AGO 1993-014.

Case DateJuly 27, 1993
CourtOhio
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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