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STATE OF OKLAHOMA
2nd Session of the 58th Legislature (2022)
HOUSE BILL 4080 By: Wallace
AS INTRODUCED
An Act relating to public buildings and public works;
amending 61 O.S. 2021, Sections 1, 4, 6, 11, and 12,
which relate to the bonding, contracting, and
construction of public buildings and works ; modifying
construction bonds; regulating public contracts and
hours worked during a day; modifying preference
requirements for products produced in Oklahoma;
modifying requirements for accommodations for people
with disabilities; requiring submission of certain
plans to certain authorities; amending 61 O.S. 2021,
Sections 60, 61, 62, 62.2, 63 , and 65, which relate
to construction management and consultant services;
regulating certain mandatory contract forms;
modifying definitions; eliminating references to the
Department of Real Estate Servic es and its Director;
regulating registration and selection of con struction
managers and consultants; amending requirements for
contracts for on-call minor services; providing for
what shall be considered state property; establishing
procedures for when an emergency exists; amending 61
O.S. 2021, Section 84, which relates to the Fair and
Open Competition in Governmental Construction Act;
modifying prohibited contract terms; amending 61 O.S.
2021, Sections 102, 103.4, 103.7, 104, 105, 106, 107,
109, 110, 112, 113, 113.1, 119.1, 121, and 130, which
relate to the Public Competitive Bidding A ct of 1974;
modifying definitions; modifying requirements for
school buildings and force accounts; modifying
contract requirements relating to fish and wildlife
conservation; modifying required bids and bid
notices; modifying bid documents on file; regulating
late bids; providing exemptions for open bid
requirements; providing public inspection
requirement; modifying the requirements for the
execution of a contract; regulating payment and
partial payment; providing for contract negotiations
when no bid is received; defining emergency
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situations; amending 61 O.S. 2021, Sections 202, 204,
207.2, 208, 208.1, 208.2, 209, 210, 211, and 212,
which relate to the Public Facilities Act; modifying
definitions; providing for the reviewing and approval
of projects; modifying process for contract approv al;
allowing for fees; modifying the State Construction
Revolving Fund; establishing the nature of the fun d;
declaring funds appropriated; granting rule making
authority; allowing for performance-based efficiency
contracts; updating references; clarifying language;
repealing 61 O.S. 2021, Sections 8, 9, 10, 14, and
15, which relate to the bonding, contracting, and
construction of public buildings and works; repealing
61 O.S. 2021, Section 51, which relates to the
purchase of American goods and equipment; repealing
61 O.S. 2021, Sections 103.8 and 129, which relate to
the Public Competitive Bidding Act of 1 974; repealing
61 O.S. 2021, Section 203, which relates to the
Department of Real Estate Services ; and providing an
effective date.
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1. AMENDATORY 61 O.S. 2021, Section 1, is
amended to read as follows:
Section 1. A. Prior to an award of a cont ract exceeding Fifty
Thousand Dollars ($50,000.00) for construction or repair of a public
or private building, structure, or improvement on public real
property, the person that receives the award shall :
1. Furnish furnish a bond with good and sufficient sureties
payable to the state in a sum not less than the total sum of the
contract; or
2. Cause an irrevocable letter of credit, containing terms the
Office of Management and Enterprise Services prescribes, to be
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issued for the benefit of the state by a financial institution
insured by the Federal Deposit Insurance Corporation in a sum not
less than the total sum of the contract.
B. The bond or irrevocable letter of credit shall ensure the
proper and prompt completion of the work in accordance with the
contract and shall ensure that the contractor shall pay all
indebtedness the contractor incurs for the contr actor's
subcontractors and all suppliers of labo r, material, rental of
machinery or equipment, and rep air of and parts for equipment the
contract requires the contractor to furnish.
C. For a contract not exceeding Fifty Thousand Dollars
($50,000.00), in lieu of a bond or irrevocable letter of credit, t he
contractor shall submit an affidavit of the payment of all
indebtedness incurred by the contractor , the contractor's
subcontractors, and all suppliers of labor, material, rented
machinery or equipment, and repair of and parts for equipment used
or consumed in the performance of the contract. The execution of
the affidavit with knowledge that any of th e contents of the
affidavit are false, upon conviction, shall constitute perjury,
punishable as provided fo r by law.
SECTION 2. AMENDATORY 61 O.S. 2021, Section 4, is
amended to read as follows:
Section 4. All contracts hereafter made by or on behalf of the
state, or by or on behalf of any county, city, township, or other
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municipality, with any corporation, person or persons, for the
performance of any public work, by or on behalf of the state or any
county, city, township, or other municipality, shall b e deemed and
considered as made upon the basis of eight (8) hours constituting a
day's work; and it shall be unlawful for such corporation , person or
persons, to require, aid, abet, assist, connive at, or permit any
laborer, workman, mechanic, prison guard s, janitors in public
institutions, or other person to work more than eight hours per
calendar day in doing such work, except in cases and upon the
conditions provided in the preceding section Section 3 of this
title.
Provided that the provisions of this a ct in regard to hours
worked per calendar day shall not apply to the construction,
reconstruction, maintenance, or the production of local materials
for: Highways, roads, streets, and all the structures and drainage
in connection therewith; sewer systems, waterworks systems, dams and
levees, canals, drainage ditches, airport grading, drainage ,
surfacing, seeding and planting. Provided that the provisions of
this act will not prevent employees from drawing time and half for
those hours worked over forty (4 0) during any calendar week.
SECTION 3. AMENDATORY 61 O.S. 2021, Section 6, is
amended to read as follows:
Section 6. From and after the passage and approval of this ac t,
in In the construction of all public buildings er ected for the
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state; for any county for educational, eleemosynary, penal or other
institution of the state, or for any county thereof, where the
expense of construction is borne wholly or in part by the s tate, or
county, by appropriation, by the issuance o f bonds, or by taxation,
preference shall be given to materials mined, quarried, manufactured
or procured within the State of Oklahoma, provided that the same can
be procured at no greater expense than li ke material or materials of
equal quality from witho ut the state.
SECTION 4. AMENDATORY 61 O.S. 2021, Section 11, is
amended to read as follows:
Section 11. A. Unless otherwise provided for by law, all plans
and specifications for the erection of public buildings by this
state, or any agency or political subdivision thereof, or for any
building erected through t he use of public funds shall provide
facilities for the handicapped people with disabilities . Such
facilities shall conform with the codes and st andards adopted by the
State Fire Marshal and amended by the Division's Office's
promulgated rules. Elevators shall be constructed and installed in
said public buildings to the extent deemed feasible and financially
reasonable by the contracting authority of the s tate or such
political subdivision. Said codes and standards sha ll be on file in
the Construction and Properties Division of the Office of Management
and Enterprise Services.
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B. After May 24, 1973, any Any building or facility which would
have been subject to the provisions of this section but for the fact
that it was constructed prior to May 24, 1 973, shall be subject to
the requirements of this section if additions are made to such
building or facility in any twelve -month period which increase the
total floor area of such building or facility by twenty-five percent
(25%) or more or if alterations or structural repairs are made to
such building or facility in any twelve -month period which affect
twenty-five percent (25%) or more of the total floor area of such
building or facility.
SECTION 5. AMENDATORY 61 O.S. 2021, Section 12, is
amended to read as follows:
Section 12. All plans and specifications for the erection of
public buildings subject to Section 11 of this title shall be
submitted prior to bidding and award ing of contract to the governing
body of the political entity controlling the funds involved State
Fire Marshal or other authority having jurisdiction. Such plans and
specifications shall be checked for compliance wit h Section 11 of
this title, and no con struction contract for any public building
shall be awarded unless and until s aid plans and specifications are
approved as being in compliance with Section 11 of this title by the
appropriate governmental agency. If p ublic buildings are to be
financed by state funds, the Construction and Properties Division of
the Office of Managem ent and Enterprise Services shall approv e said
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plans and specifications. In the case of public buildings to be
financed by county funds or funds controlled by some other politic al
subdivision of the state, the agency whose approval is required
shall be the governing body of such subdivision.
SECTION 6. AMENDATORY 61 O.S. 2 021, Section 60, is
amended to read as follow s:
Section 60. All state agencies, bo ards, commissions, offices,
institutions, and other governmental bodies o f this state, and all
individuals representing such entities, except the Department of
Transportation, the Oklahoma Turnpike Authority, the Oklahoma State
Regents for Higher Education and its constituent institutions, and
the Commissioners of the Land Offi ce and CompSource Oklahoma
provided CompSource Oklahoma is operating pursuant to a pilot
program authorized by Sections 3316 and 3317 o f Title 74 of the
Oklahoma Statutes, shall use construction manager, consultant and
construction contract forms that the State Facilities Director of
the Department of Real Estate Services of the Office of Man agement
and Enterprise Services requires to awa rd and execute contracts for
designs to construct, renovate, alter, repair, maintain, or improve
real property or fixture s of real property of the state. The State
Facilities Director may authorize, in writin g, exceptions to the use
of construction manage r, consultant and construction contract forms
for specific projects.
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SECTION 7. AMENDATORY 61 O.S. 2 021, Section 61, is
amended to read as follows:
Section 61. As used in Sections 61 through 65 of this title:
1. "Chief administrative offi cer" means an individual
responsible for directing the administration of a state agency. The
term does not mean one or all of the individuals that make p olicy
for a state agency;
2. "Construction manager " means an individual, firm,
corporation, associati on, partnership, copartnership, or any other
legal entity on the Office of Management and Enterprise Services
Construction and Properties (OMES -CAP) registration list and
possessing the qualifications to provide services of construction
management which include, but are not necessarily limited to, design
review, scheduling, cost control, value engineering,
constructability evaluation, preparation and coordi nation of bid
packages, and construction administration;
3. "Consultant" means an individual or legal entity possessing
the qualifications to provide licensed architectural, registered
engineering, or registered land surveying services or other
individuals or legal entities possessing specialized credentials an d
qualifications as may be needed to evaluate , plan or design and/or
provide construction administration and/or construction inspection
services for any construc tion or a public work improvement proj ect;
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4. "Director" means the Director of the Office of M anagement
and Enterprise Services or a designee;
5. "Department" means the Department of Real Estate Services of
the Office of Management and Enterprise Service s;
6. 5. "Office" means the Office of Management and E nterprise
Services;
7. 6. "Project" means studies, evaluations, plans or designs
for facility evaluations or public work i mprovements, except the
transportation facilities under the jurisdiction of th e Department
of Transportation or the Oklahoma Turnpike Au thority:
a. to construct, renovate, a lter, repair, maintain, or
improve real property or fixtures of real property,
and
b. that does not constitute "construction" as defined by
the Public Building C onstruction and Planning Act;
8. 7. "State agency" means an agency, office, officer, bureau,
board, counsel, court, commission, institution , unit, division, body
or house of the executive or judicial branches of state government,
whether elected or appoin ted, excluding only political subdivisions
of the state, the Oklahoma State Regents for Higher Education and
its constituent institutions an d the Commissioners of the Land
Office; and
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9. "Facilities Director" or "SFD" means the State Facilities
Director of the Department of Real Estate Services of the Office of
Management and Enterprise Services; a nd
10. 8. "Political subdivision " means any local governmental
body formed pursuant to the laws of this state, including, but not
limited to, school districts, career technology centers, cities,
counties, public trusts, public a uthorities, commissions or other
local governmental bodies exercising th eir authority to contract
with construction managers and/or consultants. The term also means
any quasi-governmental and nongovernmental organizations contracting
with construction man agers and/or consultants us ing public funds or
on behalf of a political subdivision.
SECTION 8. AMENDATORY 61 O.S. 2021, Section 62, is
amended to read as follows:
Section 62. A. The Department of Real Estate Services of the
Office of Management and Enterprise Services shall ma intain a file
of all persons and entities interested in and capable of performing
construction management and consultant services for stat e agencies.
The file shall include registration forms and information submit ted
by construction managers and consulta nts pursuant to rules
promulgated by the Office of Managemen t and Enterprise Services.
Pursuant to rules promulgated by the Office, the Department Office
shall determine whether a construction manager or consultant
qualifies for registration and shall not ify the construction manager
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or consultant within twenty (20 ) days of receipt of a request for
registration. Construction managers and co nsultants shall re-
register for each successive calendar year with the Department
Office.
B. The requisitioning state agency shall define the scope of a
proposed project. The s cope shall identify project c omponents,
phases and timetables and shall includ e detailed project
descriptions. The state agency may request the Department Office to
assist with scope development. The state agency shall send the
scope and a requisition fo r construction management or consult ant
services, signed by an authorized offi cial, to the Department
Office. The Department Office shall review the scope and approve it
before the state agency i ssues a solicitation.
C. The state agency shall issue a sol icitation to construction
managers or consultants that are registered with the Department
Office and capable of providing the services the state agency
desires. The solicitation shall, at a minim um, contain:
1. Description and scope of the project;
2. Estimated construction cost or available funds, anticipate d
starting date, and completion date the state agency desires for the
project;
3. Certification of funds available for the construction
manager or consultant fee, including federal, state or other
participation;
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4. Closing date for construction manager o r consultant to give
notice of interest to the state agency; and
5. Additional data the state age ncy requires from the
construction manager or consultant. The closing date for submission
of construction manager or consultant notice of interest for
consideration shall be with in thirty (30) days of the date of the
notice the state agency issues.
D. After the closing date, the Department Office shall provide
information from the construction managers ' or consultants' files to
the state agency upon request. Should there be an inadequate
expression of interest in the project, the state agency and
Department Office personnel shall confer to add construction
managers or consultants for consideration.
E. The state agency shall review the information the Department
Office provides and shall select no less than three and no more than
five construction manage rs or consultants per contract for
interviews. The review shall include consideration of factors fro m
the information the Department Office supplies including, but not
limited to:
1. Professional qualifications for the type of work
contemplated;
2. Capacity for completing the project in the sp ecified time
period; and
3. Past performance on projects of a similar nature.
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F. The Department Office shall advise the state agency of t he
methods to be used to co nduct an evaluation, interview, selection,
contract negotiation, and fee negotiation proce sses pursuant to
rules promulgated by the Office of Management and Enterprise
Services.
G. 1. Upon completion of contract negotiation wit h the highest
qualified construction manager or consultant, which contract s hall
include a fair and reasonable fee, t he Department Office shall
approve and award the contract.
2. If the Department Office and the first-choice construction
manager or consultant cannot reach an agreement, the negot iations
shall terminate and negotia tions with the second-choice construction
manager or consultant shall commence. If the Department Office and
the second-choice construction manager or consultant cannot reach an
agreement, the negotiations shall terminate and n egotiations with
the third-choice construction manager or consultant shall commence.
If the Department Office and the third-choice construction manager
or consultant cannot reach an agreement, then all negot iations shall
terminate. Should the Department Office be unable to negotiate a
satisfactory contract with any of the three selected construction
managers or consultants, the Department Office shall select
additional construction managers or consultants in order of their
competency and qualifications and shall continue nego tiations in
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accordance with the provisions of th is section until an agreement is
reached.
H. Any plans developed pursuant to the process for selection of
a contractor for construction of a facility authorized pursuant to
Section 183 of Title 73 of the Okl ahoma Statutes shall become the
property of the State of Oklahoma as a condition of the award of the
final contract for construction of the facility.
I. For all state agencies subject to the Public Facilities Act,
Sections 202 through 213 of this title, t he Department Office shall
perform the necessary procurement actions on behalf of a
requisitioning agency as enumerated in subsections B through H of
this section:
1. Determine or approv e the agency's scope of a project and
required services as provided in the P ublic Facilities Act;
2. Issue solicitations for construction manager and consultant
services;
3. Conduct evaluations, interviews, selection, contract
negotiation, and fee negoti ation processes; and
4. Provide contract management services after award of a
construction management or consultant contract.
J. In the selection of a consultant, all politica l subdivisions
of this state shall select a consultant based upon the professio nal
qualifications and technical experience of the consultant. The
subdivision shall negotiate a contract with the h ighest qualified
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consultant, provided that a fee can be nego tiated that is fair and
reasonable to both parties. In the event a reasonable fee cannot be
negotiated with the selected consultant, the subdivision may
negotiate with other consultants in order of their qualifications.
K. In the selection of a construct ion manager, all political
subdivisions of this state shall:
1. Extend consideration to construction managers from the file
maintained by the Department of Real Estate Services of the Office
of Management and Enterprise Services. Political subdivisions a re
not limited in the number of construction manager candidates from
whom they intend on seeking proposals;
2. Evaluate the candidates ' professional qualifications,
licensing, registration, certi fications, technical abilities and
past experience relevant to the contemplated project. Only firms
recognized as qualified construction m anagers by the Department of
Real Estate Services of the Office of Managemen t and Enterprise
Services pursuant to thi s section may be considered for selection as
a construction manager. The subdivision shall use procedures as
described in this section and the Public Construction Management Act
for Political Subdivisions or may ad opt procedures established by
the Office of Management and Enterprise Services for state agencies;
and
3. The political subdivision shall select a construction
manager based upon the professional qualifications and technical
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experience of the construction manager. The political subdivision
shall negotiate a contract with the highest qualified constructi on
manager, provided that a fee can be negotiated that is fair and
reasonable to both parties. In the event a reasonable fee cannot be
negotiated with the selected construction manager, the polit ical
subdivision may negotiate with other construction manag ers in order
of their qualifications.
SECTION 9. AMENDATORY 61 O.S. 2021, Section 62.2, is
amended to read as follows:
Section 62.2 The Construction and Properties Division of th e
Office of Management and Enterprise Services may e nter into
contracts with construction managers and consultants re gistered with
the Division Office for the purpose of providing on-call minor
services to state agencies. The contracts shall provide for
services on an as-needed basis and shall not exceed O ne Hundred
Thousand Dollars ($100,000.00) per construction manage r or
consultant during one (1) yea r. The requisitioning state agency
shall reimburse the Division be solely responsible for the fee of
the construction manager or consultant that provides th e services.
SECTION 10. AMENDATORY 61 O.S. 2021, Sect ion 63, is
amended to read as f ollows:
Section 63. All drawings, plans, specifications, reports, and
models made by a construction manage r or consultant for a state
agency shall be the property of this state, and shall be d elivered
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to the state as directed by the terms of the contract Department of
Real Estate Services of the Office of Management and Enterprise
Services. The state agency s hall file such plans with the
Department for inclusion in a library system to be maint ained by the
Department. Any state agency shall have access for review to any
plans or specifications filed with the Department .
SECTION 11. AMENDATORY 61 O.S. 2021, Section 65, is
amended to read as follows:
Section 65. A. In addition to the conditions prescr ibed
pursuant to subsections subsection C and D of this section, the
provisions of Section 62 of this tit le shall not apply whenever the
Department of Real Estate Services of the Office of Management and
Enterprise Services with concurre nce of the chief administrative
officer of the public agency affected declares that an emergency
exists. The construction m anager or consultant shall be sele cted by
the State Facilities Director of the Department of Real Estate
Services of the Office of Management and Enterprise Services. The
resulting construction manager or consultant contract shall n ot
exceed Fifty Thousan d Dollars ($50,000.00). The reaso ns for the
emergency shall be recorded in the official records of the
Department Office.
B. Emergency as used in this section shall be limited to
conditions resulting from any of the following:
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1. A sudden unexpected hap pening or unforeseen occurrence if it
is impossible for the provisions of Section 62 of this title to be
observed because of the tim e factor and if the public health or
safety is endangered; and
2. A condition or situation which, if allowed to continue,
would lead to economic loss to the state or to further damage of
state property.
C. The provisions of Section 62 of this title shall not apply
to the process for construction of a correctional facility whenever
the State Board of Cor rections informs the Department Office that an
emergency condition threatens the security of the state correctional
system, including inmate population gro wth, and the condition
requires expeditious treatment for the review, approval and bid
process as it relates to construction or expansion of correctional
facilities. The Department Office and the Department of Corrections
are authorized to implement an ex pedited competitive bid process for
the contracting of construction managers or consultants and
construction of new or expan ded correctional facilities that
adequately respond to the emergency. The State Board of Corrections
shall provide written notifica tion to the Governor, the Speaker of
the House of Representatives and to the President Pro Tempore of the
Senate of the emergency conditions.
D. The provisions of Section 62 of this title shall not apply
to CompSource Oklahoma if CompSource Oklahoma is op erating pursuant
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to a pilot program authorized by Sections 3316 and 3317 of Title 74
of the Oklahoma Statutes.
SECTION 12. AMENDATORY 61 O.S. 2021, Section 84, is
amended to read as follows:
Section 84. A public agency shall not award a grant, tax
abatement, or tax credit that is conditione d upon a requirement that
the awardee include a term describ ed in Section 3 of the Fair and
Open Competition in Governmental Constructio n Act 83 of this title
in a contract document for any construction, improvemen t,
maintenance, or renovation to real pro perty or fixtures that are the
subject of the grant, tax abatement, or tax cre dit.
SECTION 13. AMENDATORY 61 O.S . 2021, Section 102, is
amended to read as follows:
Section 102. As used in the Public Competitive Bidding Act of
1974:
1. "Administrator" means the State Construction Administrator
of the Construction and Properties Divisio n of the Office of
Management and Enterprise Services;
2. 1. "Awarding public agency" means the public agen cy which
solicits and receives sea led bids on a particular p ublic
construction contract;
3. 2. "Bidding documents" means the bid notice, instruction to
bidders, plans and specif ications, bidding form, bidding
instructions, general conditions, special cond itions and all other
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written instruments prepared by or on be half of an awarding public
agency for use by prospective bidders on a public construction
contract;
4. 3. "Chief administrative officer" means an individual
responsible for directing the adminis tration of a public agency.
The term does not mean one or all of the individuals that make
policy for a public agency;
5. 4. "Construction management trade contract or subcontr act"
means any public construction contract exceeding Fifty Thousand
Dollars ($50,000.00) in amount that is awarded as a trade contract
in an agency construction management contract or awarded as a
subcontract in an at -risk construction management contract ;
6. 5. "Public agency" means the State of Oklaho ma, and any
county, city, town, school district or other political subdivision
of the state, any public trust, any public entity specifically
created by the statutes of the State of Oklahoma or as a result of
statutory authorization therefor, and any depar tment, agency, board,
bureau, commission, committee or authority o f any of the foregoing
public entities;
7. 6. "Public construction contract " or "contract" means any
contract, exceeding One Hundred Thousand Dollars ($100,000.00) in
amount, or any construc tion management trade contracts or
subcontracts exceeding Fifty Thousand Dollars ($50,000.00 ) in
amount, awarded by any public agency for the purpose of making any
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public improvements or constructing any p ublic building or making
repairs to or performing m aintenance on the same except where the
improvements, construction of any building or repair s to the same
are improvements or buildings leased to a person or other legal
entity exclusively for private and not for public use and no public
tax revenues shall be expended on or for the contract unless the
public tax revenues used for the project are authorized by a
majority of the voters of the applicable public agency voting at an
election held for that purpos e and the public tax revenues do not
exceed twenty-five percent (25%) of the total project cost. The
amount of public tax dollars committed to the project will not
exceed a fixed amount established by resolution of the governing
body prior to or concurren t with approval of the project;
8. 7. "Public improvement" means any beneficial or valuable
change or addition, bette rment, enhancement or amel ioration of or
upon any real property, or interest therein, belonging to a public
agency, intended to enhance it s value, beauty or utility or to adapt
it to new or further purposes. The term does not include the direct
purchase of materials, equipment or supplies by a public agency, or
any personal property, including property as defined in p aragraphs 1
and 4 of subsection B of Section 430.1 of Title 62 of the Oklah oma
Statutes;
9. 8. "Purchasing cooperative" means an association of public
entities working together to provide leverage in achieving best
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value and/or the best terms in contracts awarded through a
competitive bidding process; and
10. 9. "Retainage" means the difference between the amount
earned by the contractor on a p ublic construction contrac t, with the
work being accepted by the public agency, and the amount paid on
said contract by the public agenc y.
SECTION 14. AMENDATORY 61 O.S. 2021, Section 103.4 , is
amended to read as follows:
Section 103.4 Nothing in the Public Com petitive Bidding Act of
1974 shall be construed to prohibit a school district from e recting
a building or making improvements on a force accoun t basis.
Contracts between a state agency and a school distri ct for the
purpose of emergency asbestos abatement shall be exempt from the
provisions of the Public Competitive Bidding Act of 1974.
SECTION 15. AMENDATORY 61 O.S. 2021, Section 103.7, is
amended to read as f ollows:
Section 103.7 For purposes of the provisions of th e Public
Competitive Bidding Act o f 1974, contracts ente red into solely for
projects and activitie s by the Oklahoma Dep artment of Wildlife
Conservation relating to fish and wildlife conservatio n shall be let
and awarded using the competitive bidding proces s as set forth in
the Public Competitive Bidding Act of 1974. However, for contracts
of Fifty Thousand Dollars ($50,00 0.00) or less not exceeding One
Hundred Thousand Dollars ($100,000.00), the Department may
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administer the competitive bidding proces s and let and award the
contract itself rathe r than the Construction and Properties Division
of the Office of Management and Enterprise Services.
SECTION 16. AMENDATORY 61 O.S. 2021, Section 104, is
amended to read as follows:
Section 104. All proposals to award publi c construction
contracts shall be made equally and uniformly known by t he awarding
public agency to all prospective bidders and the public in the
following manner:
1. Notice thereof shall be given by electronically or by
publication in a newspaper of gene ral circulation and published in
the county where the work, or the majo r part of it, is to be done,
such notice by publication to be published in t wo consecutive weekly
issues of the newspaper, with the first publication ther eof to be at
least twenty-one (21) ten (10) days prior to the date set for
opening bids; and
2. Notice thereof shall be sent to one in-state trade or
construction publication for their use and information whenever the
estimated cost of the public construction contract exceeds One
Hundred Thousand Dollars ($100,000.00) or the cost of the
construction management trade contract or subcontract exceeds Fifty
Thousand Dollars ($50,000.00) ; provided, however, this section shall
not be construed to require the public ation of the notice in such
trade or construction publication or the requirement to provide the
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notice to more than one in-state trade or construction publication
or to any out-of-state trade or construction publications.
SECTION 17. AMENDATORY 61 O.S. 2021, Section 105, is
amended to read as follows:
Section 105. All bid notices shall set forth the following
information:
1. The character of t he proposed public constr uction contract
in sufficient details that all bidders shall know exactly what their
obligation will be, either in the bid notice itself or by reference
to bidding documents on file in the main office of the awarding
public agency available to the public ; and
2. The name of the officer, agent or employee of the awarding
public agency and the office location and address of such person,
from whom a complete set of bi dding documents regarding such
proposed contract may be obtained, to gether with the amount of the
cost deposit required therefor, if any; and
3. The date, time and place of opening of the sealed bids
either in person or electron ically; and
4. The name and office location and address of the office of
the awarding public agency to whom the sealed bids should be
submitted or information sufficient to enable a bid to be submitted
electronically; and
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5. Any additional information regarding such proposed cont ract
deemed by the awarding public agency to be of beneficial intere st to
prospective bidders or the public.
SECTION 18. AMENDATORY 61 O.S. 2021, Sect ion 106, is
amended to read as follows:
Section 106. At least one complete set of Complete bidding
documents regarding a proposed public construction contract shal l be
on file in the main office of the awarding public agency available
to the public at least twenty (20) ten (10) days prior to the date
set for opening bids. The officer, agent or employee of the
awarding public agency designated in the bid notice shal l have a
sufficient number of complete sets of said bidding documents and
shall provide a complete set of same to any pr ospective bidder, upon
request; provided, however, th at the awarding public agency, or its
agent, may require a reasonable deposit for e ach such set of bidding
documents; provided, that such deposit shall not exceed the actual
cost of duplicating or printi ng. The public agency , or its agent,
may retain all or part of said deposit if so stated in the notice
for bids.
SECTION 19. AMENDATORY 61 O.S. 2021, Section 107, is
amended to read as follows:
Section 107. A. A bidder on a public construction contract
exceeding One Hundred Thousand Dollars ($100,000.00) or a
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construction management trade contract or subcontract exceeding
Fifty Thousand Dollars ($50,000.00) shall accompany the bid with:
1. A certified check, cashier's check or bid bond equal to five
percent (5%) of the bid, which s hall be deposited with the awarding
public agency as a guaranty; or
2. An irrevocable letter of credit containing terms the
Construction and Properties Division of the Office of Management and
Enterprise Services prescribes, issued by a financial institut ion
insured by the Federal Deposit Insurance Corporation or the Federa l
Savings and Loan Insur ance Corporation for the benefit of the state,
on behalf of the awarding pu blic agency, in an amount equal to five
percent (5%) of the bid . The awarding public a gency shall deposit
the irrevocable letter of credit with the Division Office.
B. The cost of republication of the notice to bidders, actual
expenses incurred by reason of the bidder's default and the
difference between the low bid of the defaulting bidde r and the
amount of the bid of the bidder to whom the contract is subs equently
awarded, but not to exceed the amount of the certified check,
cashier's check, bid bond or irrevocable letter of credit may, at
the discretion of the awarding public agency, be forfeited to the
awarding public agency in the event the apparently su ccessful bidder
fails to execute the contract or fails to provide the re quired bonds
or irrevocable letters of credit and insurance to the awarding
public agency.
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C. The public agency shall, upon receipt of notice from the
awarding public agency, return a certified or cashier 's check, bid
bond, or irrevocable letter of credit to the successful bidder o n
execution and delivery of the contract and required bonds or
irrevocable letters of c redit and insurance. Checks of unsuccessful
bidders shall be returned to them in accordance w ith the terms of
the bid solicitation.
D. Nothing contained herein shall b e construed so as to prevent
the awarding public agency or the courts from exonerating the bidder
and other parties to the bid security document from liabili ty upon a
timely showing that the bidder committed what the courts have
determined under the common law to be an excusable bidding error and
for that reason it would not be equitable to enforce the bid
security.
SECTION 20. AMENDATORY 61 O.S. 2021, Sectio n 109, is
amended to read as follows:
Section 109. Any bid received by the awarding public agency or
an officer or employee thereof, more than ninet y-six (96) hours
excluding Saturdays, Sundays and holidays before the time set for
the opening of bids, or any bid so received after the time set for
opening of bids, shall not be opened or considered by the awar ding
public agency and shall be returned uno pened to the bidder
submitting same.
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SECTION 21. AMENDATORY 61 O.S. 2021, Section 110, is
amended to read as follows:
Section 110. A. Except as provided by subsection B of this
section, all bids shall be sealed and opened only at the time and
place mentioned in the bidding documents, and read aloud in the
presence of an administrative officer of the award ing public agency.
Such bid opening shall be open to the public and to all bidders.
B. The Oklahoma Department of Transportation and the Ok lahoma
Turnpike Authority A public agency shall be exempt from the
requirements provided in subsection A of this se ction, if the agency
electronically publis hes the bids on the website of the agency.
SECTION 22. AMENDATORY 61 O.S. 2021, Section 112, is
amended to read as follo ws:
Section 112. All bids, both successful and unsuccessful, and
all contracts and required bonds s hall be placed on file and
maintained in the main office of by the awarding public agency for a
period of five (5) years from the date of opening of bids or fo r a
period of three (3) years from the date o f completion of the
contract, whichever is longer, and shall be open to public
inspection and shall be matters of public record.
SECTION 23. AMENDATORY 61 O.S. 2021, Section 113, is
amended to read as follows:
Section 113. A. Except as otherwise provided by law, within
the period of time, not to exceed sixty (60) days, specified in the
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bid notice by the awarding public agency, a contract embodying the
terms set forth in the bidding documents shall be executed by the
awarding public agency or, where construction m anagement at-risk is
the project delivery method, by the construction manager an d the
successful bidder. No bidder shall obtain any property right in a
contract awarded under the provisions of the Public Competitive
Bidding Act of 1974 until the contract has been fully executed by
both the bidder and the awarding public agency.
B. Except as otherwise provided by law, within the p eriod of
time specified in subsection A of this section, the following shall
be provided by the contractor to the awarding publi c agency for
public construction contracts exceeding One Hundred Thousand Dollar s
($100,000.00) or construction management trade contracts or
subcontracts exceeding Fifty Thousand Dollars ($50,000.00):
1. A bond or irrevocable letter of credit complying with the
provisions of Section 1 of this title;
2. A bond in a sum equal to the contract price, with adequate
surety, or an irrevocable letter of credit containing terms
prescribed by the Construction and Properties Divisio n of the Office
of Management and Enterprise Services issued by a financial
institution insured by the Federal De posit Insurance Corporation or
the Federal Savings and Loan Insurance Corporation for the benefit
of the state, on behalf of the awarding publi c agency, in a sum
equal to the contract price, to ensure th e proper and prompt
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completion of the work in accorda nce with the provisions of the
contract and bidding documents;
3. A bond in a sum equal to the contract price or an
irrevocable letter of cred it containing terms as prescribed by the
Division issued by a financial institution insured by the Federal
Deposit Insurance Corporation or the Federal Savings a nd Loan
Insurance Corporation for the benefit of the state, on behalf of the
awarding public agency, in a sum equal to the contr act price, to
protect the awarding public agency against defective workmanship a nd
materials for a period of one (1) year after acceptance of the
project, except when the awarding public agency is the Department of
Transportation or the Oklahoma Turnpike A uthority, in such case the
period shall be for one (1) year after project comple tion; and
4. Public liability and workers ' compensation insurance during
construction in reasonable amounts. A public agency may require the
contractor to name the public age ncy and its architects or
engineers, or both, as an additional assured under the public
liability insurance, which requirement, if made, shall be
specifically set forth in the bidding documents.
C. A single irrevocable let ter of credit may be used to sati sfy
paragraphs 1, 2 and 3 o f subsection B of this section, provided such
single irrevocable letter of credit meets all applicabl e
requirements of subsection B of this section.
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If the contractor needs additional time in whic h to obtain the
bond required pursuant to subsection B of th is section, the
contractor may request and the awardi ng agency may allow the
contractor an additional sixty (60) days in which to obtain the
bond.
D. 1. After the award of a contract, but prior to its
execution, an awarding pub lic agency, upon discovery of an
administrative error in the award process that would void an
otherwise valid award, may suspend the time of execution of the
contract. The agency may rescind the award and readvertise for
bids, or may direct correction of the error and award the con tract
to the lowest responsible bidder, whichever sha ll be in the best
interests of the state.
2. If the awarding public agency has a governing body, the
agency shall, at the next regularly sched uled public business
meeting of the governing body of the ag ency, upon the record,
present to the governing body that an error has been made in the
award process and shall state the nature of the error. The
governing body, upon presentation of the facts o f the error, may
rescind the award and readvertise for bids, or may direct correction
of the error and award the contract to the lowest responsible
bidder, whichever shall be in the best interests of the state.
E. No public agency shall require for any pu blic construction
project, nor shall any general contractor submit a project bid based
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on acquiring or participat ing in, any wrap-up, wrap-around, or
controlled insurance program. For the purposes of this subsectio n,
"wrap-up, wrap-around, or controlled i nsurance program" means any
insurance program that has the e ffect of disabling or rendering
inapplicable any work ers' compensation, commercial general
liability, builders' risk, completed operations, or excess liabi lity
insurance coverage carried by a subc ontractor that is engaged or to
be engaged on a public const ruction project unless this is a cost
savings to the public or the need exists for a specialized or
complex insurance program and shall not apply to contra cts less than
Seventy-five Million Dollars ($75,000,000.00).
F. This act shall not apply to the publ ic construction projects
of constitutional agencies w hich had authorized a wrap -up, wrap-
around, or controlled insurance program on or before April 11, 200 0.
SECTION 24. AMENDATORY 61 O.S. 2021, Section 113.1, is
amended to read as follows:
Section 113.1 A. A public construction contract shall prov ide
for partial payment based up on work completed. The contract shall
provide that up to five percent (5%) of all partial pay ments made
shall be withheld as retainage until the project is fifty percent
(50%) complete as determined by the awarding agency . When the
awarding public agency determines that the project is at least 50%
complete, the retainage amount shall be two and o ne-half percent
(2.5%) with respect to the balance of the work.
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B. The Department of Transportation or the Oklahoma Turnpike
Authority shall not withhold retainag e on public construction
contracts awarded by the Department or the Authority.
C. The Department of Transportation shall not withhold
retainage or require any bond on projects awarded to railroads on
the railroad's privately owned or operated rail propert y.
SECTION 25. AMENDATORY 61 O.S. 2021, Section 119.1, is
amended to read as follows:
Section 119.1 A. If no timely bid is received after bid
notices have been published on any proposed public construct ion
contract which does not exceed One Hundred Thousand Dollars
($100,000.00) or on any proposed construction management trade
contract or subcontract which does not exceed Fifty Thousand Dollars
($50,000.00):
1. The governing body of a county, city, tow n or school
district may direct its employees or agents to negotiate the
contract with a prospective contractor; or
2. The state agency, as defined in Section 202 of this title,
shall request the State Construction Administrator of the
Construction and Properties Division Office of Management and
Enterprise Services to negotiate a contract on its behalf.
B. The amount of a public construction contract which may be
awarded by the governing body pursuant to th is section shall not
exceed One Hundred Thousand Dollars ($100,000.00), nor shall the
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amount of a construction management trade contract or s ubcontract
awarded by the governing body pursuant to this section exceed Fifty
Thousand Dollars ($50,000.00) , and the work to be performed shall be
as specified in the initial bidding docume nts. The contract shall
be executed within six (6) months after t he date initially set for
opening of bids. The contract and contract procedure shal l conform
to all other applicab le provisions of the Public Competitive Bidding
Act of 1974.
SECTION 26. AMENDATORY 61 O.S. 2021, Section 121, is
amended to read as follows:
Section 121. A. Change orders or addenda to public
construction contracts of One Million Dollars ($1,000,000 .00) or
less shall not exceed a fifteen percent (15%) cumulative increase in
the original contract amount.
B. Change orders or addenda to public construction contracts of
over One Million Dollars ($1,000,000.00) shall not exceed the
greater of One Hundred Fifty Thousand Dollars ($150,000.00) or a ten
percent (10%) cumulative increase in the original contract amount.
C. Change orders or cumulative change orders which exceed the
limits of subsection A or B of this section shall require a
readvertising for bids on the incomplete portions of the contract.
D. If the awarding public agency does not have a governing
body, the chief administrative officer of the awarding public agency
shall approve change orders. The State Construction Administrator
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of the Construction and Properties Division Director of the Office
of Management and Enterprise Services, or the Administrator's
Director's designee, shall sign and execute all contracts and change
orders, as they relate to state agencies.
E. If the awarding public agency has a governing body, all
change orders shall be formally a pproved by the governing body of
the awarding public agency and the reasons for approval recorded in
the permanent records of t he governing body. The governing body of
a municipality or technology cent er may delegate approval of change
orders up to Forty Thousand Dollars ($40,000.00) or ten perc ent
(10%) of any contract, whichev er is less, to the chief
administrative officer of t he municipality or technology center or
their designee, with any approved c hange orders reported to the
governing body at the nex t regularly scheduled meeting.
F. The Oklahoma Veterans Commission, as the governing body of
the Oklahoma Department of Vetera ns Affairs, is authorized to
delegate to the Director of the agency the aut hority to approve
change orders on a construction cont ract provided that the
individual change order does not exceed Forty Thousa nd Dollars
($40,000.00) in expenditure, and complies with the limits
established by this section. Change orders approved by th e Director
pursuant to a delegation of authority shall be presented to the
Commission during th e next regular meeting and the rea sons for the
orders recorded in permanent records.
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G. The governing body of the Oklahoma Tourism and Recreation
Department is authorized, upon approval of a majority of all of the
members of the Oklahoma Tourism and Recre ation Commission, to
delegate to the Director of the agency the authority to approve
change orders on a construction contract provided that the
individual change order does not exceed Twenty -five Thousand Dollars
($25,000.00) in expenditure and complies wi th the limits established
by this section. The Administrator of the Division Director of the
Office shall sign and execute all contracts and change orders.
H. The Transportation Comm ission may, by rule, authorize the
Director of the Department of Transportation to approve chan ge
orders in an amount of not to exceed Five Hundred Thousand Dollars
($500,000.00). Change orders approved by the Director shall be
presented to the Transporta tion Commission during the next regu lar
meeting and the reasons therefor recorded in the perman ent records.
The Oklahoma Turnpike Authority may authorize the Director of the
Authority to approve change orders in an amount not to exceed Two
Hundred Fifty Thousand Dollars ($250,000.00). Chan ge orders
approved by the Director of the Authority shall b e presented to the
Authority during the next regular meeting and the reasons for the
orders recorded in permanent records.
I. All change orders for the Departme nt of Transportation or
the Authority shall contain a unit price and total for each of the
following items:
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1. All materials with cost per item;
2. Itemization of all labor with n umber of hours per operation
and cost per hour;
3. Itemization of all equi pment with the type of equipment,
number of each type, cost per hour for each type, and number of
hours of actual operation for each type;
4. Itemization of insurance cost, bond co st, Social Security,
taxes, workers' compensation, employee fringe benefits and overhead
cost; and
5. Profit for the contractor.
J. 1. If a construction contract conta ins unit pricing, and
the change order pertains to the unit price, the change order wi ll
not be subject to subsection A or B of this section.
2. When the unit price change does not exceed Twenty T housand
Dollars ($20,000.00), the unit price change order c omputation may be
based on an acceptable unit price basis in lieu of cost itemization
as required in paragraphs 1, 2, 3, 4 and 5 of subsection I of this
section.
3. When the unit price change exce eds Twenty Thousand Dollars
($20,000.00), any unit price fo r a new item established at or below
the average eighteen -month-price history for the new item may be
used in lieu of cost itemization as required in paragraphs 1, 2, 3,
4 and 5 of subsection I of this section.
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K. Alternates or add items bid with the orig inal bid and
contained in the awarded contract as options of the awarding public
agency shall not be construed as change orders under the provisions
of the Public Competitive Bidding Act of 1974.
L. Where construction management at-risk is the project
delivery method, the limits established by subsections A and B of
this section shall be b ased upon the total cost of the project
rather than the cost of the individ ual trade contracts.
SECTION 27. AMENDATORY 61 O.S. 2021, Se ction 130, is
amended to read as follows:
Section 130. A. The provisions of the Public Competitive
Bidding Act of 1974 with reference to notice and bids shall not
apply to an emergency if:
1. The governing body of a public agency declares by a two-
thirds (2/3) majority vote of all of the members of the governing
body that an emergency exists;
2. The Transportation Commission and the Oklahoma Tourism and
Recreation Commission, by majority vote of all the m embers of each
Commission, declare that an emergency exists; or
3. The chief administrative officer of a public agency witho ut
a governing body declares that an emergency exists.
B. The governing body of a publi c agency may, upon approval of
two-thirds (2/3) majority of all of the members of the governing
body, delegate to the chi ef administrative officer of a public
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agency the authority to declare an emergenc y whereby the provisions
of the Public Competitive Bid ding Act of 1974 with reference to
notice and bids shall not apply to contracts less than One Hundred
Fifty Thousand Dollars ($150,000.00) in amount; provided, such
authority of the Department of Transp ortation and the Oklahoma
Turnpike Authority shall not extend to any contract exceeding Seven
Hundred Fifty Thousand Dollars ($750,000.00) in amount and such
authority of the Department of Corrections shall not extend to a ny
contract exceeding Two Hundred Fifty Thousand Dollars ($250,000.00)
in amount for situations in which the emergency impacts the
conditions of confinement, health and safety of correctional
officers and inmates in the custody of the Department of
Corrections.
C. Upon approval of a two -thirds (2/3) majority vote, the
Oklahoma Conservation C ommission may delegate to the Executive
Director the authority to declare an emergency and set a monetary
limit for the declaration. The provisions of this subsection may
only be used for the purpose o f responding to an emergency involving
the reclamation of abandoned coal mines or the repair of d amaged
upstream floodwater retarding structures.
D. An emergency declared by the Board of Corrections pursuant
to subsection C of Section 65 of this title sha ll exempt the
Department of Corrections from the limit s which would otherwise be
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imposed pursuant to subsection B of this section for the contracting
and construction of new o r expanded correctional facilities.
E. The chief administrative officer of a pub lic agency with a
governing body shall notify the gove rning body within ten (10) days
of the declaration of an emergency if the governing body did not
approve the emergency . The notification shall contain a statement
of the reasons for the action, and sha ll be recorded in the official
minutes of the governin g body.
F. Emergency as used in this secti on shall be limited to
conditions resulting from a sudden unexpected happening or
unforeseen occurrence or condition whereby the public health or
safety is endangered or further damage to state property is likely
if the situation is not address ed promptly.
G. The chief administrative officer of a public agency shall
report an emergency within ten (10) days of the emergency
declaration and include the official min utes of the governing body
of the public agency, if ap plicable, to the State Construction
Administrator of the Construction and Properties Division of the
Office of Management and Enterprise Services who which shall compile
an annual report detailing all emergen cies declared pursuant to this
section during the prev ious calendar year. The report shall be
submitted to the Governor, the President Pro Tempore of the Senate,
and the Speaker of the House of Representatives upon request.
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H. The Risk Management Adminis trator of the Office of
Management and Enterprise Services may declare an emergency on
behalf of a public agency when an insurable loss has occurred which
would lead to further economic loss or additional property damage i f
not addressed promptly. Such declaration shall not relieve the
public agency of fiscal responsibility for its ded uctible, uninsured
losses, and other related expenses.
SECTION 28. AMENDATORY 61 O.S. 2021, Section 202, is
amended to read as follows:
Section 202. As used in the Public Facilities Act:
1. "Annual capital plan" means the collective sta te facility
capital improvements, facility operations and maintenance, rent an d
lease payments, facility debt services, water, sewer and energ y
utilities and real property transactions a pproved by the Legislature
in a capital budget relative to state const ruction, maintenance, and
real estate services;
2. "Capital planning and asse t management" means the processes
delegated to the Department of Real Estate Services for real
property data acquisition, data analysis and de termination of
capital construction projects and procurement related to real
property;
3. "Construction" means the process of planning, acquiring,
designing, building, equipping , altering, repairing, improving,
maintaining, leasing, disposing or demolishi ng any structure or
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appurtenance thereto including facilities, utilities, or other
improvements to any real proper ty but not including highways,
bridges, airports, railroads, tun nels, sewers not related to a
structure or appurtenance thereto, or dams;
4. "Construction administration " means a series of actions
required of the State Facilities Director, of Office of Management
and Enterprise Services' or other state agency employees, o r, under
a construction administration contr act or contract provision, to
ensure the full, timely, and proper performance of all phases of a
construction project by all contractors, suppli ers, and other
persons having responsibility for project work and an y guarantees or
warranties pertaining theret o;
5. "Department" means the Department of Real Estate Services o f
the Office of Management and Enterprise Services;
6. 5. "Construction management" means a project delivery method
based on an agreement whereby the owner acquires from a construction
entity a series of services that inclu de, but are not necessarily
limited to, design review, scheduling, cost control, value
engineering, constructa bility evaluation, preparation and
coordination of bid packages, and construction administration;
"construction management" includes:
a. "agency construction management " whereby the
construction entity provides services to the owner
without taking on finan cial risks for the execution of
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the actual construction or time of p erformance, and
the owner contracts directly with those awarded trade
contracts for the work, and
b. "at-risk construction management" whereby the
construction entity, after providing agen cy services
during the pre-construction period:
(1) takes on the financial obligation to timely carry
out construction under a specified cost
agreement, and
(2) enters into written subcontracts for the work in
accordance with the construction management
procedures for state agencies;
7. 6. "Consultant" means an individual or legal entity
possessing the qualificatio ns to provide licensed architectur al,
registered engineering, regi stered land surveying, certified
appraisal, land title, or abstract services o r possessing
specialized credentials and qualifications as may be ne eded to
evaluate, plan or design for any con struction or public work
improvement project, or to lease, acquire or dispose of state-owned
real property;
8. "Division" means the Constructio n and Properties Division of
the Office of Management and Enterprise Services;
9. 7. "Energy performance index or indices" (EPI) means a
number describing the energy requirement s at the building boundary
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of a structure, per square foot of floor space or p er cubic foot of
occupied volume, as appropriate under defined inter nal and external
ambient conditions over an entire seasonal cycle. As experie nce
develops on the energy perfo rmance achieved with state construction,
the indices (EPI) will serve as a mea sure of structure performance
with respect to energy consumption;
10. "Facilities Director" or "SFD" means the State Facilities
Director of the Department of Real Estate Service s of the Office of
Management and Enterprise Services;
11. 8. "Life cycle costs" means the cost of owning, operating,
and maintaining the structu re over the life of the structure. This
may be expressed as an annual cost for each year of the facility 's
use;
12. 9. "Office" means the Office of Management and Enterprise
Services;
13. 10. "Procurement" means buying, purchasing, renting,
leasing, allocating, trading or otherwise acquiring or d isposing of
supplies, services, or construction necessary to evalu ate, plan,
construct, manage, operate and preserve real property capital
assets;
14. 11. "Public improvement" means any beneficial or valuable
change or addition, betterment, enhancement or amelioration of or
upon any real property, or interest therein, b elonging to a state
agency and the State of Oklahoma, intended to enhance its value,
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beauty or utility or to adapt it to new or further purposes. The
term does not include the direct purcha se of materials used for
general repairs and maintenance to state facilities;
15. 12. "Shared savings financing" means the financing of
energy conservation measures and maintenance services through a
private firm which may own any purchased equipment for the duration
of a contract. Such contract shall specify that the private firm
will be recompensed either out of a negotiated portion of the
savings resulting from the conservation measures and maintenance
services provided by the private firm or, in the c ase of a
cogeneration project, through the payment of a rate for e nergy lower
than would otherwise have been paid for the same energy from curre nt
sources; and
16. 13. "State agency" means an agency, board, com mission,
counsel, court, office, officer, bu reau, institution, unit,
division, body, or house of the executive or judicial branches of
government of this state, whether elected or appointed , excluding
only political subdivisions, the Oklahoma State Regents for Higher
Education and its constituent in stitutions and the Commissioners o f
the Land Office.
SECTION 29. AMENDATORY 61 O.S. 2021, Section 204, is
amended to read as follows:
Section 204. A. The Department of Real Estate Services Office
of Management and Enterpri se Services shall:
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1. Maintain a comprehensive master plan for utilizatio n and
construction of state buildings, capital improvements, and
utilization of land owned by this state. Requirem ents of the master
planning process shall include:
a. reporting by each state agency concerning facility
needs,
b. data acquisition of condit ion and performance
benchmarking of state agency facilities,
c. analyses and audits of state agency facilities,
properties and leaseholds t o determine critical and
long-range needs,
d. development of state agency long -range strategic
facility plans,
e. short-range project programming to identify budget
requests for facility capital improvements and asset
management decisions, and
f. an annual capital plan for all state agencies
submitted to the Legislature for line -item
appropriation requests;
2. 1. Review and approve all construction plans and
specifications to ensure compliance with good construction practices
and space standards, costs of project, proposed construction
timetables, and agency need for the project;
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3. 2. Inspect prior to acceptance and fi nal payment all
completed projects for which the Department Office issued bid
solicitations to ensure compliance wi th the plans and specifi cations
of the project;
4. 3. Select and hire consultants and construction managers for
projects as determined or app roved by the Department Office. The
Department Office shall select, award and execute contracts to
consultants and construction managers t hat provide services to state
agencies subject to this act;
5. 4. Develop and issue solicitations for award of state agency
contracts for construction services. The Department Office shall
have final approval authority for con tracts and contract document s.
Neither the Department Office nor any public entity shall, for
performance of work that requires that a contracto r be licensed by
this state, issue a solicitation to, or make a contract with, a
contractor not licensed by this st ate;
6. 5. Review inspections performed by consultants and
construction managers during construction, perform primary
inspections when consu ltants or construction managers are not used,
and final inspections after completion;
7. 6. Establish standards an d policies as required to
standardize facility assessment and benchmarking, facility
operations and maintenance, asset preservation, design a nd energy
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standards, space utilization, material testing, indexes of
efficiency, economy, and effectiveness;
8. 7. Monitor indices of facility condition, effectiveness of
operations and maintenance programs, deferred maintenance
prioritization, effectiven ess of planning processes, budgeting for
capital needs, application of facility standards as established by
the Department Office, and performance outcomes of construction
projects to ensure maximum efficiency in the expenditure of state
funds for asset management and preservation of the state's capital
real property;
9. 8. Coordinate, monitor and report on statewide energy
conservation programs delegated to the Office;
10. 9. Provide property leasing and brokerage services
delegated to the Office;
11. 10. Report fraud or waste in any construction project by
written notification with documentation for the report to t he
Attorney General. Th e Attorney General shall take appropriate
action to protect the interest of the state; and
12. 11. Prequalify as good and sufficient insurance carriers,
bonding companies and surety companies to meet provisions of
Sections 1 and 134 of this title. The Di rector shall promulgate
rules to establish criteria to determine whether a carrier or
company is good and sufficient. The prequalification requirement
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and process shall not violate the provisions of Section 135 of this
title.
B. When a state agency emplo ys a licensed architect or licensed
engineer as a full-time employee, said licensed employee may conduct
required facility planning, prepare project plans and specifications
and monitor construction work as prescribed by the Department
Office. State agencies authorized to employ licensed architects and
engineers for the purposes of this section include:
1. The Department of Transportation with respect to highways,
bridges and dams;
2. The Oklahoma State Regents for Higher Educatio n and its
constituent institutions;
3. The Military Department of the State of Oklahoma;
4. The Oklahoma Tourism and Recreation Department; and
5. The Department of Human Services.
C. Not later than December 31, 2012, with the advice of the
State Facilities Director, the Dire ctor of the Office of Management
and Enterprise Services shall provide a report containing
recommendations to the Leg islature for the streamlining,
integration, and consolidation of state construction, maintenance,
and real property management processes to maximize capital assets
and achieve cost savings to the state. The report shall identify
the necessary planning pro cesses for transitioning from a
decentralized capital budgeting process to a centralized annual
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capital plan appropriation process, to be i mplemented no later than
January 1, 2014.
SECTION 30. AMENDATORY 61 O.S. 2021, Section 207.2 , is
amended to read as follow s:
Section 207.2 A. Except as provided by subsection B of this
section, no state agency shall empl oy, either temporary or full -
time, any person engaged in the practice of architecture,
engineering or land surveying for the purpose of planning or
performing any construction upon any real property belonging to the
agency or to the state, or upon any real property of which this
state will assume possession or ownership by contract, option to
purchase agreement, lease, or otherwise. The term "practice of
architecture" shall be defined as tho se activities of an architect
as provided for in Section 46.3 of T itle 59 of the Oklahoma
Statutes. The terms "practice of engineering " or the "practice of
land surveying" shall be defined as such terms are defined by
Section 475.2 of Title 59 of the Okla homa Statutes.
B. The provisions of subsection A of this section shall not
apply to:
1. The Department of Human Services;
2. The Oklahoma Tourism and Recreatio n Department;
3. The State Department of Health insofar as the monitoring of
permitted health care facility construction for licensing purposes;
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4. The Oklahoma Historical Society insofar as the monitoring of
historical site preservation and authenticity ;
5. The Office of Management and Enterprise Services;
6. The State Department of Education and the public schools
subject to its jurisdiction;
7. The Department of Transportation;
8. The Oklahoma State System of Higher Education;
9. The Military Depa rtment of the State of Oklahoma;
10. The Oklahoma Municipa l Power Authority;
11. The Department of Public Safety gun range; and
12. CompSource Oklahoma if Co mpSource Oklahoma is operating
pursuant to a pilot program authorized by Sections 3316 and 3317 of
Title 74 of the Oklahoma Statutes; and
13. 12. The University Hospitals Authority and Univ ersity
Hospitals Trust.
SECTION 31. AMENDATORY 61 O.S. 2021, Section 208, is
amended to read as follows:
Section 208. A. The Department of Real Est ate Services of the
Office of Management and Ent erprise Services shall select and award
contracts to construction managers and design consultants pursuant
to the provisions of Section 62 of this title.
B. The negotiation of construction manager and consul tant
contracts and fees shall be performed by th e Department Office.
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C. The Department Office shall award and administer
construction contracts for state agencies pursuant to the provisions
of the Public Competitive Biddi ng Act of 1974.
D. 1. When all bids for a public construction contract exceed
the programmed estimate and available funding, the Department Office
may enter into negotiations with the lowest responsible b idder for
the purpose of modifying the project sco pe and reducing the
construction cost, provided that:
a. the unexpected higher construction costs resulted from
unforeseen economic conditions or otherwise sudden
price volatility in the construction indust ry,
b. the project was appropriately planned, and cost
estimates were developed usin g standards of care
acceptable to the Department Office, and
c. further delay caused by redesign ing and rebidding the
project would jeopardize the using agency 's mission or
result in the loss of a planned funding source.
2. To request consideration for ne gotiations pursuant to this
subsection, the using agency, within ten (10) days of the bid
opening date, shall make a written request to the Director of the
Office of Management and Enterprise Services to enter into
negotiations pursuant to paragraph 1 of t his subsection. If
approved by the Director, the Department Office shall consult with
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the using agency, consultant and low bidder on methods to reduce the
project scope or other cost-saving measures.
3. If a suitable rev ised scope and contract amount is agreed
upon by the using agency, low lowest responsible bidder, and the SFD
Director, the Department Office may award the public construction
contract to the low lowest responsible bidder.
4. The Department Office shall negotiate a fair and reasonable
fee with the project's consultant, if applicable, t o make any
necessary revisions to the contract d ocuments. The cost of this
additional consulting work shall be paid from t he agency's available
funds.
5. Approval and fina l award of the contract for the
construction negotiated pursuant to this subsection shall occur no
later than one hundred twenty (1 20) days from the opening bid.
E. The Department of Real Estate Services Office is authorized
to issue solicitations and awa rd statewide contracts for managed
construction service delivery in order to provid e efficient and
cost-effective procurement solut ions for public agencies. Statewide
contracts may be either mandatory or n onmandatory as determined by
the SFD Director.
F. The Department of Real Estate Ser vices Office is authorized
to provide facility ma nagement and operations and maintenance
services for any state agency on a cost -recovery basis for any
facility operated by a state agency when:
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1. The state agency initiat es a request with the SFD Director;
or
2. Beginning on or after July 1, 2016, the SFD The Director
determines a state agency is pe rforming in the bottom ten percent
(10%) of all state age ncies with respect to performance measures for
facility management established by the Department Office.
G. In addition to the exception from this ac t hereby provided
to the Oklahoma State Regents f or Higher Education and its
constituent institutions and the Com missioners of the Land Office,
the State Facilities Director may authorize an exemption to the
provisions of this act to any other state agency provided that the
recipient of the exemption:
1. Adopts standards, processes and procedures for planning,
budgeting, design, facility management, asset management and asse t
preservation that are substantia lly compliant with those as
prescribed by the Department Office;
2. Adheres to procurement requir ements of Sections 62 through
65 of this title and the provisions of th is act;
3. Reports benchmark, budget and ongoing per formance data
required by the Department Office; and
4. Participates in annual per formance reviews and organized
forums for promoting best practices statewide as determined by the
SFD Director.
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SECTION 32. AMENDATORY 61 O.S. 2021, Section 208.1, is
amended to read as follows:
Section 208.1 The Department of Real Estate Services Office may
collect a reasonable fee for the purpose of providing or contracting
for architectural, engineering, land surveying, planning, real
estate and related services to state agencies and political
subdivisions of the state, and fro m persons requesting plans and
notification of solicitations issued by the Department Office. The
Department Office may collect a reasonable fee for management
services. Annual fees to the Department Office shall be on a cost-
recovery basis and may be ca lculated as a percentage of annual
construction and real estate servic es in an amount necessary to
support Department operation as designated in the annual capit al
plan the Office's operations. All fees collected in accordance with
the provisions of this section sha ll be deposited in the "State
Construction Revolving Fund" created in Section 208.2 of this title.
SECTION 33. AMENDATORY 6 1 O.S. 2021, Section 208.2, is
amended to read as follows:
Section 208.2 There is hereby created in the Sta te Treasury a
revolving fund for the Department of Real Estate Services o f the
Office of Management and Ent erprise Services, to be designated the
"State Construction Revolvi ng Fund". The fund shall be a continuing
fund, not subject to fiscal year limitati ons, and shall consist of
all funds appropriated by the Legislature for p rojects included in
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the annual capital plan; funds from nonappropriated sources
designated for proje cts within a capital plan; allocations from an
approved annual capital plan designe d for assessment and planning
services; allocations from an approved annu al capital plan for
emergency response in accordance with Section 130 of this title; and
fees collected by the Department Office in accordance with the
provisions of this section or a s otherwise provided by law. All
monies accruing to the credit of the fu nd are hereby appropriated
and may be budgeted and expended by the Department Office. The fund
shall be used to pay expenses resulting from con tracts awarded by
the Department Office and to defray Department Office operating
costs and expenses the Office incurs to support Department
construction-related operations. Expenditures from the fund shall
be made upon warrants issued by the State Treasu rer against claims
filed as prescribed by law with the Director of the Office of
Management and Enterprise Servi ces for approval and payment.
SECTION 34. AMENDATORY 61 O.S. 2021, Section 209, is
amended to read as follows:
Section 209. The Director of the Office of Management and
Enterprise Services shall p romulgate rules:
1. For state agencies to perform minor construction projects;
2. Specifying building codes pursuant to the Oklahoma Uni form
Building Code Commission Act for construction projects;
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3. Permitting state agencies who have the expertise, upo n
written application to the Department of Real Estate Services of the
Office of Management and Enterprise Services, to perform any part o f
the responsibilities of the Department Office pursuant to the
provisions of the Public Facilities Act for a specific project;
4. Specifying procedures and guidelines for the implementation
of shared savings fi nancing by state agencies;
5. Specifying energy co nservation performance guidelines, for
conducting a life cycle cost analysis of alternative architectural
and engineering designs and alternative major items of energy -
consuming equipment to be retrofitted in existing state-owned or
leased structures and f or developing energy pe rformance indices to
evaluate the efficiency of energy utilization for completing design s
in the construction of state -financed and leased structures;
6. The time, manner, authentic ation, and form of making
requisitions to the Department Office;
7. The form and manner of submission for bids or proposals and
the manner of accepting and openi ng bids or proposals that may
include online bids pursuant to the Oklahoma Online Bidding Act;
8. The manner for a state agency to acquire servi ces for
construction projects;
9. Conditions under which any of the rules herein authorized
may be waived;
10. The form of any document the Director requires;
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11. Specifying provisions a state agency sh all follow to adhere
to acquisition, contract, cont ract management and other prov isions
of this title; and
12. Specifying the process a state agency shall follow to
establish the scope of work, schedule and cost estimate for all
publicly bid construction projects involving construction or
renovation of buildings.
SECTION 35. AMENDATORY 61 O.S. 2021, Section 210, is
amended to read as follo ws:
Section 210. A. Shared savings contracts shall be developed in
accordance with a model contract developed by the Department of Real
Estate Services of the Office of Managem ent and Enterprise Services.
The model contract shall include:
1. The methodology for calculating baselin e energy costs;
2. A procedure for revising these costs should the state
institute additional energy conservation features or structure use
change;
3. A requirement for a performance bond guara nteeing that the
structure will be restored to the original c ondition in the event of
default;
4. A provision for early buyout;
5. A clause specifying who will be responsible for mainta ining
the equipment; and
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6. A provision allowing the disposal of equ ipment at the end of
the contract.
No state agency or departm ent shall substantially alter the
provisions described in the model without the permission of the
Department Office.
B. Contracts subject to this se ction shall be awarded pursuant
to the provisions of subsection A of Section 208 of this title.
SECTION 36. AMENDATORY 61 O.S. 2021, Section 211, is
amended to read as follows:
Section 211. On and after July 1, 1987, wh en When any state
agency or department m ust replace or supplement major items of
energy-consuming equipment in existing state -owned or leased
structures or any sel f-contained unit of any structure with other
major items of energy-consuming equipment, the selection of such
items shall be made on the basis of a life cycle cost analysis of
alternatives in accordance with rules and regulations prom ulgated by
the Director of the Office of Management and Enterprise Services.
SECTION 37. AMENDATORY 6 1 O.S. 2021, Section 212, is
amended to read as follows:
Section 212. A. For purposes of this section:
1. "Performance-based efficiency contract " means a contract for
the design, development, financin g, installation, construction and
service of any improvement, repair, alteration or betterment of any
public building or facility; or any equipment, fixture or furnishing
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to be added to or used in any such building or faci lity; or any
maintenance or operat ional strategy that is designed and implemented
that will reduce utility consumption or lower oper ating costs, and
may include, but is not limited to, one or more of the following:
a. utility services,
b. heating, ventilating or air conditioning system
modifications or replacements and automated control
systems,
c. replacement or modifications of light ing fixtures,
d. indoor air quality improvements to increase air
quality that conform to the applicable state or local
building code requirements when done in conjunction
with other cost-saving measures,
e. any additional building infrastructure improvemen t,
cost saving, life safety or any other improvement that
provides long-term operating cost reductions and is in
compliance with state and local codes, or
f. any facility operation and support programs that
reduce operating cost; and
2. "Qualified provider" means a person or business experienced
or trained in the design, analysis, construction and/or installation
of energy conservation and facility management measures. A
qualified provider must employ a professional engineer registered in
the State of Oklahoma.
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B. In addition to any other legally permissible alternatives of
entering into contracts, the Office of Management an d Enterprise
Services Construction and Properties Division may enter into
performance-based efficiency contracts on behalf of all st ate
agencies with a qualified provider pursuant to the provisions of
this section.
A qualified provider to whom the contract is awarded shall be
required to provide to the Division Office a sufficient bond for its
faithful performance of the contract. In addition, the Division
Office may require performance bonds covering the annual amount of
guaranteed savings over the contra ct term. The Office of Management
and Enterprise Services State agencies may enter into an installment
contract, lease purchase agr eement or other contractual obligation
for the purpose of financing performance -based efficiency projects
for a term not to exceed the greater of twenty (20) years or the
useful life of the pr oject.
The qualified provider must guarantee the contract 's cost
savings each year during the term of the agreement. In calculating
cost savings, the public entity may consider capital co st avoidance
and include additiona l revenue that is directly attribu ted to the
performance-based efficiency contract. The savings m ust be
sufficient to offset the annual costs of the contract. The contract
shall provide for reimbursement to the state age ncy undertaking the
project annually for any shortfall of guaranteed savings. Savings
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must be measured, verified and documented eac h year of the term and
may be utilized to meet the annual debt service.
The contracts authorized by this section shall inclu de
procedures for modifying the co ntract should the Division Office
determine it necessary.
This section shall constitute the sole a uthority necessary to
enter into performance-based efficiency contracts, without regard to
compliance with other laws which may specify additional procedural
requirements for execution of cont racts.
SECTION 38. REPEALER 61 O.S. 2021, Sections 8, 9, 10,
14, 15, 51, 103.8, 129, and 203 are hereby repealed.
SECTION 39. This act shall become effective November 1, 2022.
58-2-8695 MKS 01/14/22