§ 320-3. Factors in Determination of Lowest and Best Bidder; Breach by Contractor.

Where not otherwise prohibited by or in conflict with federal, state, or local law or the terms of federal or state grants, every construction contract that goes out to bid after the effective date of this law shall require the bidder to make the following certifications or disclose the following specified information within ten (10) days after the bid opening. Failure of a bidder to affirmatively certify any one of the following criteria or to provide any of the requested information or documentation, as determined by the city, may constitute evidence of the bid to not be lowest and best. Failure of a contractor to comply with any of its certifications during contract performance, shall constitute a material breach and may subject the contractor to all remedies available to the city at law, including, but not limited to, disqualification of the bidder from bidding on current or future contracts, suspension of payments to the contractor under the construction contract, and termination of the construction contract for cause. In the determination of whether a bidder is lowest and best, the factors below shall be considered in addition to any other factors permitted to be considered pursuant to CMC Section 321-37. The requirements of this section are intended to be additional to the requirements under CMC Chapter 321 and nothing in this section shall be construed to waive or take the place of the requirements and procedures set forth in CMC Chapter 321.

(a)

The bidder shall disclose any and all violations by the bidder and any allegations of violation made against the bidder regarding the prevailing wage law or any other state or federal labor law, including but not limited to, child labor violations, failure to pay wages, or unemployment insurance tax delinquencies or unfair labor practices within the past five (5) years.

(b)

The bidder shall certify whether it will employ supervisory personnel on the project who are qualified to supervise those employees who report to them. The bidder shall also certify whether its supervisory personnel on the project have any license or licenses required by law.

(c)

The bidder shall provide a list of every occasion on which it has been debarred by any state or federal public entity. For purposes of this paragraph, "debarred" means exclusion from performing local, state or federal construction contracts.

(d)

The bidder shall certify whether it requires any individual or subcontractor performing any work under the construction contract to have completed at least ten (10) hours of the required Occupational Safety and Health Administration (OSHA)-compliant safety program, and will provide evidence of such upon request. The bidder with its bid shall identify all citations issued to it by OSHA within the previous three (3) years. Bidders shall also provide an explanation of the disposition of the citations, including if they were withdrawn. The bidder shall provide the terms of all settlements or the bidder shall provide the outcome of all adjudications.

(e)

Each bidder and subcontractor shall certify whether it meets one of the following:

(1)

It is in compliance with Ohio's Drug-Free Workplace requirements, pursuant to Ohio Administrative Code § 4123-17-53; or

(2)

It provides a drug-free workplace by sponsoring and implementing a program approved by the Ohio Bureau of Workers' Compensation; or

(3)

It provides a drug-free workplace by sponsoring and implementing or participating in a program which provides for drug testing and its personnel working under the construction contract are subject to the program.

Each bidder and subcontractor shall provide a copy of its substance abuse policy or evidence thereof upon request.

(f)

Any bidder or subcontractor that has an affirmative action plan shall certify that it operates under an affirmative action plan. The contractor shall disclose any and all violations within the previous five (5) years pertaining to unlawful intimidation or discrimination against any employee by reasons of race, creed, color, disability, sex or national origin and/or violations of any employee's civil or labor rights or equal employment opportunities.

(g)

The bidder shall certify whether it has all necessary licenses required by the applicable state law and regulation to perform on the project. If any such work shall be performed by a subcontractor who has such license or licenses, the bidder shall provide a similar certification for that subcontractor.

(h)

The bidder shall provide a list of any final judgments that have not been satisfied at the time the bid was submitted, including the outstanding amount, the total award, and the basis for the award. In addition, the bidder shall identify all contracts on which the bidder has been terminated prior to completion of the work covered by the contract.

(i)

Each bidder shall certify whether for any prime construction contract, it agrees not to subcontract more than seventy-five per cent (75%) of the bid amount for the construction contract. The bidder shall identify all work that it will subcontract.

(j)

Unless otherwise agreed to in a collective bargaining agreement, the bidder shall certify whether it provides, or contributes to, a health care plan for those employees working on the project and shall provide a copy of the health plan upon request. The contributions toward a health care plan must be part of the employee's regular compensation, and not merely part of the employee's compensation during the period of time for which the employee is performing work on the project. The certification required by this subsection shall not apply to a bidder or contractor that has gross revenues of $2,000,000.00 or less in any of the three (3) preceding tax years, as demonstrated by the bidder's or contractor's tax returns.

(k)

Unless otherwise agreed to in a collective bargaining agreement, the bidder shall certify whether it contributes to an employee pension or retirement program, including, but not limited to, a 401K, a defined benefit plan, or similar plan, for its field employees working on the project and shall provide a copy of the plan upon request. The contributions toward a pension or retirement program must be a part of the employee's regular compensation, and not merely part of the employee's compensation during the period of time for which the employee is performing work on the project. The certification requested by this subsection shall not apply to a bidder or contractor that has gross revenues of $2,000,000.00 or less in any of the three (3) preceding tax years, as demonstrated by the bidder's or contractor's tax returns.

(l)

The bidder shall provide its Experience Modification Rating.

(m)

The bidder shall disclose any criminal convictions or criminal indictments involving the bidder, its officers, directors, owners and/or managerial employees within the past five (5) years.

(n)

The bidder shall disclose any litigation (including copies of pleadings) in which the bidder has been named as a defendant or third party defendant in an action involving a claim for personal injury or wrongful death arising from performance of work in which it has been engaged within the previous five (5) years.

(o)

The bidder shall disclose and provide a description of any projects within the previous five (5) years for which the bidder was not awarded a contract by a public entity, the reasons given by the public entity, together with an explanation thereof.

(p)

The bidder shall provide a copy of all documents that evidence that it maintains or participates in an apprenticeship program as required by Section 320-5.

(Ordained by Ord. No. 282-2012, § 1, eff. July 26, 2012; a. Ord. No. 114-2013, § 1, eff. June 1, 2013; Emer. Ord. No. 055-2018, § 3, eff. March 21, 2018)