74 O.S. § 85.12. Act Not to Affect Non-Conflicting Procedures - Acquisitions Excluded

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.

The State Purchasing Director shall review state agency acquisitions to ensure state agency compliance with provisions of the Oklahoma Central Purchasing Act, promulgated rules of the Office of Management and Enterprise Services, provisions of 74 O.S. §3001 through §3010, other laws of the State of Oklahoma, and the state agency’s approved internal purchasing procedures. If the State Purchasing Director finds state agency procurement practice deficiencies, the State Purchasing Director shall report the findings to the OMES Director. 

1. Audit notification. OMES shall notify the state agency of all scheduled audits. 
2. State agency responsibilities. 
   1. The state agency shall provide work space for the audit team. 
   2. The state agency shall provide records for acquisitions for the audit period. 
   3. The state agency shall make the state agency’s CPO available to assist the audit team. 
3. Audit following reduction of state agency acquisition authority. If the OMES Director reduces the acquisition authority of a state agency, the Audit Team shall periodically audit the state agency’s acquisitions in order to review the agency’s efforts to correct audit findings of noncompliance. 

State agencies may obtain required electrical, gas, water, or sewer utility services from sources of supply which are most advantageous to the agency if competition is not present or practical. 

Although the state court system is not among entities exempted from the Central Purchasing Act, purchases from the Court Fund to defray expenses of county court operations are specifically governed by 20 O.S. §§ 1301 - 1312, and the Supreme Court Rules at 20 O.S. ch. 18, app. 1. Neither the statutes nor the Rules governing the Court Fund require that expenditures be subject to the Central Purchasing Act. See 74 O.S. §85.12.

Among the statutory exceptions to the general requirement that state agencies use competitive solicitations when making acquisitions are the statutes and administrative rules relating to the State Use Committee which exists within the OMES Purchasing Division. State Use Committee contracts are mandatory contracts and whenever a state agency intends to procure a product or service included in the State Use Committee’s procurement schedule, the agency shall secure the product or service from a State Use contractor regardless of the acquisition purchase price. The only exception to the mandate is if the product or service is not available within the period required by the entity.  Pursuant to 74 O.S. §3007.B. a state agency is prohibited from evading the purchase of individual products or services listed on the State Use Committee's procurement schedule, by issuing a solicitation for products or services that is a slight variation from the standards adopted by OMES.

The proper test to apply in determining whether a solicitation by a state agency violates State Use statutes is found within the language of 74 O.S. §3007 and turns on whether a particular solicitation is for "any product or service included in the procurement schedule." This test must be applied to each solicitation on a case-by-case basis. For example, a solicitation for prepared soup is not a violation of the intent of the State Use statutes even though it includes individual items on the schedule such as pasta, peas and beans, because the product of prepared soup is not an item on the procurement schedule. Likewise, a solicitation for a comprehensive package of computer parts and services would not violate the intent of the State Use statutes even though the State Use procurement schedule includes an individual item such as toner, because the product/service of comprehensive computer services is not on the procurement schedule.

The determination of whether any purchase by a state agency violates the intent of the State Use laws is the responsibility of the State Use Committee.  See 74 O.S. §§3007 and 3009.

Facility management and operation services contemplated by 10A O.S. §2-2-806, in connection with the Oklahoma Office of Juvenile Affairs, are not listed among the exclusions from the Central Purchasing Act. Citing Okla. Alcoholic Beverage Control Bd. v. Moss, 509 P.2d 666 (Okla. 1973), the Opinion stated state agencies have only those powers that are granted to them by statute, and an agency may not, by rule, expand its powers beyond those granted by statute. Thus, by promulgating a rule, the Office of Juvenile Affairs may not grant unto itself the power to be exempted from the Central Purchasing Act. See 74 O.S. §85.12.

Agencies and acquisitions exempted from the Central Purchasing Act in its entirety includes exemption from the competitive bidding requirements of the Act. See 74 O.S. §§85.3A, 85.7 and 85.12.

The Turnpike Authority is exempt from the provisions of the Central Purchasing Act when acquiring liability insurance. The enabling statute for the Turnpike Authority provides that the Authority is required to carry liability insurance ... "in the same manner" as the Transportation Commission. The term "in the same manner" means the procedure or mode to be used in effectuating the statutorily prescribed acts. Using this analogy, "in the same manner" means that the procedure or mode in obtaining liability insurance for the Turnpike Authority will be the procedure or mode used in obtaining liability insurance for the Transportation Commission.

The Central Purchasing Act provides a specific exclusion of the Transportation Commission and the Department of Transportation’s contractual services from the Act; thus, the procedure for obtaining "contractual services" by the Transportation Commission does not require compliance with the Central Purchasing Act. The acquisition of liability insurance referenced in the enabling statute for the Turnpike Authority is an acquisition of a "contractual service" as defined in the Central Purchasing Act.

A state agency that is not subject to the provisions of the Central Purchasing Act, may, unless acting pursuant to a contract with the state that specifies otherwise, make use of statewide contracts and the services of the Purchasing Division and the State Purchasing Director. The decision to use these services is in the discretion of the particular agency.  See 74 O.S. §§85.2 and 85.12.