Oklahoma § 62-34.31 - Escrow of source code required for acquisition of

§ 62-34.31. Escrow of source code required for acquisition of

customized computer software – Required escrow provisions.

A. No state agency, as defined by Section 250.3 of Title 75 of

the Oklahoma Statutes, the Purchasing Division of the Office of

Management and Enterprise Services nor the Information Services

Division of the Office of Management and Enterprise Services, unless

otherwise provided by federal law, shall enter into a contract for

the acquisition of customized computer software developed or

modified exclusively for the agency or the state, unless the vendor

agrees to place into escrow with an independent third party the

source code for the software and/or modifications.

B. The vendor must agree to place the source code for the

software and any upgrades supplied to an agency in escrow with a

third party acceptable to the agency and to enter into a customary

source code escrow agreement which includes a provision that

entitles the agency to receive everything held in escrow upon the

occurrence of any of the following:

1. A bona fide material default of the obligations of the

vendor under the agreement with the agency;

Oklahoma Statutes - Title 62. Public Finance

2. An assignment by the vendor for the benefit of its

creditors;

3. A failure by the vendor to pay, or an admission by the

vendor of its inability to pay, its debts as they mature;

4. The filing of a petition in bankruptcy by or against the

vendor when such petition is not dismissed within sixty (60) days of

the filing date;

5. The appointment of a receiver, liquidator or trustee

appointed for any substantial part of the vendor's property;

6. The inability or unwillingness of the vendor to provide the

maintenance and support services in accordance with the agreement

with the agency; or

7. The ceasing of a vendor of maintenance and support of the

software.

The fees of any third-party escrow agent subject to this section

shall be borne by the vendor.

C. The State Purchasing Director or a procurement officer of a

state agency shall not process any state agency request for the

customization, modernization, or development of computer software

unless the proposed vendor provides documentation that complies with

subsections A and B of this section.

D. The State Purchasing Director shall provide advice and

assistance, as may be required, in order for state agencies to

comply with the provisions of this section.

E. As used in this section:

1. "State agency" shall include all state agencies, whether

subject to The Oklahoma Central Purchasing Act or not, except the

Oklahoma Lottery Commission; and

2. "Source code" means the programming instruction for a

computer program in its original form, created by a programmer with

a text editor or a visual programming tool and saved in a file.

Added by Laws 2005, c. 391, § 4, eff. July 1, 2005. Amended by Laws

2006, c. 310, § 1, eff. Nov. 1, 2006. Renumbered from § 41.5u of

this title by Laws 2009, c. 441, § 64, eff. July 1, 2009. Amended

by Laws 2009, c. 451, § 19, eff. April 5, 2010; Laws 2012, c. 304, §

363.

NOTE: Laws 2009, c. 451, § 26, provides: “The provisions of

Sections 3 through 15, 17 through 20, 22 and 23 of this act shall be

effective and shall become operative on the effective date of the

appointment of the first Chief Information Officer by the Governor

as provided for in Section 2 of this act.” The first Chief

Information Officer was appointed by the Governor on April 5, 2010.

§62-34.31.1. Software acquisition requests.

A. For the purposes of this section, "open source software"

means software that guarantees the user of the software use of the

software for any purpose, allows unrestricted access to the

Oklahoma Statutes - Title 62. Public Finance

respective source code, enables the use of the internal mechanisms

and arbitrary portions of the software with the ability to adapt

them to the needs of the user, provides the freedom to make and

distribute copies of the software, and guarantees the right to

modify the software with the freedom to distribute modifications of

the new resulting software under the same license as the original

software. "Open standards" means specifications for the encoding

and transfer of computer data that is free for all to implement and

use in perpetuity, with no royalty or fee, has no restrictions on

the use of data stored in the format, has no restrictions on the

creation of software that stores, transmits, receives, or accesses

data codified in such way, has a specification available for all to

read, in a human-readable format, written in commonly accepted

technical language, is documented, so that anyone can write software

that can read and interpret the complete semantics of any data file

stored in the data format, allows any file written in that format to

be identified as adhering or not adhering to the format, and

provides that any encryption or obfuscation algorithms are usable in

a royalty-free, nondiscriminatory manner in perpetuity, and are

documented so that anyone in possession of the appropriate

encryption key or keys or other data necessary to recover the

original data is able to write software to access the data.

"Proprietary software" means software that does not fulfill all of

the guarantees provided by open source software.

B. Prior to approving software acquisition requests, the

purchasing entity shall consider whether proprietary or open source

software offers the most cost-effective software solution for the

agency, based on consideration of all associated acquisition,

support, maintenance, and training costs.

C. Whenever possible the Chief Information Officer or

purchasing entity shall avoid approving requests for the acquisition

of products that do not comply with open standards for

interoperability or data storage.

Added by Laws 2012, c. 106, § 6. Amended by Laws 2013, c. 358, §

29, eff. July 1, 2013. Renumbered from § 85.7h of Title 74 by Laws

2013, c. 358, § 35, eff. July 1, 2013.

§62-34.31.2. State technology contracts.

Notwithstanding any other section of law, the Chief Information

Officer may allow a public agency to utilize duly awarded state

information technology and telecommunications contracts in lieu of

bidding procedures, if any, otherwise applicable to such purchases

by the public agency. For the purposes of this section the term

"public agency" means a governmental entity specified as a political

subdivision of the state pursuant to The Governmental Tort Claims

Act or a state, county or local governmental entity in its state of

origin.

Oklahoma Statutes - Title 62. Public Finance

Added by Laws 2012, c. 106, § 7. Amended by Laws 2013, c. 358, §

30, eff. July 1, 2013. Renumbered from § 85.7i of Title 74 by Laws

2013, c. 358, § 36, eff. July 1, 2013.