Three Risks of Emergency Public Works Contracting

There are three primary risks to declaring an emergency and waiving competitive bidding on a public works project:

1. Protest. To the extent that a public agency waives competitive bidding for a project that doesn't meet the test for an emergency, other contractors who were not selected to perform the work may protest that they were not provided with an opportunity to submit a bid.
   


2. Pricing. By waiving competitive bidding, a public agency must negotiate the cost of an emergency public works project with the contractor. Many public agencies do not have the experience or personnel necessary to effectively negotiate such pricing because most of their work is done through the bidding process where they accept the low bid. If the emergency work is authorized on a time and materials basis, it is important for the public agency to keep close records on the time and materials expended by the contractor to ensure that the appropriate amount is paid. Emergencies, by their very nature, often require payment of a premium amount in order to solve the problem within a very tight time schedule.
   


3. Political. If competitive bidding is waived for a project that does not meet the legal definition of an emergency, political and appointed officials may find themselves subject to criticism and quoted on the front page of the local newspaper. And, of course, there is the additional risk of an audit finding from the State Auditor's Office for an inappropriate declaration of an emergency.
   

There are emergencies...and then there are emergencies. The broken water or sewer pipe in the middle of the night is an emergency that requires immediate action, notwithstanding requirements for formally waiving competitive bidding requirements. Then there are other emergencies that do not have quite the same level of risk involved with not acting immediately. And, of course...there are emergencies that are created by poor planning. These are often difficult to jusify as real emergencies warranting the waiving of competitive bidding.