AGO 1993-014.
Case Date | July 27, 1993 |
Court | Ohio |
Ohio Attorney General Opinions
1993.
AGO 1993-014.
July 27,
1993OPINION NO.
1993-014The Honorable
Thomas E. Ferguson Auditor of State P.O. Box
1140 Columbus, Ohio 43266-0040Dear
Auditor Ferguson: In connection with your audit of the Equal Opportunity Center
(the "EOC"), you have requested an opinion regarding whether the equal
employment opportunity coordinator of the Department of Administrative Services
(the "EEO Coordinator") correctly certified certain businesses that are owned
by persons who are of Asian-Indian origin as minority business enterprises for
purposes of bidding upon contracts awarded by the State of Ohio in accordance
with the set aside provisions of the minority business enterprise laws
contained in R.C. 123.151 and R.C. 125.081.
You note in your request that the definition of "minority
business enterprise[s]" in R.C. 122.71 is limited to those companies which are
owned by "Blacks, Hispanics, American Indians, and Orientals." Your request
further notes that since 1991 the EEO Coordinator has defined "Orientals" to
include persons who are of Asian-Indian origin. Accordingly, businesses owned
by persons of Asian-Indian origin are recognized by the EEO Coordinator as
eligible for certification as minority business enterprises.
In connection with your audit, certain background material has
been brought to your attention with respect to the history of the minority
business enterprise set aside laws. Based on your review of this material, in
particular the minutes of the Joint Committee on Agency Rule Review (JCARR),
March 7 and 8, 1984, in which a rule revision proposed by the Department of
Administrative Services which would have included contractors of Asian-Indian
origin within the definition of "Orientals" for purposes of 1 Ohio Admin. Code
123:2-15-01 was discussed and rejected by the Committee, you have questioned
the propriety of the certification by the EEO Coordinator of businesses owned
by persons of Asian-Indian origin as minority business enterprises.
Resolution of your question requires an examination of the
provisions of Ohio's minority business enterprise laws, the administrative
regulations promulgated by the Department of Administrative Services to
implement these provisions, and the ability of the Department of Administrative
Services, through its EEO Coordinator, to interpret and apply the regulations
it has promulgated.
Contract Set Asides for Minority Business
Enterprises
R.C. 123.151 and R.C. 125.081 authorize the State of Ohio to set
aside a certain percentage of various state contracts for bidding only by
minority business enterprises. In particular, R.C. 123.151(C)(1) reads as
follows:
From the contracts to be awarded under section 123.15(fn1) and Chapter 153. of the Revised Code,(fn2) the director shall select a number of contracts with an aggregate value of approximately five per cent of the total estimated value of contracts to be awarded in the current fiscal year. The director shall set aside the contracts so selected for bidding by minority business enterprises only. The bidding procedures for such contracts shall be the same as for all other contracts awarded under section 123.15 and Chapter 153. of the Revised Code except that only minority business enterprises certified and listed under division (B) of this section shall be qualified to submit bids. (Footnotes and emphasis added.)R.C. 125.081(A) also provides as follows:
From the purchases that the department of administrative services is required by law to make through competitive selection, the director shall select a number of such purchases, the aggregate value of which equals approximately fifteen percent of the estimated total value of all such purchases to be made in the current fiscal year. The director shall set aside the purchases selected for competition only by minority business enterprises, as defined in division (E)(1) of section 122.71 of the Revised Code. The competitive selection procedures for such purchases set aside shall be the same as for all other purchases the department is required to make through competitive selection, except that only minority...
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