06-11

The Attorney General is the only person who can agree to grant a supplier sole control over the state's defense of any claim arising from a contract with the supplier. No purchasing officer has the authority to agree to such a clause and OMES is not the proper state agency to make such a decision and cannot do so under the guise of negotiating and performing a contract with a private entity. Therefore, a contract clause granting, in advance, a supplier control over the state's defense in a lawsuit or waiving the state’s defenses is prohibited.

Although contract language which states a supplier's liability is limited to the extent allowed by law is not prohibited, such language is superfluous, has no legal effect and the clause is void if the state cannot under the Constitution agree to a particular limitation of liability clause. See 74 O.S. §85.5.

NOTE: portions of this Opinion concluding that a limitation of liability clause in a contract constitutes a debt, liability or obligation of the state in violation of the Oklahoma Constitution or is inherently violative of public policy are not included in this Guide because those portions are overruled by Opinion No. 12-18.

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Attorney General Opinion No. 06-11

Purchasing Reference Guide