- 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.
- 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.
- Assistance in procurement objectives. The Office shall provide assistance to state public entities in the achievement of procurement objectives in their recycling programs.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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:
- 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:
- crushed concrete sub base;
- fly ash;
- glass and glassy aggregates; and
- asphalt material containing ground tire rubber.
- Life cycle cost analysis shall be used in determining practicability.
- 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:
- 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:
- Equip such vehicles with retreaded tires.
- Efforts should first be made to procure retreading services for the entity's own waste tire casings.
- If the services in 260:85-1-4(j)(1)(A) are not practicable, retreaded tires should be procured for use as replacements.
- Emergency vehicles defined in 47 O.S. 1991 § 1-103 (Highway Safety Code) are exempt from this recommendation.
- Procure re-refined oils for all practicable uses, including, but not limited to, such uses as:
- engine lubricating oils;
- gear oils; and,
- hydraulic fluids.
- Equip such vehicles with retreaded tires.
- 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.
- 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.
- 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.
- 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.
- Price preferences allowed pursuant to this section shall not be combined with other price preferences or differentials.
- In response to product market conditions, the Director may temporarily increase, reduce, or eliminate any recycled product price preference.
- 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.
74 O.S. § 85.7. Competitive Bid or Proposal Procedures
- Except as otherwise provided by the Oklahoma Central Purchasing Act, no state agency shall make an acquisition for an amount exceeding Fifty Thousand Dollars ($50,000.00) or the limit determined by the State Purchasing Director pursuant to rules authorized by Section 85.5 of this title, not to exceed One Hundred Thousand Dollars ($100,000.00), without submission of a requisition to the State Purchasing Director and submission of suppliers’ competitive bids or proposals to the State Purchasing Director.
- Any acquisition a state agency makes shall be made pursuant to the Oklahoma Central Purchasing Act and rules promulgated pursuant thereto.
- Split purchasing for the purpose of evading the requirement of competitive bidding shall be a felony.
- The State Purchasing Director may waive or increase the limit authorized for a state agency acquisition by not more than ten percent (10%) to perfect an otherwise valid acquisition inadvertently exceeding the limit due to administrative error by the state agency or unforeseeable circumstances. The state agency shall request a waiver upon the discovery of the error or circumstance to the State Purchasing Director on a form the Director requires.
- The State Purchasing Director shall report all requests for waivers or increases, stating the amount and whether the request was granted or denied, monthly to the Governor, President Pro Tempore of the Senate, and Speaker of the House of Representatives.
- Contracts for master custodian banks or trust companies, investment managers, investment consultants, and actuaries for the state retirement systems, CompSource Oklahoma, Oklahoma Employees Insurance and Benefits Board, pension fund management consultants of the Oklahoma State Pension Commission and the Commissioners of the Land Office, and other professional services as defined in Section 803 of Title 18 of the Oklahoma Statutes shall be exempt from competitive bidding procedures of this section and requisition requirements of Section 85.4 of this title.
- Contracts with financial institutions to act as depositories and managers of the Oklahoma College Savings Plan accounts shall be exempt from competitive bidding procedures.
- A state agency that makes an acquisition pursuant to this paragraph shall notify the State Purchasing Director within fifteen (15) days following completion of the acquisition. The Office of Management and Enterprise Services shall compile a list of the exempt contracts and send the list to a member of the Appropriations and Budget Committee of the House of Representatives or Appropriations Committee of the Senate, if the member requests.
- Requisitions pursuant to this section shall not be required prior to emergency acquisitions by a state agency not exceeding One Hundred Thousand Dollars ($100,000.00). The state agency shall submit a requisition to the State Purchasing Director within five (5) days following the acquisition together with a statement of the emergency. The State Purchasing Director shall send the requisition and a written analysis to the Governor, the President Pro Tempore of the Senate, and the Speaker of the House of Representatives specifying the facts and circumstances giving rise to the emergency requisition.
- Requisitions pursuant to this section for acquisitions to alleviate a serious environmental emergency shall not be required if, upon receiving a request from the Chair of the Corporation Commission and after having examined the facts and circumstances of the case, the Governor certifies in writing the existence of a serious environmental emergency. For the purposes of this section, “serious environmental emergency” means a situation within the jurisdiction of the Commission:
- in which serious damage to the environment will quickly occur if immediate action is not taken and the damage will be so significant that the urgent need for action outweighs the need for competitive bids, or
- a situation in which human life or safety is in imminent danger or significant property interests are threatened with imminent destruction.
- Acquisitions for repairs of equipment in emergencies, of livestock through a market agency, dealer, commission house, or livestock auction market bonded or licensed under federal or state law, the purchase or collection of semen or embryos, and the placement of embryos into recipient livestock shall not require requisitions pursuant to this section or any other provisions of the Oklahoma Central Purchasing Act.
- The Board of Directors of the Oklahoma Historical Society shall select suppliers for the restoration of historical sites and museums and shall not be subject to the requisition requirements of this section or any other provision of the Oklahoma Central Purchasing Act. The Board may send a requisition to the State Purchasing Director and request supplier bid or proposal submission procedures, but supplier and bid selection will be the prerogative of the Board and will be based on contractors’ documented qualifications and experience.
- Purchases of postage by state agencies shall be made pursuant to Sections 90.1 through 90.4 of this title.
- Sole source or sole brand acquisitions by a state agency or the State Purchasing Director shall comply with Section 85.45j of this title.
- Acquisitions for the design, development, communication, or implementation of the state employees flexible benefits plan shall not be subject to the requirements of this section; provided, that the Flexible Benefits Advisory Council shall use procedures consistent with the competitive bid requirements of the Oklahoma Central Purchasing Act.
- Any acquisition of a service which the Office of Management and Enterprise Services has approved as qualifying for a fixed and uniform rate shall be made pursuant to provisions of this paragraph.
- The Office of Management and Enterprise Services shall establish criteria and guidelines for those services which may qualify for a fixed and uniform rate.
- Fixed and uniform rate contracts authorized by this paragraph shall be limited to contracts for those services furnished to persons directly benefiting from such services and shall not be used by a state agency to employ consultants or to make other acquisitions.
- Any state agency desiring to have a service qualified for a fixed and uniform rate shall make a request for service qualification to the Office of Management and Enterprise Services and submit documentation to support the request. The Office of Management and Enterprise Services shall approve or deny the request. If the Office of Management and Enterprise Services approves the request, the state agency shall establish a fixed and uniform rate for the service. No contracts shall be entered into by the state agency until the rate has been approved by the state agency in a public hearing. The proposed rate shall be clearly and separately identified in the agenda of the state agency for the hearing and shall be openly and separately discussed during such hearing. The state agency shall notify the Director of the Office of Management and Enterprise Services of its pending consideration of the proposed rate at least thirty (30) days before the state agency is to meet on the proposed rate. The state agency shall deliver to the Director of the Office of Management and Enterprise Services a copy of the agenda items concerning the proposed rate with supporting documentation. The Director of the Office of Management and Enterprise Services shall communicate any observation, reservation, criticism, or recommendation to the agency, either in person at the time of the hearing or in writing delivered to the state agency before or at the time of the hearing. The Director of the Office of Management and Enterprise Services shall specifically note in the written communications whether the Director of the Office of Management and Enterprise Services has determined the rate to be excessive. Any written communication presented in the absence of the Director of the Office of Management and Enterprise Services shall be presented orally during the public hearing. Whether made in person or in writing, any comment made by the Director of the Office of Management and Enterprise Services shall be made a part of the minutes of the hearing in full.
- Within two (2) weeks after the convening of the Legislature, the administrative officer of the state agency shall furnish to the Speaker of the House of Representatives, the President Pro Tempore of the Senate and to any member of the House or Senate, if requested by the member, a complete list of all of the types of services paid for by uniform fixed rates, the amount of the rate last approved by the agency for the service, and the number of contracts then in existence for each type of service. Any rate which has been determined to be excessive by the Director of the Office of Management and Enterprise Services shall be specifically identified in the list by the state agency.
- At any time, the Director of the Office of Management and Enterprise Services may review, suspend, or terminate a contract entered into pursuant to the provisions of this paragraph if the Director of the Office of Management and Enterprise Services determines the contract is not necessary, is excessive, or is not justified.
- Specifically prescribed nonmedical adaptive technology-related acquisitions for individuals with disabilities who are clients of the State Department of Rehabilitation Services and which are prescribed by a physician, rehabilitation engineer, qualified rehabilitation technician, speech therapist, speech pathologist, occupational therapist, physical therapist, or qualified sensory aids specialist, and other client acquisitions, shall not be subject to the requisition requirements of this section. The Commission for Rehabilitation Services shall develop standards for the purchase of such acquisitions and may elect to utilize the Purchasing Division for an acquisition. The standards shall foster economy, provide a short response time, include appropriate safeguards, require written records, ensure appropriate competition for economical and efficient purchasing, and shall be approved by the State Purchasing Director.
- The Department of Human Services shall develop procedures for acquisitions of specifically prescribed nonmedical assistive technology-related items not exceeding the acquisition purchase amount requiring a requisition pursuant to this section for individuals under sixteen (16) years of age who are recipients of Supplemental Security Income which are prescribed by a physician, qualified sensory aids specialist or qualified special education instructor. The procedures shall reflect standards for the acquisition of such nonmedical assistive technology-related items, may provide for utilization of the Purchasing Division when appropriate, shall foster economy, provide a short response time, shall include appropriate safeguards and written records to ensure appropriate competition and economical and efficient purchasing, and shall be approved by the State Purchasing Director.
- Structured settlement agreements entered into by the Attorney General’s office in order to settle any lawsuit involving the state, the Legislature, any state agency or any employee or official of the state shall not be subject to the competitive bidding requirements of this section if:
- prior to entering into any contract for the services of an entity to administer a structured settlement agreement, the Attorney General receives proposals from at least three entities engaged in providing such services, and
- The selection of a particular entity is made on the basis of the response to the request which is the most economical and provides the most competent service which furthers the best interests of the state.
- A list of any such structured settlement agreements entered into by the Attorney General with summary thereon for the previous calendar year shall be submitted to the Speaker of the House of Representatives and the President Pro Tempore of the Senate on January 31 of each year.
- Structured settlement agreements entered into by the Attorney General’s office in order to settle any lawsuit involving the state, the Legislature, any state agency or any employee or official of the state shall not be subject to the competitive bidding requirements of this section if:
- Acquisitions a state agency makes pursuant to a contract the State Purchasing Director enters into or awards and designates for use by state agencies shall be exempt from competitive bidding procedures.
- The Commission on Marginally Producing Oil and Gas Wells shall be exempt from the competitive bid requirements of this section for contracts with local suppliers for the purpose of holding special events and exhibitions throughout the state.
- Agreements entered into by any state agency with the United States Army Corp of Engineers in order to provide emergency response or to protect the public health, safety, or welfare shall not require requisitions and shall not be subject to competitive bidding requirements of this section.
- Notwithstanding any other provision of law, the State Purchasing Director may exempt a procurement from the requirements of this section when in the State Purchasing Director’s discretion unusual, time- sensitive or unique circumstances exist which make such exemption in the best and immediate interest of the state. As used in this subsection, “State Purchasing Director” means the administrative head of the Purchasing Division of the Office of Management and Enterprise Services and shall not mean a designee. Any acquisitions made pursuant to this paragraph shall be described in detail and publicly posted through the transparency portal provided in Section 34.11.2 of Title 62 of the Oklahoma Statutes. The description shall include the name of the supplier, cost of the acquisition, and reason for exemption under the provisions of this subsection, the cost savings resulting from the purchase, and a description of benefits to the state. The State Purchasing Director shall take no action under the provisions of this paragraph prior to the publication of a document describing the significant savings that will be realized by the state. The document shall provide a detailed comparison of the acquisition with comparable items and clearly detail the savings.
- Acquisitions shall be awarded to the lowest and best, or best value, bidder at a specified time and place, which shall be open to the public.
- Bids for professional service contracts for an amount requiring submission of requisitions to the State Purchasing Director shall be evaluated by the State Purchasing Director and the state agency contracting for such service. Both cost and technical expertise shall be considered in determining the lowest and best, or best value, bid. Further, the state agency shall present its evaluation and recommendation to the State Purchasing Director. A documented evaluation report containing the evaluations of the State Purchasing Director and the state agency contracting for such service shall be completed prior to the awarding of a professional service contract and such report shall be a matter of public record.
- When requested by CompSource Oklahoma, the Oklahoma Employees Insurance and Benefits Board, or the governing board of a state retirement system authorized to hire investment managers, the Office of Management and Enterprise Services shall assist the requesting body in the process of selecting investment managers. When requested by the Flexible Benefits Advisory Council, the Office of Management and Enterprise Services shall assist the Council in the process of selecting contracts for the design, development, communication, or implementation of the state employees flexible benefits plan.
- Except as otherwise specifically provided by law, the acquisition of food items or food products by a state agency from a public trust created pursuant to Sections 176 through 180.56 of Title 60 of the Oklahoma Statutes shall comply with competitive bidding procedures pursuant to the provisions of this section.
- Cooperative contracts shall not be utilized unless the purchasing cooperative and its affiliated suppliers have complied with all provisions of the Oklahoma Central Purchasing Act.
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.
- 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:
- 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,
- a court order directs the state agency to make an acquisition from a specified supplier or provider.
- 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.
- Standard of conduct. The Oklahoma Central Purchasing Act, State Ethics Commission rules1 and other state laws contain regulations, prohibitions and penalties governing procurement ethics. Transactions relating to the public expenditure of funds require the highest degree of public trust and impeccable standards of conduct.
- One year limitation for certain contracts. Unless otherwise provided by law, a state agency is prohibited from entering into a sole source contract, a professional service contract or a contract for the services of any person, who has terminated employment with or who has been terminated by that agency for one (1) year after the termination date of the employee from the agency. [Reference 74 O.S. §85.42(A)] An agency may enter into a sole source contract or a contract for professional services at any time with a person who is a qualified interpreter for the deaf. [Reference 74 O.S. §85.42(D)].
- Supplier gratuities. The State Purchasing Director and any state employee or agent of the State Purchasing Director, acting within the scope of delegated authority, or any member of their immediate family, under the Oklahoma Central Purchasing Act shall not accept any gift, donation, or gratuity for himself or any member of his immediate family from any supplier or prospective supplier of any acquisition covered by the Oklahoma Central Purchasing Act. This subsection shall not apply to exceptions to the definition of “anything of value” established in rules promulgated by the Oklahoma Ethics Commission. [Reference 74 O.S. §85.13]
- 1. See Annotated Ethics Rules for applicable State Ethics Commission rules and statute
State agencies shall make acquisitions using a method of acquisition in this section.
- 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.
- 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:
- 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.
- 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.
- 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.
- 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.
- If Oklahoma Correctional Industries disagrees with the State Purchasing Director, the OMES Director shall resolve the issue.
- Statewide Contracts. The State Purchasing Director shall designate statewide contracts as mandatory or non-mandatory.
- 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.
- 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.
- 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:
- 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.
- 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.
- 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.
- Sole source and sole brand acquisitions.
- 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]
- 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.
- 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.
- 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.
- 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.
- 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.
State agencies shall not make split purchases for the purposes of evading their approved dollar threshold for competitive bids. Split purchasing for the purpose of evading competitive bidding requirements is a felony. [Reference 74 O.S. §85.7(A)(2)(a)]
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:
- 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;
- award all contracts based on lowest and best or best value criteria; and,
- 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.
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:
- select a supplier or a group of suppliers to notify utilizing telephone, facsimile or electronic commerce;
- Obtain the following certifications, verifications and other required documents, as applicable, from the supplier selected for contract award:
- 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.
- 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.
- Certifications for services contracts. Additional documents required to be included in contracts for professional or nonprofessional services include:
- 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]
- 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]
- 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]
- Bonds and sureties. The solicitation may require bidders to submit a bid bond, performance bond, or other type of approved surety with the bid.
- 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.
- 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.
- 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.
- 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 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.
- 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.
- 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.
- 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.
- 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.
- Solicitation contents. The solicitation shall indicate all information the supplier shall submit with the supplier’s bid.
- Supplier notification.
- 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.
- Suppliers a state agency recommends. The State Purchasing Director will also notify suppliers recommended by a state agency for a solicitation.
- 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.
- 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.
- 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.
- 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:
- be limited to the acquiring agency’s designated procurement personnel;
- strictly prohibited from any other acquiring agency personnel, unless otherwise stated in the solicitation; and,
- be documented in writing and filed in the acquisition file.
- 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:
- lowest and best; or,
- best value.
- 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.
- Terms and conditions. The State Purchasing Director shall include all the terms and conditions for the acquisition in the solicitation.
- 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
- 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.
- Other rights and remedies. Actions of the State Purchasing Director shall not limit the rights or remedies of a state agency.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- Sample tests. Whenever testing is determined necessary by the State Purchasing Director, appropriate standard testing procedures will be used.
- 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.
- 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.
- 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.
- 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.
- Evaluation scoring tool. Any evaluation scoring tool utilized shall be consistent with the evaluation criteria contained in the solicitation.
- Documentation. Evaluation of the bids shall be documented and filed in the acquisition file.
- 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]
- 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.
- 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.
- Public inspection. The evaluation documentation shall be open for public inspection following contract award.
- 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.
- Supplier past performance. The State Purchasing Director shall consider bidder performance on previous contract awards and indicate past performance in the evaluation document.
- 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:
- Non-responsive bid.
- Terms and conditions. A bid that does not meet the terms and conditions of the solicitation may be considered non-responsive.
- Forms use. A bid that does not contain forms or other information the solicitation specifies may be considered non-responsive.
- Incomplete forms. If forms required by the solicitation do not contain complete information, the bid may be considered non-responsive.
- 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.
- Improper alterations. If alterations do not bear the initials of the person making the alteration, the bid may be considered non-responsive.
- 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.
- 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.
- 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.
- 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.
- 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.
- Pricing. If bid pricing does not meet requirements of a solicitation, the bid may be considered non-responsive.
- 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.
- One bid from multiple suppliers. One bid from multiple suppliers that does not designate a prime contractor shall be considered non-responsive.
- 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.
- 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.
- Bidder not responsible.
- 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.
- 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.
- Past performance. If the State Purchasing Director has received complaints on a supplier, the supplier may be found not responsible.
- Non-responsive bid.
- 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.
- The State Purchasing Director shall indicate the method of testing and rate the sample’s performance in the evaluation document.
- 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.
- Other factors in determination of award.
- 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.
- 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:
- failure to have an authorized signature;
- failure to obtain a notary signature, stamp or seal;
- failure to sign or initial amendments to bid.
- 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.
- 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.
- Negotiation team.
- 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.
- 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.
- Negotiation process.
- The lead negotiator shall notify suppliers of the date and time for negotiations.
- 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.
- The lead negotiator shall determine the location and manner of negotiation.
- 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.
- The lead negotiator may require suppliers to submit a best and final offer.
- The lead negotiator shall prepare a summary that shall document the following:
- 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
- a summary of the results of the negotiation, specifically stating what is the basis of the final agreement.
- a summary created under these rules shall become a part of the contract file retained.
- 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:
- bid evaluation;
- documentation of evaluation on each bid;
- determination of the lowest and best or best value bidder;
- verification of Oklahoma and Federal debarment status;
- 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;
- 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;
- coordination of award with the requisitioning state agency, if applicable; and
- completion of any administrative tasks.
- 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.
- No contract award. A contract may not be awarded when:
- The State Purchasing Director determines no bid meets the requirements of the solicitation.
- The State Purchasing Director determines that all bids exceed fair market value for the acquisition.
- The State Purchasing Director determines the bid price exceeds available state agency funds.
- The State Purchasing Director determines the state agency no longer requires the acquisition in the form or manner the solicitation specifies.
- The State Purchasing Director determines not awarding the contract to be in the best interest of the state.
- 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.
- Notification of successful bidder. The State Purchasing Director shall notify the successful bidder within five (5) days of the contract award.
- "Any acquisition of a service which the Office of Management and Enterprise Services has approved as qualifying for a fixed and uniform rate shall be made pursuant to provisions . . . " of 74 O.S. §85.7 and procedures required by the Office of Management and Enterprise Services. [Reference 74 O.S. §85.7] The OMES Director must approve a services contract, prior to award, as qualifying for a fixed and uniform rate.
- Fixed and uniform rate contracts shall be limited to contracts for those services furnished to persons directly benefiting from such services and shall not be used by a state agency to employ consultants or to make other acquisitions. [Reference 74 O.S. §85.7]
State agencies may obtain required electrical, gas, water, or sewer utility services from sources of supply which are most advantageous to the agency if competition is not present or practical.
- 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.
- 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.
- 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.
- 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.
- 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.
- Accessibility determination must be conducted as part of the acquisition evaluation.
- 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.
- The relative accessibility weighting may be adjusted for due cause based on the specific procurement.
- 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.
- Contract clauses.
- 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.
- The IT Accessibility Standards shall be published on the OMES website.
- 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.
- Exceptions. Exceptions to compliance with IT Accessibility Standards include:
- 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);
- 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;
- information technology located in spaces frequented only by service personnel for maintenance, repair or occasional monitoring of equipment;
- information technology requiring a fundamental alteration in the nature of a product or its components to achieve accessibility;
- 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;
- 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;
- information technology that would impose an undue burden on the agency.
- 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.
- 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.
- The documentation shall be retained in the acquisition file to support the procurement.
- 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.
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.
- Bidder Requirements.
- 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.
- Bidder shall provide a letter from the United States Department of Veterans Affairs which certifies the veteran(s) has a service connected disability.
- Bidder shall provide documentation of the business organizational structure demonstrating,
- Not less than fifty-one percent (51%) of the business ownership is by one or more service-disabled veterans, and
- The management and daily business operation is controlled by one or more service-disabled veterans.
- 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.
- 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.
Associated Case Law
Where the state is acting in its sovereign capacity and is suing to vindicate legal rights which are public in nature, rather than private, the suit is not barred by limitation of actions. The court found that assuring the rights of the public to have state contracts for services protected by written contracts and competitive bidding; provisions insuring government officials are accountable to the public and are discharging duties competently and responsibly; and laws requiring competitive bidding and written contracts protect the public at large by promoting economy in government and reducing the likelihood of fraud, were public rights against which the limitation of actions does not run. This case involved the state’s allegations of fraud and the court also noted that the public interest shall not be prejudiced by the negligence of public officers to whose care it is consigned. See 74 O.S. §§85.1 and 85.7.
Associated Attorney General Opinions
State agencies may contract with each other under either 74 O.S. §581 or 74 O.S. §1008, both of which are outside the Central Purchasing Act. Acquisitions made by a State agency from another State agency pursuant to either of these statutes are not subject to the competitive bidding requirements of the Central Purchasing Act. Additionally, “contracting” as defined in the Central Purchasing Act, refers to obtaining acquisitions from private sources; therefore, the concept of contracting between two state agencies is not included in the Act. In fact, contracts between two state agencies in essence involve only one party, the state of Oklahoma. See 74 O.S. §§85.2 and 85.7.
If statutory procedures regarding fixed rate contracts are followed, the Office of Juvenile Affairs may restrict its providers of rehabilitative services to existing community at-risk service providers through fixed rate contracts without violating competitive bidding requirements of the Central Purchasing Act. The Act provides an exception from competitive bidding for fixed rate contracts. See 74 O.S. § 85.7.
The Central Purchasing Act does not prohibit negotiated contracts when using "RFP" bid procedures. Likewise, specific legislative enactments favor negotiated contracts using RFP procedures. The Opinion cites other instances in which an agency utilizes the bidding procedures and contracting process of the OMES Purchasing Division but retains its statutory duty to negotiate the contract. Thus, the Office of Juvenile Affairs may use the competitive bidding procedures of the OMES Purchasing Division or internal agency procedures when negotiating contracts with designated Youth Services Agencies so long as final contracts are negotiated by the Department of Juvenile Justice. See 74 O.S. §85.7.
Agencies and acquisitions exempted from the Central Purchasing Act in its entirety includes exemption from the competitive bidding requirements of the Act. See 74 O.S. §§85.3A, 85.7 and 85.12.
The most fundamental element of the Central Purchasing Act is the competitive bidding requirement. The Purchasing Division is charged with administering the provisions of the purchasing laws and policing the procedure. Multiple award contracts for procurement of certain commodities is not, as a matter of law, inconsistent with state statutes. Multiple award contracts have been used since the Central Purchasing Act became effective. Citing Peterson v. Oklahoma Tax Commission, 395 P.2d 388 (Okl. 1964), for the holding that where the legislature has convened many times during the period of administrative construction of a statute without expressing its disapproval, such silence may be regarded as acquiescence in or approval of the administrative construction, the Opinion stated that by virtue of the fact that the multiple award contract procedure had been in effect for sixteen years without legislative action to alter or amend it, the legislature has acquiesced to the procedure as consistent with its intent in enacting the Central Purchasing Act. See 74 O.S. §85.7.
While this Opinion concluded there was not statutory authority for the Director of State Finance (now OMES) to issue authorization orders for procurement of goods or services and there was no legal basis for authority orders, 62 O.S. §34.62 has since been amended to provide the OMES Director with power to authorize state agencies to make purchases without the submission of competitive bids as otherwise required by 74 O.S. §§85.7 and 85.12 when the Director determines it is in the best interests of the state and further directs the OMES Director to require support for payment of claims which, pursuant to subsection 4.d., may be authorizations for purchases granted by the Director. See 74 O.S. §85.7.
While this Opinion concluded that a contract for services of a bank as custodian of investments was subject to the Central Purchasing Act, the Act has since been amended to provide an exemption from both the competitive bidding and requisition requirements of the Act for certain contracts for master custodian banks or trust companies, investment managers, other specific services contracts and professional services as defined in 18 O.S. §803. See 74 O.S. 85.7.
While this Opinion concluded that contracts for services of investment counselors were not exempt from competitive bidding requirements of the Central Purchasing Act because “professional services” included only those services defined in 18 O.S. §803, the Act has since been amended to provide an exemption from both the competitive bidding and requisition requirements of the Act for certain investment consultant contracts, other specific services contracts as well as professional services as defined in 18 O.S. §803. See 74 O.S. 85.7.
In connection with contracts to acquire services of contractors for restoration of historic sites and museums, the Board of the Oklahoma Historical Society may select such contractors without the necessity of subjecting the contract to public competitive bids. See 74 O.S. §85.7.
NOTE: Attorney General Opinion 07-31 has withdrawn this Opinion to the extent it concluded that the Department of Central Services (now OMES) or the State Purchasing Director is a purchasing agent for a state agency.
Professional services, including legal counsel services, set forth in 18 O.S. §803 are not subject to the competitive bid requirements of the Central Purchasing Act and the Oklahoma Capitol Improvement Authority was authorized to select an attorney and determine the fee; however, the Authority was required to submit a requisition for the legal services to Central Purchasing.
With respect to personal services of a professional that falls within the definition of “professional services” in the Central Purchasing Act but that are not within the definition of “professional services” under 18 O.S. §803, acquisition of the services is subject to competitive bidding requirements of the Central Purchasing Act.
The Central Purchasing Act only applies to state agencies when acquiring materials, supplies, equipment or services. Where an underwriter only purchases the bonds of a state agency and does not provide any “attendant services” to the state agency, the Central Purchasing Act does not apply. See 74 O.S. §§85.2; 85.4 and 85.7.
A public entity may be a state agency for some purposes but not for other purposes and officers that are neither judicial or legislative necessarily belong to the executive department of government and are “executive” or “administrative” officers; those terms being equivalent. In this instance, statutes gave powers to the agency’s governing board and Commissioner as fully and completely as a governing body of a private entity in the same business. The Commissioner had broad authority to purchase materials and services necessary for agency operations but the agency was subject to the Central Purchasing Act as to the manner by which the items were acquired. That the Legislature exempted certain agencies by name from the Act, but did not include this particular agency, demonstrated that the Legislature intended the agency to remain subject to the Central Purchasing Act. See 74 O.S. §85.12.
18 O.S. §803 defines certain personal services as professional services that are exempt, pursuant to 74 O.S. §85.7, from competitive bidding requirements of the Central Purchasing Act. However, “professional services” defined in the Central Purchasing Act are different than the §803 services and are subject to the Act’s competitive bidding requirements. See 74 O.S. §§85.2 and 85.7.
NOTE: Opinion No. 07-31 withdrew this Opinion to the extent it concluded that the Department of Central Services (now OMES) is a purchasing agent for a state agency.
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.
Associated Procurement Information Memorandums
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Purchasing Reference Guide
- Oklahoma Central Purchasing Act
- Other Procurement-Related Statutes in Title 74
- Information Technology Procurement
- IT Procurement-Related Statutes in Title 62
- Pay for Success Act
- Oklahoma Correctional Industries Procurement-Related Statute
- OMES Procurement-Related Administrative Rules
- Procurement-Related Caselaw
- Procurement-Related Attorney General Opinions
- Procurement Information Memorandums