Waiving Competitive Bidding Requirements in the Event of an Emergency

When attempting to procure public works, 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 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 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.

Exact definitions are provided in RCW 39.04.280 for public works and purchases and in RCW 53.19.010 for port personal service contracts.

Washington local governments have cited a diverse array of circumstances as “emergencies” for the purposes of this competitive bidding exemption, with the most common being circumstances that 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.

In order to waive competitive bidding requirements, the contract in question must be explicitly necessary and directly related to the emergency. Your agency cannot waive competitive bidding requirements for unrelated contracts simply because an emergency is happening within your jurisdiction. To state this in a different way: if your jurisdiction has declared an emergency, it must still follow normal competitive bidding requirements for all contracts that are not explicitly necessary and directly related to the emergency.

If it is questionable whether a situation constitutes an emergency for the purposes of waiving bidding requirements, MRSC recommends checking with your agency’s legal counsel. For instance, your agency 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

RCW 39.04.280(1)(c) and (e) provide a general exemption from competitive bidding requirements for local governments when awarding contracts for public works projects or for purchases of supplies, materials, and equipment in the event of an emergency.

If an emergency exists, the appropriate individuals — either the governing body, or an individual designated by the governing body to act in the event of an emergency — may declare that an emergency exists, waive competitive bidding requirements, and award all necessary contracts to address the emergency. If a federal or state emergency has been declared, the governing body should pass a resolution acknowledging the declaration and invoking RCW 39.04.280 as well. For more on this topic, see our webpage on Emergency Declarations and Authority.

For a public works project, only the bidding process is excused during an emergency situation. All other contracting requirements — such as retainage, prevailing wages, and performance and payment bonds — still need to be followed as part of the project once a contractor is engaged for the work.

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.

RCW 39.80.060 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 Non-A&E Service Contracts

There are no statutory bidding requirements for any agency for purchased services, which are those services provided for the routine, necessary, and continuing functions of a local government agency. Such services are usually repetitive, regular, 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.

To contract for purchased service during an emergency, local governments should follow their own internal policies and procedures, which, ideally, already include provisions for emergency contracts similar to RCW 39.04.280.

Likewise, most local governments have no statutory bidding requirements for personal services, which are services involving technical expertise provided by a consultant that is mostly intellectual in nature, such as planning studies or legal services (but not including A&E). Again, a local government should follow its own internal policies and procedures and make sure that contracts made for personal services during an emergency are aligned with state regulations.

However, for personal service contracts there are two agency exceptions: public facilities districts (PFDs) and port districts.

Personal service contracts for public facilities districts

Public facilities districts (PFD) created by cities have very basic requirements in RCW 35.57.070 that essentially require the PFD to adopt an internal policy, but the statute does not establish specific procedures or mention emergency contracts.

PFDs created by counties have somewhat more stringent requirements in RCW 36.100.180, and subsection 3(a) provides this 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, though it was repealed in 2013, had essentially the definition as in RCW 39.04.280.

Personal service contracts for port districts

Port districts (PD) must follow the provisions of chapter 53.19 RCW for personal service contracts, and RCW 53.19.020 provides an exemption for emergency contracts. 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.

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. 

Additional Resources

MRSC’s Purchasing and Contracting webpage offers a list and links to our extensive resources devoted  to purchasing, bidding, and contracting for Washington local governments, including online tools and webpages, publications, blogs, and sample documents from agencies across the state.