“Emergency” Bidding Exception May Apply to Purchases Required by COVID-19 Pandemic

Since the start of the COVID-19 pandemic, schools have been tasked with complying with continually changing Executive Orders, Department of Health guidance, and other safety requirements designed to protect the health of students and staff. These mandates and guidelines have required procurement of health and safety equipment to combat the spread of COVID-19, including:

• Personal Protective Equipment,
• cleaning and disinfectant supplies,
• alcohol-based hand sanitizer, physical barriers, and
• other capital improvements.

At times, new requirements have led to a surge in demand for needed equipment, resulting in shortages and price volatility.

Ordinarily, purchase of health and safety equipment would be subject to competitive bidding procedures required by the General Municipal Law, in addition to any board purchasing policies. In limited circumstances, the “emergency” exception to competitive bidding intended to promote more expeditious purchases allows schools to purchase equipment without completing these procedures.

Specifically, the “emergency” exception to competitive bidding applies if the purchase “requires immediate action which cannot await competitive bidding.” There may be grounds to apply this exception in circumstances where there is a present and anticipated shortage of equipment which must be purchased to comply with health and safety protocols. It is important to note that any emergency determination must be supported by documentary evidence, which may include quotes from vendors, or other evidence that the purchase must be made immediately.

With regard to approving an “emergency” purchase, the State Comptroller has opined that “it is a good practice for the municipal governing board to adopt a resolution declaring that an emergency exists and setting forth the facts upon which the declaration is based.” To comply with Comptroller guidance, any resolution should include the justification for the emergency designation supported by documentary evidence. This may include the high demand for health/safety equipment, and/or anticipated shortage of the equipment.

If you have any questions regarding particular COVID-19 related purchases, or the use of the emergency exception to competitive bidding generally, feel free to contact Jeff Lewis at jmlewis@ferrarafirm or at one of the telephone numbers listed below.