Emergency Contracting: Flexibilities in Contracting Procedures during an Emergency (2007)

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Legal Research Digest 49 NATIONAL COOpeRATIve hIghwAy ReseARCh pROgRAm December 2007 Subject Areas: IA Planning and Administration; IC Transportation Law TRANspORTATION ReseARCh BOARD OF THE NATIONAL ACADEMIES CONTeNTs I. Introduction—When Is Emergency Contracting Applicable? 3 II. The Concept of Flexibility for Contracting in Emergency Situations and How It Can Be Misused 3 III. Basic Conditions for Waiving Contract Requirements in Emergency Situations 6 IV. Range of Contracting Options 8 V. Specific Authority to Waive Certain Contracting Requirements 10 VI. Federal Statutes Applicable to State Emergency Procurements (Title 23) 10 VII. Limitations Imposed by FEMA for Reimburse - ment to the States in an Emergency 12 VIII. Impact of Limitations Imposed by FEMA for Re- imbursement to the States for Emergency Procurements 12 IX. General Guidance That Has Been Issued on Federal Emergency Contracting 13 X. Summary and Conclusion 13 Appendix A 16 Appendix B 18 Appendix C 20 Appendix D 21 Appendix E 25 EmErgEnCy ConTrACTIng: fLExIbILITIES In ConTrACTIng ProCEdurES durIng An EmErgEnCy This report was prepared under NChRp project 20-6, “Legal problems Arising Out of highway programs,” for which the Transportation Research Board is the agency coordinating the research. The report was prepared by Julia L. perry, Counsel, eastern Federal Lands Division, Federal highway Administration, and margaret L. hines, Attorney, washington, DC. James B. mcDaniel, TRB Counsel for Legal Research projects, was the principal investigator and content editor. The Problem and Its Solution State highway departments and transportation agencies have a continuing need to keep abreast of operating practices and legal elements of specific problems in highway law. This report is a new paper, which continues NCHRP’s policy of keeping departments up-to-date on laws that will affect their operations. Applications There have been several efforts to identify legal issues and actions necessary when a transporta- tion agency confronts disaster. Prior to the ter- rorist attacks of 9/11, this issue arose primarily when a natural disaster occurred. The potential for natural disasters continues, and the spec- ter of terrorism has added yet another level of concern. Preliminary research for this study topic identified over 30 separate provisions ap- plicable to agencies in the federal system and for civilian agencies; the Federal Acquisition Regulations (FAR) provide guidance for fed- eral contracting. In 50 chapters, the FAR covers everything from acquisition planning through termination of a contract. In the event of a very serious emergency, the delineated procedures may be abbreviated to save time or provide for tight security or to provide other necessary flex- ibility. Each state has its own laws, regulations, and procedures for emergency contracting for its Department of Transportation, but we found no compilation of the same. The American Bar Association publishes the Model Procurement Code (Model Code) for use by state and local governments. Much like federal law and regulations, provisions in the Model Code authorize contracting officers to use emergency, non-competitive procedures when there is a threat to public health, welfare, or safety. Contracting officers should document their decisions so that those responsible for oversight can ensure that the best interest of all parties is protected. Some states have statutes and regulations similar to the federal govern- ment. Others track the Model Code. This study examines the flexibility in federal procurement; presents a summary of practices, procedures, and laws in state procurements; and identifies limitations imposed by grant agree- ments. It should be useful to administrators, at- torneys, contracting officers, engineers, finan- cial officers, and other officials responsible for highway maintenance.