House Bill 96, which is an operating appropriations bill, was passed by the Ohio legislature on June 25, 2025, and signed by Governor DeWine on June 30, 2025. The bill made a number of minor revisions to the requirements in Chapter 153 of the Ohio Revised Code regarding contracting with the State for public improvements. The changes will go into effect on September 30, 2025. While none of the changes are sizeable, contractors who routinely bid on state funded projects should be aware of these revisions to avoid missteps and understand if something will be done differently in the future.
State May Require BIM
Section 153.01(A) of the Ohio Revised code (regarding the requirements for architectural or engineering plans on state projects) added a new provision that enables the State to require a designer to utilize Building Information Modeling (BIM) in preparation of designs. The new provision states
“In preparing these plans, details, specifications, estimates, analyses, or other data, the public authority may require the architect or engineer to use a building information model system, as long as the system is based on a nationally recognized standard for building information models. As used in this division, ‘building information model’ means a digital representation of physical and functional characteristics of a facility, and electronic files used to design and coordinate the project, whether it is a single model or multiple models used in the aggregate.”
This requirement could be a significant hurdle if a bidder is not already utilizing BIM in their day-to-day operations.
Bid Notice Requirements
The bill made minor modifications to Section 153.07 as to the requirements a State agency must follow when putting a project out for bid.
- First, a bid notice previously had to provide notice of the time and place to receive bids by being published “once a week for three consecutive weeks in a newspaper of general circulation . . . in the county where the activity for which bids are submitted is to occur.”
- This requirement has been modified and changed to eliminate the newspaper publishing requirement and now requires publication “by electronic means and may be published in other news media in the county.”
- The changes also eliminated the ability of the Ohio Facilities Construction Commission to designate specific newspapers.
- Second, the changes extended the minimum time period between the bid notice and the date bids are to be received and opened from eight days to 14 days.
- Finally, the new requirements provide that copies of plans, details, cost estimates, and specifications submitted by bidders shall now be available electronically for public inspection, not just by hard copy.
Elimination of Certain Affirmative Action Obligations
The bill deleted a provision in Section 153.08 that required bidders to provide certification of compliance with affirmative action obligations. Eliminated was a provision that stated,
“No contract shall be entered into unless the bidder possesses a valid certificate of compliance with affirmative action programs issued pursuant to section 9.47 of the Revised Code and dated no earlier than 180 days prior to the date fixed for the opening of bids for a particular project.”
In fact, Section 9.47 of the Ohio Revised Code itself was repealed, which permitted bidders on state building or transportation projects to apply to the Department of Development for a Certificate of Compliance with affirmative action programs. The Director of this department then checked the bidders’ federal and state affirmative action compliance for the past five years. If a violation was found, the bidder was then ineligible to bid on such projects for three years after the determination.
Furthermore, a provision in Section 153.59 was eliminated that provided:
“The department of development shall ensure that no capital moneys appropriated by the general assembly for any purpose shall be expended unless the project for which those moneys are appropriated provides for an affirmative action program for the employment and effective utilization of disadvantaged persons whose disadvantage may arise from cultural, racial, or ethnic background, or other similar cause, including, but not limited to, race, religion, sex, disability, or military status as defined in section 4112.01 of the Revised Code, national origin, or ancestry.”
Similarly, a new provision was added to Section 153.502 regarding construction management and design/build contracting that provides:
“Except as provided in section 307.921 of the Revised Code, no public authority shall eliminate a bidder as unqualified on the basis that the bidder has not complied with an affirmative action program or a diversity, equity, and inclusion program. This division shall not be construed to affect any set-aside programs for minority business enterprises or EDGE business enterprises, as defined in sections 122.921 and 122.922 of the Revised Code, respectively.”
Section 307.921 permits the State owner to require a “policy to assist minority business enterprises,” and the State is still permitted to include requirements to do so, but the requirement of prior compliance has been eliminated.
Revisions to Retainage
Revisions were made to Section 153.12 regarding how retainage will be withheld on State projects. Progress payments for labor under a unit price or lump sum contract were previously made at 92% of the estimates prepared by the contractor and approved by the architect or engineer (i.e., the State withheld an 8% retainage). Now retainage is to be withheld as “not less than 96%”, or a 4% maximum retainage.
Previously when work was 50% complete, there was no further retainage on labor costs. This provision was eliminated, thus reverting to the reduced retainage amounts above through the entire project.
A provision was added to require that subcontracts must be paid at the same or higher rate as the rate that the State is paying the contractor. In other words, the prime contractor cannot withhold a larger percentage of retainage from its subcontractors than the State is withholding from the prime contractor.
Finally, a new provision was added to Section 153.13 that requires that retainage must now be paid within 30 days of substantial or final completion, when retainage is being withheld pending such milestones.
Bid Guaranty Provisions Clarified
A new provision was added to Section 153.54, which provides that when submitting a bid, a bidder may now provide a bid guaranty through “an electronic verification and security system described in section 153.08 of the Revised Code, if the state or any political subdivision, district, institution, or other agency thereof accepts bids electronically pursuant to section 153.08 of the Revised Code.” This is more of a clarification than a new requirement, as Section 153.08 already permits this electronic verification, but Section 153.54 seemed to mistakenly only still permit hard copy bonds, checks, or letters of credit.
These new provisions will be applied prospectively starting September 30, 2025. One should assume that the current requirements will be enforced in all existing contracts or in bids due before such date.
