Opinion No. 80-094 (1980) Ag ( 1980 )

The Attorney General has received your request for an opinion wherein you ask, in effect, the following questions: 1. Are State colleges and universities subject to the bid preference provision found in 74 O.S. 85.32 [74-85.32] (1977)? 2. If 85.32 does apply to State colleges and universities, would it apply to contracts for services such as construction and/or maintenance contracts where the contractor guarantees that all products are state produced? 3. Finally, would the procedure of requiring every Oklahoma company claiming the state preference to declare it in writing, on the face of the bid, as now practiced by the State Board of Affairs, apply to operation of the statute for colleges and universities ? 74 O.S. 85.32 [74-85.32] (1977), is a part of the Oklahoma Central Purchasing Act, 74 O.S. 85.1 [74-85.1] — 74 O.S. 85.33 [74-85.33] (1971) (as amended), and provides in pertinent part: "The state and any school district, county or municipality and every person acting as purchasing agent for the state or any school district, county, municipality or tax exempt industrial trust shall prefer, in all purchases, supplies, materials and provisions produced, manufactured or grown in this state; provided, that such preference shall not be for articles of inferior quality to those offered outside the state, but a differential of not to exceed three percent (3%) may be allowed in the cost of Oklahoma materials, supplies and provisions of equal quality . . . ." Your first question is answered in the negative by the terms of 74 O.S. 85.3 [74-85.3] (1976), wherein it is provided that "the provisions of this act shall not apply to county government nor to institutions of higher learning." (Emphasis added) In view thereof, it is apparent that State colleges and universities are specifically exempted from the Central Purchasing Act in its entirety, including 74 O.S. 85.32 [74-85.32], relating to bid preference. See also Attorney General's Opinions Nos. 74-186 and 76-104. Nevertheless, if a State college or university voluntarily avails itself of the central purchasing procedure pursuant to 74 O.S. 85.12 [74-85.12] (1977), any purchase made on its behalf by the Purchasing Division would be subject to the bid preference provisions in 74 O.S. 85.32 [74-85.32] in the same manner as any other purchase made by the Division. However, assuming such voluntary utilization, it is apparent that contracts primarily for services, including maintenance contracts or contracts for repairs, entered into by the college or university through the central purchasing procedure would not be subject to the bid preference since 74 O.S. 85.32 [74-85.32], by its terms, applies only to purchases of "supplies, materials and provisions." Furthermore, pursuant to 74 O.S. 85.12 [74-85.12](2) (1977), contracts for construction of new buildings and for repair, maintenance or modernization of old buildings by State institutions of higher education are excluded from the purview of the Central Purchasing Act, including 74 O.S. 85.32 [74-85.32]. As to the procedure the State Board of Affairs follows relative to receiving bids from bidders desiring to claim the state preference, the general bid forms used by the Board instruct the bidder to indicate in the bid the supplies, materials or provisions regarding which a preference is claimed. Whether these bid forms are used in purchases by the Purchasing Division for State colleges and universities is within the discretion of the Board. Accordingly, it is the official opinion of the Attorney General that your questions be answered as follows: 1. State colleges and universities are exempt from the Central Purchasing Act, 74 O.S. 85.1 [74-85.1] — 74 O.S. 85.33 [74-85.33] (1971) (as amended), in its entirety, including 74 O.S. 85.32 [74-85.32] (1977), relating to bid preferences. However, if any such institution chooses to utilize the central purchasing procedure, any purchase made on its behalf by the Purchasing Division would be subject to 74 O.S. 85.32 [74-85.32] in the same manner as any other purchase by the Division. 2. Assuming such utilization, only purchases for supplies, materials and provisions fall within the purview of 74 O.S. 85.32 [74-85.32]. 3. Whether bid forms instructing the bidder to indicate in the bid the supplies, materials or provisions upon which the bidder is claiming the preference would be used by the Purchasing Division in purchases for a State college or university rests within the discretion of the State Board of Affairs. (BRENT S. HAYNIE) (ksg)