74 O.S. § 3004. Procurement Schedule

In addition to terms defined in 74 O.S., §85.2, the following words or terms, when used in this Chapter shall have the following meaning, unless the context clearly indicates otherwise:

"Acceptable Electronic Signature Technology" means technology that is capable of creating a signature that is unique to the person using it; is capable of verification, is under the sole control of the person using it, and is linked to the data in such a manner that if the data is changed, the electronic signature is invalidated."Acquisition authority" means the dollar amount within which a state agency is approved to make acquisitions without submitting a requisition to the State Purchasing Director."Addendum" means a written modification to a contract."All or none bid" means a bid in which the bidder states only an award for all items or services included in the solicitation will be accepted."All or none solicitation" means a solicitation in which the state indicates it will award a contract to a single supplier for all items or service included in the solicitation."Alteration" means a modification a bidder makes to a solicitation response prior to the response due date."Alternate bid" or "alternative bid" means a bid or proposal, which contains an intentional substantive variation to a basic provision, specification, term or condition of the solicitation."Amendment" means a written change, addition, correction, or revision to a solicitation made by the state agency responsible for making the acquisition."Authorized signature" means a manual, electronic or digital signature or other identifier uniquely linked to a person authorized to sign documents the supplier submits to the State Purchasing Director."Best and Final Offer" or "BAFO" means a final offer submitted in writing by a bidder based on the outcome of negotiations."Bid bond", "performance bond" or "surety" means a form of surety or guaranty that the State Purchasing Director may require bidders to submit with a bid."Bidder" means an individual or business entity that submits a bid or proposal in response to an invitation to bid or a request for proposal. [74 O.S. §85.2] When used in this Chapter, bidder is synonymous with a “supplier” or “supplier” responding to a solicitation."Business days" means Monday through Friday and is exclusive of weekends and Oklahoma state holidays."Central Purchasing Division" means the Central Purchasing Division of the Office of Management and Enterprise Services."Certified Procurement Officer" or "CPO" means a state agency procurement official certified as a procurement officer or analyst by the State Purchasing Director under the provisions of the Oklahoma Central Purchasing Act."Chief Information Officer" means the chief administrative officer of the Information Services Division of the Office of Management and Enterprise Services."Clarification" means a bidder’s explanation of all or part of a bid that does not change, alter or supplement the bid."Closing date/time" means the date and Central Time a solicitation specifies responses are due."Commodity classification" means numeric designations the State Purchasing Director assigns to classify goods and services into similar categories."Competitive solicitation" means a process for acquiring goods or services wherein bidders submit bids to the Central Purchasing Division or a state agency pursuant to terms, conditions and other requirements of a solicitation. The competitive solicitation process may be electronic when the terms of the solicitation expressly permit electronic submission and the requirements of applicable statutes and rules are met."Days" means calendar days unless otherwise specified."Debar" or "debarment" means action taken by the State Purchasing Director to exclude any business entity from inclusion on the Supplier List, bidding, offering to bid, receiving an award of contract with the State of Oklahoma for acquisitions by state agencies or a contract the Office of Management and Enterprise Services awards or administers and may also result in cancellation of existing contracts with the State of Oklahoma."Director" or "OMES Director" means the Director of the Office of Management and Enterprise Services or his designee."Electronic Signature" means an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record. Unless otherwise provided by this Chapter or law, an electronic signature may be used to sign a document and shall have the same force and effect as a written signature."Emergency acquisition" means an acquisition made by the State Purchasing Director or a state agency without seeking competitive bids to relieve an unforeseen condition believed to place human life or safety in imminent danger or threaten significant property interests with imminent destruction; or, is a condition certified by the Governor as a serious environmental situation. [Reference 74 O.S. §85.7]"Firm bid" means an offer by a bidder which contains no conditions which may prevent acceptance and which, by its terms, remains open and binding until the State Purchasing Director accepts or rejects the bid."Fiscal year" means the period of time from July 1 of a calendar year through June 30 of the succeeding calendar year."Forms" means documents the OMES Director prescribes and requires suppliers and state agencies to use to provide information to OMES."Indefinite quantity contract" means a contract the State Purchasing Director, CIO, or a state agency establishes based on historical usage of a service or product rather than a specified quantity of said service or product and which does not obligate the State to purchase any certain amount."Information Services Division" means the Information Services Division of the Office of Management and Enterprise Services."Information technology" or "IT" means any electronic information equipment or interconnected system that is used in the acquisition, storage, manipulation, management, movement, control, display, switching, interchange, transmission, or reception of data or information, including audio, graphic, and text. [62 O.S. §34.29]"Invitation to bid" or "ITB" means a type of solicitation a state agency or the State Purchasing Director sends to suppliers to request submission of bids by suppliers for acquisitions."Invoice" refers to a proper invoice as defined by the State Comptroller."Material deficiency" or "material deviation" means a supplier’s failure to provide information necessary to evaluate a solicitation."Minor deficiency" or "minor informality" means an immaterial defect in a bid or variation in a bid from the exact requirements of a solicitation that may be corrected or waived without prejudice to other bidders. A minor deficiency or informality does not affect the price, quantity, quality, delivery or conformance to specifications and is negligible in comparison to the total cost or scope of the acquisition."Multi-award" means the award of a contract to two or more suppliers to furnish an indefinite quantity or category of item, where more than one supplier is needed to meet the contract requirements for quantity, delivery, service or product compatibility."Non-collusion certification" means a certification submitted by a supplier with any competitive bid or contract executed by the state for goods or services in accordance with 74 O.S. §85.22."Non-responsive" means a bid or proposal that has been determined not to conform to essential requirements of a solicitation."Oklahoma Central Purchasing Act" means 74 O.S. §§85.1 et seq."Oklahoma Correctional Industries" or "OCI" means a program of the State Department of Corrections for utilization of inmate labor for the manufacture or production of items or products for use by state agencies."Oklahoma Information Technology Accessibility Standards" or "IT Accessibility Standards" means the accessibility standards adopted by the Office of Management and Enterprise Services, to address all technical standard categories of Section 508 of the Rehabilitation Act (29 U.S.C. 794d), as amended by the Workforce Investment Act of 1998 (P.L. 105-220, August 7, 1998) to be used by each state agency in the procurement of information technology, and in the development and implementation of custom-designed information technology systems, web sites, and other emerging information technology systems."Office of Management and Enterprise Services" or "Office" or "OMES" means the Oklahoma Office of Management and Enterprise Services."Online Bidding" means an electronic procurement process in which state agencies receive bids from suppliers for goods, services, construction, or information services over the Internet or other electronic medium in a real-time, competitive bidding event."Procurement" means buying, purchasing, renting, leasing, or otherwise acquiring any goods or services. The term also means all functions that pertain to the obtaining of any goods or services, including, but not limited to, the description of requirements, selection, and solicitation of sources, preparation and award of contracts, and all phases of contract administration."Ratification of an unauthorized commitment" means the act of approving an unauthorized commitment made by a state agency and the written agreement documenting the approval."Reciprocity" means a preference, which the State Purchasing Director or state agency shall apply against the price submitted for an acquisition by an out-of-state bidder whose home state applies a similar preference against Oklahoma bidders."Registered supplier" means a supplier that registers with the Central Purchasing Division pursuant to 74 O.S. §85.33."Remedy" means to cure, alter, correct or change."Request for information" or "RFI" means a non-binding procurement practice used to obtain information, comments, and feedback from interested parties or potential suppliers prior to issuing a solicitation."Request for proposal" or "RFP" means a type of solicitation a state agency or the State Purchasing Director provides to suppliers requesting submission of proposals for acquisitions. "Request for quotation" or "RFQ" means a simplified written or oral solicitation a state agency or the State Purchasing Director provides to suppliers requesting submission of a quote for acquisitions."Requisition number" means an identifier the state agency or OMES assigns to a requisition."Requisitioning unit" means the unit in a state agency responsible for making acquisitions."Responsible supplier" means a supplier who demonstrates capabilities in all respects to fully perform the requirements of a contract that may include, but may not be limited to, finances, credit history, experience, integrity, perseverance, reliability, capacity, facilities and equipment, and performance history which will ensure good faith performance."Responsive" means a bid or proposal that has been determined to conform to the essential requirements of a solicitation."Reverse Auctioning" means a procurement method wherein pre-qualified bidders are invited to bid on specified goods or services through real-time electronic bidding, with the award being made to the lowest responsive and responsible bidder. During the bidding process, bidders’ price positions are revealed and bidders shall have the opportunity to modify their bid prices for the duration of the time period established by the solicitation."Scheduled acquisition" means a recurring acquisition that consolidates multiple state agency requirements for a given commodity or group of commodities."State official" means a person that works for a department, state agency, trusteeship, authority, school district, fair board, advisory group, task force or study group supported in whole or in part by public funds or administering or operating public property."State Purchasing Director" means the director of the Central Purchasing Division of the Office of Management and Enterprise Services appointed by the OMES Director; and, includes any employee or agent of the State Purchasing Director, acting within the scope of delegated authority. [74 O.S. §85.2] Unless otherwise stated, the term includes employees of the Central Purchasing Division and state agency purchasing officials certified by the State Purchasing Director to which the State Purchasing Director has lawfully delegated authority to act on his or her behalf. In regards to the procurement of information technology or telecommunications, the term means the Chief Information Officer of the Office of Management and Enterprise Services."State Use Committee" means the statutory Committee that certifies severely disabled individuals and sheltered workshops as qualified organizations to contract with the state to provide products and services, which are designated in the State Use Committee procurement schedule for state agency acquisitions pursuant to 74 O.S. §§ 3001 et seq."Statement of Work" means a detailed description of the work which a state agency requires a contractor or supplier to perform or accomplish."Supplier" or "supplier" means an individual or business entity that sells or desires to sell acquisitions to state agencies [74 O.S. §85.2]."Supplier performance evaluation" means information a state agency or OMES Procurement provides to the State Purchasing Director, in a manner the OMES Director prescribes, that documents the quality of service or products provided by a supplier."Supplier registration" means a process a supplier uses to register with the Central Purchasing Division to automatically receive solicitations based on a commodity class for a specified period of time."Supplier List" means a list of individuals or business entities that have registered with the Central Purchasing Division in order to receive notification of solicitations for commodities specified in their registration application."Suspension" means an action by the State Purchasing Director to suspend a supplier’s authority to be included on the Supplier List, be eligible to submit bids to state agencies and be awarded a contract by a state agency subject to the Central Purchasing Act."Utility service" or "utilities" means a public service furnishing electricity, natural gas, water, or sewage.

State agencies shall make acquisitions using a method of acquisition in this section. 

1. State Use Committee. State agencies shall make acquisitions from suppliers on the State Use Committee procurement schedule at the fair market price if the supplier’s delivery date meets state agency requirements. State Use Committee contracts are mandatory contracts to the extent a fair market value has been established. State agencies shall utilize the State Use Committee procurement schedule to ensure all acquisitions are made pursuant to 74 O.S. §§ 3001 et seq. If an acquisition is available from both the State Use Committee procurement schedule and the Oklahoma Correctional Industries, the state agency shall make the acquisition from the State Use Committee procurement schedule. 
2. Oklahoma Correctional Industries. If an acquisition is not available from the State Use Committee within the time period required by the purchasing state agency or if it does not have an established fair market value, state agencies shall make acquisitions from the Oklahoma Correctional Industries pursuant to 57 O.S. §549.1 or statewide contracts as follows: 
   1. If a state agency determines in the acquisition of a product or service within the agency’s acquisition authority, the product or service is available from OCI and is the lowest and best offer, the agency may place a direct order with OCI without competitive bidding. If an acquisition is competitively bid, the award shall be made to OCI upon determination that OCI is lowest and best. 
   2. For an acquisition exceeding an agency’s procurement authority, the agency may place a direct order with OCI or submit a requisition to OMES for issuance of a solicitation to include OCI as a supplier. The award shall be made to OCI if such product or service is the lowest and best bid. 
   3. If Oklahoma Correctional Industries is unable to meet state agency requirements for an acquisition, Oklahoma Correctional Industries shall certify to the State Purchasing Director that it is not able to provide products. 
   4. If the State Purchasing Director determines that a product or service the Oklahoma Correctional Industries produces does not meet the reasonable state agency requirements, the State Purchasing Director shall notify Oklahoma Correctional Industries. 
   5. If Oklahoma Correctional Industries disagrees with the State Purchasing Director, the OMES Director shall resolve the issue. 
3. Statewide Contracts. The State Purchasing Director shall designate statewide contracts as mandatory or non-mandatory.
   1. Mandatory statewide contract. The State Purchasing Director may designate a statewide contract for mandatory use. State agencies shall make acquisitions from mandatory statewide contracts regardless of the acquisition purchase price. A state agency may submit a written request to the State Purchasing Director to waive requirements for a state agency’s use of a mandatory statewide contract for acquisitions. The State Purchasing Director shall grant exceptions prior to a state agency making the acquisition from another supplier.
   2. Non-mandatory statewide contracts. State agencies are encouraged to use non- mandatory statewide contracts. Whenever a state agency acquires a product or service from an alternate source, the acquisition shall be made in accordance with the Central Purchasing Act, the rules of this chapter and any other laws and rules applicable to the acquisition.
4. Open Market Acquisitions. State agencies may make acquisitions within their approved acquisition authority limit, pursuant to provisions of the Oklahoma Central Purchasing Act, rules of this Chapter, any other applicable laws or rules, and the agency’s approved internal purchasing procedures. The most common types of acquisitions include: 
   1. Contract for definite quantity. If a state agency is able to establish a definite quantity of items or services for an acquisition, the State Purchasing Director or the state agency may establish a contract for acquisition by the state agency. 
   2. Contract for indefinite quantities. If an agency is unable to establish a definite quantity of items or services for an acquisition, the State Purchasing Director or the state agency may establish a contract for an indefinite quantity of items or services. 
   3. Contract for scheduled acquisitions. When a state agency’s needs for certain items are compiled (aggregated) and purchased in bulk at predetermined intervals, the State Purchasing Director or the state agency may establish a contract for scheduled acquisitions. The intervals shall be established in accordance with market characteristics or using agency consumption patterns, with consideration of seasonal factors and warehousing facilities. A schedule shall be developed for particular commodities monthly, quarterly, or annually. If a contract for scheduled acquisitions is established for a state agency, the state agency shall not make open market purchases for the same commodity or group of commodities. 
5. Sole source and sole brand acquisitions. 
   1. State agencies with a CPO and approved internal purchasing procedures meeting the requirements of 260:115-5-3 and 260:115-5-7, may make a sole source or sole brand acquisition within the agency’s acquisition authority. [Reference: 74 O.S. §85.45j] 
   2. The chief administrative officer of any state agency not utilizing the State’s financial and information system for acquisitions shall submit to the State Purchasing Director a monthly listing of all sole source and sole brand acquisitions exceeding Five Thousand Dollars ($5,000.00) executed by the state agency in the preceding month pursuant to the Oklahoma Central Purchasing Act. The monthly list shall be submitted on a form prescribed and approved by the State Purchasing Director. 
   3. If the sole source or sole brand acquisition amount exceeds the agency’s acquisition authority, the agency shall submit the requisition to the State Purchasing Director. 
6. Emergency acquisition. State agencies with a CPO and approved internal purchasing procedures meeting the requirements of 260:115-5-3 and 260:115-5-7, may make an emergency acquisition in accordance with 74 O.S. §85.7. 
7. Acquisitions from other governmental agencies. A state agency may contract with any other department of state government or institution pursuant to 74 O.S. §581 or §1001 through §1008. A state agency may contract with any “public agency” pursuant to 74 O.S.§1001 through §1008, which includes a political subdivision of this state or another state, and any agency of this state or of the United States. Acquisitions shall not be made for the purpose of evading competitive bidding requirements, provisions of the Oklahoma Central Purchasing Act, rules of the Purchasing Division or provisions related to the State Use Committee. 
8. Acquisition pursuant to waiver. If the OMES Director approves a state agency’s request for a waiver pursuant to 260:115-1-6, a state agency with a CPO and approved internal purchasing procedures meeting the requirements of 260:115-5-3 and 260:115-5-7 may make the acquisition for which the waiver was approved, within their approved purchasing authority limit. 

A state agency submitting requisitions to the Central Purchasing Division pursuant to 260:115-5-11 shall comply with this section. For the purposes of this section, "State Purchasing Director" does not include personnel of state agencies to whom the State Purchasing Director has delegated authority. 

1. Forms. State agencies shall use forms for requisitions provided or approved by the State Purchasing Director. 
2. Services requisition requirements. If the state agency requisitions professional or nonprofessional services, the state agency shall submit a requisition or contract, which includes applicable statutory language required by the Oklahoma Central Purchasing Act, signed by the chief administrative officer of the agency or the chief administrative officer of the requisitioning unit certifying compliance with the Act. [Reference 74 O.S. § 85.4] 
3. Evaluation Criteria. An agency shall include written criteria necessary to evaluate a supplier’s response to a solicitation such as technical scope, cost, experience, references etc. 
4. Additional requisition information. The State Purchasing Director may require a state agency to submit additional information with a requisition. 
5. Requisition acceptance or rejection. The State Purchasing Director shall accept or reject a state agency’s requisition. The State Purchasing Director shall notify the state agency if the State Purchasing Director rejects a requisition. 
6. Competitive bid evaluation. The State Purchasing Director shall evaluate bids and may request assistance of the state agency. 
7. Competitive bid award. The State Purchasing Director shall award a contract, as the solicitation specifies, to the responsible bidder that provides the lowest and best, or best value bid. 
8. State agency notification. The State Purchasing Director shall notify the state agency of the successful bidder by purchase order following the award of contract.

1. Reasons for contract termination. The State Purchasing Director may terminate a contract in its entirety or any portion thereof, between a supplier and a state agency if: 
   1. a supplier fails to post, or allows to expire, a bid bond, performance bond, or other type of surety bond the solicitation specifies; 
   2. a supplier fails to deliver an acquisition pursuant to the contract; 
   3. a supplier fails timely to replace at the supplier’s expense, acquisitions that fail to meet the requirements of the contract or have latent defects; 
   4. a supplier misrepresents the supplier’s ability to provide an acquisition; 
   5. a supplier’s financial or other condition, including but not limited to, bankruptcy or other evidence of insolvency which may affect the supplier’s ability to perform; 
   6. a supplier commits an unlawful act or an act that impairs the supplier’s ability to perform; 
   7. a supplier commits an act that could result in the supplier’s suspension or debarment from the Supplier List;
   8. the State Purchasing Director determines that an administrative error occurred prior to contract performance; or, 
   9. if sufficient appropriations are not made by the Legislature or other appropriate governing entity to pay amounts due for multiple year agreements. 
2. Supplier responsible for damages. If the State Purchasing Director terminates a contract between a supplier and a state agency, the Attorney General of the State of Oklahoma, the State Purchasing Director, or the requisitioning agency, may seek damages from the supplier. Damages may include additional cost to obtain the acquisition from another supplier, the cost of re-bidding the acquisition and the cost of acquisition receipt delay. 

1. Qualification by Committee. To ensure compliance with the Act, the Committee shall qualify individuals and nonprofit agencies prior to contract award. 
2. Individual qualification. An individual shall apply for qualification to the Committee and submit the following documents: 
   1. To indicate the individual meets the statutory definition of a severely disabled person, the individual shall provide: 
      1. a copy of the application and supporting documentation the individual submitted to the Social Security Administration for determination of disability and a copy of the final disability determination from the Administration; 
      2. a narrative report, prepared and signed by a person licensed in the state of Oklahoma as a physician describing physical disabilities, or a psychiatrist or psychologist describing mental disabilities. The report shall fully describe the nature of the disability constituting a substantial handicap to employment with supporting medical records; and 
      3. any additional information the Committee may require related to work history, vocational assessments and work related documents. 
   2. an affidavit that the individual will perform 75% of the work to produce the products or services the individual offers for procurement by the state; and 
   3. a statement which describes the nature and extent as expressed in a percentage of work a subcontractor, other person or entity may perform to produce the products or services. 
3. Agency qualification. A nonprofit agency that has been approved by the Wage and Hour Division of the U.S. Department of Labor as a sheltered workshop shall apply for qualification to the Committee and submit the following documents that indicate the nonprofit agency meets the requirements of a qualified organization: 
   1. a tax-exempt FEI number issued by the IRS, or a certificate from the IRS verifying that the entity meets the requirements for nonprofit status as defined by the IRS; and, 
   2. a statement describing the nature and extent as expressed in a percentage of the work a subcontractor, other person or entity may perform to produce the products or services the nonprofit agency provides per a contract the Committee awards. 
   3. a copy of certification as a sheltered workshop issued by the U. S. Department of Labor. 
   4. a current copy of the nonprofit agency's certificate of insurance for worker's compensation insurance 
4. Continuation of qualification. On January 31st of each year succeeding initial qualification by the Committee, the qualified organizations shall provide evidence to the Committee of continued ability to qualify as follows: 
   1. A qualified nonprofit agency for the severely handicapped shall submit: 
      1. a current copy of its certification as a sheltered workshop from the U.S. Department of Labor; and 
      2. a report for products and services on the Committee's procurement schedule indicating the qualified nonprofit agency for the severely handicapped's total labor hours in direct production by disabled workers and total agency labor hours in direct production by non-disabled workers during the previous calendar year. 
      3. a current copy of the qualified nonprofit agency for the severely handicapped's certificate of insurance for worker's compensation insurance. 
   2. An individual shall submit: 
      1. a work history for the previous calendar year that indicates the number of hours the individual worked and the number of hours a subcontractor or other individuals worked in direct production of the products and services on the Committee's procurement schedule; and 
      2. a current physician, psychiatrist or psychologist statement indicating the current status of the condition which constitutes a substantial handicap to employment, which shall include changes in the condition since the previous date of qualification by the Committee. 
5. Failure to meet qualifications. Whenever an a qualified organization fails to meet qualifications, the Committee may: 
   1. Remove the qualified organization's products and services from the procurement schedule; or, 
   2. Revoke the qualification of the qualified organization. 
6. Notice of failure to meet qualifications. The Committee shall direct the contracting officer to send written notice to the qualified organization at least thirty days prior to the effective date of the action taken pursuant to subsection (e) of this section. 

1. Compilation of procurement schedule. The contracting officer shall maintain and publish a current list of all products and services offered by qualified organizations. 
2. Approval of procurement schedule. The Committee shall approve items on the list or delete items from the list, consistent with the provisions of the Act, and shall designate the final list of approved items as the Procurement Schedule by majority vote. If additional products or services are offered by individuals or agencies, the Committee may add products and services to the Procurement Schedule by majority vote. 

The Committee shall publish a catalog listing the jobs that workshops can do for the State of Oklahoma, annually. The list of jobs shall be the Procurement Schedule. 

The State Purchasing Director may only cancel contracts with State Use Committee suppliers for reasons specified by OAC 260:115-9-9 or as authorized by terms of the contract. The statutory authority and responsibility of the State Purchasing Director for all acquisitions used or consumed by state agencies would necessarily include the power to specify procedures agencies must follow in ordering acquisitions.  The Opinion concluded the State Purchasing Director may implement an internet-based system of purchasing goods as long as orders for products on the State Use procurement schedule are routed to State Use suppliers. However, neither the statutes nor the rules governing the State Use program expressly, or by implication, authorize or impose a requirement that State Use suppliers may be required to subcontract with the entity providing the internet-based ordering system in order to sell to state agencies. 

Unless otherwise provided by law, the State Purchasing Director has sole authority over state purchasing contracts, including the issuance of Requests for Proposals for acquisitions by state agencies. The State Use Committee does not have authority to enter into contracts or to issue or authorize Requests for Proposals. The Committee qualifies the suppliers, prepares the procurement schedule and establishes the fair market price of goods and services on the schedule but does not enter into contracts with suppliers. Contracts with suppliers on the Committee procurement schedule are between the supplier and the Purchasing Division of OMES. Contracts with State Use suppliers are not awarded through a RFP process, but rather, are awarded by the Purchasing Division after approval of the supplier by the State Use Committee and the inclusion of the supplier’s products and services on the procurement schedule. Because state agencies may purchase items on the procurement schedule from other suppliers where the items are not available from State Use suppliers within the time frame required by the agency and when the agency has a waiver from the contracting officer assigned to the State Use Committee, the State Purchasing Director may issue a RFP for items listed on the procurement schedule.

It would not be a fair competition if a bidder had advance notice of the terms of an RFP, such as would be the case if the bidder assisted in preparing the RFP. Citing Medco Behavioral Care Corp. v. State of Iowa Dep't of Human Serv., 553 N.W.2d 556 (Iowa 1996), the Opinion states "In such cases the concern is that the firm could either skew competition in favor of itself when developing the terms of the procurement, or, through its inside knowledge of the agency's requirements, gain an unfair advantage in the competitive bidding process.". Therefore, an entity may not be awarded a contract for the sale of software to a state agency if the entity has, through a professional services contract, provided assistance to the agency in developing a RFP for the purchase of such software.

Depending upon the particular facts and circumstances of the business relationship, it may be a conflict of interest for an entity to sell services to a state agency if a partner of the entity has, through a professional services contract, provided assistance to the agency in developing a RFP for the purchase of such services. If a partner of an entity that assisted in the preparation of a RFP is in a position to obtain advance information about the terms of the RFP from such entity, then the prohibition against bidding on the RFP would extend to the partner of the entity as well; however, the determination of an actual conflict of interest is a question of fact outside the scope of this Opinion. See 74 O.S. §§85.5; 3004, 3005 and 3007; OAC §§260:115-7-3, 115-7-23 and 115-9-9.