Lack of EEO Certificate Fatal to Public Bid

Kegler Brown Construction Newsletter

The 1990 state capital improvements bill, House Bill 808, included a provision, Ohio Revised Code Section 9.47, which stated that a valid Equal Employment Opportunity ("EEO") certificate or application must be in the bid package at the time of bid opening or the bid must be rejected as "non-responsive." Our firm has successfully represented several bidders who forgot to include their EEO certificates or applications in their bid packages, even though they were on file with the EEO office at the time of the bid opening, relying upon the case of Julian Speer Co. v. Ohio Dept. of Admin. Services, Case No. 81-CVH-03-2117, Franklin County Common Pleas Court, for the proposition that this failure did not give the low bidder a competitive advantage when the EEO certificate was on file with the EEO office at the time of bid opening.

However, the Trumbull County Court of Appeals recently ruled that submitting an invalid expired EEO certificate was sufficient grounds for rejecting the bid. Prime Contractors, Inc. v. Girard (1995), 101 Ohio App. 3d 249.

Bidders on state work are strongly cautioned to include a valid EEO certificate in their bid packages, but may have good cause to reverse any decision of DAS ruling their bid non-responsive should such a certificate not be included, so long as a valid certificate was on file with DAS or the EEO office at the time of the bid opening.