09-22

Pursuant to 74 O.S. §3007, the fair market price of products and services on the procurement schedule established by the State Use Committee must be determined before procurements can be made.

Regarding products and services on the procurement schedule for which the price does not vary by agency, location or specifications, the fair market price is determined before procurement by vote of the State Use Committee upon the recommendation of the contracting officer after the market analysis required pursuant to OAC 260:120-1-4.

Regarding products and services on the procurement schedule for which the price does vary and a fair market price has not been established, the contracting officer is authorized, with the approval of the State Purchasing Director, to award a contract to a State Use supplier and establish a fair market price in accordance with the State Use Fair Market Price Policy. The Policy is an internal policy which more specifically describes the methodology to be used by the contracting officer in conducting the market analysis required by OAC 260:120-1-4. The fair market price is subject to ratification by the State Use Committee.

Similarly, regarding emergency purchases, with approval of the State Purchasing Director, the contracting officer may award a contract for a maximum of three months to a State Use supplier after determining a fair market price in accordance with applicable administrative rules and the State Use Fair Market Price Policy, which is subject to ratification by the State Use Committee.

Citing the application that specific language will control over general language in statutes when there is a conflict between the two, the Opinion determined the State Use Committee has sole authority to prescribe rules which carry out the purposes of the State Use statutes and the OMES Director has the more general authority to promulgate rules governing the Purchasing Division and state agency acquisitions under the Central Purchasing Act.

Pursuant to 74 O.S. §3008, procurements made pursuant to the State Use statutes are not subject to the competitive bid requirements of the Central Purchasing Act. No other provisions of the State Use statutes or rules require a competitive bidding process and, citing the conclusion in Attorney General Opinion 06-23, the State Use Committee does not have the authority to issue requests for proposals and contracts with State Use suppliers are not awarded through a RFP process. Therefore, the State Use procurement process is an open market bid process and is not subject to a competitive bid process prior to procurement or the determination of a fair market price by the State Use Committee. See 74 O.S. §§3007, 3008 and 3009 and OAC 260:120-1-4.

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Attorney General Opinion No. 09-22

Purchasing Reference Guide