Joint purchasing programs under R.C. 9.48 cannot be used for construction services
The Ohio Attorney General (OAG) released an opinion in August 2019, Opinion No. 2019-028, in which he opined on the authority of a political subdivision to contract for construction services through joint purchasing programs under R.C. 9.48. Specifically, the Attorney General declared that a political subdivision cannot procure construction services pursuant to R.C. 9.48. Since its issuance, this opinion has had a significant limiting effect on joint purchasing programs that rely on procurements from out-of-state government entities, and it has had a corresponding limiting effect on political subdivisions within the state that have historically relied on those programs for procurement of construction services.
In general, R.C. 9.48 allows political subdivisions to participate in (1) contracts entered into by another political subdivision, (2) joint purchasing programs and (3) contract offerings from the federal government. Procurement pursuant to R.C. 9.48 is attractive to political subdivisions, because such procurement is exempt “from any competitive selection requirements otherwise required by law, if the contract in which it is participating was awarded pursuant to a publicly solicited request for a proposal or a competitive selection procedure of another political subdivision within this state or in another state.” Stated another way, a political subdivision can procure equipment, materials, supplies or services pursuant to R.C. 9.48 without adhering to its own competitive procurement requirements, because another political subdivision has already done so.
In making its determination about construction services, however, the Attorney General focused on 9.48(B)(1), which provides that a political subdivision may, for a fee, participate in a contract entered into by another political subdivision for “equipment, materials, supplies, or services.” The opinion notes that although the General Assembly had used the terms “construction” and “construction services” in other locations within the Revised Code, the General Assembly did not use those terms in the list of items that can be procured pursuant to R.C. 9.48. Due to this omission, the Attorney General determined that “construction services” cannot be procured under R.C. 9.48. The Attorney General opined that “[i]f the legislature intended to include ‘construction services’ in R.C. 9.48, it would have used the language to do so.” Id. at 4. Thus, according to the Attorney General, R.C. 9.48 does not provide an exception to the bidding statutes for construction services contracts.
While the opinion does not expressly indicate what would constitute “construction services,” it is safe to assume that typical construction-type improvements to facilities, such as roof, HVAC or lighting improvements, would qualify. Thus, if you are a political subdivision in Ohio and plan to use a joint purchasing program to procure construction services, you will want to work with legal counsel to determine the authority of the program under which you are procuring the work to make sure it is not based on R.C. 9.48 and, if necessary, explore alternative programs for procuring the work.
