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62 O.S. § 34.31. Escrow of Source Code Required for Acquisition of Customized Computer Software - Required Escrow Provisions

  1. No state agency, as defined by Section 250.3 of Title 75 of the Oklahoma Statutes, the Purchasing Division of the Office of Management and Enterprise Services nor the Information Services Division of the Office of Management and Enterprise Services, unless otherwise provided by federal law, shall enter into a contract for the acquisition of customized computer software developed or modified exclusively for the agency or the state, unless the vendor agrees to place into escrow with an independent third party the source code for the software and/or modifications. 
  2. The vendor must agree to place the source code for the software and any upgrades supplied to an agency in escrow with a third party acceptable to the agency and to enter into a customary source code escrow agreement which includes a provision that entitles the agency to receive everything held in escrow upon the occurrence of any of the following: 
    1. A bona fide material default of the obligations of the vendor under the agreement with the agency; 
    2. An assignment by the vendor for the benefit of its creditors; 
    3. A failure by the vendor to pay, or an admission by the vendor of its inability to pay, its debts as they mature; 
    4. The filing of a petition in bankruptcy by or against the vendor when such petition is not dismissed within sixty (60) days of the filing date; 
    5. The appointment of a receiver, liquidator or trustee appointed for any substantial part of the vendor's property; 
    6. The inability or unwillingness of the vendor to provide the maintenance and support services in accordance with the agreement with the agency; or 
    7. The ceasing of a vendor of maintenance and support of the software.

    The fees of any third-party escrow agent subject to this section shall be borne by the vendor. 

  3. The State Purchasing Director or a procurement officer of a state agency shall not process any state agency request for the customization, modernization, or development of computer software unless the proposed vendor provides documentation that complies with subsections A and B of this section. 
  4. The State Purchasing Director shall provide advice and assistance, as may be required, in order for state agencies to comply with the provisions of this section. 
  5. As used in this section: 
    1. “State agency” shall include all state agencies, whether subject to The Oklahoma Central Purchasing Act or not, except the Oklahoma Lottery Commission; and 
    2. “Source code” means the programming instruction for a computer program in its original form, created by a programmer with a text editor or a visual programming tool and saved in a file. 

Associated Rules

  1. General. The Chief Information Officer is appointed by the Governor and has authority over the Information Services Division of the Office of Management and Enterprise Services.
  2. Authority. The Chief Information Officer, or any employee or agent of the Chief Information Officer acting within the scope of delegated authority, shall have the same power and authority regarding the procurement of all information technology and telecommunications products and services ... for all state agencies as the State Purchasing Director has for all acquisitions used or consumed by state agencies as established in The Oklahoma Central Purchasing Act.
  3. Official directives. The Chief Information Officer shall issue directives, instructions or written communications to state agencies regarding required procurement practices and procedures for the acquisition of information technology and telecommunications goods and services.

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. Procurement. 
    1. To ensure accessibility of information technology for individuals with disabilities pursuant to 62 O.S. §34.28, procurement of information technology shall be subject to the Oklahoma Information Technology Accessibility Standards prescribed by the Office of Management and Enterprise Services and maintained by the Information Services Division. These standards apply to all information technology purchased after the effective date of these rules, providing the solicitation process was not initiated prior to the effective date. 
    2. When developing, procuring, maintaining or using information technology, or when administering contracts or grants that include the procurement, development upgrading, or replacement of information technology each state agency shall ensure, unless an undue burden would be imposed on the agency, that the information technology allows employees, program participants, and members of the general public access to use of information and data that is comparable to the access by individuals without disabilities. [62 O.S. §34.28(B)] When used in this section, "state agency" includes all agencies defined in 62 O.S. §34.29. 
    3. Unless an exception applies, an agency must procure a product or service that best meets the business needs of the agency and the applicable IT Accessibility Standards. 
      1. Accessibility determination must be conducted as part of the acquisition evaluation. 
      2. Accessibility must be considered among the general, technical and functional requirements of the procurement specifications. At a minimum, it must be accomplished through review of supplier provided information submitted in the form of a Voluntary Product Accessibility Template (VPAT) or comparable document with judgments made regarding degree of conformance to the IT Accessibility Standards. 
      3. The relative accessibility weighting may be adjusted for due cause based on the specific procurement. 
      4. When acquiring a product, an agency shall acquire products that comply with applicable IT Accessibility Standards when such products are available in the commercial marketplace or when such products are developed in response to an agency solicitation. Agencies cannot claim a product, as a whole is not commercially available by stating no product in the marketplace meets all of the IT Accessibility Standards. Instead, an agency must identify commercial, off-the-shelf products that best meet the general, technical and functional requirements as defined by the agency. Once those products have been identified, the agency should purchase the product that is the most accessibility compliant. 
  2. Contract clauses. 
    1. All solicitations and contracts for information technology shall include the accessibility clause adopted by the Information Services Division pursuant to 62 O.S. §34.28. 
    2. The IT Accessibility Standards shall be published on the OMES website. 
    3. A supplier shall provide a written certification, signed by an authorized officer of the supplier, describing the extent to which the product or service complies with applicable IT Accessibility standards required by such contracts or solicitations prior to the expenditure of state funds. An agency may also utilize a VPAT published on a supplier’s primary website. A VPAT obtained from a supplier website shall be good for a one-year period. 
  3. Exceptions. Exceptions to compliance with IT Accessibility Standards include: 
    1. information technology operated by state departments or agencies, the function, operation or use of which involves intelligence activities, crypto logic activities related to public safety, command and control of law enforcement, equipment that is an integral part of a weapon or weapons system or systems which are critical to the direct fulfillment of public safety or intelligence missions. Systems which are critical to the direct fulfillment of public safety or intelligence missions do not include a system that is to be used for routine administrative and business applications (including payroll, finance, logistics and personnel management applications); 
    2. information technology acquired by a contractor or grantee incidental to a contract or grant, provided the technology does not become State property upon the completion of the contract; 
    3. information technology located in spaces frequented only by service personnel for maintenance, repair or occasional monitoring of equipment; 
    4. information technology requiring a fundamental alteration in the nature of a product or its components to achieve accessibility; 
    5. Except as required to comply with the IT Accessibility Standards, state departments and agencies are not required to install specific accessibility-related software or attach an assistive technology device to information technology products unless required by other applicable State or Federal laws; 
    6. When state agencies provide public access to information or data through information technology, agencies are not required to make products owned by the agency available for access and use by individuals with disabilities at a location other than where the information technology is provided to the public, or to purchase products for access and use by individuals with disabilities at a location other than where the information technology is provided to the public; 
    7. information technology that would impose an undue burden on the agency. 
  4. Documentation of exceptions. Whenever an agency determines that an acquisition exceeding $5,000.00 meets the criteria of a general exception or undue burden, the agency shall document the explanation of why, and to what extent, compliance with applicable IT Accessibility Standards meets an exception or creates an undue burden on the agency. Agencies are encouraged but not required to maintain documentation for commercial off-the- shelf acquisitions of $5,000.00 or less unless the purchase is part of an existing contract or affects a larger EIT system where accessibility is critical. 
    1. The explanation shall be documented on a form prescribed by the Information Services Division and signed by the chief administrative officer of the agency or an employee of the agency to which responsibility for accessibility compliance has been delegated. 
    2. The documentation shall be retained in the acquisition file to support the procurement. 
  5. Alternative means of access. When compliance with IT Accessibility Standards imposes an undue burden, agencies shall provide individuals with disabilities the information and data involved by an alternative means of access that allows an individual to use the information and data in accordance with other applicable State and Federal laws such as Title I and Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. 

Purchasing Reference Guide

References

Administrative Rules

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Oklahoma Office of Management and Enterprise Services
2401 N Lincoln Blvd.
Oklahoma City, OK 73105

 

 

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