Arkansas

Key Agencies: Arkansas state procurements are conducted by the Office of State Procurement (OSP) within the Department of Shared Administrative Services. OSP is led by the Director of State Procurement, who is the state’s principal procurement officer.

According to the OSP website: “(OSP) has primary responsibility and oversight for the Statewide procurement of commodities, technical and professional services for all state agencies, boards and commissions and colleges and universities.”

Many larger state agencies also have Agency Procurement Officials, who are responsible for carrying out day-to-day purchasing under OSP rules and guidance.

More information about OSP can be found at: https://sas.arkansas.gov/procurement/.

Key Statutes: State purchasing in Arkansas is governed by Title 19, Chapter 61 of the Arkansas Code Annotated (Ark. Code Ann.). Key provisions are found in Ark. Code Ann. §§ 19-61-101 through 19-61-813 and are known collectively as the “Arkansas Procurement Law.”

The Arkansas Code Annotated can be accessed at: https://arkleg.state.ar.us/ArkansasLaw/.

Key Regulations:

Rules concerning state purchasing in Arkansas are governed by the Code of Arkansas Rules (Ark. Code R.) at 19 Ark. Code R. § 1-101 et seq.

The Code of Arkansas Rules can be accessed at: https://codeofarrules.arkansas.gov/.

Procurement Types/Highlights: The most typical source selection methods in Arkansas are:

Small Order: The quickest and easiest procurement method to execute, small order procurements may not exceed the purchase price of $20,000.

The $20,000 small order limit may be extended upward to $40,000 for purchases made from a contractor who is a Certified Minority-Owned Business Enterprise or a Certified Women-Owned Business Enterprise.

Competitive Bidding: Also commonly referred to as “quote bids,” a competitive bid (CB) is a procurement method for purchases between $20,000 and $75,000. CBs require the buyer to request price quotes (bids) from at least three different prospective contractors to allow for competitive pricing. Low cost determines the successful contractor.

Invitation for Bid: Also commonly referred to as a “competitive sealed bid.” This method is used for purchases exceeding $75,000. As with competitive bidding, lowest cost determines the successful contractor.

Request for Proposal: Also commonly referred to as a “competitive sealed proposal.” This method is used when the prospective contractor’s technical proposal solution and cost are both considered to determine the successful contractor.

An RFP requires that evaluation and scoring criteria are provided in the solicitation via a public posting. Proposals are scored according to technical and pricing criteria. The contract is awarded to the contractor with the highest total score.

Bid Protests: Bid protests are governed by Ark. Code Ann. § 19-61-701.

An actual or prospective bidder, offeror, or contractor who is aggrieved in connection with the solicitation of a contract may protest by presenting a written notice at least 72 hours before the filing deadline for the solicitation response to the State Procurement Director or the head of a procurement agency.

An actual bidder, offeror, or contractor who is aggrieved in connection with the award of a contract may protest to the Director of State Procurement or the head of a procurement agency. Protests must be submitted in writing within 14 days after the calendar day on which the contract is awarded or the notice of anticipation to award the contract is posted.

Arkansas strictly limits the allowable grounds for protests. By statute, protests may only raise the following assertions: (i) an award was beyond an agency’s authority; (ii) the procurement process violated a legal or regulatory provision; (iii) the agency failed to follow the rules or terms of the solicitation in a way that materially affected the outcome; (iv) there was collusion or bad faith in the bidding; or (v) a significant evaluation error occurred.

Once a timely protest is submitted, the award or proposed award is stayed pending the resolution of the protest. Protests are resolved by the Director of State Procurement, the head of a procurement agency, or a designee of either. If a settlement cannot be reached with the protester, the deciding officer must publish an administrative decision on the protest. The decision must state the reasons for granting or denying the protest.

Claims: Resolution of contract and breach of contract controversies are governed by Ark. Code Ann. § 19-61-703.

Arkansas Procurement Law establishes an administrative process for resolving any controversy between the state and a contractor arising under a contract. The Director of State Procurement, the head of a contracting agency, or a designee of either are authorized to settle and resolve contract disputes prior to the commencement of legal action.

If a controversy cannot be resolved by mutual agreement, the statute requires the responsible officer to issue a written decision on the claim after giving the contractor notice and the opportunity to present evidence related to their claim.

The Arkansas Constitution prohibits suing the state in ordinary court. Instead, the Arkansas State Claims Commission serves as the venue for monetary claims against the state.

Following an adverse administrative decision, the Arkansas State Claims Commission is the only avenue to seek monetary relief.

Suspension & Debarment: Ark. Code Ann. § 19-61-702 authorizes the suspension or debarment of vendors that engage in misconduct or are otherwise not responsible.

The Director of State Procurement or the director or head of a procurement agency may suspend a contractor when there is probable cause to believe grounds for debarment exist. Prior to a suspension, the contractor must be given the opportunity to discuss the matter with the procurement official and reach a resolution. Suspensions by statute may not exceed three months.

After reasonable notice to the contractor and a reasonable opportunity for the contractor to have a hearing, the Director of State Procurement or the director or head of a procurement agency may debar a contractor from state contracting. Debarments by statute may not exceed three years.

Interesting/Distinctions: In Arkansas, an agency may solicit bids through a request for qualifications (RFQ), which focuses on qualifications or specialized expertise without any initial consideration of price, but only with prior written approval from the State Procurement Director, unless it is for the procurement of legal, financial advisory, architectural, engineering, construction management, land surveying, or interior design services. Ark. Code Ann. § 19-65-101. In fact, competitive bidding is outright prohibited in the procurement of the listed services.

Certain commodities and services in over 30 discrete categories are exempted from the standard procurement procedures by law. They are listed in Ark. Code Ann. § 19-61-103.