The coronavirus pandemic is taxing government services and infrastructure in numerous ways, and many of the resulting shortages are well-publicized in the media.  Some of those needs are intuitive—increased hospital capacity, medical supplies, and hand sanitizer, for example.  Others are more hidden, but just as critical—such as the need for additional, specialized janitorial services to clean public buses and buildings, or emergency repairs to sewer infrastructure related to the stresses caused by greater water use and the flushing of bleach and other chemicals down the drain.  In the normal course, the government would conduct a competitive bidding process, often followed by a legislative-approval process, prior to entering into a contract for goods, services, or the design and construction of public facilities.  The public-procurement process is often a lengthy one, and during a true public emergency such as the COVID-19 pandemic, time is the public’s most limited resource.  Fortunately, most procurement regulations include exceptions to the competitive process for public emergencies, thereby permitting public agencies to enter into contracts with the private sector for the goods, services, and facilities it urgently requires, without the need to go through a lengthy procurement process.  This will be the first of several blog posts dedicated to this topic, with a focus on the emergency-procurement procedures available to Miami-Dade County.  For up-to-date information on Miami-Dade County’s response to coronavirus, including the Mayor’s declaration of a state of emergency, please refer to the County’s response website.

Miami-Dade County’s procurement of goods and services (such as, for example, medical supplies, security services, and cleaning/sterilization services) is governed by the Miami-Dade County Code.  Although there are special procedures for the certain County departments, such as the Airport and Seaport (which we will address in a future post), County procurement of goods and services is generally controlled by Section 2-8.1 of the County Code and Implementing Order 3-38. Under those authorities, when a public emergency renders procurement procedures impractical, the Mayor is granted the authority to award contracts up to $250,000 in value without competitive procedures or approval by the Board of County Commissioners.  Contracts greater than $250,000 in value may be procured without the use of competitive procedures, but must be approved by the Board of County Commissioners by a 2/3 supermajority vote.

As is the case with other state and local agencies in Florida, Miami-Dade County’s procurement of architectural and engineering services or of construction contractors (including, for example, the design and construction of new public hospital facilities) are governed by Florida law.  The procurement of architectural, engineering, and other similar professional services is governed by  Section 287.055 of the Florida Statutes, which is commonly referred to as the “CCNA” (for the  Consultants’ Competitive Negotiation Act).  The CCNA generally requires a competitive-procurement process, but the CCNA does not require any competitive process for the procurement of professional services in the event of “valid public emergencies certified by the agency head.”  The procurement of construction contractors is governed by Section 255.20 of the Florida Statutes, which also generally requires a competitive-procurement process.  Section 255.20 also includes an exception to the competitive process for public emergencies, but it is a narrower exception than that found in the CCNA – Section 255.20 exempts construction related to damage caused to existing facilities by Acts of God or other urgent circumstances.  As written, this exemption does not apply to constructing new facilities to add capacity related to public emergencies such as coronavirus.   However, the CCNA includes procedures for the procurement of a design-build contractor (i.e., a single firm both designs and constructs a public facility), and the CCNA’s exemption to the competitive process applies to design-build contracts as well.  Therefore, new public facilities needed to address the current pandemic could be procured under the CCNA’s design-build process without the need for a full competitive process.

 

This information is intended to inform our clients and other friends about legal developments, including recent decisions of various municipalities, legislative, and administrative bodies. Because of the rapidly changing landscape related to COVID-19, we intend to send out regular updates. The information we provide is not intended as legal advice and viewers/readers should not rely on information contained in these materials to make business or legal decisions. Before making any legal decisions, consult your lawyer. Please do not hesitate to contact us should you need assistance responding to the many issues which have arisen, and will continue to arise, out of this situation.