AIA Bulletin

The Franklin County Board of Commissioners has approved modifications to its historic Responsible Contractor Criteria, to meet Ohio Supreme Court requirements.  Attached is Resolution 75-11, along with attached criteria.

Ohio law requires award to the lowest qualified construction bidder, but often public owners are not clear on what criteria might be used to determine qualification.  In 2002, the National Electrical Contractors Association assisted Franklin County in drafting the original 18 criteria, now grown to over 20.  See Franklin County Construction Documents, p. 14 et seq., attached.

In State ex rel. Associated Builders & Contrs. of Cent. Ohio v. Franklin Cty. Bd. of Commrs., 2010-Ohio-1199, 125 Ohio St.3d 112, 926 N.E.2d 600, the Ohio Supreme Court unanimously ratified Franklin County’s use of such criteria, questioning only the undefined term “violation” for Prevailing Wage review.  However, the Court upheld the review of Prevailing Wage records, stating, “In fact, to the extent a public authority is required to comply with the prevailing-wage laws, it may be error for a public authority to fail to consider a bidder’s record in this regard.”  See attached Decision.

Eight years after original adoption, Franklin County now has updated those provisions to eliminate the term “violation” by substituting any three “findings” in a two-year period in the last decade, consistent with Ohio statute and the Supreme Court Decision.

In addition, Franklin County created a de minimis “safe harbor” of $5,000.00, under which a Finding would not be considered.  Nor will any single finding based upon a journeyman-to-apprenticeship ration be considered, unless as part of multiple, similar findings.The Board also requires annualizing of benefits, to avoid contractors which pay benefits only on Prevailing Wage projects, and supervisory personnel with 5 years’ experience in their specific construction trade.  Finally, the Board requires that bidders maintain a Risk Assessment Rating of 1.5 or better with the Ohio Bureau of Workers’ Compensation.

This Court-tested model provides Public Authorities with a prototype for consideration of low construction bidders throughout Ohio.

For further information, contact:

Luther L. Liggett, Jr.

Luper, Neidenthal & Logan

LeVeque Tower, Suite 1200

50 West Broad Street

Columbus OH 43215-3374

Direct: 614-229-4423

Cell:  614-561-2892

lliggett@lnlattorneys.com

www.lnlattorneys.com

NEW VERSIONS OF THE COMMERCIAL OHIO BUILDING, MECHANICAL & PLUMBING CODES

At the Board’s January 21, 2011 meeting, action was taken to file the new versions of the OBC, OMC and OPC incorporating the 2009 editions of the International Code Council’s building, mechanical and plumbing codes.  We are projecting a tentative September 1, 2011 effective date. 

While the publication dates are not yet available, we are anticipating that the typical code update sequence of events will occur.  One improvement will be that we are preparing an RFP (request for proposals) for bids to execute the code update continuing education sessions, and, this time, we have planned that the update sessions will be offered as a web-based on-line package.  This method is being developed in response to those of you who have indicated that the travel expense and time lost in getting to off-location seminar sites be considered.

If you haven’t already reviewed the 2009 ICC codes or the Board’s proposed rules when they were offered initially, you can find them by accessing the Board’s website:

http://www.com.ohio.gov/dico/BBS.aspx

Look down the page until you locate the following:

Code Information: Non-Residential Building Codes – Public Hearing Draft — Reconsideration of Amendments Group LXXXIII, Jan. 21, 2011

There are five files:

1.) The notice and table of contents;

2.) proposed new building code;

3.) proposed new mechanical code;

4.) proposed new plumbing code; and,

5.) the code scoring report.

Clicking on any of the files will provide a PDF version of the content for you to view or download.

ACCESSIBILITY PROVISIONS CHANGING MARCH 15, 2011.

The long awaited update to ADAAG and other federal accessibility rules has finally occurred.  We are revising our accessibility provisions to be consistent with the ADA.  As has been the case since Ohio first adopted accessibility requirements (1993) to coordinate with the Fair Housing Amendments Act and the Americans with Disabilities Act, Ohio building departments have no responsibility to enforce any part of the federal laws but, our rules in the OBC will continue to be equivalent and are to be enforced by the building departments.

What’s changing?

When the new ADAAG is posted on the US Department of Justice’s website (see OBC Section 3501.3), Ohio’s reference standard for the specification elements of accessibility will change.  This change introduces additional exceptions, revised dimensions and extensive advisory content.  However, these changes are not immediately mandatory.  To minimize misunderstandings and to allow time for those affected by the changes to learn correct application, the federal rules allow designs to meet either the old requirements or the new during a one year period, Ohio’s rules will do the same.  Starting on March 15^th, 2011 and continuing until March 15^th, 2012, an application for approval can conform to the old (existing today) accessibility provisions (in OBC Chapters 11 and 34 and the July, 1994 ADAAG) or the new provisions indicated in the downloadable document available on the US Department of Justice’s website.

Applications for approval should indicate which accessibility provisions the designer or owner intends to be applied to the submitted construction documents.  The option of either compliance method will continue until March 15^th, 2012.  After March 15^th, 2012, Chapters 11 & 34 will be revised to coordinate with the new ADAAG and the old access provisions will not apply.

The Board is planning seminars to be offered in Ohio to help code users understand the changed accessibility provisions.

The Ohio School Facilities Commission today tapped the agency’s chief fiscal officer to serve as interim executive director until a permanent replacement is found.

Eric Bode was named at the commission’s organizational meeting in Columbus. He has worked for the agency overseeing the state’s massive school construction program since 2000, and replaces Richard Murray who resigned earlier this month as former Gov. Ted Strickland left office.

The commission is made up of the state schools superintendent and directors of the Office of Budget and Management and Department of Administrative Services, the latter two both appointed by Gov. John Kasich.

A study group has been formed for associate members taking or planning to take the Architect Registration Exam. The group is seeking recently licensed architects who are willing to provide guidance on what to expect on exams. Please contact Natalie Snyder at nsnyder@evergreen-architects.com for more information.

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Appointee was criticized for allegedly pressuring districts to use union labor

THURSDAY, JANUARY 13, 2011  02:53 AM

BY RANDY LUDLOW

THE COLUMBUS DISPATCH

Richard Murray, 61, a former union official, denied any wrongdoing.

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Today’s political news

• Condemned Ohio killer of 3 asks panel for mercy
• Some justices would ease search rules
• School lunches less fattening under proposed guidelines
• Palin’s response starts new fires
• Obama asks nation to curb hateful talk
• Obama affirms support for Lebanon’s sovereignty
• Man held on charges he threatened Washington congressman
• Illinois governor defends plan to sign tax increase
• Federal tax receipts up, deficit down – for now
• Atheist renews ‘In God’ motto fight
• Westerville school transport workers agree to pact with district
• Shootings spur look at security, Rep. Stivers says
• School-buildings chief resigns
• Petro fighting for the wrongly convicted
• Nursing homes defend funding
• Newark business owner new Licking County treasurer
• London schools list cuts
• Kasich cuts office payroll by $300,000
• Expense of Freshwater hearing stirs talk of reforming how teachers are fired

ov. John Kasich’s to-do list now includes finding a leader for Ohio’s public schools construction program.

Richard Murray resigned as executive director of the Ohio School Facilities Commission effective Sunday, ending his stormy 16-month tenure.

The resignation of Murray, a Democrat appointee who came under fire for allegedly pressuring school districts to use union labor, was not a surprise, with Republicans taking control of the Statehouse.

Kasich budget director Tim Keen, a new member of the school facilities commission, said Murray’s departure was by “mutual agreement.” Murray couldn’t be reached for comment.

A report released by the inspector general’s office in August accused Murray of abusing his position to help labor unions land school-construction contracts through project-labor agreements, which mandate the use of union labor in exchange for promises that work won’t be delayed by strikes.

Murray, 61, a former union official, denied wrongdoing, and former Gov. Ted Strickland stood by him amid calls for his ouster from some Republicans and construction contractors.

No interim commission director has been named, although Murray authorized chief financial officer Eric Bode to sign contracts and other paperwork before he left, said commission spokesman Rick Savors.

The school facilities commission now consists of two Kasich appointees – Department of Administrative Services Director Robert Blair and Keen – and Superintendent of Public Instruction Deborah Delisle.

Keen said the commission will develop a process to search for a new executive director and review applicants who may have submitted their resumes prior to the new governor’s inauguration.

The budget director said the commission will review all of its policies, including project-labor agreements, which enjoy union support but are opposed by non-union contractors and other critics as driving up construction costs.

The commission, which includes four nonvoting members from the Ohio House and Senate, plans a Jan. 27 organizational meeting. The General Assembly has not yet appointed lawmakers to the commission.

Through funding partnerships with local districts, Ohio has spent $8.5 billion to build 789 schools since 1997

Gov. Ted Strickland used his last official act in office to sign an option-to-lease contract between the state and Lake Erie

Energy Development Company (LEEDCo) to put a freshwater wind farm in Lake Erie.

The contract gives LEEDCo and Freshwater Wind I, LLC, exclusive rights to pursue a submerged lands lease for a

designated area in Ohio’s portion of Lake Erie. The area covers approximately 5,706 acres located about six miles north of

the city of Lakewood.

Strickland’s office said that if performance metrics are met within the contract’s timeline, Ohio will become home to the first

freshwater wind farm in the world.

LEEDCo and Freshwater are planning to install five wind turbines at the proposed site in late 2012 as part of a pilot project.

The initial project is expected to produce approximately 20 megawatts of electric generating capacity. Estimates predict the

creation and retention of more than 600 jobs.

During the Option-to-Lease period, the companies will gather data necessary to meet the requirements for obtaining a longterm

submerged lands lease and for approval by the Ohio Power Siting Board. The Option-to-Lease agreement requires

LEEDCo and Freshwater to meet certain performance measures within agreed upon time limits. The agreement allows for

an initial two-year lease option period and can be extended up to three years if the performance measures are met.

“This agreement advances the project to build the first freshwater offshore wind farm in the world and emphasizes

Cleveland’s role as an international hub of renewable energy,” Strickland said in a statement. “This project builds on the

strengths of Ohio’s manufacturing and maritime industries, our incredible natural resources, and our advanced research

capacities, and puts Northeast Ohio on the cusp of creating thousands of jobs in the growing wind energy industry. We can

develop Lake Erie’s wind resources and grow our economy, while protecting the lake’s value as a vast natural resource. I

am very proud of the partnership we’ve developed with local and civic leaders to help us reach this point, and I strongly

encourage the state to continue this collaborative effort.”

U.S. Sen. Sherrod Brown, a longtime advocate of offshore wind energy responded to the announcement. “Offshore wind

represents America’s energy future — a clean, renewable source of power that helps put Americans back to work while

reducing our unsustainable dependence on foreign energy. Ohio is poised to lead the nation in this global race to a clean

energy future,” Brown said. “Over the course of the last several months, offshore wind in Lake Erie has gotten closer and

closer to becoming a reality. The signing of these leases is another strong signal that Lake Erie is ready to house the

world’s first offshore wind farm in freshwater.”

To view the interactive mapping tool showing the details used to develop the Wind Turbine Placement Favorability Analysis

Map, visit the Office of Costal Management website by selecting the “Coastal Wind” logo at www.ohiodnr.com/coastal. The

interactive map viewer also highlights the location of the nine grid cells included in lease option for the LEEDCo/Freshwater

Wind pilot project.

A study of Ohio’s wind and solar energy supply chain from the Environmental Law and Policy Center showed Wednesday there are 106 companies in the state doing business with the wind power industry, and 63 companies are part of the solar energy supply chain.

“Wind and solar power has created thousands of good jobs across Ohio,” said Howard Learner, the center’s executive director. “Longstanding manufacturing companies are retooling to supply the growing clean energy market and new businesses are expanding. Smart policies can continue that growth.”

The report said wind industry suppliers employ about 7,500 people in Ohio and, according to the Ohio Department of Development, solar manufacturing has created over 1,500 jobs statewide.

The report said a proposed strong federal renewable energy standard would help grow the local economy by increasing Ohio’s export opportunities for both wind power and manufactured wind turbine components and professional services.

The Franklin County Court of Appeals has reversed the Ohio Court of Claims, in favor of the Ohio School Facilities Commission, in denying a claim to a construction contractor on the basis that the contractor failed to exhaust its administrative remedy in accord with Article 8 of the Construction Documents.  The Court of Appeals remanded the case back to the Court of Claims to consider OSFC’s waiver contention, holding the Article 8 process to be enforceable.

Legislative gridlock has been the norm for the past two years with the Democratic-controlled Ohio House and Democratic Governor regularly locking horns with the Republican controlled Senate.  As a result, very few new laws were enacted during the 128^th Ohio General Assembly.

All that is expected to change when the 129^th Ohio General Assembly is sworn in on January 3, 2011.  Republican Governor-elect John Kasich, along with the Republican-controlled House and Senate are expected to roll out reform proposals that will seek to reduce government spending at all levels of government.

The biggest hurdle faced by the new leaders is the state budget, which must be in balance for the biennium that begins July1, 2011.  With an incredible $8 billion deficit, doing so will be a Herculean task, especially since the Governor-elect and House Republicans have pledged that there will be no tax increases.  The Governor-elect has until March 15 to submit his Executive Budget for introduction in the House.

Once the budget is introduced, we’ll let you know how it will affect you.

Synopsis:  International Green Construction Code (IGCC)

This latest synopsis of the IGGC just arrived and could help architects understand what’s coming down the road.  It’s good news for AIA’s public policy.  However, knowledgeable architects warn that implementing model codes in the various states is generally a long road.  Both the Ohio Board of Building Standards and the legislature take a very pragmatic look at implementation costs.  According to one Ohio Code Official, the OBBS may cherry pick things that can be reasonably enforced and leave the platitudes behind.

Sharp Reappointed to Ohio Architects Board

The Ohio Senate has confirmed Governor Strickland’s re-appointment of Stephen L. Sharp, AIA as a member of the Architects Registration Board for a new term beginning December 3, 2010 and ending at the close of business October 1, 2015.