A Guide to Emergency Procurement in the State of Texas

Lack of Planning Does Not Constitute An Emergency

We know that we’re going to have certain kinds of emergencies and natural disasters

Consider contingency contracts

May be negotiated in advance

Because not considered an emergency contract—even if to be used in the event of an emergency—it’s possible to comply with all procurement statutes

Triggered by precipitating event

Where the procurement is necessary to prevent a hazard to life, health, safety, welfare or property; or

To avoid undue additional cost to the state

Texas Gov’t Code § 2155.083(i)

CPA delegated to all agencies authority to make emergency purchases

Decision to declare emergency rests with the agency

Agency still subject to CPA rules & procedures

CPA does not certify existence of emergency

At least 3 informal bids whenever possible

Award should be made based on best value, given the type of emergency

Negotiations encouraged

Agency will have to handle complaints arising from process

Purchases over $25,000.00 must be posted in the ESBD BUT

Minimum ESBD posting requirements do not apply

These posting requirements are in addition to TPASS procedures governing emergency procurements

Purchasing director must sign letter documenting emergency

Must address nature and cause of emergency

Must address estimated impact or damage that will occur following normal procurement practices

General statement of loss/damage insufficient

Goods/services >$25,000.00 are pre-payment audited by CPA

Retain original documentation

Include the following:Signed quote/estimate/bid or SOWBeginning and ending dateBid tabulation sheet Justification letterPurchase orderESDB posting

CPA strongly suggests use of all CPA T&Cs for emergency procurements regardless of amount

If informal bid process used, CPA T&Cs may be included by reference as part of purchase order

Be familiar with other specific statutes applicable to certain contracts, i.e., major consulting services, which may still apply.

Limit duration of contract

Governor may declare state of disaster if has occurred or threat is imminent

Gives the Governor the authority to issue executive orders/proclamations/regulations that have the force and effect of law

Gives authority to suspend provisions of regulatory statute if strict compliance would prevent/hinder/delay necessary action

Disaster: the occurrence or imminent threat of widespread or severe damage, injury or loss of life or property resulting from any natural or man-made cause, including fire, flood, earthquake, wind, storm, wave action, oil spill or other water contamination, volcanic activity, epidemic, air contamination, blight, drought, infestation, explosion, riot, hostile military or paramilitary action, extreme heat, other public calamity requiring emergency action or energy emergency

As provided in Section 418.016 of the code, all rules and regulations that may inhibit or prevent prompt response to this threat are suspended for the duration of the state of disaster.

Limited to nature and scope of declaration

FEMA requires competitive bidding except in very limited circumstances

Distinguishes between “emergency work” and “emergency contracting”

Non-competitive contracts allowed only if award cannot be delayed by amount of time required to obtain competitive bidding

This can’t wait