For those of you familiar with the web of statutes and Ohio Attorney General opinions regarding competitive bidding and cooperative purchasing for construction and other services, the Ohio Attorney General (“OAG”) recently added a new section to the web.
For those of you that are not so familiar, some brief context: Boards of education are required by R.C. Section 3313.46 to competitively bid when they determine to build, repair, enlarge, improve, or demolish any school building and the cost of the work is more than fifty thousand dollars ($50,000). However, R.C. Section 9.48 permits school boards to use cooperative purchasing contracts to acquire equipment, materials, supplies, or services. The OAG released an opinion in 2019 finding that school boards may not use R.C. Section 9.48 to obtain construction services, because the General Assembly did not specify so in the statute.
On March 18, 2024, the OAG issued Opinion No. 2024-003, to clarify the scope of services that may be obtained under R.C. 9.48. The opinion revisits the definition of “services” within R.C. 9.48 and clarifies that the interpretation of the term “services” is to include installation, maintenance, repairs, and similar activities, particularly when associated with equipment, materials, and supplies procured under the program. This clarification aims to differentiate between the terms “construction services” and “related services.” While the opinion explores some possible definitions of “construction” and “construction services,” the opinion ultimately concludes that determining whether a service falls under impermissible “construction services” is a factual inquiry beyond the OAG’s purview, emphasizing the need for legal counsel’s guidance.
To put it briefly, repair services that do not constitute construction work are able to be procured through RC 9.48. Equipment purchases that have only incidental installation requirements, are also likely permissible items for RC 9.48 cooperative purchasing. Maintenance services are also safe because maintenance is not a service that is required to be bid. Careful consideration should be given to whether a particular project is a repair or just maintenance.
Keep in mind that there are cooperative options available to school districts that do include construction and construction services. If you are considering a project and are exploring your cooperative procurement options, do not hesitate to contact an Ennis Britton attorney to discuss your available options!