State, any of its political subdivisions, or any agency or instrumentality of either, including the employment of an individual by the State, any of its political subdivisions, or any agency or instrumentality of either;
2. A contract for the design, construction, alteration, repair or maintenance of any public property.
B. "Chief legal officer" has the same meaning as in Ohio R.C. 733.621.
(Ord. 98-72. Passed 5-5-98; Ord. 04-47. Passed 5-4-04; Ord. 12-89. Passed 10-16-12.)