1 By: Lynda Wells
2 Public Sector emergency purchases and contracts are governed by the following laws: NJAC 5:34-6.1: The rules providing guidance on this issue; the Administrative Code advises us that contracts shall be of such limited duration as to meet only the immediate needs of the Emergency. and Multi-year contracts are prohibited. NJSA 40A:11-6: Tells us how to follow the rules of the Administrative Code. NJSA 40A:4-57: Tells us we are not permitted to enter into any contract involving the expenditure of money for which no appropriation is provided, or in excess of the amount appropriated.
4 RESOLUTION AUTHORIZING VARIOUS EMERGENCY CONTRACTS FOR HURRICANE SANDY STORM-RELATED GOODS AND SERVICES IN THE TOWNSHIP OF LONG BEACH WHEREAS, an emergency occurred in the Township of Long Beach as a result of Hurricane Sandy striking Long Beach Island on Sunday, October 28 th 2012 extending through Tuesday morning, October 30 th 2012 causing widespread severe and permanent damage to the infrastructure of Long Beach Township and many homes in Long Beach Township; and WHEREAS, the full extent of the damage and cost of repairs cannot be ascertained at the current time; and WHEREAS, the Board of Commissioners deem it in the best interest of its citizens to enter into various emergency goods and services contracts in order to provide essential public services in order to assure the public health, safety and welfare during this time of emergency; and WHEREAS, the Local Public Contacts Law permits such emergency contracts pursuant to N.J.S.A.40A:11-6. NOW THEREFORE BE IT RESOLVED, by the Board of Commissioners of the Township of Long Beach, a Municipal Corporation of the State of New Jersey, at a regular meeting held Friday November 9, 2012, that the Board of Commissioners hereby authorizes and approves various emergency contracts for goods and services necessitated pursuant to Hurricane Sandy.
8 Resolution DECLARATION OF EMERGENCY AND PROVISION FOR APPROPRIATION OF EMERGENCY FUNDING FOR THE TOWNSHIP OF LONG BEACH WHEREAS, an emergency occurred in the Township of Long Beach as a result of Hurricane Sandy striking Long Beach Island on Sunday, October 28 th 2012 extending through Tuesday morning, October 30 th 2012 causing widespread severe and permanent damage to the infrastructure of Long Beach Township and many homes in Long Beach Township; and WHEREAS, the full extent of the damage and cost of repairs cannot be ascertained at the current time; and WHEREAS, the Chief Financial Officer of the Township of Long Beach has certified that all necessary funds needed on a temporary basis shall be fully funded by an appropriate Bond Authorization Ordinance when the extent of funds has been determined; and WHEREAS, a temporary emergency appropriation is necessary to undertake urgent emergency work. NOW, THEREFOR, BE IT RESOLVED pursuant to N.J.S.A. 40A:11-6 and appropriate provisions of the New Jersey Administrative Code, that the sum of $00.00 shall be and is hereby appropriated to undertake urgent emergency repairs and the Chief Financial Officer shall seek all appropriate reimbursement from appropriate insurance policies and State and Federal funding. BE IT FURTHER RESOLVED that the 2012 sale of municipal liens for unpaid taxes and other municipal charges shall be and is hereby cancelled until further notice and all mailings appertaining thereto are also deferred until further notice. Passed on: November 9, 2012 CERTIFICATION I, Lynda J. Wells, Municipal Clerk of the Township of Long Beach do hereby certify that the foregoing Resolution was duly adopted by the Board of Commissioners at an Emergency Meeting held on Wednesday, November 9, 2012.
9 The laws advise us, as Public Professionals, to procure competitively whenever possible and practical. But as for emergencies, there are no bright line markers to follow. It is a gray area; the yellow portion of a traffic signal. Even the courts cannot lend any hard decisions to guide us. What exactly is the route we follow to compliance with the law while meeting the needs of our citizens?
10 Was the emergency declaration due to poor planning, or done as a convenience? Was the decision that an emergency exists used to avoid the competitive bidding process? Viewed through this lens, contracts for goods and services entered into as a result of an emergency should be based upon several factors: An immediate threat to the public health, safety and welfare exists It is unreasonable to competitively procure a contract A State contract, Co-op, or municipal contract is not available to fill the need
11 If the procurement cannot withstand this sniff test, then the competitive process must take place. 1. A vehicle was damaged as a result of flooding. The flooding took place months earlier. The busy summer season is fast approaching; if the vehicle is not in good working order the needs of the public may not be immediately met. 2. An emergency generator was rented by the municipality to replace one damaged during a severe weather event in January. The rented generator provides for uninterrupted power to a Water/Sewer Treatment Plant should a power failure occur. The entire Plant and all its equipment are slated to be repaired and refurbished in September, pursuant to the receipt of bids. 3. Heavy equipment and equipment operators are brought in to assist the Public Works Department. These dozers and front end loaders with drivers are used to reclaim and redistribute sand on severely eroded beaches after a nor easter. The municipality has contracts in effect for the same goods / services, but the vendors are unable to deal with the magnitude of the damage. 4. Automotive parts are needed to repair essential vehicles. The parts are not available through a State Contract or Co-op. The aggregate for automotive parts already exceeds $36,000.00
12 Scenario #1: Many of our municipal vehicles were relocated to the mainland in anticipation of Super Storm Sandy. Of course, some vehicles and equipment remained onsite for our immediate recovery needs. Most of those vehicles have been deemed a loss by our insurance carrier due to sand and water damage. Others have taken some time to reveal mechanical problems. Is it fair now to posture that they were probably damaged by the storm? The storm was an emergency; therefore the repair 8 months later is an emergency repair?
13 Scenario #2: I had to speak with my municipal solicitor in order to come to a reasonable decision about our rental of an emergency generator. It took us several days and conversations to reach a consensus. We had several components to consider: It was most cost effective to leave the rental unit in place. Should the unit be bid, there would be legal fees incurred (advertising and attorney review), and fees for the removal of the existing unit. Since the emergent conditions had been abated, we were obliged as per the statutes, to competitively bid the generator. The repair and refurbishment of the entire Plant and associated equipment (including a generator) were slated for bid in September.
14 Scenario #3: Here, Long Beach Township planned ahead. Each year, I bid various emergency services annually, such as: Electrical Repairs, Water/Sewer System Repairs, and Rental of Dozers and Loaders with, and without, Drivers. These contracts may or may not be used, depending on events or conditions. But, when called for, we have a known dollar rate, response time, and available parts and equipment lists from each contractor. The challenge faced was inadequate equipment to meet the emergent needs of the Township.
15 *Many decision makers with many opinions don t change the facts that we need to make purchases. Scenario #4: (Automotive parts are needed to repair essential vehicles) Automotive parts consistently are an item for debate, it seems! Our Elected Officials and Department Heads need to get things done, but is this really an emergency? The parts were not available through a State Contract or Co-op. The aggregate for automotive parts already exceeded $36,000.00, therefore the parts were bid.
16 In the months following our visit by Sandy, I continue a constant, ongoing dialog between the need for flexibility and my obligation to uphold statutory requirements. Where does procurement merge these commitments? How do we ensure fair, open, and transparent competition in light of a disaster? Should the emergency procurement only meet the immediate needs of the situation? What method should be used to determine when an emergency no longer exists? What does it mean to be a public servant?
17 How does emergency procurement afford flexibility and compliance with the law.
18 How do we ensure fair, open, and transparent competition during times of emergency? Skilled, trained, dedicated public officials, employees and professionals are called upon each day to put their expertise to work. Our experience is put to the test and we often walk the tightrope as we balance between emergency / non-emergency vs competitive / non-competitive procurement.
19 Should the emergency procurement only meet the immediate needs of the situation? Planning for the unexpected is an important practice. Once contracted vendors for goods and services are in place, an emergent or non-emergent situation can be tackled without concern for competition. Meet with Department Heads and Governing Body Members to identify areas of weakness based on past emergencies. Make decisions as to the goods and services required to best mitigate those issues. Prepare specifications and competitively procure contracts that are available should the need arise. When an unforeseen emergency situation occurs, then the resulting emergency contract should be secured to meet the immediate need at hand.
20 What method should be used to determine when an emergency no longer exists? Not only must a determination be made that an emergency purchase is necessary, but a decision must be made when that need is satisfied and competitive procurement is appropriate. Strong emotional reactions can accompany emergency situations. Input from multiple sources often confuse important issues. As a QPA, you might be the ultimate voice of reason when all the players are at odds. Remember, it s also in the best interest of the public to obtain the best good or service, at the best price, in the best amount of time. When health, safety and welfare have been achieved, then competitive procurement is proper.
21 What are the obligations of a public procurement official? At some point, each of us was given an opportunity to become a public servant. We considered it, and made the decision to serve the citizens of our communities. Each of us is here today to continue our education and sharpen our skills. We are in a unique position; not everyone can help people as we can. The statutes give us certain powers and abilities that shape the way we live. And so, our obligation is great We are tested daily, but especially in times of trouble and emergency. The public procurement official must ensure that purchasing needs are met seamlessly at all times. Our education, experience and commitment to serve the public, to meet needs, and obey the law is crucial. It s a tough job, and we can do it!