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Waiving Competitive Bidding Requirements in the Event of an Emergency


August 7, 2014 by Pat Mason
Category: Purchasing and Contracting

Waiving Competitive Bidding Requirements in the Event of an Emergency

In view of the Oso landslide and numerous and destructive wildfires in our state, I thought it would be timely to provide a brief review of the rules in state law relating to waiving competitive bidding requirements in emergency situations, when a local government needs to act quickly.  These rules are not new and are not complicated.

Basically, there is a general exemption from competitive bidding requirements for all Washington local governments when awarding contracts for public works projects or for purchases of supplies, materials, and equipment in the event of an emergency. See RCW 39.04.280(1)(c) and (e). An "emergency," for purposes of this bidding exemption, is defined in subsection (3) of that statute to mean:

unforeseen circumstances beyond the control of the municipality that either: (a) Present a real, immediate threat to the proper performance of essential functions; or (b) will likely result in material loss or damage to property, bodily injury, or loss of life if immediate action is not taken.

Washington local governments have cited a diverse array of circumstances as “emergencies” for the purposes of this competitive bidding exemption. Typically those circumstances involve natural disasters such as wildfires, floods, windstorms, and the like.

However, the exemption is not limited to emergencies that result from natural disasters. Circumstances such as, for example, broken water mains or sewer pipes that call for immediate action to prevent or limit damage to property can also fit this definition of emergency.  If in doubt whether a situation constitutes an emergency for purposes of waiving the bidding requirements, MRSC recommends contacting the Office of the State Auditor for guidance.

Once it is determined that an emergency exists, then the person or persons designated by the governing body to act in the event of an emergency may declare that an emergency situation exists, waive competitive bidding requirements, and award all contracts necessary to address the emergency. However, the governing body (e.g., city council, board of county commissioners) or the designee must within two weeks of the award of any such contracts adopt "a written finding of the existence of an emergency."

Note also that RCW 38.52.070(2), which addresses emergency plans and procedures provides that in the event of an "extreme emergency situation," local governments are authorized to exercise emergency powers without regard to procedures such as competitive bidding requirements.

Under the Open Public Meetings Act, the governing body may in the event of an emergency meet without the notice otherwise required by the Act (RCW 42.30.070). For a special meeting to be held without notice in the event of an emergency, the emergency must involve injury or damage to persons or property or the likelihood of such injury or damage, if the notice would be impractical and increase the likelihood of such injury or damage. See RCW 42.30.080(4).

MRSC, in its City Bidding Book, has compiled a short Q&A section to help distinguish a “disaster” or  “emergency” from a “non-emergency":

Q: Our city water tank has been badly damaged and water pressure is threatened.

A: Although this is not a natural disaster, it is a serious problem that probably constitutes an emergency that will allow the city to waive the bid laws.

Q: Our pump station needs repairs. Raw sewage is flowing into the lake.

A: As in the previous case, this probably can be treated as an emergency, particularly with the emphasis these days on programs to improve water quality.

Q: The city council wants to get new streetlights in place for the holiday season, and there is not enough time to go out for bids.

A: This is not an emergency. The money has been in the budget for months. The council should have made the street department aware that this was a priority item on its work program.

About Pat Mason

Pat is recognized throughout Washington State as a highly trusted resource on municipal law. He regularly counsels local governments on public records, open public meetings, and just about any other municipal issue that comes up.

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Comments

"Thanks Pat---that was very helpful. Over here in Okanogan County we definitely are having an emergency--with 300+ homes burned by wildfire. Mick Howe"

Mick Howe on Aug 11, 2014 1:48 PM

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