Ohio's Design Services Law, enacted in 1988 and amended in 2011, now requires Ohio public authorities to follow a process for selecting architects and engineers based on their qualifications.

The law applies to all public bodies and almost any design services contract, no matter the cost. However, there are some exceptions.

Here is some guidance for following the law and understanding its exceptions.

1. Determine if the design services are subject to the selection process.

The statutory selection process applies to providers of “any services within the scope of practice of an architect or landscape architect registered under Chapter 4703 of the Revised Code or a professional engineer or surveyor registered under Chapter 4733 of the Revised Code.”

The cost of the service does not matter. For example, survey services, which often cost less than $1,000, are subject to the process.

However, if the professional design fee will be less than $50,000, and the public authority maintains a file with current qualifications (the qualifications must have been submitted within the immediately preceding year), the public authority may select a design professional or firm determined to be most qualified, based on the qualifications in the file.

Another exception to the law permits the public authority to determine in writing that a project is “an emergency,” thereby requiring immediate action.

2. If the selection process is required, issue a public announcement or notice of the available contract for design services. 

The law does not define a time period between the announcement and the time for submitting qualifications.

The announcement can be distributed to architects or engineers through these vehicles:

• associations of architects, landscape architects, engineers or surveyors ;
• news media; or
• publications or other public media, including electronic media.

3. Review, evaluate and rank the qualifications received. 

Interviews are not required.

State law requires ranking of three firms, unless fewer than three submit qualifications or are determined qualified to provide the required services; if fewer than three firms are ranked, the public authority must document in writing that fewer than three firms are available.

No estimate or measure of compensation can be requested from a design firm prior to selecting and ranking firms.

4. Select the design firm ranked most qualified for the contract. 

5. Negotiate a contract with the firm ranked most qualified.

If the parties are unable to negotiate a contract, the public authority must give written notification to that firm that the negotiations are terminated. Then the public authority may begin negotiations with the design firm ranked next most qualified.

In the contract, the design firm must provide professional liability insurance, unless the public authority waives the requirement or accepts another assurance of financial responsibility.

Prequalified Design Firm Process

The following guidance is provided for public authorities that prequalify design firms and select among them for engagements of less than $50,000, as mentioned above.

• Non-state public authorities can determine their own process for establishing a file with qualifications from design firms to use in such situations.
• The public authority may formally authorize the establishment and maintenance of the file with qualifications separate from a selection process for a specific project.
• The public authority could more informally, through administrators without formal legislative action, establish a file by soliciting qualifications from design firms.
• If the public authority is soliciting qualifications for a specific project, it can also indicate that those qualifications will also be placed in the public authority's file for current qualifications.
• The public authority can notify firms that they are responsible to update qualifications on an annual basis, or the public authority can follow up with firms individually to request updated qualifications when specific services are required.

_____________

Paul M. Dutton is a lawyer with Harrington, Hoppe & Mitchell, Ltd. He can be reached at pdutton@hhmlaw.com or at (330) 744-1111.