Waiving Competitive Bidding Requirements in the Event of an Emergency
When attempting to procure goods and services, local governments in Washington State must comply with a variety of statutes, and the procurement process can often be time consuming. Fortunately, state law also accounts for those times when a local government needs to act quickly. This blog post reviews the rules relating to waiving competitive bidding requirements in emergency situations.
What Constitutes an Emergency?
There are several state statutes that define “emergency” for the purposes of competitive bidding, but they all state essentially the same thing: that an “emergency” consists of:
(U)nforeseen circumstances beyond the control of the [agency type] that either: (a) present a real, immediate threat to the proper performance of essential functions, or (b) [may/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. The following circumstances could also fit this definition of emergency:
- Broken water mains or sewer pipes that call for immediate action to prevent or limit damage to property,
- Damage to trees or structures on land owned by a local jurisdiction that renders the tree or structure hazardous, or
- Spread of a highly contagious, communicable disease in the community.
To claim an emergency exemption, your legislative body should adopt an emergency proclamation clearly stating the current emergency (in addition to any emergency declarations that may have been issued at the state or federal level). If in doubt whether a situation constitutes an emergency for the purposes of waiving bidding requirements, MRSC recommends checking with your legal counsel. You may also submit an inquiry through the Office of the State Auditor helpdesk.
But in order to waive competitive bidding requirements, the contract in question must be explicitly necessary and directly related to the emergency. You cannot waive competitive bidding requirements for unrelated contracts simply because an emergency is happening within your jurisdiction. To state this a different way: if your jurisdiction has declared an emergency, you must still follow normal competitive bidding requirements for all contracts that are not explicitly necessary and directly related to the emergency. For instance, you cannot waive competitive bidding requirements to design or build a new building due to a broken water main or an ongoing pandemic — unless the new building is somehow directly related to the emergency at hand.
Emergency Public Works and Purchases
The statute RCW 39.04.280(1)(c) and (e) provide 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.
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 (e.g., mayor, executive, city/county manager, general manager, etc.) may declare that an emergency situation exists, waive competitive bidding requirements, and award all contracts necessary to address the emergency. However, the governing body (council or board of commissioners) or the designee must adopt "a written finding of the existence of an emergency" within two weeks of the award of any such contracts.
It should be noted that in the case of a public works project, only the bidding process would be excused during an emergency situation. Once a contractor is engaged for the work all other contracting requirements — such as retainage, prevailing wages, and performance and payment bonds — need to be followed as part of the project.
Emergency A&E Contracts
In addition to the uniform exemption for public works and purchases, RCW 39.80.060 provides an exemption for the normal qualifications-based selection process in chapter 39.80 RCW for architecture and engineering (A&E) contracts (which also includes land surveying and landscape architecture). The statute does not specifically define “emergency,” but it states:
(1) This chapter need not be complied with by any agency when the contracting authority makes a finding in accordance with this or any other applicable law that an emergency requires the immediate execution of the work involved.
(2) Nothing in this chapter shall relieve the contracting authority from complying with applicable law limiting emergency expenditures.
Emergency Service Contracts (Besides A&E)
There are no statutory bidding requirements for any agency for purchased services, which are provided for routine, necessary, and continuing functions of a local government agency, mostly relating to physical activities. These services are usually repetitive, routine, or mechanical in nature, support day-to-day agency operations, involve the completion of specific tasks or projects, and require minimal decision-making, such as solid waste pickup or herbicide application. For these contracts, agencies should follow their own internal policies and procedures, which would ideally include provisions for emergency contracts.
Similarly, most agencies have no statutory bidding requirements for personal services, which involve technical expertise provided by a consultant that is mostly intellectual in nature — such as planning studies or legal services (but not including architecture and engineering, which has its own requirements discussed earlier). Again, you should follow your own internal policies and procedures.
However, for personal service contracts there are two exceptions: public facilities districts (PFDs) and port districts.
Personal service contracts for Public Facilities Districts
Public facilities districts created by cities have very basic requirements in RCW 35.57.070, which essentially requires the PFD to adopt an internal policy but does not establish specific procedures or mention emergency contracts. PFDs created by counties have somewhat more stringent requirements in RCW 36.100.180. However, subsection 3(a) provides an exemption “[w]hen the contracting authority makes a finding that an emergency requires the immediate execution of the work involved.” The definition of “emergency” has the same meaning as RCW 39.29.006, which was repealed in 2013. However, that definition was essentially the same as in RCW 39.04.280.
Personal service contracts for Port Districts
Port districts must follow the provisions of chapter 53.19 RCW for personal service contracts and RCW 53.19.020 provides an exemption for emergency contracts. The definition of “emergency” in RCW 53.19.010(4) is essentially identical to the definition in RCW 39.04.280 for public works and purchases. RCW 53.19.030 requires that:
Emergency contracts shall be filed with the [port] commission and made available for public inspection within seven working days following the commencement of work or execution of the contract, whichever occurs first. Documented justification for emergency contracts shall be provided to the commission when the contract is filed.
Below are additional online resources for local government procurement and contracting:
- Contracting and Competitive Bidding — Provides a basic overview of contracting requirements.
- Procurement Policy Guidelines — Gives guidelines and examples to help local agencies adopt and update their procurement policies.
- Competitive Bidding Exemptions — Offer information about situations when competitive bidding may be waived.
- Find Your Contracting Requirements — Use this tool to look up your agency’s statutory purchasing and contracting requirements for any kind of project, including public works, purchases, and services.
MRSC is a private nonprofit organization serving local governments in Washington State. Eligible government agencies in Washington State may use our free, one-on-one Ask MRSC service to get answers to legal, policy, or financial questions.