Want to Use Cooperative Purchasing Power for Construction Services? Call Your Representatives!

HB 145, 135th General Assembly

There is legislation currently pending in the House to clarify that ORC 9.48 applies to construction services. The attorneys here at Ennis Britton frequently hear from Superintendents, Treasurers and Business Managers from around the State that they would like to cooperative purchasing to be more accessible for some construction services. This is an opportunity to do just that so now is the time to contact your representatives to support this bill. By way of background, cooperative purchasing is a procurement process whereby large purchasing power is leveraged to secure a wider range of vendors and better prices. The contracts available through cooperative purchasing are publicly and competitively secured so the individual district taking advantage of an available contract does not have to go through competitive bidding itself.

In 1997, the General Assembly allowed cooperative purchasing for counties and townships. Then, in 2008, cooperative purchasing was expanded to all political subdivisions of the State, including school districts through section 9.48 of the Ohio Revised Code. 9.48 provides that a political subdivision may do any of the following:

(1) Permit one or more other political subdivisions to participate in contracts into which it has entered for the acquisition of equipment, materials, supplies, or services, and may charge such participating political subdivisions a reasonable fee to cover any additional costs incurred as a result of their participation;

(2) Participate in a joint purchasing program operated by or through a national or state association of political subdivisions in which the purchasing political subdivision is eligible for membership.

(3) Participate in contract offerings from the federal government that are available to a political subdivision including, but not limited to, contract offerings from the general services administration. Focusing in particular on number 2 above, a school district may acquire equipment, materials, supplies, or services through cooperative (joint) purchasing programs operated by any state or national association of political subdivisions.

Unfortunately, The Ohio Attorney General issued an opinion in 2019 that concluded that political subdivisions could not use coop- erative purchasing pursuant to Section 9.48 in order to procure construction services because the statute does not use that term. “If the legislature intended to include “construction services” in R.C. 9.48, it could have used language to do so. R.C. 9.48, however, does not contain the terms “construction” or “construction services.” Consequently, we conclude that the General Assembly did not intend to include construction or construction services among the list of items, which a political subdivision may secure under the purchasing authority described in R.C. 9.48.”

While it is true that an Attorney General opinion is not binding law, school districts are cautioned against using this method or procurement to secure construction services. In the absence of any other interpretation, an auditor or grant coordinator could determine that cooperative purchasing under 9.48 is not a valid method of procurement for construction services using this opinion as support.

This bill would clarify that “services” include “construction services.” This change would grant school districts and other political subdivisions more options, flexibility, and control over their purchasing decisions. The Bill, introduced by representatives Thomas Hall and Brian Lampton, was referred to the State and Local Government Committee on April 28, 2023.