74 O.S. § 85.2. Definitions

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 Central Purchasing Act governs the expenditures of the various governmental agencies in acquiring goods or services and, unless exempted by the Legislature, the Act applies to all state agencies. That Act provides procedures for a state agency’s acquisition of items, products, supplies, services, or equipment.  See 74 O.S. §§85.1 and 85.2.

State agencies may contract with each other under either 74 O.S. §581 or 74 O.S. §1008, both of which are outside the Central Purchasing Act. Acquisitions made by a State agency from another State agency pursuant to either of these statutes are not subject to the competitive bidding requirements of the Central Purchasing Act. Additionally, “contracting” as defined in the Central Purchasing Act, refers to obtaining acquisitions from private sources; therefore, the concept of contracting between two state agencies is not included in the Act. In fact, contracts between two state agencies in essence involve only one party, the state of Oklahoma.  See 74 O.S. §§85.2 and 85.7.

Although public trusts are not expressly included in the definition of “state agency” in the Act, public officers fall within the definition and trustees of a state beneficiary public trust are officers of the executive branch of state government; thus, the Opinion concluded that state beneficiary public trusts created pursuant to 60 O.S. § 176 must comply with the Central Purchasing Act. The scope of this Opinion does not extend to public trusts having beneficiaries other than the State.

Citing the definition of “acquisition” in the Central Purchasing Act, the Opinion also concluded that to the extent no materials, supplies, services or equipment are acquired by a state beneficiary public trust from an underwriter, trustee bank or bond insurer, the Central Purchasing Act, including the competitive bid requirements, does not apply. In other words, to the extent there is no “acquisition” as defined in the Central Purchasing Act, the Act does not apply, e.g., when an underwriter is solely purchasing the bonds and is providing no attendant services. See 74 O.S. §§ 85.2 and 85.5; 62 O.S. §§695.3 and 695.11; and Opinion No. 84-137.

Oklahoma Water Resources Board must comply with the Central Purchasing Act but whether underwriters, trustee banks, and bond insurers of bond issues of the Board are subject to the provisions of the Central Purchasing Act, including the competitive bid requirements therein, depends upon whether the Board is purchasing (acquiring) materials, supplies, equipment, or services from the underwriter, trustee bank or bond issuer. If such an acquisition is occurring, then the Central Purchasing Act applies. Where, however, an underwriter is solely purchasing the bonds and is providing no attendant services, the Central Purchasing Act does not apply. See 74 O.S. §§ 85.2 and 85.5; 62 O.S. §§695.3 and 695.11; and Opinion No. 84-135.

Agricultural commissions are state agencies subject to the Central Purchasing Act when expending state funds. See 74 O.S. §85.2.

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.

Professional services, including legal counsel services, set forth in 18 O.S. §803 are not subject to the competitive bid requirements of the Central Purchasing Act and the Oklahoma Capitol Improvement Authority was authorized to select an attorney and determine the fee; however, the Authority was required to submit a requisition for the legal services to Central Purchasing.  

With respect to personal services of a professional that falls within the definition of “professional services” in the Central Purchasing Act but that are not within the definition of “professional services” under 18 O.S. §803, acquisition of the services is subject to competitive bidding requirements of the Central Purchasing Act.

The Central Purchasing Act only applies to state agencies when acquiring materials, supplies, equipment or services. Where an underwriter only purchases the bonds of a state agency and does not provide any “attendant services” to the state agency, the Central Purchasing Act does not apply. See 74 O.S. §§85.2; 85.4 and 85.7.

A public entity may be a state agency for some purposes but not for other purposes and officers that are neither judicial or legislative necessarily belong to the executive department of government and are “executive” or “administrative” officers; those terms being equivalent. In this instance, statutes gave powers to the agency’s governing board and Commissioner as fully and completely as a governing body of a private entity in the same business. The Commissioner had broad authority to purchase materials and services necessary for agency operations but the agency was subject to the Central Purchasing Act as to the manner by which the items were acquired. That the Legislature exempted certain agencies by name from the Act, but did not include this particular agency, demonstrated that the Legislature intended the agency to remain subject to the Central Purchasing Act.  See 74 O.S. §85.12.

18 O.S. §803 defines certain personal services as professional services that are exempt, pursuant to 74 O.S. §85.7, from competitive bidding requirements of the Central Purchasing Act. However, “professional services” defined in the Central Purchasing Act are different than the §803 services and are subject to the Act’s competitive bidding requirements. See 74 O.S. §§85.2 and 85.7.

NOTE: Opinion No. 07-31 withdrew this Opinion to the extent it concluded that the Department of Central Services (now OMES) is a purchasing agent for a state agency.