013-060 Procurement Types: Emergency Purchases

013-060 Procurement Types: Emergency Purchases ITS utilizes the provisions of the Mississippi Public Purchasing Law and DFA/OPTFM purchasing guidelines in conjunction with ITS procedures for emergency purchases of information technology. Section 31-7-13(j) of the Mississippi Code, outlines the emergency purchase procedures, and Section 31-7-1(f) defines “emergency” as follows: (f) "Emergency" shall mean any circumstances caused by fire, flood, explosion, storm, earthquake, epidemic, riot, insurrection or caused by any inherent defect due to defective construction, or when the immediate preservation of order or of public health is necessary by reason of unforeseen emergency, or when the immediate restoration of a condition of usefulness of any public building, equipment, road or bridge appears advisable, or in the case of a public utility when there is a failure of any machine or other thing used and useful in the generation, production or distribution of electricity, water or natural gas, or in the transportation or treatment of sewage; or when the delay incident to obtaining competitive bids could cause adverse impact upon the governing authorities or agency, its employees or its citizens; or in the case of a public airport, when the delay incident to publishing an advertisement for competitive bids would endanger public safety in a specific (not general) manner, result in or perpetuate a specific breach of airport security, or prevent the airport from providing specific air transportation services. Note that the definition applies only to events that could not reasonably have been anticipated. The need to purchase technology products or services under the emergency purchase procedures and determination as to whether an emergency exists is a decision made by the governing board or the executive head/president, or his designees, of any agency or public university. Consistent with Section 31-7-13(j), the governing board or the executive head/president, or his designees, of any agency/public university of the State must first determine if an emergency exists in regard to the purchase of technology products or services so that the delay incident to giving opportunity for competitive bidding would either (1) threaten the health or safety of any person or the preservation or protection of property or (2) be detrimental to the interests of the State. If the governing board or the executive head/president, or his designees, of any agency/public university determines that an emergency exists, the agency/public university shall follow the procedures that correspond with each specific emergency type declaration as identified below and shall file the appropriate documentation with ITS as required by statute, the ITS procedures, and as requested by ITS. Please note the following applies to all emergency purchases: Total purchases made under Section 31-713(j) shall only be for the purpose of meeting the needs created by the emergency. ITS anticipates an emergency may include multiple purchases including purchases that fall under different types of emergencies. The agency or public university must submit documentation for each declared emergency purchase separately and pay careful attention to the requirements under each emergency type including, but not limited to, purchases that require ITS approval as well as the specific documentation required under each type of emergency. Emergency purchases shall be made with as much competition as is practicable under the circumstances and limited in time and scope to those products/services necessary to meet the emergency. Any contract awarded pursuant to an emergency purchase shall not exceed a term of one (1) year. (1) Emergencies Threatening Health or Safety of Any Person or Preservation or Protection of Property (Does Not Require ITS Approval) Whether an emergency exists which threatens the health or safety of any person or the preservation or protection of property is an agency/public university decision. ITS does not approve emergency purchases of this type nor determine the validity of the agency/public university emergency declaration. However, the corresponding ITS Emergency Purchase Form and post-purchase documentation are required to be filed with ITS as soon as practicable AFTER the emergency purchase. If the governing board or the executive head/president, or his designees, of an agency or public university determines that an emergency exists so that the delay incident to giving opportunity for competitive bidding would threaten the health or safety of any person or the preservation or protection of property, the provisions of competitive bidding shall not apply, and the agency/public university shall submit the completed and signed “ITS Emergency Purchase Form (Where Delay Would Threaten Health, Safety, or Property)” available on the ITS website to ITS as soon as practicable AFTER the emergency purchase as well as post-purchase documentation required by Section 31-7-13(j). See “Additional Information: Emergency Purchase Form and Post-Purchase Documentation” for information that must be provided on the form, including any attachments, and the post-purchase documentation requirements. (2) Emergencies Where Delay Would Be Detrimental to the Interests of the State (Requires ITS Approval) All other situations meeting the definition of “emergency” set forth in Section 31-7-1(f) are an agency/public university decision and require approval from ITS BEFORE the emergency purchase. If the governing board or the executive head/president, or his designees, of an agency or public university determines that an emergency exists so that the delay incident to giving opportunity for competitive bidding would be detrimental to the interests of the state, then the agency/public university must seek prior approval from ITS to make the purchase without having to comply with the competitive bid requirements. The agency/public university must submit the completed and signed “ITS Emergency Purchase Request Form (Where Delay Would Be Detrimental to the Interests of the State)” available on the ITS website to ITS with a certified copy of the minutes of the board of such agency/public university documenting the emergency purchase request, if applicable, PRIOR to the emergency purchase for ITS review and approval. If the request is approved by ITS, the agency/public university must also submit post-purchase documentation as required by Section 31-7-13(j) after the emergency purchase. See “Additional Information: Emergency Purchase Form and Post-Purchase Documentation” for information that must be provided on the form, including any attachments, and the post-purchase documentation requirements. Additional Information: Emergency Purchase Form and Post-Purchase Documentation Agencies/public universities shall provide sufficient detail on the appropriate emergency purchase form so that a person not familiar with the situation could be expected to understand the need to forego the normal purchasing procedure including the type/nature of the emergency, the specific emergency component that applies to the current emergency situation, and from whom the purchase was made. The form shall be signed by the agency executive head or public university president unless a request for a designee signature is approved by ITS. Submission of the completed form, along with the necessary documentation, is required to ensure compliance with Section 31-7-13(j). And when applicable, gives ITS the necessary information to review the emergency purchase request. Please note: • For emergency purchases that do not require prior ITS approval, ITS will issue a CP-1 Acquisition Approval Document to facilitate payment processing upon receipt of the Emergency Purchase Form and required documentation. • For emergency purchase requests that do require prior ITS approval, upon approval, ITS issues a CP-1 Acquisition Approval Document to facilitate payment processing. For state agencies, these approvals are uploaded into MAGIC. Failure to provide required and sufficient information may result in delay in issuing the CP-1 and/or approval of the emergency request, if required. Emergency Purchase Form Agencies/public universities shall address the following on the corresponding Emergency Purchase Form: • Does the situation fall under the definition of an emergency set forth in Section 31-7-1(f)? o The response to this item shall outline the specific component of the definition that applies in the current emergency situation. • Does the emergency threaten the health or safety of any person or the preservation or protection of property? o If yes, ITS approval is not required, and the agency/public university may proceed with the emergency purchase and submit the corresponding Emergency Purchase form and post purchase documentation as soon as practicable to ITS AFTER the emergency purchase. o If no, ITS approval is required, and the agency/public university must submit the corresponding Emergency Purchase form and documentation to ITS PRIOR to the emergency purchase. • What happened to cause the emergency? o This explanation is an expansion on the events surrounding the specific emergency that is cited in response to the above question. • What would be the negative consequences of following normal purchasing procedures? o This includes an explanation of the expected turnaround time for following a normal purchasing process contrasted with the timeframe in which the products or services are required in order to perform the mission of the agency. • Basis of selection of vendor(s)to be used o In response to this question, agencies/public universities should describe the research and selection process used for the requested emergency purchase. Agencies/public universities should use reasonable efforts to: ▪ Compare vendor offerings ▪ Ensure the selected product or service provided meets the needs of the agency/public university ▪ Obtain favorable pricing and contract terms using the following: • Written quotations • Use of state contract templates • Internet research • Reference checking • Other information means that can be used within the time constraints imposed by the emergency • Vendor’s contract • PO/Invoice • MAGIC Vendor Codes • If applicable, for emergencies where delay would be detrimental to the interests of the State, a copy of the certified minutes of the agency/public university’s board meeting regarding the request for an emergency purchase must be attached to the corresponding emergency form. o The agency head/university president or their designee must ensure each emergency purchase request is documented in the minutes of the board meeting prior to the emergency purchase. The minutes must include a description of the information technology to be purchased, the cost, the vendor from whom the purchase will be made, and the nature of the emergency. A copy of these minutes must be provided to ITS with the emergency purchase request. • Signature of agency head or public university president o The signature, for an emergency purchase, is the requesting entity’s certification that an emergency exists as outlined in Section 31-7-13(j). o Only the agency head or public university president shall sign the form unless a request for a designee signature is approved by ITS. Post-Purchase Documentation Agencies/public universities shall also provide ITS with post-purchase documentation. In addition to submission of the signed and completed corresponding ITS Emergency Purchase Form, in compliance with Section 31-7-13(j), following the emergency purchase, the agency or public university shall also provide documentation of the purchase, including a description of the product/service purchased, the purchase price thereof, and the nature of the emergency which shall be filed with ITS.