As the fight against the coronavirus wages on, local government purchasing officers, clerks, department heads, and others who handle procurements are scouring every vendor and supplier they can think of to find everything from surgical masks and gloves to rental equipment to sanitizing and cleaning supplies to telework devices, and yes, even the ever-elusive toilet paper. From the largest county to the smallest town, those in the procurement world are working hard to fill urgent requests for [fill in the blank] in the face of rising prices, market shortages, and fierce competition. The last thing on anyone’s mind in the current crisis, other than a purchasing officer, is competitive bidding requirements. And yet, these requirements are important for two reasons. First, it’s the law, and statutory bidding requirements applicable to local governments have not been – nor can they be – waived (while the Governor has the legal authority to waive administrative procurement rules for state agencies, which he did in Executive Order 116, that authority does not extend to waiving bidding requirements for local governments mandated by state statute). Second, FEMA Public Assistance grants are subject to federal procurement rules under the Uniform Guidance (2 C.F.R. Part 200, Subpart D). If a local government seeks reimbursement from FEMA for COVID-19 emergency protective measures expenses incurred under a contract, such as purchasing supplies or renting equipment, that contract must comply with federal bidding requirements (and, federal law also requires compliance with state law and local policies). Because violating procurement rules is one of the most common reasons local governments are denied FEMA reimbursement for otherwise eligible expenses, they must pay attention to procurement requirements even in the current emergency. So where can local governments get information on these requirements?
To help local governments understand and comply with state and federal procurement requirements during the COVID-19 event, the School of Government created a COVID-19 Procurement website. This website is part of the SOG’s COVID-19 Resource website which contains information on COVID-19 topics posted by SOG faculty including dedicated pages for Public Health, Employment Law, Emergency Management, Courts, Teleworking, and Workplace Policies; 55 blog posts (and counting) on topics ranging from open meetings to utility disconnections to tax issues; and recorded Zoom sessions with local government groups. The SOG’s COVID-19 Procurement site includes FEMA guidance on procurement rules and exceptions (including FEMA guidance on the emergency and exigent circumstances exception for COVID-19) as well as information on state bidding requirements (including the state emergency exception to competitive bidding requirements). Also available are suggested best practices for procurement compliance and documenting expenses for FEMA reimbursement collected from purchasing officers across the state. Finally, the FAQs available on the site offer answers to a growing number of questions about FEMA procurement requirements and other challenges purchasing officers face in these difficult times (like, what to do if a bidder can’t find a notary to notarize a bid document). And, as an added bonus, the site contains an entire section devoted to Uniform Guidance contract provisions. These resources will be updated on an ongoing basis, so feel free to check back as often as you like.
Another great resource on FEMA procurement requirements is the FEMA Procurement Disaster Assistance Team (PDAT) website. FEMA PDAT is a team of attorneys who specialize in federal procurement requirements. Its website is full of helpful guidance, checklists, summaries, and on-demand webinars that explain the Uniform Guidance and FEMA-specific requirements.
My thanks to our not-so-new SOG public contract faculty member, Connor Crews, for his help in creating this site. Please let us know what questions you have and resources you need to understand procurement rules and comply with them as best you can, even during this unprecedented crisis. We’re here to help!