74 O.S. § 85.4. Requisitions - Determination of Quantitative Needs by Agencies - Forms - Information Required - Lease-Purchase Agreements - Change Order or Addendum - Lease of Products - Purchases from Federal Government

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. 

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

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

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. 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.

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. State agencies shall provide the State Purchasing Director with a current Authorized Signature Form. The form shall be dated and identify the name, title, and signature of those individuals designated by the appointing authority to sign and approve requisitions, sole source certifications, change order requests, and surplus property transactions that may be submitted to the State Purchasing Director. To notify the State Purchasing Director a designation no longer exists, the form shall be dated and identify the name and title of those individuals who are no longer designated by the appointing authority to sign and approve requisitions, sole source certifications, change order requests and surplus property transactions. The State Agency shall submit an updated form to the State Purchasing Director within 30 days of any change in the authorized signatures. 
2. State agencies shall also maintain a list of individuals designated by the appointing authority to sign and approve requisitions, sole source certifications, change order requests, and purchase orders for acquisitions within the agency’s approved acquisition authority. The list shall include the name, title, and signature of each individual, the effective date of their signature authorization and ending date of the authorization, when applicable. The agency shall maintain a file of the signature authority lists in the location of the agency’s centralized procurement records, and shall be available to the State Purchasing Director, upon request. 

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 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 authorized by 74 O.S. §85.7. For an emergency acquisition over One Hundred Thousand Dollars ($100,000.00), the State Purchasing Director shall: 

1. select a supplier or a group of suppliers to notify utilizing telephone, facsimile or electronic commerce; 
2. 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] 
      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. 
         3. 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.

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.

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. 

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. Contract increases. Contracts including component or phased deliveries may be increased by an amount that does not exceed ten percent (10%) of the total acquisition purchase price. In determining the ten percent (10%) dollar amount, the cumulative value of all change orders shall be compared to the original total acquisition price. All other contracts may be increased only if the change order does not exceed the scope of the original solicitation. For the purposes of (b) and (c) of this section, “State Purchasing Director” does not include personnel of state agencies to whom the State Purchasing Director has delegated authority. 
2. Acquisitions by a state agency. If a change order would increase the total contract dollar amount above the dollar amount requiring the state agency to submit a requisition to the State Purchasing Director, the state agency shall seek approval of the State Purchasing Director prior to issuing the change order. 
3. Acquisitions by the Central Purchasing Division. If a requested change order exceeds ten percent (10%) in a contract that includes component or phased deliveries or exceeds the scope of the original solicitation, the State Purchasing Director may deny the requested change order and notify the state agency.

Referencing the current §85.4.B subsection, the court upheld the premise that federal direct assistance grants fall within the spirit of the subsection B exemption and held that products obtained without expenditure of funds from the state treasury, but by debiting some “account” created from a federal direct assistance grant, should not be subjected to additional restrictions imposed by the Central Purchasing Act.  Additionally, the Court noted that the Central Purchasing Act was intended to protect the people of Oklahoma by promoting economy in government and reducing the likelihood of fraud. See 74 O.S. §§ 85.1 and 85.4. 

A state agency did not have authority to modify a contract approved by the State Purchasing Director even though agency-specific statutes authorized the agency’s Commissioner, in conducting the business of the agency, to enter into certain contracts.  The court stated that the agency-specific statutes were merely legislative intent to designate the Commissioner as the party who would negotiate on behalf of the state agency.  See 74 O.S. §85.5.

The Office of Management and Enterprise Services has sole authority to approve material modifications of agreements once it has accepted a bid in response to an invitation to bid, in the absence of some other Legislative authority to the contrary or specific approval from OMES sanctioning another agencies’ authority to agree to such a modification.  Material modification by agencies after a contract is awarded by OMES, without approval of OMES, would completely undermine the intent and purpose behind the Central Purchasing Act; put differently, the Court stated that allowing agencies to subsequently negotiate and modify material clauses after other parties have been excluded through the competitive bidding process, undermines the integrity of the system and makes such a system meaningless.  The overriding public policy interest is that found in the Central Purchasing Act which generally requires private suppliers selling goods and services to state agencies to deal with a central entity, the Office of Management and Enterprise Services, to promote efficient and cost effective use of taxpayer money and to prevent fraud in these dealings.  The Court noted that the Central Purchasing Act was designed to protect the public at large by promoting economy in government and reducing the likelihood of fraud and it ensures that government officials are accountable to public and are discharging their duties competently and responsibly.  The Court also noted that agency rules have the force and effect of law. See 74 O.S. §§85.1 and 85.5

Rules and regulations enacted by administrative agencies pursuant to the powers delegated to them have the force and effect of law and are presumed to be reasonable and valid. The burden of establishing that an administrative rule is not reasonable or valid is on the party complaining of the rule.  Great weight is to be accorded the expertise of an administrative agency and a presumption of validity attaches to the exercise of expertise when the administrative agency is reviewed by a court. A court should not substitute its own judgment for that of an agency, particularly in the area of expertise which the agency supervises.  Further, long continued construction of a statute by a department charged with its execution is entitled to great weight and should not be overturned without cogent reasons.  See 74 O.S. §85.5.

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.

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. 

The Legislature has authorized state agencies to enter into a multi-year lease-purchase contract so long as the contract contains a valid non-appropriation clause. However, the Legislature has not authorized school districts to enter into multi-year contracts containing non-appropriation clauses.  A school district contract extending beyond the fiscal year cannot be automatically renewed pursuant to the operation of a non-appropriation clause. A school district contract must contain a provision for mutual ratification of renewal, allowing the school and supplier to consider if they want to continue the contract for another year or terminate the contract at the end of a fiscal year.  See 74 O.S. §85.4.

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.

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

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

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

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.

Contracts in which a supplier provides cash bonuses, incentives or commissions in return for a long-term exclusive right to sell its product do not normally implicate the fiscal year limitation in Article X, §23 of the Oklahoma Constitution (that precludes committing state funds beyond the current fiscal year) because the contracts typically do not involve the expenditure of state funds. To the extent such a contract has a multi-year term and does involve the commitment of state funds, the contract must contain a non-appropriation clause that makes the effectiveness of the contract contingent upon future legislative appropriations.  

The purpose of competitive bidding is to secure economy and protect the public from collusive contracts, favoritism or fraud and to promote actual, honest and effective competition. A RFP provision is impermissible if it would not result in the best bid being received or if it were intended to improperly eliminate a sufficient number of legitimate potential bidders so as to destroy the character of free and competitive bidding. In this instance, a provision had been included in the RFP that asked the bidder if there would be a dollar value for being a sole or major supplier to the state entity and if the bidder would contribute to a fund for scholarships or other improvements. Pursuant to 74 §3402.1, the Anti-Kickback Act of 1974 generally prohibits the giving of money or other thing of value by any person holding, or bidding to obtain, a contract with the state, to any state employee or person holding a higher tier contract with the state when the purpose for giving is to acquire or hold such contract with the state. Although the provision was not an illegal kickback, a provision soliciting a contribution or donation unrelated to the contract price is problematic because the public could reasonably question whether the contract is influenced by a donation rather than the merits of the proposal. Conversely, seeking a discount, or payment in lieu of a discount, in consideration for being an exclusive or major supplier is acceptable. See 74 O.S. §§85.4, 85.7 and 85.13.