Resolution Regarding Declaration of Emergency
SCHOOLS LEGAL SERVICE
INSTRUCTIONS FOR USE
The Public Contract Code permits school and community college districts to dispense with competitive bidding in emergency situations under defined circumstances. For both school and community college districts, if the emergency criteria are satisfied, the board may award a contract, or use day labor or force account (the district’s own forces), with the approval of the county superintendent of schools. The governing board must approve the emergency action by unanimous vote. (Public Contract Code sections 20113 [K-12 districts] and 20654 [community college districts].
This exemption is available when repairs, alterations, work or improvement is necessary to permit the continuance of existing classes or avoid danger to life or property. As with any exemption from the competitive bidding requirements, districts should take care to ensure that the facts are sufficient to justify the decision not to go to bid. A contract required to be competitively bid which was not properly the subject of an exemption will be considered void and unenforceable, and, with limited exceptions, a contractor or vendor will not be permitted to recover from the district the value of the goods and services provided under the void contract.
Public Contract Code section 1102, which is found in another section of the Code applicable to California public entities in general, defines an emergency as “a sudden, unexpected occurrence that poses a clear and imminent danger, requiring immediate action to prevent or mitigate the loss or impairment of life, health, property or essential public services.” At least one California Court of Appeal has held this statute applies to school districts and must be read together with Section 20113 [Marshall v. Pasadena Unified School District (2004) 119 Cal.App.4th 1241). That case also emphasized the need for prompt action for the emergency to be considered genuine.
We have posted a sample resolution through which the governing board should recite the facts necessary to support a declaration of emergency permitting the award of a contract without competitive bidding. The following are the instructions for filling in the blanks on the form resolution.
1. Title. Fill in the name of the district.
2. Recital B. Describe facts showing the need for the work in sufficient detail to demonstrate that the emergency is such that conducting repairs without competitive bidding is necessary to permit the continuance of classes or avoid danger to life (staff, students, visitors, etc.) or property. In light of Public Contract Code section 1102 and the Marshall case, the facts should normally also demonstrate the sudden, unexpected nature of the occurrence.
Example: “The boiler at North High School exploded on [date] during the winter break and must be replaced. Classes will resume in four days. The Superintendent reports that temperatures are expected to be too cold for existing classes to continue without an immediate repair of the boiler.”
3. Recital C. Select Option 1 if the emergency contract is required to permit the continuance of existing classes, Option 2 if the emergency contract is required to avoid injury to life and/or property, and Option 3 if the emergency contract is necessary both to permit the continuance of existing classes and to avoid injury to life and/or property.
4. Section 2. Fill in the name of the facility (e.g., Las Flores Elementary School, Prueitt School Kindergarten Building, etc.).
5. Concluding Paragraph. Following item 4, fill in the name and title of the person signing the resolution, the name of the District, the county in which it is located, and name of the board members proposing and seconding the motion, the date, the number of ayes, noes and abstentions (remember that this resolution requires unanimous approval of the board).
6. Signature. Fill in the information at the signature line (title of the person signing, name of district, county in which district is located).
7. County Superintendent. In the section at the bottom (below the signature line for the district) for County Superintendent approval, fill in the appropriate county. Submit the resolution to the County Superintendent with a request for approval. (Kern County requests should be submitted to Steve Mattern).
RESOLUTION OF THE
REGARDING DECLARATION OF EMERGENCY
REQUIRING CONTRACT FOR REPAIRS, ALTERATIONS, WORK
OR IMPROVEMENT WITHOUT ADVERTISING FOR OR INVITING BIDS
A. Pursuant to Section 20113/20654 of the California Public Contract Code, in an emergency when any repairs, alterations, work or improvement is necessary to permit the continuance of existing classes or to avoid danger to life or property, the board may by unanimous vote, with the approval of the county superintendent of schools, make a contract in writing on behalf of the District for the performance of labor and furnishing of materials or supplies for those purposes without advertising or inviting bids, or authorize the use of day labor or force account for this purpose.
B. [Describe facts showing the need for repairs and justifying an emergency.]
C. In the interest of [Option 1: permitting the continuance of existing classes and activities] [Option 2: avoiding injury to life or property] [Option 3: permitting the continuance of existing classes and activities and avoiding injury to life or property], the District is in need of immediate repairs or other work which cannot be accomplished in a sufficiently timely manner if the repairs are required to be subject to the bidding and advertising requirements of the California Public Contract Code.
D. The District will seek approval of the county superintendent of schools to conduct and pay for the repairs or other work on an emergency basis without competitive bidding.
THIS BOARD RESOLVES AS FOLLOWS:
1. The foregoing recitals are true and correct.
2. An emergency exists within the meaning of Section 20113/20654 of the Public Contract Code, requiring repairs, alterations, work and/or improvements to _____________________ [name of facility] to permit the continuance of existing classes and/or to avoid danger to life or property, as described in Recitals B and C.
3. Upon approval of the county superintendent of schools, the District shall secure a contract or use day labor or force account to perform the necessary repairs, alterations, work and/or improvements without advertising for or inviting bids.
4. The Superintendent is authorized and directed to take any necessary action to carry out the terms of this resolution.
I, __________________________, _____________________ of the Governing Board of the ______________________ District of _______ County, State of California, certify that this Resolution proposed by _________________________________, seconded by ________________________, was duly passed and adopted by the Board by unanimous vote at an official and public meeting this _______ day of ____________, 20______, by the following vote:
_________________________ of the Board
of the ______________________ District of
_____________________ County, California
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_______________________ COUNTY SUPERINTENDENT OF SCHOOLS