04-18

This Opinion was issued prior to enactment of statutes that established a Chief Information Officer for the state and provided for consolidation of appropriated state agency information technology and telecommunication (“IT”) assets and personnel. The statutes enacted after this Opinion provide that the Chief Information Officer acts as the Information Technology and Telecommunication Purchasing Director for all state agencies; thus, to the extent this Opinion references authority for IT acquisitions and negotiation of IT contracts, the authority rests with the CIO and this Reference Guide will refer to the CIO in those instances.

Once an agency is approved to make a purchase, the procedure is under the control of the State Purchasing Director. The same is true for IT purchases pursuant to a Delegation of Authority from the CIO to the State Purchasing Director in which the State Purchasing Director has authority over the procurement process while the CIO retains approval authority over the purchase. OMES is the sole entity with the authority to negotiate and accept contract offers and the State Purchasing Director has ultimate authority to determine to whom a particular contract will be awarded; however, OMES is required to consult with a requisitioning agency and any mandated contract must meet the specifications of the requisitioning agency as far as needs and general class or nature of the acquisitions.

The CIO has the power, pursuant to statute, to bypass the routine requisition procedures and negotiate enterprise agreements, consolidation contracts and high technology system contracts without going through the competitive bidding procedures.

Multi-year contracts in and of themselves are not invalid so long as they do purport to bind the State to an agreement to appropriate funds for any subsequent fiscal year. The Opinion points out two contract structure that do not violate the constitutional prohibition against binding the state to an agreement to expend future fiscal year funds: (1) an agreement between a supplier and OMES with a primary term of one year which permits an option in favor of renewal from year to year and (2) a contract conditioned upon continued funding on a fiscal year basis by the Legislature continuing to appropriate funds to satisfy the obligation. See 74 O.S. §§85.4, 85.5 and 85.9D and 62 O.S. §34.11.1.

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Attorney General Opinion No. 04-18

Purchasing Reference Guide