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STATE OF OKLAHOMA
1st Session of the 58th Legislature (2021)
HOUSE BILL 2328 By: Lawson
AS INTRODUCED
An Act relating to state government; amending 74 O.S.
2011, Section 85.7, as last amended by Section 10,
Chapter 98, O.S.L. 2020 (74 O.S. Supp. 2020, Section
85.7), which relates to acquisitions; modifying
exception to competitive bidding requirements; and
providing an effective date .
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1. AMENDATORY 74 O.S. 2011, Section 85.7, as
last amended by Section 10, Chapter 98, O.S.L. 2020 (74 O.S. Supp.
2020, Section 85.7), is amended to read as follows:
Section 85.7 A. 1. Except as otherwise provided by the
Oklahoma Central Purchasing Act, or asso ciated rules:
a. every state agency shall initiate all acquisitions by
the submission of a requisition to the Purchasing
Division, and
b. 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
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Director pursuant to rules authorized by Section 85.5
of this title, not to exceed Two Hundred Fifty
Thousand Dollars ($250,000.00), without submission of
a requisition to the Purchasing Division for issuance
of a solicitation for the acquisition on behalf of the
agency. Any exemption from competitive bid
requirements of the Oklahoma Central Purchasing Act
further exempts the acquisition from requisition
requirements of the act.
2. The State Purchasing Director may request additional
information necessary to adequately review a requisition to ensure
compliance with this act and associated rules. If the State
Purchasing Director determines that an acquisition is not necessary,
excessive or not justified, the State Purchasing Director shall deny
the requisition.
3. The provisions of this act shall not preclude a state agency
from:
a. accepting gifts or donations in any manner authorized
by law, or
b. making an acquisition for itself without submitting a
requisition under this section when authorized in
writing by the State Purchasing Director.
4. Any acquisition a state agency makes shall be made pursuant
to this act and associated rules. No agency shall use split
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purchasing for the purpose of evading the requirement of comp etitive
bidding or other requirement of this act or associated rules.
Violation of this provision shall be cause for discipline of a state
employee up to and including termination.
5. The State Purchasing Director may waive or increase the
limit authorized for a state agency acquisition made pursuant to its
own competitive procedures. To perfect an otherwise valid
acquisition inadvertently exceeding the limit due to administrative
error by a state agency or unforeseeable circumstances, the state
agency shall request a limited waiver or increase upon the discovery
of the error or circumstance to the State Purchasing Director. The
State Purchasing Director shall report requests for waivers or
increases, stating the amount and whether the request was grante d or
denied, upon request by the Governor, President Pro Tempore of the
Senate or Speaker of the House of Representatives.
6. Competitive bidding requirements of this section shall not
be required for the following:
a. contracts for master custodian banks or trust
companies, investment managers, investment
consultants, and actuaries for the state retirement
systems, and Oklahoma Employees Insurance and Benefits
Board, pension fund management consultants of the
Oklahoma State Pension Commission and the
Commissioners of the Land Office, financial
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institutions to act as depositories and managers of
the Oklahoma College Savings Plan accounts and other
professional services as defined in Section 803 of
Title 18 of the Oklahoma Statutes. When requested by
the Oklahoma Employees Insurance and Benefits Board or
the governing board of a state retirement system
authorized to hire investment managers, the Purchasing
Division shall assist in the process of selecting
investment managers,
b. a state agency making such an acquisition shall notify
the State Purchasing Director within fifteen (15) days
following completion of the acquisition. A list of
the exempt contracts shall be provided, upon request,
to a member of the Appropriations and Budget Committee
of the House of Representatives or Appropriations
Committee of the Senate .,
c. purchases of postage by state agencies made pursuant
to Sections 90.1 through 90.4 of this title,
d. a sole source acquisition made in compliance with
Section 85.45j 85.44D.1 of this title,
e. an acquisition for design, development, communication
or implementation of the state employees flexible
benefits plan; provided, procedures used for the
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acquisition are consistent with competitive bid
requirements of this act and associated rules,
f. any acquisition of a service which the Office of
Management and Enterprise Services has approved as
qualifying for a fixed and uniform rate, subject to
the following:
(1) the Purchasing Division shall establish criteria
and guidelines for those services which may
qualify for a fixed and uniform rate,
(2) fixed and uniform rate contracts authorized by
this subsection shall be limited to contracts for
those services furnished to persons directly
benefiting from such services and shall not be
used by a state agen cy to employ consultants or
to make other acquisitions,
(3) any state agency desiring to have a service
qualified for a fixed and uniform rate shall make
a request for service qualification to the State
Purchasing Director and submit documentation to
support the request. The State Purchasing
Director shall approve or deny the request. If
approved, the state agency shall establish a
fixed and uniform rate for the service. No
contracts shall be entered into by the state
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agency until the rate has been appro ved 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 State Purchasing Director of its
pending consideration of the proposed rate at
least thirty (30) days before the state agency is
to meet on the proposed rate and deliver a copy
of the agenda items concerning the proposed rate
with supporting documentatio n. The State
Purchasing Director 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 State Purchasing Director shall
specifically note in the written communications
whether the Director has determined the rate to
be excessive. Any written communication
presented in the absence of the State Purchasing
Director shall be presented orally dur ing the
public hearing. Whether made in person or in
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writing, any comment made by the State Purchasing
Director shall be made a part of the minutes of
the hearing in full,
(4) 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
State Purchasing Director shall be specifically
identified in the list by the state agency, and
(5) at any time, the State Purchasing Director may
review, suspend or terminate a contract entered
into pursuant to the provisions of this paragraph
if the Director determines the contract is not
necessary, is excessive or is not justified,
g. an acquisition for a client of the State Department of
Rehabilitation Services and acquisitions of the
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business enterprise program ; provided, the agency
develops and maintains standards for such an
acquisition. The agency 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,
h. 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 e mployee or official of the state
if:
(1) 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 servi ces, and
(2) 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,
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i. an acquisition by a state agency p ursuant to a
contract the State Purchasing Director enters into on
behalf of a state agency or awards and designates for
use by state agencies,
j. an acquisition by the Committee for Sustaining
Oklahoma's Energy Resources pursuant to a contract
with a local supplier for the purpose of holding a
special event or an exhibition throughout the state.
7. Notwithstanding any other provision of law, an acquisition
may be exempted from requirements of this section by the State
Purchasing Director 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 "
shall not mean a designee. Any such acquisitions shall be described
in detail and publicly posted as a data feed. The description shall
include the name of the supplier, cost of the acquisition, reason
for exemption and, as applicable, detailed comparison of the
acquisition with comparable items, any identified cost savings
resulting from the acquisition and a description of benefits to the
state. The State Purchasing Director shall take no action under the
provisions of this subsection prior to such public posting.
B. Competitively bid a cquisitions shall be awarded to the
lowest and best, or best value, bidder or bidders.
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C. Bids for an amount requiring submission of requisitions to
the Purchasing Division shall be evaluated by the Purchasing
Division and the state agency receiving the a cquisition. At a
minimum, 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 e valuation report
containing the evaluations of the Purchasing Division or the state
agency shall be completed prior to the contract award and such
report shall be a matter of public record.
D. 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 requirements of this section.
E. Cooperative contracts shal l not be utilized unless the
purchasing cooperative and its affiliated suppliers have complied
with competitive bid requirements of this act and associated rules.
F. Notwithstanding any provision of this act, in all cases
where federal granted funds are i nvolved, the federal laws, rules
and regulations thereto shall govern to the extent necessary to
inure to the benefit of such funds to this state.
G. A court order requiring an acquisition by a state agency,
whether or not such state agency is subject to this act, shall not
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invalidate competitive bidding procedures required by this section
if such court order does not specify a specific supplier. Any such
acquisition shall comply with competitive bid procedures.
SECTION 2. This act shall become effective November 1, 2021.
58-1-6588 CMA 12/18/20