ADE Director's Communication Memo Form

Memo Number : FIN-09-071

Date Created : 04/28/2009


Co-op Directors
other: General Business Managers
School Purchasing Officials

Type of Memo: Regulatory
Response Required: No
Section:   Fiscal and Administrative Services - William J. Goff, Assistant Commissioner
Purchasing and Bidding Requirements for Commodities

Regulatory Authority:
Ark. Code Ann. §§ 6-21-301 and 6-21-304; 7 Code of Federal Regulations 3016.60(b)

Contact Person:
Patricia Martin

Phone Number:


Ark. Code Ann. § 6-21-301 provides the following definitions:

COMMODITIES - All supplies, goods, materials, equipment, machinery, facilities, personal property, and services, other than personal and professional services, purchased for or on behalf of the school district.

OPEN MARKET PURCHASES - Those purchases of commodities by any purchasing official in which competitive bidding is not required.

PURCHASE - Means and includes not only the outright purchase of a commodity but also the acquisition of commodities under rental-purchase agreements, lease-purchase agreements, or any other type of agreements whereby the school district has an option to buy the commodity and to apply the rental payments on the purchase price thereof.

PURCHASE PRICE - The full sale or bid price of any commodity without any allowance for trade-in.

PURCHASING OFFICIAL - The board of directors of any school district or a lawfully designated agent of the school district with authority to contract or make purchases on behalf of the school district.

Ark. Code Ann. provides that open market purchases of commodities may be made where the purchase price is less than ten thousand dollars ($10,000). However, no purchasing official shall parcel or split any item or items with the intent or purpose to enable the purchase to be made under a less restrictive procedure. In addition, Commissioner's Memo FIN-09-036 dated December 5, 2008, provides further information regarding ethical guidelines related to purchases.

If the estimated purchase price equals or exceeds ten thousand dollars ($10,000), the commodity shall be procured by soliciting bids, provided the purchasing official may reject all bids and may purchase the commodity by negotiating a contract. If the purchasing official, after rejecting all bids, determines that the purchase should be made by negotiation, then each responsible bidder who submitted a bid shall be notified of the determination and shall be given a reasonable opportunity to negotiate.

The local school board shall have exclusive jurisdiction for the purchase of Types A, B, C, and D school buses. The Department of Education shall have responsibility for drawing up the minimum specifications for all school buses and the local school board may request the State Procurement Director to solicit bids for school buses on its behalf.

The following items may be purchased without soliciting bids:

1. Commodities in instances of an unforeseen and unavoidable emergency. However, no emergency purchase shall be approved by the superintendent unless a statement in writing is attached to the purchase order describing the emergency necessitating the purchase of the commodity without competitive bidding.
2. Commodities available only from the federal government.
3. Utility services, the rates for which are subject to regulation by a state agency or a federal regulatory agency.
4. Used equipment, machinery, and used school buses. A school bus becomes a used school bus two (2) years after the date of issuance of the manufacturer’s certificate of origin.
5. Commodities available only from a single source. However, the purchasing official must determine in writing that it is not practicable to use other than the required or designated commodity or service, and a copy of this statement shall be attached to the purchase order.

BIDS (Ark. Code Ann. § 6-21-304)

In soliciting bids for the purchase of a commodity, a school district or a person or organization acting on behalf of a school district, shall not impose qualifications or specifications that unreasonably restrict competition for the purchase of a commodity. “Specifications” means a technical description or other description of the physical or functional characteristics of a commodity. Specifications shall not include the name or identity of any specific vendor. If the purchase will be from the federal child nutrition food service fund, potential bidders cannot have input into the development of specifications and/or advance review of the completed procurement documents. (See FIN-09-069 dated April 17, 2009.)

A school district shall notify in writing all actual or prospective bidders, offerors, or contractors who make a written request to the school district for notification of opportunities to bid. Such notice shall be provided in sufficient time to allow actual or prospective bidders, offerors, or contractors to submit a bid or otherwise appropriate response.

Any competitive bid submitted to a school district or education service cooperative in response to a solicitation for bids for the purchase of a commodity shall be accompanied by a form substantially similar to one of the attachments to this memo. Any person determined to have made a false statement on the submitted form or any bidder who acts contrary to the provisions of the form after its agent has executed the form shall be guilty of a Class C misdemeanor.

Any actual or prospective bidder, offeror, or contractor who is aggrieved in connection with the solicitation or award of a school district or educational service cooperative contract may protest to the superintendent of the school district in accordance with procedures established by the board of directors of the school district. Protest procedures shall include, at a minimum, provisions addressing the following:

1. Authority of the superintendent or education service cooperative director to settle and resolve a protest of an aggrieved person concerning the solicitation or award of a contract.
2. Submission of a protest in writing within seven (7) calendar days after the aggrieved person knows or should have known of the facts giving rise to the protest.
3. Reasonable notice to all persons involved and reasonable opportunity for those persons to respond to the protest issues.
4. Issuance of a prompt decision in writing that states the reasons for the action taken which is provided to all interested parties.
5. Impact of a protest on continuing with the solicitation or award of the school district contract pending the resolution of the protest.
6. Award of costs with regard to the successful protests.

A decision on a protest under the above procedures shall be final and conclusive.

Please reference Commissioner's Memo FIN-09-069, Purchasing Cooperatives and Applicable Procurement Regulations for Federal Child Nutrition, dated April 17, 2009, for more detailed information regarding purchases from School Food Service funds.


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