74 O.S. § 85.5. Powers and Duties of State Purchasing Director

The following words or terms, when used in this Chapter, shall have the following meanings, unless the context clearly indicates otherwise: 

"Agency" means any department, board, commission, institution, authority, or agency of the State of Oklahoma. 

"Asphalt materials containing ground tire rubber" means asphalt material mixed with recovered rubber from scrap automobile, truck, or bus tires. The term includes asphalt rubber and rubber modified asphalt. 

"Director" means the Director of the Office of Management and Enterprise Services. 

"Economically feasible" means that the cost of an action is reasonable in consideration of the beneficial result, as determined by the Director of the Office of Management and Enterprise Services. 

"Life cycle cost" means a cost which is distinguished from a product's purchase price in that the additional considerations of waste disposal cost, durability, and reusability are incorporated into the concept of product cost. 

"Office" or "OMES" means the Office of Management and Enterprise Services. 

"Post-consumer material" means those products or recyclable materials generated or discarded by a business or a consumer that have served their intended end uses, and that have been recovered from or otherwise diverted from the solid waste stream for the purpose of recycling. Wastepaper generated in paper mill operations such as cutting, trimming, coating, or converting, along with mill broke and other in-plant residual wastes, although present in recycled paper products, shall not be included in the determination of the percentage of post-consumer material, but may be included in the determination of the percentage of total recycled materials content. 

"Practicable" means capable of being used consistent with: 

1. performance in accordance with applicable specifications; 
2. availability at a reasonable price; 
3. availability within a reasonable period of time; 
4. maintenance of a satisfactory level of competition. 

"Price preference" means the percentage over and above the price of non-recycled products and materials which may be allowed for the purchase of recycled products and materials. 

"Products manufactured from virgin materials" means products which are composed entirely of materials which have not been previously used in manufacture. 

"Products manufactured with recycled materials" means products that are manufactured with a minimum content of ten percent (10%) post-consumer materials. 

"Recyclable materials" means materials or products which are capable of being recycled, including, but not limited to paper, glass, plastics, metals, automobile oil, and batteries. 

"Recycled paper products" means all paper products manufactured from recoverable waste paper, with not less than ten percent (10%) of their total weight consisting of waste paper. 

"Recycling" means a three step process: 

1. the identification and collection of usable materials from the solid waste stream; 
2. the processing of these materials into new products; and, 
3. the purchase and use of products containing reused materials. 

"Recycling plan" means a scheme, method, schedule, and outline for action which is designed to fulfill the intent, requirements, and goals of the Oklahoma State Recycling and Recycled Materials Procurement Act. 

"Recycling program" means a system of instructions, procedures, services, and tasks by which source reduction is accomplished, recyclable materials are salvaged, separated, and disposed of, and products manufactured with recycled materials are procured, in accordance with the intent of the Oklahoma State Recycling and Recycled Materials Procurement Act. A recycling program may include services provided by private, nonprofit, and/or cooperative contractors. 

"Re-refined oils" means used oils from which the physical and chemical contaminants acquired through prior use have been removed through a refining process. 

"Retreaded tire" means any tire that utilizes an existing casing for the purpose of vulcanizing new tread to such casing and which meets all performance and quality standards specified in the Federal Motor Vehicle Safety Standards determined by the United States Department of Transportation. 

"State public entity" means the State Legislature, any bureau, agency, board, commission, or authority of the state; the Office of the Governor, the judiciary, or any state university, school district or county of the state which is supported in whole or in part by state funds. 

"The Act" means the Oklahoma State Recycling and Recycled Materials Procurement Act. 

1. Purchase of recycled products. Each state public entity shall procure products which are manufactured with recycled materials, and products which are recyclable and/or durable, to meet or exceed the legislative intent, requirements, and goals of the Act. 
2. Reporting of purchases of recycled products. Each state public entity shall submit a report to the Director by December 31 of each year. This report shall describe the results of its procurement of recycled paper products and other products manufactured with recycled materials over the past fiscal year. The report shall be in a format determined by the Office. 
3. Assistance in procurement objectives. The Office shall provide assistance to state public entities in the achievement of procurement objectives in their recycling programs. 
4. Procurement specifications for recycled materials. Each state public entity shall use procurement specifications to require, to the greatest extent practicable, that a product and its packaging or container contain recycled materials and that the product and its packaging or container be recyclable. 
   1. Product and packaging specifications shall require the use of post-consumer materials to the greatest extent practicable without jeopardizing the intended end use of the product. 
   2. In writing specifications and selecting products for procurement, life cycle costs shall be part of the evaluation criteria when the costs of waste disposal or the durability and reusability of a product may be significant. 
   3. A state public entity may determine that, for technical reasons, and for a particular end use, a product containing recycled materials will not meet reasonable performance standards, and may therefore declare the purchase of a product manufactured with recycled materials to be unpracticable. Such a determination shall be documented and based solely upon technical performance information related to a specific item, and not to a grade or type of product. This documentation may be requested for review by the Office. 
   4. Each state public entity shall reduce the generation of solid waste at its source, whenever practicable, by minimizing the purchase of single-use, disposable products and requiring the purchase of durable products which can be reused. 
   5. Each state public entity shall, whenever practicable, purchase only office paper, photocopier paper, printer paper, and printed paper products which are not coated with plastic, clay, or other material used to create a glossy finish. 
   6. Each state public entity shall take reasonable steps to minimize the procurement of colored paper products. If color is necessary for a particular use, full consideration shall be given to the use of white paper printed with colored, soy- based ink. 
5. Declaration of vendors of percentage of recycled materials in products. State public entities shall require vendors to declare the minimum, if not exact, percentage of recycled materials content in the products offered, including both the post-consumer and total recycled materials content, regardless of whether the product meets the percentage of recycled materials specified for that product. 
6. Certification by vendor of recycled content claim. The vendor of any product for which a recycled content claim is made must both possess and rely upon a reasonable basis for the claim and must be able, upon request by the Office, to certify and demonstrate this claim. Any fraud or deception in the representation of recycled materials content may result in cancellation of the contract and the removal or suspension of the vendor from the bidders list pursuant to OAC 260:115-3-21. 
7. Preferences for recycled materials. If several products manufactured with recycled materials are being considered for purchase, and if all cost and quality considerations are comparable, preference shall be given to the product with the highest content of post- consumer material. If this measure fails to identify the more preferable product, the award shall go to the product with the highest content of total recycled materials. 
8. Preferences by public entities. Each state public entity responsible for the maintenance of public lands in this state shall, to the greatest extent practicable and consistent with sound environmental practices, give preference to the use of compost materials in land maintenance activities which are to be paid for by public funds. 
9. Provisions for Oklahoma Department of Transportation and Oklahoma Turnpike Authority. The Department of Transportation and the Oklahoma Turnpike Authority shall review and modify all bid and paving material specifications: 
   1. To provide that the specifications encourage the maximum purchase, when practicable, of recyclable asphalt pavement and paving materials utilizing recycled materials, including but not limited to: 
      1. crushed concrete sub base; 
      2. fly ash; 
      3. glass and glassy aggregates; and 
      4. asphalt material containing ground tire rubber. 
   2. Life cycle cost analysis shall be used in determining practicability. 
10. Provisions for public entities using motor vehicles. Each state public entity which owns or maintains motor vehicles is encouraged, to the greatest extent practicable to: 
    1. Equip such vehicles with retreaded tires. 
       1. Efforts should first be made to procure retreading services for the entity's own waste tire casings. 
       2. If the services in 260:85-1-4(j)(1)(A) are not practicable, retreaded tires should be procured for use as replacements. 
       3. Emergency vehicles defined in 47 O.S. 1991 § 1-103 (Highway Safety Code) are exempt from this recommendation. 
    2. Procure re-refined oils for all practicable uses, including, but not limited to, such uses as: 
       1. engine lubricating oils; 
       2. gear oils; and, 
       3. hydraulic fluids. 
11. Price preference on bids. When accepting bids for purchases of supplies, equipment and materials, the Central Purchasing Division of the Office of Management and Enterprise Services and each state public entity shall extend price preferences to products manufactured with recycled materials whenever the Director determines that such products are unable to be price competitive with products of comparable grade and quality manufactured from virgin materials. 
    1. Those products manufactured with at least the minimum content level of recycled materials as established by the Federal Environmental Protection Agency (EPA) shall receive a price preference not to exceed a five percent differential. 
    2. A copy of the EPA specified content requirements and a list of products meeting the requirements will be maintained as a public record by the Office. 
    3. A product which contains recycled materials but falls short of the EPA minimum requirements may receive a price preference if no other product is bid or offered which meets the EPA requirements. 
    4. Price preferences allowed pursuant to this section shall not be combined with other price preferences or differentials. 
    5. In response to product market conditions, the Director may temporarily increase, reduce, or eliminate any recycled product price preference. 
12. Exemptions. No state public entity may be exempted from complying with the legislative intent, requirements, and goals of the Act; however, the Director may grant temporary exemptions from compliance with the rules in 260:85-1-4 due to lack of market availability or economic feasibility. All requests for exemption must be made in writing and must be accompanied by documentation supporting the need for such an exemption. Any exemption granted shall be in effect for no longer than one year. 

1. General. The OMES Director, the Oklahoma Central Purchasing Act and other laws prescribe the duties, responsibilities and authority of the State Purchasing Director. 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.
2. Authority. Pursuant to the provisions of Section 85.4 of this title [Title 74], the State Purchasing director, under the supervision of the Director of the Office of Management and Enterprise Services, shall have sole and exclusive authority and responsibility for all acquisitions used or consumed by state agencies. [74 O.S. §85.5]
3. Official directives. The State Purchasing Director shall issue directives, instructions or written communications to state agencies regarding required procurement practices and procedures to ensure compliance with provisions of the Central Purchasing Act, the Procurement rules and any other matter relating to state agency acquisitions and procurement. 

1. Waiver request. A state agency may request a waiver from requirements of the rules of this chapter from the Director of the Office of Management and Enterprise Services, if:
   1. the state agency reasonably believes that it would be unable to perform a necessary function due to the inability to make an acquisition pursuant to rules of this Chapter; or,
   2. a court order directs the state agency to make an acquisition from a specified supplier or provider.
2. Approval of waiver request. After the request is reviewed, the OMES Director shall notify the state agency of the approval, conditional approval or denial of the waiver request.

1. Bid withdrawal before closing date. A bidder who desires to withdraw a bid prior to the closing date shall submit to the State Purchasing Director a written withdrawal request created on the bidder’s company letterhead and signed by the bidder’s authorized representative. The withdrawal request must identify the requested method of return of the proposal, the person authorized to receive the returned bid, the bidder’s name, solicitation number and closing date. 
   1. If the bid is to be returned via U.S. Postal Service or other small package carrier, the bidder must provide a method for return shipping charges. 
   2. If the bid will be withdrawn in person, the person must provide personal identification to validate they are the person identified in the withdrawal request. After confirmation of identity, the person accepting the withdrawn bid shall sign a receipt for the bid. 
2. Bid withdrawal after closing date. Withdrawal of a bid after the closing date shall not be authorized by the State Purchasing Director unless the bidder can prove a significant error by the bidder exists in the bid. 

1. Time of award. The contract award shall be made upon completion of bid evaluation and associated administrative tasks necessary to complete the acquisition. State agency personnel shall not announce or reveal their decision regarding supplier evaluation or recommendation for award in any public manner or forum, until the State Purchasing Director has issued the award of contract. 
2. Reasons for bid rejection. The State Purchasing Director may reject a bid when the bid is determined to be non-responsive or the bid is from a supplier who is not responsible, for reasons included, but not limited to, those listed in 260:115-7-32. 
3. Notification of successful bidder. The State Purchasing Director shall notify the successful bidder within five (5) business days of the contract award. 
4. Public inspection. The evaluation documentation shall be open for public inspection, upon request, following contract award. 

1. A supplier may protest a contract award by a state agency or OMES to the State Purchasing Director. All remedies available to suppliers through the sealed bid process pursuant to the Oklahoma Central Purchasing Act are also available to online bidders in an online bidding process. 
   1. Supplier notification. A supplier shall submit written notice to the State Purchasing Director of a protest of an award of contract by a state agency or OMES within ten (10) business days of contract award. The supplier protest notice shall state all facts and reasons in specificity for protest. 
   2. State Purchasing Director review and determination. The State Purchasing Director shall review the supplier’s protest and contract award documents. 
      1. The State Purchasing Director may determine to respond to the protest or delegate the responsibility by written notice to the state agency that awarded the contract. 
      2. The State Purchasing Director or state agency, whichever is applicable, shall send written notice of the decision to deny or sustain the protest to the supplier within ten (10) business days of receipt of the protest. 
   3. Supplier appeal of decision to deny protest. The supplier may appeal a denial of protest by the State Purchasing Director or a state agency to the OMES Director. 
      1. Such appeal shall be filed by the supplier within ten (10) business days of the date of the State Purchasing Director’s or state agency’s notice of denial pursuant to 75 O.S. §§309 et seq. 
      2. The OMES Director may enter an order staying contract performance upon such terms and conditions as the OMES Director determines to be proper.  Any request for stay of contract performance must be made in writing and filed during the ten (10) business day time period in which an appeal may be commenced to the OMES Director. The OMES Director shall have continuing jurisdiction to modify any such orders made in connection with a stay during the pendency of the appeal as appropriate under the circumstances presented. 
   4. Director actions and determination. The OMES director may hear the appeal or assign the supplier’s appeal to an Administrative Law Judge retained by the agency. 
      1. If the appeal is assigned to an Administrative Law Judge, the Administrative Law Judge shall review the appeal for legal authority and jurisdiction. If legal authority and jurisdictional requirements are met, the Administrative Law Judge shall conduct an administrative hearing and provide proposed findings of fact and conclusions of law to the OMES Director. 
      2. If the appeal is heard by the OMES Director, the OMES Director shall have all powers granted by law including all powers delegated to the Administrative Law Judge by this section. 
      3. The OMES Director shall send written notice of the final order sustaining or denying the supplier’s appeal to the parties. 
      4. The cost of actions necessary to process a supplier’s appeal, together with any other expenses incurred due to the appeal, shall be paid by the state agency responsible for the initial solicitation. 
   5. Conduct of administrative hearing. Administrative hearings shall be conducted in accordance with the Administrative Procedures Act and the following procedures: 
      1. Prehearing conference. A prehearing conference shall be scheduled to determine the legal or factual issues which shall be limited to those brought by the supplier in its initial protest to the State Purchasing Director. 
      2. Burden of proof. The burden of proof shall be upon the supplier, which must prove its case by a preponderance of the evidence. A preponderance of the evidence is that evidence which, in light of the record as a whole, leads the Administrative Law Judge to believe a fact is more probably true than not true. 
      3. Representation. Corporations must be represented by legal counsel in accordance with Oklahoma law. Legal counsel must be licensed or registered pursuant to the Rules Creating and Controlling the Oklahoma Bar Association. 
      4. Proper parties. In addition to the supplier protesting the contract award, OMES, the supplier awarded the contract and the state agency for which the bid was let may participate in the bid protest proceedings as a proper party. 
      5. Discovery. The conduct of discovery is governed by the Administrative Procedures Act, 75 O.S. §§ 309 et seq. and other applicable law. 
      6. Authority of the Administrative Law Judge. The Administrative Law Judge may: 
         1. Establish a scheduling order; 
         2. Establish reasonable procedures such as authorizing pleadings to be filed by facsimile or electronic mail; 
         3. Rule on all interlocutory motions; 
         4. Require briefing of any or all issues; 
         5. Conduct hearings; 
         6. Rule on the admissibility of all evidence; 
         7. Question witnesses; and 
         8. Make proposed findings of facts and conclusions of law to the OMES Director. 
      7. Remedies. The Administrative Law Judge may recommend that the OMES Director deny the supplier’s appeal or that the contract award be cancelled and rebid. 
   6. Supplier appeal of OMES Director decision to deny appeal. If the OMES Director denies a supplier’s appeal, the supplier may appeal pursuant to provisions of 75 O.S. §§ 309 et seq. 
2. An agency making an acquisition pursuant to 74 O.S. §85.5(T) shall conduct all actions and bear all costs associated with the protest or appeal of a contract award. 

1. Training. The State Purchasing Director shall provide training for state agency purchasing officials and other purchasing staff pursuant to 74 O.S. §85.5. 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. 
2. Certification. The State Purchasing Director shall certify state agency purchasing officials and other purchasing staff who demonstrate proficiency in principles of state procurement practices, basic contracting, provisions of the Oklahoma Central Purchasing Act, provisions of State Use Committee and other matters which relate to procurement practices. 
3. Authority. A CPO shall be authorized to make acquisitions for state agencies. 
4. Duties. A CPO shall provide assistance and oversight to a state agency to ensure acquisition processes meet the requirements of the Oklahoma Central Purchasing Act, the Central Purchasing rules, other statutory provisions and the state agency’s internal purchasing procedures. 
5. Decertification. The State Purchasing Director may revoke certification of a CPO if the State Purchasing Director reasonably believes the CPO did not make state agency acquisitions pursuant to the Oklahoma Central Purchasing Act, the Central Purchasing rules, other statutory provisions, or the state agency’s internal purchasing procedures. 
6. Continuing education. To maintain certification, a CPO shall attend continuing education as required by the CPO Procurement Training Program established by the State Purchasing Director. Continuing education courses must be related to procurement practices and approved in advance for CPO education credit by the State Purchasing Director. The State Purchasing Director shall establish a policy relating to how often courses may be repeated to qualify for continuing education credit. 
   1. A CPO shall submit documentation verifying continuing education course attendance to the State Purchasing Director as required by the CPO Procurement Training Program. The burden of proof rests solely upon the CPO to demonstrate, in advance of taking a course and to the satisfaction of the State Purchasing Director, that all continuing education courses reported meet all of the requirements as to content and subject matter related to procurement practices. 
   2. A CPO may claim continuing education credit only for the compliance period in which the course was completed and credit granted. 
   3. Failure by a CPO to complete required continuing education within the allowed time period will result in suspension of the CPO’s purchasing authority. 
   4. A suspended CPO must repeat the CPO certification course and demonstrate proficiency in procurement practices by passing the CPO prescribed certification examination in order to be reinstated and restore purchasing authority. 
   5. In the event of extenuating circumstances, a CPO may submit a written request to the State Purchasing Director for reinstatement and an extension of time to allow the CPO to fulfill required continuing education credits. The State Purchasing Director may approve the request for a reinstatement period not to exceed three (3) months to provide time to fulfill education credits. 
7. Change in status. A CPO or the state agency employing such CPO shall immediately notify the State Purchasing Director when they: 
   1. are no longer performing as a CPO; 
   2. transfer to another state agency; or, 
   3. terminate their employment with the state. 

1. Development. State agencies shall develop internal purchasing procedures for acquisitions by the state agency pursuant to 74 O.S. §85.39, “. . .which shall, at a minimum, include provisions for the state agency’s needs assessment, funding, routing, review, audits, monitoring, and evaluations”. A state agency must include the method whereby a supplier may protest a contract award by the agency pursuant to 260:115-3-19 in its internal purchasing procedures, and include provisions for procurement policies under statutorily applicable emergency events. Internal purchasing procedures are not effective until approved in accordance with this section. 
2. Submission to State Purchasing Director. The state agency shall submit a copy of the procedures to the State Purchasing Director. 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. 
3. State Purchasing Director review. The State Purchasing Director shall review the state agency’s procedures to ensure compliance with provisions of the Oklahoma Central Purchasing Act, provisions of the State Use Committee, and the Central Purchasing rules. 
4. OMES Director notice of approval or denial to state agency. Within fifteen (15) business days of submission, the OMES Director shall notify the state agency if the procedures comply or indicate revisions necessary to bring the procedures into compliance. 
5. State agency resubmission following disapproval. The state agency shall resubmit procedures until the OMES Director notifies the state agency the procedures comply. 
6. Purchasing procedure review. State agency internal purchasing procedures should be reviewed by the state agency annually with recertification of the internal purchasing procedures by submission to the State Purchasing Director every two (2) years.
7. Purchasing procedure amendments. If a state agency desires to amend the state agency’s internal purchasing procedures, the state agency shall submit the new procedures in their entirety to the State Purchasing Director for review pursuant to the provisions of these rules. 
8. State agency Purchase Card (P/Card) procedures. A state agency shall amend its internal purchasing procedures to include the agency’s Purchase Card (P/Card) procedures within six (6) months of completing the P/Card Program implementation process through OMES. The P/Card procedures shall include provisions for procurement policies under statutorily applicable emergency events and the state agency’s approved food policy. The P/Card procedures must specify the process established by the agency to ensure a P/Card held by a terminated or separated employee or an employee who no longer has a job function requiring a P/Card, is promptly surrendered to the State Agency P/Card Administrator. 

1. Retention time period. A state agency shall retain all records relative to acquisitions and contracts as follows:1
   1. Acquisitions independently processed by agency. Retain documents for the duration of the contract term and for a period of seven (7) years following completion and/or termination of the acquisition, provided all audits have been completed, all applicable audit reports have been accepted and resolved by all applicable federal and state agencies, and provided no legal actions are pending. If an audit, litigation, or other action involving such records is started before the end of the seven (7) year period, the records shall be maintained for two (2) years from the date all issues arising from the action are resolved or until the end of the seven (7) year retention period, whichever is later; and, 
   2. Acquisition documents submitted to Central Purchasing Division for processing. Retain documents until one (1) year after all audits have been completed and all applicable audit reports have been accepted and resolved by all applicable federal and state agencies and provided no legal actions are pending, then destroy. If legal action is pending destroy two (2) years after exhaustion of all legal remedies.
   3. Acquisition documents processed by Central Purchasing Division. The Central Purchasing Division shall retain documents for the duration of the contract term and for a period of seven (7) years following completion and/or termination of the acquisition, provided all audits have been completed, all applicable audit reports have been accepted and resolved by all applicable federal and state agencies, and provided no legal actions are pending. If an audit, litigation, or other action involving such records is started before the end of the seven (7) year period, the records shall be maintained for two (2) years from the date all issues arising from the action are resolved or until the end of the seven (7) year retention period, whichever is later.
2. Records retention location. A state agency shall retain procurement records and documents in a reasonably accessible location unless a written waiver is provided by the State Purchasing Director. 
3. Records availability. A state agency shall make acquisition records available to the State Purchasing Director for review and the OMES Audit staff for audit purposes. 
4. Records to be retained. A state agency shall retain acquisition records to include but not limited to justification for the acquisition, supporting documents, related information, acquisition contract, evaluations, other evidence of contractor performance and written reports. 

• 1. See also 67 O.S. §201 et seq., the Records Management Act.

1. A state agency shall submit a requisition to the State Purchasing Director for each of its acquisitions, whenever: 
   1. the agency does not have a CPO and/or approved internal purchasing procedures pursuant to the requirements of 260:115-5-3 and 260:115-5-7 and an acquisition exceeds Five Thousand Dollars ($5,000.00); 
   2. the agency’s acquisition authority has been reduced by the OMES Director and the acquisition exceeds the dollar amount of the reduced acquisition authority; or, 
   3. an acquisition exceeds the state agency’s acquisition authority. 
2. OMES may contract with a state agency for the services of qualified personnel to assist or conduct purchasing activities for the agency upon written request by the agency or in the event the State Purchasing Director determines the needs of the agency are such to require qualified procurement personnel. [Reference 74 O.S. §85.3] The state agency may reimburse administrative costs to OMES for the services of employees necessary to provide procurement services pursuant to this subsection. 

On September 1 of each year, the chief administrative officer of each state agency shall submit an electronic report to the State Purchasing Director listing savings realized by the agency in the previous fiscal year through the application of best spend practices. The September 1st date is within the State Purchasing Director’s discretion to change. If such date is changed, the State Purchasing Director shall provide state agencies with advance written notice six months prior to the new date the electronic reports are due. The State Purchasing Director will define the report content required to collect savings data from state agencies, which will include but may not be limited to: 

1. total spend by commodity; and 
2. participation in mandatory statewide contracts. 

If a state agency makes an unauthorized commitment on behalf of the state to a supplier, the state may, if in the best interest of the state, ratify the commitment. 

1. State agency actions. The chief administrative officer of the state agency shall approve or disapprove a ratification request. 
   1. Chief administrative officer approves request. If the chief administrative officer approves the request, the state agency shall perform steps as follows: 
      1. The state agency shall negotiate a proposal for a ratification agreement with the supplier. 
      2. The chief administrative officer shall document facts and circumstances of the unauthorized commitment. 
      3. The chief administrative officer shall sign the proposed ratification agreement. 
      4. The chief administrative officer shall provide a copy of the ratification agreement and, upon request, the supporting documents to the State Purchasing Director. 
   2. Chief administrative officer disapproves request. If the chief administrative officer disapproves the request, the state agency shall retain documents from the supplier and the state agency. 
2. State Purchasing Director actions. The State Purchasing Director shall retain a copy of the ratification agreement. 

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 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. 

1. Basic Requirements. State agencies that have an internal CPO or a designated CPO through an interagency agreement and approved internal purchasing procedures pursuant to the requirements of 260:115-5-3 and 260:115-5-7 shall make acquisitions over $5,000.00 and not exceeding $25,000.00 pursuant to this section. 
2. Acquisition Preparation. The state agency shall prepare and document the state agency’s specifications and all information required from the supplier for an acquisition. An agency shall choose an appropriate solicitation methodology, i.e. formal or informal competitive solicitation, based on the complexity of an acquisition. 
3. Supplier selection. 
   1. The state agency shall solicit from a minimum of three (3) registered suppliers (if available) for acquisitions over $5,000.00 and not exceeding $10,000.00 and ten (10) registered suppliers for acquisitions over $10,000.00 and not exceeding $25,000.00, from the Supplier List in the appropriate commodity classification. Selection of suppliers shall be rotated whenever more than ten (10) suppliers are registered. 
   2. State agencies shall solicit prices and delivery dates by mail, telephone, facsimile or by means of electronic commerce. 
   3. The state agency shall make a written evaluation of criteria considered in selection of the supplier for the acquisition. Documentation of prices, delivery dates and the evaluation shall be placed in the acquisition file. 
   4. All awards shall be based on lowest and best or best value criteria. 
   5. Certifications, verifications and other required documents. 
      1. Non-collusion certification. Pursuant to requirements in 74 O.S. §85.22, a non- collusion certification shall be included with any competitive bid and/or contract submitted to the State for goods or services. The certification shall have an authorized signature of the supplier certifying the non-collusion statement with full knowledge and acceptance of all its provisions. 
      2. Sales Tax Permit Verification. Prior to the award of a contract, the state agency must verify that the supplier has obtained a current sales tax permit in accordance with the laws of Oklahoma. Documentation of verification of a current sales tax permit, which must be a copy of the sales tax permit, the supplier’s explanation of exemption, or confirmation of the permit’s status obtained from the Oklahoma Tax Commission, must be filed in the acquisition file. 
      3. Certifications for services contracts. Additional documents required to be included in contracts for professional or nonprofessional services include: 
         1. If the final product of a professional services contract is a written proposal, report or study, the supplier shall include a statement certifying that the supplier has not previously provided a substantial duplication of the final product to the state agency or another state agency. [Reference 74 O.S. §85.41] 
         2. An acquisition for professional or nonprofessional services must include statutory language required by the Oklahoma Central Purchasing Act as a term of the requisition or contract and must be 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. Each contract for services shall include a statement certifying that no person who has been involved in any manner in the development of that contract while employed by the State of Oklahoma shall be employed to fulfill any of the services provided for under said contract. [Reference 74 O.S. §85.42] 
      4. Bonds and sureties. The solicitation may require bidders to submit a bid bond, performance bond, or other type of approved surety with the bid. 
         1. Form of bond. The bid bond, performance bond or other type of surety shall be subject to the approval of the State Purchasing Director. For bonds requiring a cash deposit, the amount specified by the State Purchasing Director shall be paid by certified check or cashiers check. 
         2. Irrevocable letter of credit. In lieu of bonds specified in this subsection, the State Purchasing Director may approve submission of an irrevocable letter of credit. 
         3. Bond or surety return. When the State Purchasing Director specifies a bid contain a bid bond, performance bond, or other type of surety, the State Purchasing Director shall retain the bond or surety until the successful completion of the purpose for which the bond or surety was drawn. 

1. Basic requirements. State agencies that have an internal CPO or a designated CPO through an interagency agreement and approved internal purchasing procedures pursuant to the requirements of 260:115-5-3 and 260:115-5-7 shall make acquisitions exceeding $25,000.00 but not exceeding $50,000.00 in accordance with this section, by means of a formal method of competitive solicitation, i.e. sealed bid solicitations. 
2. Acquisition preparation. The state agency shall prepare and document the state agency’s specifications for an acquisition. The state agency shall provide the specifications, terms and conditions for the acquisition to each supplier selected for notification. Whenever the state agency issues a solicitation for acquisition by invitation to bid or RFP, the agency shall develop evaluation criteria for the acquisition prior to bid opening. 
3. Supplier selection. 
   1. The state agency shall solicit all registered suppliers in the appropriate commodity classification from the Supplier List along with any other suppliers identified by the state agency. Suppliers that have been suspended or debarred by the State Purchasing Director or the Federal government shall not be awarded a contract. 
   2. State agencies shall solicit prices and delivery dates by means of sealed bid using mail or electronic commerce. The suppliers shall provide pricing and delivery dates in accordance with the requirements of the solicitation. 
   3. The state agency shall make a written evaluation of criteria considered in selection of the supplier for the acquisition. The written evaluation shall be placed in the acquisition file. When a selection has been made, the state agency shall notify the supplier of the award. 
   4. All awards shall be based on lowest and best or best value criteria. 
   5. Certifications, verifications and other required documents. 
      1. Non-collusion certification. Pursuant to requirements in 74 O.S. §85.22, a non- collusion certification shall be included with any competitive bid and/or contract submitted to the State for goods or services. The certification shall have an authorized signature of the supplier certifying the non-collusion statement with full knowledge and acceptance of all its provisions. 
      2. Sales Tax Permit Verification. Prior to the award of a contract, the state agency must verify that the supplier has obtained a current sales tax permit in accordance with the laws of Oklahoma. Documentation of verification of a current sales tax permit, which must be a copy of the sales tax permit, the supplier’s explanation of exemption, or confirmation of the permit’s status obtained from the Oklahoma Tax Commission, must be filed in the acquisition file. 
      3. Certifications for services contracts. Additional documents required to be included in contracts for professional or nonprofessional services include: 
         1. If the final product of a professional services contract is a written proposal, report or study, the supplier shall include a statement certifying that the supplier has not previously provided a substantial duplication of the final product to the state agency or another state agency. [Reference 74 O.S. §85.41] 
         2. An acquisition for professional or nonprofessional services must include statutory language required by the Oklahoma Central Purchasing Act as a term of the requisition or contract and must be 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. Each contract for services shall include a statement certifying that no person who has been involved in any manner in the development of that contract while employed by the State of Oklahoma shall be employed to fulfill any of the services provided for under said contract. [Reference 74 O.S. §85.42] 
      4. Bonds and sureties. The solicitation may require bidders to submit a bid bond, performance bond, or other type of approved surety with the bid. 
         1. Form of bond. The bid bond, performance bond or other type of surety shall be subject to the approval of the acquiring state agency. For bonds requiring a cash deposit, the amount specified by the acquiring state agency shall be paid by certified check or cashiers check. 
         2. Irrevocable letter of credit. In lieu of bonds specified in this subsection, the acquiring state agency may approve submission of an irrevocable letter of credit. (iii)Bond or surety return. When the acquiring state agency specifies a bid contain a bid bond, performance bond, or other type of surety, the state agency shall retain the bond or surety until the successful completion of the purpose for which the bond or surety was drawn. 
      5. Verification of registration and status with Secretary of State. Prior to the award of a contract, the acquiring state agency must verify, pursuant to applicable provisions of law, that the supplier is registered with the Secretary of State and franchise tax payment status pursuant to 68 O.S. §1203 and §1204. Documentation of verification of registration and status with the Secretary of State must include, at a minimum, a copy of the entity summary information from the Secretary of State’s website or the supplier’s statement providing specific details supporting the exemption claimed, must be filed in the acquisition file.

State agencies that have an internal CPO or a designated CPO through an interagency agreement and approved internal purchasing procedures pursuant to the requirements of 260:115-5-3 and 260:115-5-7, shall send a written request to the State Purchasing Director to request acquisition authority exceeding $50,000.00 but not exceeding $100,000.00. The State Purchasing Director shall consider the agency’s internal purchasing procedures, procurement training and certifications of the agency’s procurement staff, and any other information deemed necessary by the State Purchasing Director to make the determination to approve or disapprove the request. If approved, the agency shall: 

1. make all acquisitions within this acquisition authority pursuant to 74 O.S. §85.7, any other applicable state laws and rules, including Section 260:115-7-15; 
2. award all contracts based on lowest and best or best value criteria; and, 
3. solicit all suppliers in the appropriate commodity classification from the Supplier List along with any other suppliers identified by the state agency using solicitation forms prescribed by the OMES Director. 

If the OMES Director approves a state agency’s request for a waiver [Reference 260:115-1-6], a state agency with a CPO and approved internal purchasing procedures as required by 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. When an acquisition is made pursuant to a waiver, the State Purchasing Director: 

1. may select a supplier or group of suppliers to notify using telephone, facsimile or electronic commerce; 
2. shall obtain the following certifications, verifications and other required documents, as applicable, from the supplier selected for contract award: 
   1. Non-collusion certification. Pursuant to requirements in 74 O.S. §85.22, a non-collusion certification shall be included with any competitive bid and/or contract submitted to the State for goods or services. The certification shall have an authorized signature of the supplier certifying the non-collusion statement with full knowledge and acceptance of all its provisions. 
   2. Sales Tax Permit Verification. Prior to the award of a contract, the state agency must verify that the supplier has obtained a current sales tax permit in accordance with the laws of Oklahoma. Documentation of verification of a current sales tax permit, which must be a copy of the sales tax permit, the supplier’s explanation of exemption, or confirmation of the permit’s status obtained from the Oklahoma Tax Commission, must be filed in the acquisition file. 
   3. Certifications for services contracts. Additional documents required to be included in contracts for professional or nonprofessional services include: 
      1. If the final product of a professional services contract is a written proposal, report or study, the supplier shall include a statement certifying that the supplier has not previously provided a substantial duplication of the final product to the state agency or another state agency. [Reference 74 O.S. §85.41] 
      2. An acquisition for professional or nonprofessional services must include statutory language required by the Oklahoma Central Purchasing Act as a term of the requisition or contract and must be 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. Each contract for services shall include a statement certifying that no person who has been involved in any manner in the development of that contract while employed by the State of Oklahoma shall be employed to fulfill any of the services provided for under said contract. [Reference 74 O.S. §85.42] 

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. A state agency making an acquisition pursuant to 74 O.S. §85.5(T) must have an internal CPO and approved internal purchasing procedures pursuant to the requirements of 260:115-5-3 and 260:115-5-7, in addition to the subject matter experts, legal and procurement staff required by law. 
2. Prior to making an acquisition pursuant to this section, a state agency shall submit in writing to the OMES Director, a statement of the agency’s intent to make an acquisition pursuant to 74 O.S. §85.5(T). The agency may only proceed with the acquisition upon receipt of certification by the OMES Director that the proposed purchase does not conflict with consolidated statewide spend initiatives. 
3. Agencies making an acquisition pursuant to this section shall comply with 74 O.S. §85.7, the rules of this Chapter and any other applicable state laws and rules. 
4. An agency shall submit a report in electronic format to the State Purchasing Director on a quarterly basis, which lists all contracts issued pursuant to this section. The report shall be submitted by the 5th business day of each new quarter. 

1. General. The State Purchasing Director shall utilize a competitive sealed solicitation as required by state law and rules of this Chapter or when it is determined by the acquiring agency to be in the best interest of the state. Competitive sealed solicitations for acquisitions shall be issued by invitation to bid, RFP or request for quotation. 
2. Solicitation contents. The solicitation shall indicate all information the supplier shall submit with the supplier’s bid. 
3. Supplier notification. 
   1. Registered suppliers. The State Purchasing Director shall notify suppliers of solicitations for commodities for which the supplier registers. Notification is dependent upon a supplier providing the Office of Management and Enterprise Services valid and up-to-date information.
   2. Suppliers a state agency recommends. The State Purchasing Director will also notify suppliers recommended by a state agency for a solicitation. 
4. Amendments to a solicitation. If the State Purchasing Director amends a solicitation, the State Purchasing Director shall notify each supplier sent the original solicitation of the amendment. 
   1. A supplier shall acknowledge receipt of an amendment in the supplier’s bid or quotation for submission by the closing date and time specified in the solicitation. 
   2. If a supplier has already submitted a bid, the supplier shall submit an acknowledgment of receipt of the amendment by the closing date and time specified in the solicitation. 
5. Limited contact. The State Purchasing Director may limit contact regarding a solicitation between suppliers and agency personnel during the solicitation process. The limitation of contact may be described in the solicitation. All communication between suppliers and the acquiring agency related to a solicitation shall: 
   1. be limited to the acquiring agency’s designated procurement personnel; 
   2. strictly prohibited from any other acquiring agency personnel, unless otherwise stated in the solicitation; and, 
   3. be documented in writing and filed in the acquisition file. 
6. Evaluation method. The State Purchasing Director shall ensure that an evaluation method is clearly identified in any solicitation. The method shall be one of the following: 
   1. lowest and best; or, 
   2. best value. 
7. Specifications. Solicitations shall include specifications or a statement of work. The State Purchasing Director may reference manufacturer names, product names, or other product references as specifications to describe the type or quality of the acquisition. 
8. Terms and conditions. The State Purchasing Director shall include all the terms and conditions for the acquisition in the solicitation. 
   1. Copyrights, patents or intellectual property. If an acquisition includes copyrights, patents or intellectual property rights pursuant to federal law, the solicitation shall request conditions of use for the acquisition. Except as otherwise provided by Section 3206.3 of Title 70 of the Oklahoma Statutes and Section 1365 of this title, any patented property or copyrighted material developed by contracts subject to the Central Purchasing Act, shall be the property of the State of Oklahoma under the sole management of the Office of Management and Enterprise Services. [74 O.S. §34.3(B)]1
   2. Other terms and conditions. The State Purchasing Director may not accept supplier terms and conditions in a supplier’s bid. No alterations or variations of the terms of the contract shall be valid or binding upon the state, unless made in writing and accepted by the State Purchasing Director. 
   3. Other rights and remedies. Actions of the State Purchasing Director shall not limit the rights or remedies of a state agency. 
   4. Rejection of all bids. If the State Purchasing Director finds it to be in the best interest of the State of Oklahoma, any or all bids or proposals may be rejected and a solicitation may be reissued or canceled. 
9. Non-Collusion certification. The State Purchasing Director shall include a non-collusion certification statement in a solicitation. The non-collusion certification shall be included with any bid or proposal submitted to the agency issuing the solicitation. 
10. Pre-bid conference. The State Purchasing Director may state in a solicitation that a supplier pre-bid conference will be held and shall state whether supplier attendance is mandatory or non- mandatory. 
11. Shipping. Bidders shall include all costs associated with delivery of the acquisition F.O.B. destination to the receiving state agency in the solicitation response, unless otherwise specified in the solicitation. 
12. Closing date. The State Purchasing Director shall provide notice to suppliers in the solicitation of the closing date, time and location of a bid opening. In the event it is determined that a significant error or event occurred that affected the receipt of a bid, the OMES Director may authorize OMES to accept a bid after the specified official closing date and time. Failure of the bidder’s computer or electronic equipment or service is not an acceptable event. 
13. Bid receipt. Upon receipt, a state agency shall clearly mark the outside of all envelopes or containers with the receipt date and time. Electronic submission of bids, when allowed, must be submitted in such a manner that the time and date of submission is electronically linked to the bid and cannot be changed. 
14. Firm bid for one hundred twenty (120) days. A supplier’s bid shall be considered a firm bid for one hundred twenty (120) days following the bid closing date, unless otherwise stated in the solicitation. 
15. Sample submission. A solicitation may specify submission of samples to the State Purchasing Director for evaluation purposes. Any samples requested must be provided free of charge. 
    1. Sample tests. Whenever testing is determined necessary by the State Purchasing Director, appropriate standard testing procedures will be used. 
    2. Return of bidder samples. Samples which are not destroyed by testing will be returned at the supplier’s expense if return of the samples is stipulated in the supplier’s solicitation response. 
    3. Successful bidder samples. The State Purchasing Director may retain samples the successful bidder submits to ensure that acquisitions the successful bidder delivers meet specifications in the solicitation. 
    4. Samples become property of state. A sample shall become the property of the State of Oklahoma unless a bidder requests its return and will be disposed of in the same manner as surplus or salvage property. 

• 1. While the citation in OAC 260:115-7-30(h)(1) erroneously refers to §34.3(B), the link correctly goes to 74 O.S. §85.60.

1. Evaluation criteria and documentation. The State Purchasing Director shall develop evaluation criteria to be included in a solicitation, which will be considered during the evaluation of bids. 
2. Evaluation scoring tool. Any evaluation scoring tool utilized shall be consistent with the evaluation criteria contained in the solicitation. 
3. Documentation. Evaluation of the bids shall be documented and filed in the acquisition file. 
   1. Lowest and best bid. If the State Purchasing Director specifies in the solicitation that the bid evaluation criteria is lowest and best, the State Purchasing Director shall consider criteria the Oklahoma Central Purchasing Act specifies to determine the lowest and best bid. [Reference 74 O.S. §85.2] 
   2. Best value bid. If the State Purchasing Director specifies in the solicitation that the bid evaluation methodology is best value, the State Purchasing Director shall develop and apply criteria consistent with 74 O.S. §85.2. 
4. Prohibited disclosure. Agency personnel shall not announce or reveal their decision regarding supplier evaluation or recommendation for award in any public manner or forum, including board meetings, until the State Purchasing Director has issued the award of contract. 
5. Public inspection. The evaluation documentation shall be open for public inspection following contract award. 
6. Bid clarification. The State Purchasing Director may solicit clarification from a bidder regarding the bidder’s bid. The clarification shall not alter or supplement the bid. 
7. Supplier past performance. The State Purchasing Director shall consider bidder performance on previous contract awards and indicate past performance in the evaluation document. 
8. Reasons for bid rejection. The State Purchasing Director shall document in the acquisition file if a bid is non-responsive. Unless the State Purchasing Director finds that a bid deficiency may be cured by a supplier pursuant to (h)(2) of this section, the State Purchasing Director may reject a bid that is non-responsive, or a bid from a bidder who is not responsible, for reasons including, but not limited to reasons listed in this section: 
   1. Non-responsive bid. 
      1. Terms and conditions. A bid that does not meet the terms and conditions of the solicitation may be considered non-responsive. 
      2. Forms use. A bid that does not contain forms or other information the solicitation specifies may be considered non-responsive. 
      3. Incomplete forms. If forms required by the solicitation do not contain complete information, the bid may be considered non-responsive. 
      4. Form entries improper. If information provided in the solicitation documents is not legible, typewritten or printed, or submitted in the electronic format specified in the solicitation, the bid may be considered non-responsive. 
      5. Improper alterations. If alterations do not bear the initials of the person making the alteration, the bid may be considered non-responsive. 
      6. Use of unauthorized signature. If a signature on a form is not an authorized signature pursuant to state laws and the rules of this chapter, the bid may be considered non- responsive. 
      7. Absence of notary seal. If forms do not contain a notary seal where forms indicate or otherwise comply with the manner of notarization prescribed for the bidding supplier’s state of residence, the bid may be considered non-responsive. 
      8. Bid does not contain bid bond or other surety. If a bidder fails to include a bid bond or other surety specified as a requirement by a solicitation, the bid may be considered non-responsive. 
      9. Bid does not contain samples. If a solicitation specifies that the bid shall contain samples and the bid does not contain samples, the bid shall be considered non-responsive. 
      10. Items not suitable for intended use. If a bid does not offer items suitable for the intended use of the items, the bid shall be considered non-responsive. 
      11. Pricing. If bid pricing does not meet requirements of a solicitation, the bid may be considered non-responsive. 
      12. Bid fails to acknowledge solicitation amendment. If a bid fails to acknowledge an amendment the State Purchasing Director issues to a solicitation, the bid may be considered non-responsive. 
      13. One bid from multiple suppliers. One bid from multiple suppliers that does not designate a prime contractor shall be considered non-responsive. 
      14. ShapeAdditional supplier terms and conditions. If a supplier adds terms and conditions to an acquisition that are contrary to the laws of Oklahoma the bid may be considered non- responsive. 
      15. Signatures on solicitation documents. If an authorized signature is omitted from any solicitation document that requires an authorized signature, the bid may be considered non-responsive. 
   2. Bidder not responsible. 
      1. Failure to provide required information. If the solicitation specifies that suppliers submit information relating to responsibility and a bidder does not submit said information, or the State Purchasing Director determines the bidder is not responsible, the bid may be rejected. 
      2. Proof of insurance. Whenever applicable to a solicitation, if a supplier is unable to provide proof of workers’ compensation insurance or an alternative or exemption as authorized by state law, the supplier may be found not responsible. 
      3. Past performance. If the State Purchasing Director has received complaints on a supplier, the supplier may be found not responsible. 
9. Samples. When a solicitation specifies a bidder submit samples, the State Purchasing Director shall examine the sample to determine the expected performance and service capabilities. 
   1. The State Purchasing Director shall indicate the method of testing and rate the sample’s performance in the evaluation document. 
   2. When the State Purchasing Director issues a solicitation on behalf of a state agency, the State Purchasing Director, with input from the requisitioning agency, shall make the final determination whether a sample meets the solicitation specifications. 
10. Other factors in determination of award. 
    1. Minor deficiencies. The State Purchasing Director may waive minor deficiencies or informalities in a bid if the State Purchasing Director determines the deficiencies or informalities do not prejudice the rights of other bidders, or are not a cause for bid rejection. 
    2. Other types of deficiencies. If the State Purchasing Director determines there is sufficient time prior to the award of a contract and it is in the best interest of the State, the State Purchasing Director may authorize a bidder to cure the following types of deficiencies prior to the award of a contract: 
       1. failure to have an authorized signature; 
       2. failure to obtain a notary signature, stamp or seal; 
       3. failure to sign or initial amendments to bid. 
11. Evaluation criteria. The State Purchasing Director shall establish evaluation criteria for solicitation responses. A state agency shall maintain written documentation of bid evaluations in the acquisition file.

1. Negotiation. The State Purchasing Director may negotiate contracts by following the rules for negotiation in this section. Negotiations may be conducted with one or more suppliers. A state agency may conduct negotiations for acquisitions within the state agency’s approved dollar threshold and shall follow the rules for negotiation in this section. 
2. Negotiation team. 
   1. A state agency may request assistance from the State Purchasing Director when conducting negotiations, which may include a request for the designation of a negotiator or negotiation team. 
   2. The State Purchasing Director or designee shall serve as the lead negotiator for a team when negotiations are being conducted for solicitations issued by Central Purchasing. 
3. Negotiation process. 
   1. The lead negotiator shall notify suppliers of the date and time for negotiations. 
   2. The lead negotiator shall request the supplier provide a list of the individuals who will attend the negotiation and who have full authority to bind the supplier in the negotiation process. 
   3. The lead negotiator shall determine the location and manner of negotiation. 
   4. The negotiation team shall develop an agenda with the lead negotiator and submit the agenda to all participants of the negotiation process. The agenda shall set forth the key areas in the solicitation, which require negotiation. 
   5. The lead negotiator may require suppliers to submit a best and final offer. 
   6. The lead negotiator shall prepare a summary that shall document the following: 
      1. an overview setting forth the solicitation number, names and titles of participants, description of the solicitation, date and location of the negotiation, and purpose of the negotiation; and 
      2. a summary of the results of the negotiation, specifically stating what is the basis of the final agreement. 
      3. a summary created under these rules shall become a part of the contract file retained. 

1. Time of award. The State Purchasing Director shall not make a contract award at a bid opening. The contract award shall be made upon completion of the following: 
   1. bid evaluation; 
   2. documentation of evaluation on each bid; 
   3. determination of the lowest and best or best value bidder; 
   4. verification of Oklahoma and Federal debarment status; 
   5. verification, pursuant to applicable provisions of law, that the supplier is registered with the Secretary of State and franchise tax payment status pursuant to 68 O.S. §1203 and §1204, whenever the contract amount is Twenty-five Thousand Dollars ($25,000.00) or greater; 
   6. verification with the Oklahoma Tax Commission that the business entity to which the state contract is to be awarded, has obtained a sales tax permit pursuant to 68 O.S. §1364 if such entity is required to do so; 
   7. coordination of award with the requisitioning state agency, if applicable; and 
   8. completion of any administrative tasks. 
2. Award by item. If a solicitation does not specify an all or none bid, the State Purchasing Director may award to more than one bidder by awarding contract by item or groups of items. 
3. No contract award. A contract may not be awarded when: 
   1. The State Purchasing Director determines no bid meets the requirements of the solicitation. 
   2. The State Purchasing Director determines that all bids exceed fair market value for the acquisition. 
   3. The State Purchasing Director determines the bid price exceeds available state agency funds. 
   4. The State Purchasing Director determines the state agency no longer requires the acquisition in the form or manner the solicitation specifies. 
   5. The State Purchasing Director determines not awarding the contract to be in the best interest of the state. 
4. Evaluation tie. Whenever it is determined that two or more bids are equal, the State Purchasing Director shall determine the successful bidder by a coin toss. 
5. Notification of successful bidder. The State Purchasing Director shall notify the successful bidder within five (5) days of the contract award. 

State agencies shall procure products or materials with recycled content as stated in the Oklahoma State Recycling and Recycled Material Procurement Act, when such products or materials are available and practical. Upon request, the State Purchasing Director shall supply information regarding acquisitions that contain recycled materials to a state agency.

State agencies may trade in items when they make an acquisition of a like item. The state agency shall determine fair market value for the trade-in item and receive that amount or more as credit on the purchase price of the acquisition. Written documentation of the fair market value analysis shall be filed in the acquisition file by the state agency. The state agency may seek advice from the State Purchasing Director to determine fair market value of the trade-in. 

The State Travel Office is within the Central Purchasing Division and awards contracts for travel and travel services. State agencies shall make travel arrangements through the statewide travel supplier for commercial air travel for state employees in the course of official duties or for persons traveling at state expense. 

1. State agency travel coordinator. The State Purchasing Director encourages state agencies to appoint one or more travel coordinators. The coordinators shall book air travel for the state agency except in case of an emergency. If the state agency appoints a travel coordinator, the state agency shall notify the Travel Office and provide the coordinator’s name, mailing address, telephone number, and facsimile number. 
2. Airline ticket purchases exceptions. The state agency shall determine when an exception to airline ticket purchase shall apply. The state agency shall retain documents the state agency used in exception determination as required by internal purchasing procedures established pursuant to 260:115-5-7. Exception documentation shall be made available per the State Travel Policy. 
   1. If the state agency can acquire air travel at less cost than the contract travel agency, the state agency may use this exception. 
   2. If air travel originates outside the state and it is impractical for the state agency, the state agency may use this exception. 
   3. If air travel is due to an emergency and time does not permit use of the contract travel agency, the state agency may use this exception. 
   4. If air travel is part of a package arrangement by an organization that schedules a meeting or conference, the state agency may use this exception. 
3. State agency credit card for airline travel. A state agency that acquires a purchase card to book and pay for official airline travel shall complete mandatory training as required by the Office of Management and Enterprise Services and comply with all State Purchase Card procedures issued by OMES. 

1. When a state agency determines electronic or online bidding is more advantageous than other procurement methods provided by the laws of this state, the state agency may use online bidding to obtain bids as authorized by the Oklahoma Central Purchasing Act for the purchase of goods, services, construction, or information services. 
2. The use of electronic commerce for solicitation, notification, and other procurement processes as provided for in 74 O.S. §85.45r and the Oklahoma Central Purchasing Act and/or the Public Building Construction and Planning Act shall be subject to the policies and procedures of the Online Bidding Standards authorized by the OMES Director and established by the State Purchasing Director. 

Unless otherwise provided by law, state agencies shall acquire information technology products and services in accordance with the Oklahoma Central Purchasing Act [74 O.S. §§85.1 et seq.], the Oklahoma State Finance Act [62 O.S. §§34 et seq.] the rules of this chapter, and requirements established by the Information Services Division of the Office of Management and Enterprise Services. 

1. Delivery. A supplier shall deliver acquisitions to a state agency within time periods the contract specifies. 
2. Inspection. Unless otherwise provided in the contract documents, the state agency shall inspect acquisitions from the supplier within a reasonable time after supplier delivery. 
3. Rejection. The state agency shall reject acquisitions from the supplier that do not meet specifications or other terms and conditions of the contract. The supplier shall pay costs to retrieve and replace acquisitions that do not meet specifications with a conforming item or service. 
4. Acquisition title. Title to acquisitions shall not pass from the supplier to the state agency until the state agency receives, inspects and accepts the items. The state agency shall document, at a minimum, the date of delivery, the name and address of the supplier, a description of the goods received, and the signature of the receiving agency employee. 
5. Subcontractor performance. A supplier shall be responsible for the performance of subcontractors. The supplier shall provide a single point of contact for the state agency when the supplier uses subcontractors. The supplier shall notify the state agency and the Central Purchasing Division if the supplier uses a subcontractor the supplier did not disclose in the supplier’s bid. 
6. Contract changes. If a supplier determines a requested change to the contract or performance exceeds the original scope of the solicitation, the supplier shall notify the State Purchasing Director or the state agency. No changes shall be made prior to the approval of a change order in accordance with Section 260:115-9-3. 
7. Contract assignment. A supplier shall not assign or subcontract a contract to another supplier, individual, business entity or organization unless otherwise specified in the solicitation. 
8. Performance evaluation. 
   1. State agencies shall develop a process to consistently assess and document the quality of products and/or services acquired from a supplier. 
   2. State agencies shall retain written documentation of evaluation of the performance of services provided pursuant to a professional services contract with the acquisition file. If the evaluation indicates deficiencies with the supplier’s work, the state agency shall submit a Professional Service Evaluation to the State Purchasing Director. [Reference 74 O.S. §85.41] 

1. Quality assurance inspections by state agencies. A state agency must establish quality assurance procedures that ensure timely and thorough inspection of acquisitions delivered to the agency. It is critical that problems with delivery or the quality of the acquisition delivered be promptly communicated to the agency’s primary procurement official and the State Purchasing Director. 
2. Resolution of dispute between a state agency and supplier. Whenever a supplier provides a state agency with defective products or fails to perform in accordance with contract requirements, a state agency shall notify the supplier in writing of the deficiency and include information necessary for the supplier to resolve the problem. If the state agency and supplier are unable to resolve the dispute, the state agency shall submit a written request for dispute resolution to the State Purchasing Director. 
3. State agency submission of supplier performance evaluation form. A state agency shall request the State Purchasing Director seek dispute resolution by submitting a Supplier Performance Quality Report, whenever a supplier: 
   1. fails to timely retrieve and replace an acquisition that does not meet or exceed contract specifications; 
   2. does not refund payment for an acquisition that does not meet or exceed contract specifications; or, 
   3. fails to resolve any other problem that conflicts with the contract specifications in a timely manner. 
4. State Purchasing Director dispute resolution action. 
   1. State Purchasing Director resolves dispute. If the State Purchasing Director resolves the dispute, the supplier and state agency shall be notified of the dispute resolution terms and conditions. 
      1. Supplier fails to meet terms or conditions. If the supplier fails to meet terms or conditions of the dispute resolution, the State Purchasing Director shall terminate the contract between the supplier and the state agency, and may suspend the supplier. 
      2. State agency fails to meet conditions. If the state agency fails to meet conditions of the dispute resolution, the State Purchasing Director may order an audit of the state agency’s acquisitions pursuant to 260:115-5-19. 
   2. State Purchasing Director fails to resolve the dispute. If the State Purchasing Director fails to resolve the dispute between the state agency and the supplier, the State Purchasing Director shall take an action in this subparagraph. 
      1. Supplier fails to meet terms and conditions. If the State Purchasing Director determines that the supplier fails to meet terms and conditions of the contract, the State Purchasing Director shall terminate the contract between the supplier and the state agency, and may suspend the supplier. 
      2. State agency fails to meet contract terms and conditions. If the State Purchasing Director determines that actions of the state agency fail to meet terms of the contract, the State Purchasing Director may order an audit of the state agency’s acquisitions pursuant to 260:115-5-19. 

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. Use of State Purchase Cards. Use of State Purchase Cards (P/Cards) authorized by the State Purchasing Director [Reference 74 O.S., §85.5] shall be subject to the policies and procedures of the State Purchase Card Program established by the State Purchasing Director to ensure compliance with the statewide contract for this service. 
2. Condition of participation. A condition of participation in the State Purchase Card Program shall be compliance with the terms of the State Purchase Card Procedures established by the State Purchasing Director. Failure to comply with all conditions of participation may result in a state entity’s removal from the purchase card program by the State Purchasing Director. 

State entity P/Card Program participants must sign the State of Oklahoma Purchase Card Employee Agreement form prior to assuming their duties and being issued State Purchase Cards. 

1. State entity P/Card Program participants. State entity P/Card participants must successfully complete the training prescribed by the State Purchasing Director prior to assuming their duties and prior to being issued P/Cards. 
2. State entity responsibility. It is the responsibility of the State Entity P/Card Administrator to ensure employees maintain the continuing program training in accordance with OMES requirements. 

1. Use of any State Purchase Card authorized by the State Purchasing Director is limited to the person whose name is embossed on the card. The card shall not be loaned to another person. 
2. The cardholder shall ensure the State Purchase Card is kept in a secure manner and the State Purchase Card account number on the card is not posted or left in a conspicuous place. 
3. The state entity is responsible for maintaining adequate security of State Purchase Card account numbers and related information.

A receipt shall be obtained for all purchases regardless of the order method. The receipt shall give an itemized and detailed description of the purchase and must include at a minimum: 

1. name and location of supplier; 
2. date of purchase; 
3. description of product purchased; 
4. unit price and quantity purchased; and, 
5. transaction total. 

Bidders responding to a solicitation meeting the criteria of a service-disabled veteran business as defined in 74 O.S. § 85.44E shall be given a three percentage (3%) bonus points preference during the solicitation evaluation. 

1. Bidder Requirements. 
   1. Bidder shall respond to the solicitation as a service-disabled veteran business by checking ‘YES' to the Disabled Veteran Business Enterprise Act question on the Responding Bidder Information form in the solicitation. 
   2. Bidder shall provide a letter from the United States Department of Veterans Affairs which certifies the veteran(s) has a service connected disability. 
   3. Bidder shall provide documentation of the business organizational structure demonstrating, 
      1. Not less than fifty-one percent (51%) of the business ownership is by one or more service-disabled veterans, and 
      2. The management and daily business operation is controlled by one or more service-disabled veterans. 
2. Solicitation Evaluation Requirements. After the total evaluation score for each responding bidder has been calculated, three percentage (3%) bonus points will be added to the total evaluation score for each responding bidder meeting the criteria of a service-disabled veteran business. 
3. Reporting Requirements. Pursuant to 74 O.S. § 85.44E, the Director of the Office of Management and Enterprise Services shall have a goal of three percent (3%) of all contracts be awarded to service-disabled veteran businesses. On or before September 1 of each year, each state entity shall submit an electronic report to the State Purchasing Director documenting all solicitations awarded by the state entity in the previous fiscal year. The State Purchasing Director will define the report format and content required to collect the service-disabled veteran business data. 

1. Filing a protest or grievance. Any party who is aggrieved may file a written protest or grievance with the Chairperson of the Committee within fifteen (15) days of the aggrieved action. 
2. Investigation of protest or grievance. The Chairperson may assign a protest or grievance to a subcommittee to investigate and make recommendations to the Committee for resolving the grievance. 
3. Protest process. All protests shall be handled in accordance with the provisions of the Administrative Procedures Act. [ 75 O.S., Section 250 et seq. ] 
4. Committee response to protest or grievance. The Committee shall respond in writing to the protesting or grieving party within ninety (90) days of receipt of the protest or grievance. 

The Oklahoma Central Purchasing Act authorizes the Office of Management and Enterprise Services to promulgate rules governing the submission of service contract bids, the acceptance or rejection of any service affected by the Act, and any other matter or practice which is directly related to his responsibilities. The Purchasing Director is required by statute to publish the rules. These rules are matters of public record and need not have been incorporated into the record for review. The Oklahoma Supreme Court must take judicial notice of them.  See 74 O.S. §§85.5 and 85.11.

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Procedures to be followed by a state agency in acquisition of equipment are explicit. A lessor’s ignorance of, or compliance with, the procedural requirements of the Central Purchasing Act did not render an equipment lease agreement void for lack of procedural conformity. The court upheld a judgement against the state for accelerated lease payments after the state discontinued the lease agreement. Although the lease contained a non-appropriation clause, the court found no evidence that there were not funds appropriated to pay lease rentals as accrued and due. Where a person or entity enters into a valid contract with the proper state officials and a valid appropriation has been made therefor, the state has consented to be sued and has waived its governmental immunity to the extent of its contractual obligations and such contractual obligation may be enforced against the state in an ordinary action at law.  See 74 O.S. §§85.4 and 85.5.

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This Opinion was issued prior to enactment of statutes that established a Chief Information Officer for the state and provided for consolidation of appropriated state agency information technology and telecommunication (“IT”) assets and personnel. The statutes enacted after this Opinion provide that the Chief Information Officer acts as the Information Technology and Telecommunication Purchasing Director for all state agencies; thus, to the extent this Opinion references authority for IT acquisitions and negotiation of IT contracts, the authority rests with the CIO and this Reference Guide will refer to the CIO in those instances.  

Once an agency is approved to make a purchase, the procedure is under the control of the State Purchasing Director. The same is true for IT purchases pursuant to a Delegation of Authority from the CIO to the State Purchasing Director in which the State Purchasing Director has authority over the procurement process while the CIO retains approval authority over the purchase. OMES is the sole entity with the authority to negotiate and accept contract offers and the State Purchasing Director has ultimate authority to determine to whom a particular contract will be awarded; however, OMES is required to consult with a requisitioning agency and any mandated contract must meet the specifications of the requisitioning agency as far as needs and general class or nature of the acquisitions. 

The CIO has the power, pursuant to statute, to bypass the routine requisition procedures and negotiate enterprise agreements, consolidation contracts and high technology system contracts without going through the competitive bidding procedures.

Multi-year contracts in and of themselves are not invalid so long as they do purport to bind the State to an agreement to appropriate funds for any subsequent fiscal year. The Opinion points out two contract structure that do not violate the constitutional prohibition against binding the state to an agreement to expend future fiscal year funds:  (1) an agreement between a supplier and OMES with a primary term of one year which permits an option in favor of renewal from year to year and (2) a contract conditioned upon continued funding on a fiscal year basis by the Legislature continuing to appropriate funds to satisfy the obligation.  See 74 O.S. §§85.4, 85.5 and 85.9D and 62 O.S. §34.11.1. 

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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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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.

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The sales tax exemption in 68 O.S. §1356.10 on the sale of tangible personal property or services to any person who enters into a public contract with the Oklahoma Department of Veterans Affairs, or to any subcontractor to such a public contract, does not apply when the sale is to a person who has entered into a contract with OMES executed on behalf of the Oklahoma Department of Veterans Affairs. See 74 O.S. §85.5

Note: Opinion No. 07-31 withdrew the conclusion in Opinion Nos. 84-66, 84-76, 85-157, 87-7, 88-61 and 89-36 that OMES or the State Purchasing Director is a purchasing agent for a state agency.

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A limitation of liability clause where the state agrees not to seek damages against a private supplier or agrees to limit the damages it may seek (1) does not violate Oklahoma Constitution prohibitions related to debt of the state because there is no affirmative promise on the part of the state to pay another party to the contract and (2) is not inherently violative of public policy.  

The limitation of liability clause considered in this Opinion does not constitute an obligation that binds future legislatures beyond the fiscal year; however, the terms of each clause must be analyzed to determine if the clause contains language that exempts the supplier from its own fraud, willful injury or violation of law. If so, the clause is null and void because such a limitation of liability is prohibited by 15 O.S. §212 and against the public policy of the state. Additionally, a clause may be labelled as a limitation of liability but its terms may require the state to indemnify a supplier for the supplier’s own damage; indemnification clauses requiring the state to pay a third party constitute a debt and are prohibited by the Oklahoma Constitution, Article X, §23. See 74 O.S. 85.5.

NOTE: This Opinion overrules Opinion Nos. 06-11, 01-02, and 78-256 to the extent those Opinions determined 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. Opinion 01-02 which addressed only limitation of liability clauses has been withdrawn. 

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Citing the Oklahoma Constitution, Article X, §§ 5 and 6 as well as Board of Equalization of Tulsa County v. Tulsa Pythian Benevolent Association of Tulsa, 195 Okl. 458, 158 P.2d 904 (1945), the Opinion concluded that clauses whereby the state agrees to pay taxes assessed a private entity, or to reimburse that entity for taxes lawfully paid in connection with a contract between the state and that entity, are void as being contrary to the laws of this state.

Citing Schrom v. Oklahoma Industrial Development, 536 P.2d 908 (1975), the Opinion states purchase of liability insurance, pursuant to legislative authority, by a state agency is a waiver of governmental immunity to the extent of the insurance coverage. Thus, any contract clause requiring the state to purchase liability insurance is requiring the state to waive its immunity and, unless given specific authority to do so by the legislature, is invalid and void.

Citing State ex rel. Nesbitt v. Dist. Ct. of Mayes County, Okla., 440 p.2d 700 (Okla. 1967), in the absence of explicit legislative or constitutional expression to the contrary, the Attorney General possesses complete dominion over every litigation in which he properly appears in the interest of the state. Clauses whereby the state, acting through any agency other than the Attorney General, agrees to waive legal rights or defenses in advance are inconsistent with state law and are void.

Clauses in which a private entity attempts to require the state to authorize the private entity to generally act as an agent for the state are illegal except to the extent authorized by statute.

NOTE: portions of this Opinion relating to multi-year contracts and limitation of liability clauses are not included in this Guide because those portions are overruled by Opinion Nos. 04-18 and 12-18, respectively. 

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The State Purchasing Director is statutorily empowered to accept, evaluate and determine the lowest and best bid on state purchases falling within the Central Purchasing Act and to determine the lowest and best bid in the event of disagreements with requesting agencies regarding specifications. See 74 O.S. §85.5.

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An agency’s authority when submitting a requisition to the Purchasing Division is limited to quantitative needs and the general class or nature of the acquisition and is subject to the State Purchasing Director’s exclusive and specific authority to determine the particular brand, model or specific classification of an item. The State Purchasing Director is not restricted to exact specifications in an agency’s requisition other than a sole source acquisition. See also 74 O.S. §§85.4, 85.5 and 85.45j.

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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.

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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.

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Once an agency is approved to make a purchase, the process is under the control of the State Purchasing Director who determines the brand, model or other specific classification of each item or group and drafts specifications establishing the acquisition requirements after consultation with the requesting agency. Decisions about the contract subsequent to completion of the bidding process rests with OMES rather than the requisitioning agency although OMES is to consult with the agency in good faith.

Whether re-bidding is justified for any particular item is a question of fact.  An agency’s needs and circumstances may change between the time a requisition is submitted and the time of contracting for the item and it would not serve the purpose of the Central Purchasing Act for an agency to be required to take something it no longer needed or could not use. On the other hand, the integrity of the competitive bidding system must be preserved and allowing an item to be re-bid after going through the competitive bid process could permit an agency to supplier shop, which thwarts the purpose of the Act. Thus, once an Invitation to Bid has been issued and bids submitted and evaluated, the Purchasing Division has the authority to issue a purchase order, thereby forming a contract, even if the requisitioning agency asks that the requisition be cancelled and the item re-bid, if the Purchasing Division decides, after careful consideration of all the facts, that the requested re-bidding is not justified. See 74 O.S. §§85.4 and 85.5.

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PIM-DelegationOfAuthority.pdf	147.91 KB
CIODelegationLetter.pdf	125.05 KB

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PIM 1999 07.pdf	257.98 KB

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DCS-CP-PIM-09-01.pdf	91.29 KB

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DCS-CP-PIM-10-01.pdf	62.8 KB

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Vehicle Rental PIM 11-10.pdf	222.89 KB

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