Emergency contracting for repairs, maintenance, and public safety are a routine occurrence with public owners across the Commonwealth. A building in danger of collapse needs to be torn down on an immediate basis to ensure public safety. A system fails in a public building requiring an emergency repair to restore the system to proper working order. A roadway or bridge is washed out during a storm mandating immediate action to restore access for the public and emergency vehicles. In such dire situations, can a public owner bypass the normal rules of competitive bidding and award a contract an expedited basis? The answer is yes, with some caveats.
Where an emergency threatens the health, welfare, or safety of the citizenry, and does not permit a delay in response, a public owner can dispense with the formal rules of public bidding such as timing of award and public notice. On the other hand, even in an emergency, the public owner cannot simply award a contract without competition. An emergency may relax the requirement for notice and advertising, but it doesn’t eliminate competition. After all, if a public owner can invite pricing from one contractor in an emergency, there is usually no good reason why it can’t also invite pricing from other contractors at the same time.
This principle is aptly illustrated by the emergency bidding section in the Commonwealth Procurement Code, at 62 Pa.C.S. § 516, which provides:
The head of a purchasing agency may make or authorize others to make an emergency procurement when there exists a threat to public health, welfare or safety or circumstances outside the control of the agency create an urgency of need which does not permit the delay involved in using more formal competitive methods. Whenever practical, in the case of a procurement of a supply, at least two bids shall be solicited. A written determination of the basis for the emergency and for the selection of the particular contractor shall be included in the contract file.
Thus, the Procurement Code recognizes that, even in the face of an emergency, competition and transparency are still required.
Likewise, the Public School Code, at 24 P.S. § 7-751, also allows for emergency contracting but still requires competition:
… Provided, That, if due to an emergency a school plant or any part thereof becomes unusable, competitive bids for repairs or replacement may be solicited from at least three responsible bidders, and, upon the approval of any of these bids by the board of school directors, the school district may proceed at once to make the necessary repairs or replacements in accordance with the terms of said approved bid or bids. …
In Upper Darby Twp. v. Ramsdell Construction Co., a 1943 trial court decision, the court noted that “statutory requirements that municipalities must have contracts in writing and advertise for bids have been held not to apply to a situation where there is an emergency.” But the court also added: “The important thing, therefore, in these cases would seem to be the determination as to whether or not there was an emergency.”
The bottom line is that, in a documented emergency requiring immediate attention, a public owner can dispense with the normal rules of public bidding while still having to seek competition.
If you need assistance on a public bidding issue, call or email me for a no-cost consultation. I’ll be happy to assist in anyway possible.
Christopher I. McCabe, Esq.
