Emergency Contracting: Flexibilities in Contracting Procedures during an Emergency (2007) / Chapter Skim
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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?
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3 EMERGENCY CONTRACTING: FLEXIBILITIES IN CONTRACTING PROCEDURES DURING AN EMERGENCY By Julia L Perry Counsel, Eastern Federal Lands Division, Federal Highway Administration and Margaret L
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4 tion of a contract. It also delineates over 700 standard contract clauses and nearly 100 standard forms.
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5 Check List" for use by the contracting officer who awards the emergency contract. States such as Montana and North Dakota, on the other hand, indicated they have not promulgated emergency contracting rules or special guidance.
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6 states bluntly, "Lack of planning does not constitute an emergency purchase."14 Illinois, on the other hand, which has a very complex and complete list of factors that may constitute an emergency, specifically provides that emergency contracting may be done when "immediate action is necessary to avoid lapsing or loss of federal or donated funds."15 As with the federal system, the possibility for misuse does exist, but states have taken steps to avoid that by requiring written justification of actions taken, and by providing detailed and common sense instructions to their procurement officers and other employees involved in the contracting process.
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7 stage, at solicitation, and prior to award -- , to the extent the circumstances will allow. The purpose of this is to involve the maximum number of potential participants.
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8 emergency purchases "when immediate expenditure is necessary for repairs to State property in order to protect against further loss of or damage to State property, to prevent or minimize serious disruption to State services, or to ensure the integrity of State records."22 Hawaii's statutory scheme provides for emergency contracting procedures when there is a "threat to life, public health, welfare, or safety by reason of major natural disaster, epidemic, riot, fire, or such other reason" as the head of a purchasing agency determines; when normal contracting procedures will not meet the need; and without the needed goods, services, or construction, "the continued functioning of government, the preservation of irreplaceable property, or the health and safety of any person will be seriously threatened."23 Several of the states provided copies of portions of their procurement manuals that relate to contracting in an emergency situation. The guidance set forth in these manuals makes clear that contracting with limited competition is reserved for those situations where following the usually required procedures will not answer the need.
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9 4. A limited competition or sole source contract that involves limitations on publicity but otherwise follows all appropriate FAR procedures.
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11 discharge to the satisfaction of the U.S. Secretary of Transportation the duties required by Title 23.
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12 B Federal Statute's Impact on State Emergency Procurements The survey included a question about whether the state felt it had ever been "impeded in dealing with an emergency situation by limitations imposed by the FHWA on State procurement." Only two of the responding states answered this question in the affirmative.
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13 to document the problem and establish work zones, so that contractors will charge specific work to particular work sites. Alaska also assigns experienced construction inspectors to oversee the work sites, document the work, and direct the contractors.
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14 FHWA. In both cases the state government must meet sometimes complex documentation requirements in order to receive funds.
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15 • Preprinted forms for a "Natural Disaster Emergency Contract." • A preprinted "Documents Check List" for use by contracting officers. • Requirement in guidance or regulations that written justifications be included in the contract file, even if prepared after the award.
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16 APPENDIX A SURVEY NCHRP 20-6, STUDY TOPIC 13-02 CONTRACTING DURING AN EMERGENCY Please answer the following as fully as possible and where the answer is "yes," provide a copy of the regulations, procedures, and/or guidelines in which the policy is stated. Yes No Citation to State Statute / Regulation 1.
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17 Yes No Citation to State Statute / Regulation 5. Does your State statute or procurement regulations allow for limited competition or sole source in emergency situations?
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18 APPENDIX B FAR WAIVERS FAR waivers for emergency or war-time contracting relating to specific procurement requirements 1) Expedited techniques related to the solicitation and award of contracts 2)
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19 39) Environment and Safety (FAR Part 23)
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20 APPENDIX C QUESTION 2 STATE Q 2 Who Has Authority to Issue Emergency Contract?
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21 APPENDIX D RESPONSES TO SPECIFIC SURVEY QUESTIONS BY STATES STATE Q 3 Does State statute or regulation set conditions for waiving contract requirements in emergency situations?
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22 STATE Q 3 Does State statute or regulation set conditions for waiving contract requirements in emergency situations?
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23 STATE Q 6 Does State statute or regulation allow for waiver of requirements related to solicitation and award of contracts in emergency situations?
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24 STATE Q 6 Does State statute or regulation allow for waiver of requirements related to solicitation and award of contracts in emergency situations?
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25 APPENDIX E STATE CODE AND RELATED ADMINISTRATIVE SOURCES AK Alaska Stat. 36.30.310, 2 Alaska Admin.
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27 ACKNOWLEDGMENTS This study was performed under the overall guidance of the NCHRP Project Committee SP 20-06. The Committee is chaired by JAMES S
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These digests are issued in order to increase awareness of research results emanating from projects in the Cooperative Research Programs (CRP)
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