Guam § 5215 - Emergency Procurements.

§ 5215. Emergency Procurements.

(a) Emergency Procurements. Notwithstanding any other provision of this Chapter, the Chief

Procurement Officer, the Director of Public Works, the head of a purchasing agency, or a designee of either

officer, provided the designee of any such officer is subject to § 5114(b) of this Chapter, may make or

authorize others to make emergency procurements of supplies, services, or emergency construction works

in the manner specified in this Section when there exists a threat to public health, welfare, or safety, or the

health and safety of the environment, in the event of an emergency as defined in § 5030(x) of this Chapter

and defined in regulations promulgated by the Policy Office. “Emergency construction works” means the

emergency operation, or demolition of existing structures and real property improvements, as well as

building or assembly of temporary structures, necessary to address, within the time limits of emergency

procurement specified in Subsection (e) of this Section, the imminent threat and nature of a particular event

of emergency as described by a Determination of Need for an Emergency Procurement required in

Subsection (c) of this Section.

(b) Necessity of a Declaration of Emergency, or Certificate of Emergency. No emergency procurement

shall be made except after, and consistent with, a Declaration of Emergency made by I

Maga’håga/Maga’låhi, or a Certificate of Emergency made by the Chief Procurement Officer, the Director

of Public Works, the head of a purchasing agency, or a designee of either officer.

(1) A Declaration of Emergency shall be made by Executive Order duly issued by I

Maga’håga/Maga’låhi, and expressly authorizing emergency procurement of supplies, services, or

emergency construction works as authorized by this Section, and pursuant to a Determination of Need

for Emergency Procurement, which shall be appended thereto.

(2) A Certificate of Emergency shall be made, under penalty of perjury, by the Chief Procurement

Officer, or Director of Public Works, or by the head of a purchasing agency, or a designee of either

officer having requisite authority to procure supplies, services, or emergency construction works. The

Certificate of Emergency shall have appended thereto a complete and true and correct copy of the

Determination of Need for Emergency Procurement, and contain the following:

(A) a statement expressly incorporating by reference the entire unaltered contents of the

appended Determination of Need for Emergency Procurement; and

(B) an affirmation that the contents of the Determination of Need for Emergency

Procurement are true, correct, and complete to the best, informed knowledge, and good faith belief

of the person making the Certificate of Emergency.

(3) Certified copies of the Certificate of Emergency by the Chief Procurement Officer, the

Director of Public Works, the head of the purchasing agency, or a designee of either officer shall be

submitted, prior to award, to I Maga’håga/Maga’låhi and the Speaker of I Liheslatura. Any contract

awarded under a Certificate of Emergency pursuant to Subsection (b)(2) of this Section shall be null

and void unless and until I Maga’håga/Maga’låhi approves such Certificate of Emergency in writing.

(c) Determination of Need for Emergency Procurement. No emergency procurement shall be solicited

or awarded without a Determination of Need for Emergency Procurement, which shall:

(1) state the date of its execution, and be signed under penalty of perjury by the Chief Procurement

Officer, the Director of Public Works, the head of a purchasing agency, or a designee of either officer,

conducting the emergency procurement of supplies, services, or emergency construction works;

(2) describe with factual particularity, the nature and apparent cause of the condition posing an

imminent threat to public health, welfare, or safety, or the health and safety of the environment, which

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could not have been foreseen through the use of reasonable and prudent management procedures, and

which cannot be addressed by other procurement methods of source selection;

(3) state that the threat is imminent, and that the emergency procurement authorized by this

Section is necessary, without delay, to protect the public health, welfare, or safety, or the health and

safety of the environment;

(4) affirm solemnly that the emergency procurement of supplies, services, or emergency

construction works, in the face of the emergency described, is not being used and will not be used,

directly or indirectly, to avoid other methods of source selection or the purposes and policies of this

Chapter;

(5) be copied and appended to its respective Declaration of Emergency or Certificate of

Emergency, as described in Subsection (b) of this Section, and further attached to and made a part of

any contract, or Notice of Award made or given; and

(6) be a material part of the procurement record required in this Chapter.

(d) How Conducted. To the extent practicable and except as otherwise allowed under this Section, an

emergency procurement shall be made and conducted with competition and utilize competitive procedures

used in this Chapter as is practicable under the circumstances, in the good faith discretion of the person

authorized to make such emergency procurement. A record shall be kept of all determinations and

statements required by this § 5215, as well as all other matters required to be made a part of the procurement

record by this Chapter. At the conclusion of a solicitation whether by award or cancellation, the Chief

Procurement Officer, the Director of Public Works, the head of a purchasing agency, or the authorized

designee of either officer; provided, the designee of any such officer is subject to § 5114(b) of this Chapter,

shall make, date, and sign a written statement describing: the circumstances of the event of the emergency

procurement; the solicitation process used; the names of potential bidders or offerors contacted; and the

justification for the selection of the awardee. The solicitation and competition for an award of an emergency

procurement contract should include:

(1) sending a Notice of Request for Interest to contractors on a qualified bidders list, and others

known to the government, who have provided responsive supplies, services, or emergency

construction works to the government, within the preceding twelve (12) months, of the type needed to

meet the particular emergency;

(2) a request for prompt expression of interest;

(3) at least three (3) Positive Written Quotations, which shall be solicited, recorded, and placed

in the procurement file, for the acquisition of supplies, services, or emergency construction works

needed, unrestricted by the qualified bidders list; provided, that all quotations are not required to be

positive if accompanied by written certification that to the maximum extent practicable, such positive

quotations could not be obtained from known or potential vendors; and

(4) an award of a contract or purchase order as expeditiously as the circumstances and prudent

competition may allow for, to the responsible contractor shown to provide the lowest price and most

expeditious delivery time, in accordance with § 5010 of this Chapter.

(e) Limitations on Numbers, Time, and Amount of Emergency Procurement. There shall be no limit

on the number of emergency procurements of supplies, services, and emergency construction works, but

no emergency procurement shall be made for an amount or construction greater than the amount of such

supplies, services, or emergency construction works that are necessary to address the emergency for a ninety

(90) day period immediately following the date of the Determination of Need for Emergency Procurement,

as described in Subsection (c) of this Section. During said ninety (90) day period, the Chief Procurement

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Officer, the Director of Public Works, the head of a purchasing agency, or a designee of either officer shall

promptly and expeditiously take all necessary steps to determine if there will be ongoing needs arising from

the event of emergency beyond the ninety (90) day period, and plan for the solicitation of supplies, services,

and emergency construction works for such ongoing needs under a method of procurement other than the

emergency procurement authorized in this Chapter. The emergency procurement may be extended beyond

ninety (90) days if the Chief Procurement Officer, the Director of Public Works, the head of a purchasing

agency, or a designee of either officer determines additional time is necessary and the contract scope and

duration are limited to the emergency. Thirty (30) days prior to execution of the extension, a public hearing

shall be held by the procuring agency, at which any person may present testimony. Notice of intent to extend

an emergency contract shall be published in a newspaper of general circulation at least five (5) days prior

to a public hearing. Notice shall include at least a description of the need for the emergency extension, the

vendor, and the date, time, and location of the public hearing. A record of such plan shall be made and kept

as a part of the procurement record as required by § 5249 of this Chapter.