An Act
ENROLLED HOUSE
BILL NO. 1789 By: Pae of the House
and
Howard of the Senate
An Act relating to public buildings and public works;
amending 61 O.S. 2011, Section 103, as last amended
by Section 2, Chapter 405, O.S.L. 2019 (61 O.S. Supp.
2020, Section 103), which relates to competitive
bidding; authorizing certain local governmental units
to create purchasing cooperative; providing for
notice and publication; providing for compliance of
requirements; and providing an effective date.
SUBJECT: Public buildings and public works
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1. AMENDATORY 61 O.S. 2011, Section 103, as last
amended by Section 2, Chapter 405, O.S.L. 2019 (61 O.S. Supp. 2020,
Section 103), is amended to read as follows:
Section 103. A. Unless otherwise provided by law, all public
construction contracts exceeding Fifty Thousand Dollars ($50,000.00)
shall be let and awarded to the lowest responsible bidder, by open
competitive bidding after s olicitation for sealed bids, in
accordance with the provisions of the Public Competitive Bidding Act
of 1974. No work shall be commenced until a written contract is
executed and all required bonds and insurance have been provided by
the contractor to the awarding public agency.
B. Notwithstanding subsection A of this section, in awarding
public construction contracts exceeding Fifty Thousand Dollars
($50,000.00), counties, cities, other local units of government and
any public trust with a county or a mu nicipality as its sole
beneficiary may provide for a local bid preference of not more than
five percent (5%) of the bid price if the awarding public agency ENR. H. B. NO. 1789 Page 2
determines that there is an economic benefit to the local area or
economy. Provided, however, the l ocal bidder or contractor must
agree to perform the contract for the same price and terms as the
bid proposed by the nonlocal bidder or contractor. Any bid
preference granted hereunder must be in accordance with an
established policy adopted by the govern ing body of the awarding
public agency to clearly demonstrate the economic benefit to the
local area or economy. Provided, further, no local bid preference
shall be granted unless the local bidding entity is the second
lowest qualified bid on the contract . The bid specifications shall
clearly state that the bid is subject to a local bidder preference
law. For purposes of this section, "local bid" means the bidding
person is authorized to transact business in this state and
maintains a bona fide establish ment for transacting such business
within this state. This provision does not apply to any
construction contract for which federal funds are available for
expenditure when its provisions may be in conflict with federal law
or regulation.
C. Except as provided in subsection E of this section, other
construction contracts for the purpose of making any public
improvements or constructing any public building or making repairs
to the same for Fifty Thousand Dollars ($50,000.00) or less shall be
let and awarded to the lowest responsible bidder by receipt of
written bids or awarded on the basis of competitive quotes to the
lowest responsible qualified contractor. Work may be commenced in
accordance with the purchasing policies of the public agency.
D. Except as provided in subsection E of this section, other
construction contracts for less than Five Thousand Dollars
($5,000.00) may be negotiated with a qualified contractor. Work may
be commenced in accordance with the purchasing policies of the
public agency.
E. The provisions of this subsection shall apply to public
construction for minor maintenance or minor repair work to public
school district property. Other construction contracts for less
than Twenty-five Thousand Dollars ($25,000.00) may be negotiate d
with a qualified contractor. Construction contracts equal to or
greater than Twenty-five Thousand Dollars ($25,000.00) but less than
Fifty Thousand Dollars ($50,000.00) shall be let and awarded to the
lowest responsible bidder by receipt of written bids . No work shall
be commenced on any construction contract until a written contract
is executed and proof of insurance has been provided by the
contractor to the awarding public agency. ENR. H. B. NO. 1789 Page 3
F. The Construction and Properties Division of the Office of
Management and Enterprise Services may award contracts using best
value competitive proposals. As used in this subsection, "best
value" means an optional contract award system which can evaluate
and rank submitted competitive performance proposals to identify th e
proposal with the greatest value to the state. The Office of
Management and Enterprise Services, pursuant to the Administrative
Procedures Act, shall promulgate rules necessary to implement the
provisions of this subsection.
G. 1. A public agency sha ll not let or award a public
construction contract exceeding Fifty Thousand Dollars ($50,000.00)
to any contractor affiliated with a purchasing cooperative unless
the purchasing cooperative and the contractor have complied with all
of the provisions of the Public Competitive Bidding Act of 1974,
including but not limited to open competitive bidding after
solicitation for sealed bids. A public agency shall not let or
award a public construction contract exceeding Five Thousand Dollars
($5,000.00) up to Fift y Thousand Dollars ($50,000.00) to any
contractor affiliated with a purchasing cooperative unless the
purchasing cooperative and the contractor have complied with all of
the provisions of the Public Competitive Bidding Act of 1974,
including submission of a written bid upon notice of competitive
bidding.
2. A purchasing cooperative and its affiliated contractors
shall not be allowed to bid on any public construction contract
exceeding Fifty Thousand Dollars ($50,000.00) unless the purchasing
cooperative and its affiliated contractors have complied with all of
the provisions of the Public Competitive Bidding Act of 1974,
including but not limited to open competitive bidding after
solicitation for sealed bids. A purchasing cooperative and its
affiliated contractors shall not be allowed to bid on any public
construction contract exceeding Two Thousand Five Hundred Dollars
($2,500.00) unless the purchasing cooperative and its affiliated
contractors have complied with all of the provisions of the Public
Competitive Bidding Act of 1974, including submission of a written
bid upon notice of open competitive bidding.
3. Local governmental units, or local governmental units
cooperating under the terms of any interlocal cooperative agreement
authorized by state law, may create a purchasing cooperative or
contract with a purchasing cooperative to provide leverage in
achieving best value or the best terms in contracts. To encourage ENR. H. B. NO. 1789 Page 4
intergovernmental collaboration, any purchasing cooperative or
interlocal cooperative e ntity may utilize any single legal newspaper
of this state to serve as sufficient compliance for bid notice
requirements of competitive bidding or solicitation of bids. If the
purchasing cooperative or interlocal cooperative entity is engaging
in a project exclusive to a county or group of counties of this
state, and not open to all governmental units or public trusts that
wish to participate statewide, the bid notice shall be published in
a legal newspaper located within the county or group of counties.
Any local governmental unit or public trust that enters into
membership or contracts with a purchasing cooperative or interlocal
cooperative entity may enter into purchases or contracts under the
terms negotiated by the purchasing cooperative or interlocal
cooperative entity. If the purchasing cooperative or interlocal
cooperative entity complies with the requirements of this section of
law, all local governmental units shall be deemed in compliance with
the requirements set forth for bid notices and publi cation.
SECTION 2. This act shall become effective November 1, 2021.
ENR. H. B. NO. 1789 Page 5
Passed the House of Representatives the 18th day of February,
2021.
Presiding Officer of the House
of Representatives
Passed the Senate the 21st day of April, 2021.
Presiding Officer of the Senate
OFFICE OF THE GOVERNOR
Received by the Office of the Governor this ____________________
day of ___________________, 20_______, at _______ o'clock _______ M.
By: _________________________________
Approved by the Governor of the State of Oklahoma this _________
day of ___________________, 20_______, at _______ o'clock _______ M.
_________________________________
Governor of the State of Oklahoma
OFFICE OF THE SECRETARY OF STATE
Received by the Office of the Secretary of State this __________
day of ___________________, 20_______, at _______ o'clock _______ M.
By: _________________________________