Update on New Guidance Regarding Joint Purchasing Programs Under Revised Code Section 9.48

Update on New Guidance Regarding Joint Purchasing Programs Under Revised Code Section 9.48

by | Jun 19, 2024 | Construction & Real Estate, General

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!

Career Tech Corner: CTC Construction Program Builds Interest in Construction Delivery Methods

Career Tech Corner: CTC Construction Program Builds Interest in Construction Delivery Methods

by | Apr 24, 2024 | Board Policy & Representation, Construction & Real Estate, General

The last Biennium Budget Bill included grants for the expansion of career technical opportunities. Last fall, the Governor’s office announced that of the 59 applicants for the Career Technical Construction Program, 35 were awarded almost $200 million. This funding will be used to build and expand classrooms and training centers at JVSDs, compacts, and comprehensives across Ohio in various programs like engineering, manufacturing, health sciences, construction, and more.

There are various construction delivery methods available to recipients of these funds who choose to use the for construction projects. The main three delivery methods utilized by school districts are summarized below.

1. Design-Bid-Build (“DBB”). This is the more traditional method of construction delivery. With this method, the owner hires an architect to develop the plans, specifications and estimates of cost. This requires a qualifications-based selection process. The architect then assists the owner with bidding the various bid packages for the contract either through a single general contract or multiple contractors. This method is typically used for smaller projects such as minor renovations, pre-fabricated buildings, athletic facility upgrades, etc., but can be utilized for larger projects as well. The Owner would contract with the architect and each prime contractor coming onto the project.

2. Design-Build (“DB”). This is often confused with DBB even though it is an entirely different delivery method. Through this method, the architect is responsible for both the design and the construction of the project. The owner has a single contract with the design-build firm. The design-build firm is selected according to a two-stage selection process that first considers qualifications then technical and price components for the delivery of the project. Prior to selecting a design-build firm, the Owner must hire a criteria architect to develop the design criteria for the project. The criteria architect is hired using a qualifications-based selection process in the same manner as hiring an architect or engineer for professional design services. Design-build is considered a faster delivery method, however, this is because there is not a lot of owner input on the actual design itself, only the criteria for the design, i.e., what components and functions the finished build must have. This method is good for projects such as an additional wing of traditional classrooms that do not have unique design components.

3. Construction Manager at-Risk (“CMR”). This is currently the most popular delivery method for new school construction, major renovations and additions projects, and projects where the owner wants to have a lot of input on the design and functional components of the build. With CMR, the owner hires an architect for the necessary professional design services. The Owner goes through a two-stage selection process first considering qualifications, then technical and pricing proposals. The Owner combines the scores across both stages and awards a contract to the winner. The CMR serves as both the construction manager and the builder. The Owner has a single contract with the CMR and the CMR is responsible for bringing in all materials, labor, and equipment to the Project.

Districts undertaking large or complex projects may consider hiring an owner’s representative. An owner’s representative is a professional agent who advises the owner and supervises the project to make sure it stays on track. While it is true that the architect and contractor will have contractual obligations to the owner, they are not “in their corner” so to speak and may end up in an adversarial position if a dispute about the work arises. The owner’s rep in turn is the agent of the owner and their focus is on asserting the owner’s interests on the project. The Ennis Britton Consulting Group (“EBCG”) provides owner’s representative services. Barb and Steve Shergalis of EBCG are former architects very experienced in public school construction projects.

Each of these delivery methods has their own unique requirements for properly soliciting the contracts to get the Project off the ground. It is therefore important to make sure that you are taking all the proper steps to ensure you have a valid contract in place that does not expose the Board of Education to unnecessary liability risks. Please do not hesitate to contact a member of the Ennis Britton Construction Practice Group with questions about the right delivery method for your project.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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

by | May 22, 2023 | Construction & Real Estate, General, Legislation, School Management

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 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 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 cooperative 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.

What does this mean for your district?

While caution is warranted about RC 9.48, there are other methods through which cooperative purchasing may be used for improvements. If you have a project for which you are thinking of using cooperative purchasing, contact one of the attorneys at Ennis Britton to make sure you stay in compliance.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Career Tech Corner: CTC Options for Acquiring Sites for Instruction

Career Tech Corner: CTC Options for Acquiring Sites for Instruction

by | Apr 14, 2023 | Construction & Real Estate, General, Labor and Employment, School Management

As Career Technical Centers (CTC) offer ever-expanding curricula and training in more advanced and technical fields, there may be a need for new space for hands-on learning and training. Perhaps your district is interested in erecting a lab for manufacturing education, or agricultural space for education in farming technology. 

Under the law, school districts are “bodies politic and corporate” “capable of…acquiring, holding, possessing, and disposing of real and personal property.” Just like any city, local, or exempted village school district, vocational districts can purchase and lease land for the erection of education facilities.  CTCs may also purchase or lease existing buildings and, as needed, renovate such existing spaces for their purposes.  Lease-purchase agreements are also permissible for this purpose. CTCs may also acquire ownership of real property by donation or an exchange agreement. (By law, CTCs have all the authority and powers as city school districts with the exception of certain matters specifically address in the Revised Code pertaining to Chapters 124 (civil service), 3317 (School Foundation Program), 3323 (special education), and 3331 (age and schooling certificates)).  There are other means by which a CTC could acquire property that occur less frequently, are less desired, and are entirely context based. These are adverse possession and appropriation (condemnation). 

There may be instances where a CTC desires to acquire property not to erect a building for use as classroom space but to facilitate the programming of the CTC.  In some instances, this may involve students performing work that is within the scope of their particular program but that also contributes to a private venture.

The applicable statutes refer to a board of education using its powers to acquire property for its own purposes, i.e., for the operations of the district in carrying out its educational mission.  There is not any express authority in those statutes for a board to acquire property for non-school purposes or to effectuate a purely private development.

However, there are some attorney general opinions, addressing CTCs in particular, that have allowed a CTC to engage in a private venture so long as there is some connection to the curriculum.  See 1976 Op. Atty. Gen. No. 76-065 (A CTC may construct and sell single-family residences on school land.  Students erected the homes under supervision as part of the curriculum, and not for pay); 1971 Op. Atty. Gen. No. 71-068 (A school may engage and compete in private enterprise, even at a profit, so long as the program is reasonably necessary to the vocational education curriculum); 1971 Op. Atty. Gen. No. 71-026 (Use of school facilities for serving meals and banquets to community organizations is justified as part of the vocational education curriculum).

1981 Op. Atty. Gen. No. 81-093 opines that a CTC may, pursuant to R.C. 3313.90, enter into an agreement with a nonprofit corporation whereby students of the district would construct a house on property owned by the corporation with materials and equipment furnished at the expense of the corporation, provided that such an agreement is reasonably necessary to fulfill the requirements of the vocational education curriculum.  Additionally, that opinion holds that a board of education of a CTC may, as part of a vocational education program, purchase land, construct residential dwellings thereon, and thereafter sell such realty.

What does this mean for your district?

Your board is vested with broad powers to acquire property using several different means.  The options available should be carefully considered to ensure which is the best approach for any given project or plan. Attorneys at Ennis Britton stand ready to assist you with achieving your goals in this regard.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Prepare for Increased Property Valuation Challenges

by | Oct 14, 2020 | Construction & Real Estate, COVID-19 (Coronavirus), General

The COVID-19 pandemic has impacted our lives and businesses in ways we never envisioned.  The real estate market has certainly not been spared.  Office space, hotels, restaurants and retail establishments have been particularly hard hit.  Demand for office space is likely to decline given our adaptation to working at home.  As of July 30th, the American Hotel and Lodging Association reported that more than half of hotel rooms were empty across the country with many hotels being completely closed.1  Many of our favorite restaurants and retail establishments have also been forced to close during the pandemic.  All of this is likely to affect real estate values for years to come.    

Starting in January, property owners will have the option to file complaints with their county boards of revision seeking to lower the county auditor’s value assigned to their properties (and their tax bills).  We anticipate that many property owner’s will take advantage of this opportunity.  However, their complaints may be premature.  That is because real estate taxes are paid one year in arrears.  Thus, any complaint filed next year is for valuation during the 2020 tax year.  By law, boards of revision must establish value next year as of January 1, 2020.  As of that date, the COVID-19 pandemic had not greatly impacted our lives or the real estate market.  Nonetheless, many property owners will not realize this distinction and will file anyway.  

County boards of revision understand and appreciate this aspect of the law.  However, the individuals who sit on those boards, which sometimes include elected officials, are often empathetic toward property owners who face significant challenges with their commercial businesses or properties.  For that reason, it is not uncommon for boards of revision to grant relief even though they technically should not do so under law.  They are easily able to do so when property owners are unopposed.

Faced with similar issues during the great recession, the Ohio Board of Tax Appeals made it clear that general references to decreased real estate values will not be enough to sustain a reduction in property value.  In Price v. Summit County Board of Revision, 2012 WL 440783 (February 7, 2012), a property owner sought to reduce the value of his properties due to the recession and foreclosure crisis.  The BTA rejected his request because it “has consistently rejected the notion that real property values must necessarily rise or fall commensurate with some preconceived notion of ‘historical trending’ or inflationary/deflationary rates.”

To help ensure county boards of revision uphold the law, school districts are advised to strongly consider filing counter-complaints against requests for reduction that appear unwarranted.  Under R.C. 5715.19, boards of education are entitled to notice of all valuation complaints that seek to decrease the value of real property by $50,000 or more.  Boards of education have the option to file counter-complaints contesting those decrease requests within 30 days of receipt of that notification.

What this means for your district?

Decreases in value through the county board of revision process directly impact the tax revenue received by school districts.  Any decrease in valuation will result in a refund issued to the property owner.  Those refunds are directly taken from school funding via the county treasurer settlement statements. We anticipate that school districts will face many decrease complaints next year, some of which are sure to be unwarranted.  Ennis Britton attorneys can help school districts determine when it is appropriate to file counter-complaints to contest unwarranted decrease complaints to help maintain the tax valuation of the district.

1https://www.ahla.com/covid-19s-impact-hotel-industry

What’s inside the new door barricade device rules

by | May 3, 2016 | Construction & Real Estate, General

The Ohio Board of Building Standards has finalized the door barricade device rules mandated by HB 64. Found in the Ohio Building Code, the rules address active shooter drills, emergency situations, and establishes conditions for the use of the temporary locking devices.  The rules are effective as of April 18, 2016.

Generally, the building code requires door handles to be accessible, meaning they should not require tight grasping, pinching or twisting of the wrist to operate. The new rules provide an exception to the building code for temporary locking devices. Doors also must require only one motion to unlatch a door, but an exception has been built into the code for barricade devices. The devices may not be permanently mounted to the door. Individual parts of the device, such as bolts, stops, brackets, pins, etc. that don’t prevent ingress or egress through the door may be mounted permanently. If they affect the fire rating of a rated fire door assembly, they may not be permanently mounted.

To use the devices in compliance with the new code, the school district must have:

1. Adopted and filed a school safety plan.

2. The barricade devices may be used only in an emergency or during active shooter drills.

3. Only a trained member of the school staff may use the devices for a finite period of time, as determined by the school administrative authority according to the school safety plan.

4. The district must provide training to school staff on the temporary locking device, keep records of the training, and provide those records to the fire official upon request.

5. The district must provide proof to the building official that the fire and police officials with jurisdiction over the school building have been notified about the placement of the temporary locking devices.

6. The building official will approve the devices upon compliance with all rules, and will note the same on the certificate of occupancy.

Operation of the barricade device may not require more than one operation to be removed after it has been engaged. Two operations are permitted to remove the device only if the building has an automatic sprinkler system throughout the building. The building code notes that the Americans with Disabilities Act may affect the use and operation of temporary locking devices like door barricades, but states that this potential issue is outside the scope of the rules.

There are different vendors selling barricade devices, and not all of them may be compliant with the rules as outlined above. For example, the placement of the device (low, medium, or high on the door) or devices that require more than one motion to remove once engaged may be problematic. Carefully consider the requirements before selecting barricade devices for your schools: we suggest working with your local fire officials. Consult counsel for specific questions.