Expedited Procurement Procedures for Emergency Construction Services (2012)

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33 CHAPTER THREE DEPARTMENT OF TRANSPORTATION EMERGENCY PROCUREMENT POLICIES, PROCEDURES, AND PROGRAMS from federal and state government agencies. Because an emergency declaration is often the condition precedent to waiving routine consultant and construction procure- ment constraints, understanding each agency’s definition is important to address the true nature and meaning of an emergency. When a potential emergency occurs, the facts surrounding the incident and its impact on the affected community determine whether the situation conforms to a specific definition of an emergency and hence qualifies for a waiver of routine procurement constraints as well as emergency funding. The survey asked the respondents to rate the importance of a clear definition of an emergency on the success for an emergency project. Two-thirds believed that it is essential, and six more indicated that it was important. FHWA and U.S. federal law define an emergency per the United States Code, Title 23 (USC 2000). To receive federal funding, an emergency project must meet the requirements listed in the Stafford Act definition of emergency. The content analysis found three DOTs that specifically align their definition with the FHWA criteria (see Table 13). In presidentially declared emergencies, the event must meet the criteria of the Stafford Act, and 15 DOTs reference the act in their emergency planning documents. Table 13 shows the output of the content analysis regard- ing the criteria used to define an emergency. Four different types of criteria are used to define the circumstances that constitute an emergency: event, loss, time, and location. In the event criteria, the majority of DOTs cite a natu- rally occurring disaster, catastrophe, or force majeure in their definition of an emergency circumstance. They also include man-made incidents such as a bridge-barge colli- sion in the definition. The incident’s potential to cause loss of life or impair the health, property, and welfare of the public is a loss-based emergency definition criterion. The other two emergency criteria types are time and location. Time criteria refer to an urgent or immediate need to react to the incident, and location criteria typically require that some government official declare a specific geographic area a disaster area. The definition of emergency from each department may not be fully inclusive. Figure 21 shows the results of the survey for declaration required to trigger expedited procurement procedures. INTRODUCTION The speed with which a DOT can respond to an emergency can greatly influence the effect of the crisis on the public. To effectively respond to an emergency, the DOT must act deci- sively to mitigate the impact and ongoing nature of a crisis. The continuation of an emergency may directly threaten life and can cause continuous destruction of property, in addi- tion to the subsequent effect on the local economy until ser- vice has been restored, so it is important to understand the conditions that legally constitute an emergency and who has the authority to declare an emergency. A solid understanding of the regulations and laws that constrain a DOT’s procure- ment options to respond to emergency conditions allows an agency to develop emergency response plans and synchro- nize them with other state and federal agencies. The Stafford Disaster Relief and Emergency Assistance Act (USC 2007) requires all states to have an Emergency Management Plan (EMP). The act sets the constraints for the receipt of federal ER that funds the DOT procedures on procurement of construction services following an emer- gency. The literature review shows that the depth of content of the EMPs ranges from a several-page memorandum to a full-scale policy manual. The more robust plans are typi- cally found in states that experience frequent disasters, such as Florida with its hurricanes/tropical storms and California with its earthquakes and wildfires. The operating principle for emergency procurement is preparation prior to the emer- gency, and an EMP forms the foundation upon which a DOT will begin its relief efforts (Thorn 2006). The theme of the EMP is risk allocation within the constraints of existing leg- islation and regulations. One contractor indicated that “the principle behind good risk allocation is that the risk should go to the group that can best manage that particular risk” (Christenson and Meeker 2007). This chapter discusses the emergency project planning process and synthesizes the pro- grams in use by DOTs to respond to emergencies and how risk should be allocated to address emergency construction. It starts with a discussion of what constitutes an emergency. EMERGENCY DEFINITION The definitions of an emergency or a state of emergency act as triggers to make special sources of funds available

34 FIGURE 21 Emergency definition survey results. EMERGENCY DECLARATION AUTHORITY The authority to declare an emergency is provided for in the law, as well as in agency regulations and policies. The dec- laration is typically the key step to implementing expedited emergency procurement procedures. Many DOTs permit their officials to declare an emergency at their discretion (Maine DOT 2011). Table 14 is a summary of the content analysis augmented by the survey results for this specific question. The states that did not specifically include the gov- ernor in their emergency procedures document must be pre- sumed to have incorporated that authority by reference to state code. The level of authority to declare an emergency TABLE 13 EMERGENCY DEFINITION CRITERIA Emergency Criterion Type Event Type Criteria Loss Type Criteria Time Criterion Location Criterion Source Stanford Act defn. Man-made catastrophe Natural disaster Loss of life, impairment of health, property, and welfare Loss or impairment of public services Economic loss Need for immediate action/time dependent Disaster area designation U.S. Code Y Y Y Y N Y N Y FHWA Y Y Y Y N Y N Y Alaska DOT Y Y Y Y Y N Y California DOT Y Y Y Y N Y N Colorado DOT Y N N Y Y N Y N Delaware DOT Y N N Y N N N Y Florida DOT N Y Y Y N N Y N Hawaii DOT N N N N N Y Y Y Idaho DOT N Y Y Y N N Y N Illinois DOT Y Y Y Y N Y N Y Iowa DOT Y Y Y Y N Y N Y Kansas DOT N Y Y Y Y N Y Y Maine DOT N Y Y Y Y N Y N Maryland DOT Y N N Y N N Y N Massachusetts DOT Y N N Y Y N Y Y Minnesota DOT N Y Y Y Y N Y N Mississippi DOT N Y Y Y Y Y Y N Missouri DOT N Y Y N Y N Y N Montana DOT N Y Y Y N N N N Nebraska DOT N Y Y Y N N Y N Nevada DOT N Y Y N N N N Y North Carolina DOT Y N N Y N N Y N Ohio DOT N Y Y Y N Y Y Y Oklahoma DOT N Y Y Y Y N Y N Oregon DOT Y Y Y Y N N Y N Tennessee DOT Y N N Y Y N Y N Utah DOT Y N N Y N N N N Vermont DOT N N Y Y N N Y N Virginia DOT N N N N N N N N Washington DOT Y Y Y Y N N N N Wisconsin DOT Y Y Y N N N N Y Wyoming DOT N Y Y Y Y N Y N Totals 32 15 22 23 27 11 8 20 12 Y= yes; N = no.

35 determines the means available to control the situation. The content analysis revealed that once an emergency is declared, certain procurement, purchases, and construction obligations are dismissed compared with nonemergency conditions. This analysis infers two prime categorizes of an emergency: a localized emergency declared by a DOT offi- cial, and a state-level emergency declared by the governor. An example of how an emergency declaration operates is found in the Alaska emergency regulation, which states that whoever has the authority to hold the governor’s office has the power to declare a state-level emergency (Gilson 1997). The effect of such a state-level declaration is to activate the response and recovery aspects of all applicable local or interjurisdictional emergency services and to authorize the furnishing of aid and assistance under those plans (Gilson 1997). In California, a director’s order documents the use of special authority, delegated by the state law, to set aside normal contracting procedures, and often includes fund- ing allocation, scope of work, and duration (Caltrans 2006; Trauner 2007). TABLE 14 EMERGENCY DECLARATION AUTHORITY FOUND IN DOT EMERGENCY DOCUMENTS State (total = 38) Governor Secretary/ Commissioner DOT Director Prcmt./ Contr. Office Dist./Div. Engr./Other DOT Authority Level Alabama Y N N N Y <$50K Alaska Y Y Y N Y <$100K Arizona N N N Y N <$50K California Y N Y N N No $ limitation Colorado Y N Y N Y No $ limitation Connecticut N Y N N N NA Florida Y N N Y N No $ limitation Hawaii Y N N N Y NA Idaho Y N N N N NA Illinois N N N Y N No $ limitation Iowa Y N Y Y N <$100K Kansas N Y Y N N NA Louisiana Y N N N N <$50K Maine Y N Y N N NA Massachusetts N N Y N N NA Michigan N N N Y N NA Minnesota Y Y N N N NA Mississippi N Y N N Y NA Montana N Y N N N NA Nebraska N N Y Y Y NA Nevada Y N N N N NA New Hampshire Y N N N Y NA New Mexico Y N Y Y Y NA New York State N N Y N N NA North Carolina Y N Y N N No $ limitation North Dakota Y N Y N N <$150K Ohio Y N Y N N NA Oklahoma Y N Y N N <$500K Oregon Y N Y Y Y <$250K Pennsylvania N N Y Y Y NA Rhode Island N N Y N Y NA South Carolina N N Y N Y NA Texas Y Y N N Y No $ limitation Utah Y N Y Y N <$25K Vermont Y Y Y N N No $ limitation Washington Y Y Y N N <$100K West Virginia Y Y N N Y NA Wisconsin Y N N N Y NA Wyoming Y N Y N N NA Y = yes; N = no; NA = not available.

36 The Florida DOT Emergency Plan states that “(f) Noth- ing contained in this Order shall prevent local jurisdictions from taking prompt and necessary action to save lives and protect property of their citizens, including the authority to compel and direct timely evacuation when necessary in the absence of the Governor’s directive” (Florida 2010). The Florida clause is intended to delegate the authority to declare a localized emergency to officials of the DOT, who include the deputy director, chief engineer, and chief structural engineer (Florida 2010). Its intent is to facilitate a speedy response to an emergency situation at the lowest level and not hinder the necessary steps to save lives and property and restore transportation service by forcing local officials to wait for permission at a higher level. The survey asked the importance of delegating decision-making authority to the project level, and 21 of 30 responses indicated that it was either important or essential. This leads to the conclusion that delegating the authority to waive routine contracting constraints is necessary to achieve a quick response (Expe- dited Procurement Fundamental #1; chapter one) and miti- gate the overall impact to the public. Figure 22 shows the integration process between local and state agencies for declaring an emergency. The diagram separates the action taken and the point of responsibility. The local agencies on the ground assess the damage and notify the DOT. The DOT determines the scope of the emergency and asks the governor to declare an emergency. The governor reviews the damage and decides if it is indeed an emergency. If the governor declares an emergency, directors’ orders will be produced. This triggers a collaborative state-level emer- gency response from state and local agencies. Some states’ emergency management plans, such as Alabama’s (2009), are specific in the chain of authority and contain a defined succession of delegated authority. If the governor or any other delegate in charge of declaring an emergency is absent from their post, then the second-in- command can assume authority and declare an emergency. The U.S. President can declare an emergency under the Stafford Act. If the President does not declare an emergency under this act, the governor or the state’s chief executive office must ask the President to declare an emergency as a prerequisite to federal ER funding (Gilson 1997). Types of Emergency The literature review and content analysis found that DOTs distinguish between two forms of emergency: a catastrophic disaster and a routine incident (Loosemore and Hughes 1998; Schexnayder and Anderson 2010; Houston 2011). The area affected will depend upon the type of emergency; a catastrophic disaster will affect an entire state, but may be isolated to a localized area. A routine emergency will affect only a localized area. A catastrophic emergency can be caused by a natural disaster or unexpected structural failures. State agencies have internally established levels to categorize crisis situations to determine whether emergency procurement procedures are required. The level of action required by a state is dependent on the type of incident that has occurred. Table 15 lists the typical causes of emergen- cies and categorizes them into either potentially catastrophic emergency or day-to-day incidents. AUTHORIZED SCOPE OF EMERGENCY CONSTRUCTION Since normal rules of competitive bidding are suspended during the procurement of emergency construction, the laws that regulate the emergency procedures also regulate the scope of work that will be authorized to be construc- tion under emergency powers. Title 23 USC is explicit on the scope limitations: In no event shall funds be used pursuant to this section for the repair or reconstruction of bridges that have been permanently closed to all vehicular traffic by the State or responsible local official because of imminent danger FIGURE 22 State and local emergency collaboration process.

37 of collapse due to a structural deficiency or physical deterioration (USC 2000). TABLE 15 EMERGENCY CLASSIFICATIONS Catastrophic Emergency Routine Emergency Natural Disaster Structural/Technical Failure Flooding Energy crisis Traffic accident Tornado/windstorm Transportation network interruption Bridge collapse Minor infrastruc- ture failure Hurricane Terrorism Severe weather Winter/ice storm Radiological crisis Temporary road closure due to fallen trees or downed power lines Lightning Dam failure Extreme temperatures Hazmat Wildfire Civil disturbance Rural culvert washout Urban fire Cyber crisis Earthquake Landslide Lo (1997); AEMA (2009); FDOT (2010). The operating notion here is that a state agency is not allowed to “get well” using emergency federal funding just because a qualifying disaster happened to occur in the area where a structure that was deficient before the crisis is located. The same policy applies to replacing a damaged road or bridge with a new facility that is better than the old one that failed or was destroyed. This is termed a “better- ment” in the regulations (Kirk 2011). Although it might be perfectly logical to increase the capacity of a transportation facility that is being rebuilt after a disaster, to do so violates the spirit of the Title 23 authorization for ER funding. The law was enacted to help states restore damaged highways to predisaster capacity, not to supplement standard federal- aid highway funding. Hence, betterments constitute a highly restricted special case requiring careful coordination with the FHWA if federal ER funding is needed to pay for them. Betterments In some situations it may appear appropriate to upgrade a damaged road or bridge. Betterments are defined by the Wis- consin Department of Transportation (WSDOT) (2012) as “any additional feature, upgrading or change in capacity, or character of the facility from its predisaster condition.” Bet- terments can be incorporated into ER projects only if they can be justified to show an economical savings in costs to the current or future ER program (Kirk 2011). Betterments typically associated with ER work are— • “Relocating a facility to a higher elevation or raising roadway grades; • Providing additional hydraulic capacity by lengthening or raising bridges, adding additional culverts, replacing culverts with bridges, and/or deepening channels; or • Providing additional protection by installing riprap, scour protection at bridges, spur dikes, and stabiliza- tion of slopes/slide areas” (Ziegler 2011). DOTs, however, are able to incorporate betterments that are paid for with nonfederal funds as well as eligible non-ER federal funding. The federal underlying principle of “only that which is necessary to remove the emergency condi- tion” (plus allowances for achieving future capacity and to meet current FHWA standards) is further reinforced by state code and DOT operating policies. The Alaska DOT (Alaska Department of Transportation and Public Facilities 2005) permits emergency procurement procedures to be used only to purchase the goods and services necessary to “relieve the emergency situation.” Finally, according to Perry and Hines (2007), the Kansas DOT policy limits the emergency con- tracts to “immediate corrective actions including steps for necessary emergency procurements shall be taken to stabi- lize the situation until a permanent solution can be obtained through conventional channels.” When the previous discus- sion is considered in the light of the fact that 80 percent of the survey responses indicated that a “clear definition of allowable betterments” was either important or essential to the success of an emergency project, the conclusion is that including betterments in an emergency project violates the fundamental purpose of the procedures—to restore essen- tial services and eliminate hazards (Kirk 2011)—even if the inclusion is perfectly logical. This is because the use of expedited procurement procedures where competition requirements have been waived is limited to the design and construction tasks necessary to resolve the emergency and restore predisaster service, which leads to a definition of emergency restoration. Emergency Restoration Speedy system restoration is critical to effective recovery from an emergency. Therefore, the DOT’s prime responsi- bility is expeditiously initiating the procurement processes necessary to achieve permanent system restoration. Depend- ing on the scale of damage, restoration of service is typically achieved through two repair phases (Perry and Hines 2007): • Emergency repairs: “Emergency repairs are meant to permit work to start immediately to restore essential traf- fic in the disaster area that cannot wait for a finding of eligibility and programming of a project. This part of the program is especially designed for speed” (Kirk 2011). • Permanent repairs: “Permanent repairs go beyond the restoration of essential traffic and are intended to restore the damaged bridges and roads to pre-disaster conditions and capabilities. Where the damaged parts of the road can be repaired to pre-disaster conditions,

38 without replacement or reconstruction, this is done” (Kirk 2011). The average DOT has two forms of emergency contracts: a maintenance contract and a reconstruction contract. The contract for emergency repairs allows access for emergency services, damage assessment, and repairs to minor infra- structure reconstruction. UDOT (2011) defines emergency repairs as a “public works project undertaken to eliminate an imminent risk of damages to or loss of public or private property.” Expedited procurement procedures are normally authorized for emergency repairs. The North Dakota DOT lists the following types of emergency repairs expected after a major disaster: • “Regrading of roadway surfaces, roadway fills, and embankments • Temporary grade raises to restore essential traffic • Debris removal within shoulders of roadway or to pre- vent future damage • Erection and removal of barricades and detour signs, flagging and pilot cars during the emergency period, and placement of riprap around piers and bridge abut- ments to relieve severe on-going scour action • Placement of riprap on the downstream slopes of approach fills to prevent scour during overtopping of the fill • Removal of slides if affecting traffic • Construction of temporary roadway connections (detours) • Erection of temporary detour bridges • Replacement of approach fills • Wave action damage within the clear zone” (Ziegler 2011). If key infrastructure must be reconstructed as a result of the emergency, a permanent repair contract is used. Per- manent restoration is typically not eligible for federal ER funding. For example, “[w]here a road needs to be replaced, ER funding is limited to the costs of building a roadway designed to current standards and of comparable capacity” (Kirk 2011). Additionally, depending on the situation, infra- structure reconstruction projects, while still of high priority until service has been completely restored, are normally sub- ject to the nonemergency procurement rules for competition (Perry and Hines 2007; Kirk 2011). EXPEDITED PROCUREMENT PLANNING PROCESS The old cliché warns that “proper prior planning prevents piti- fully poor performance” (Brick 2005). In emergency design and construction, procurement planning must begin before the disaster occurs. The survey asked two questions specific to emergency project planning. The first asked if the DOT had a document that “specifically describes the procedures to be used with emergency procurements.” Fewer than half (13 of 30) the respondents answered “yes.” The second asked the agency had a “contract document that was specifically developed for emergency projects.” Only 5 of the 30 answered “yes.” This response indicates the need for research on the appropriate content of DOT emergency project delivery plans as well as the form and content of tailored emergency con- tracts and their efficacy for agencies that have used them. Contracting agencies are required to prepare written poli- cies and procedures for each method of procurement used for engineering and design-related services funded with federal- aid highway program funds and submit them to FHWA for approval, as specified in 23 CFR 172.9(a). The literature finds that the first step in the emergency plan is a decision-making sequence that differentiates between emergency repairs and nonemergency repairs (Perry and Hines 2007; Thorn 2006; Kirk 2011; ). The Virginia DOT’s (VDOT) Emergency Contract Manual (2012) furnishes an example of how this decision is made (see Figure 23). FIGURE 23 Virginia DOT emergency repair decision tool (after VDOT 2012). The output of the emergency procurement planning pro- cess should be a plan that provides definitive guidance for the DOT personnel who are faced with the changed adminis- trative environment demanded in an emergency. Therefore, it stands to reason that the emergency procurement plan might enumerate what the changes will be and how the rou- tine process will be altered to satisfy the six fundamentals of emergency procurement derived from Bai et al. (2006) and other sources in the literature in chapter one.

39 Planning for Rapid Response Quick response is the first fundamental. It focuses on review- ing all the regulations, permits, policies, and law that extend the project delivery period of a routine project, regardless of project delivery method. According to Perry and Hines (2007), the following is the list necessary to cover the subject and provide the information needed for expeditious decision making about the procurement process: • “Flexibilities available in federal procurement; • Flexibilities identified in the State Model Procurement Code; • Practices in selected states [with recent emergency experience]; and • Limitations imposed by federal grant agreements of the Federal Highway Administration (FHWA) and the Federal Emergency Management Agency (FEMA)” (Perry and Hines 2007). The object of this exercise is not to find a single process that will be applied to all expedited procurements, but rather to identify all the available alternatives and furnish a single point for finding and understanding procurement constraints. An example of how five different DOTs’ emergency procure- ment documents categorize a crisis situation is depicted in Table 16 and lends structure to the subject of organizing for emergency procurement. California, Florida, and Louisiana essentially differentiate between two levels of emergency: small-scale, frequently occurring incidents and large-scale, infrequent disasters. All three states differentiate the two by whether or not the state government has issued an executive order. Alabama distinguishes among four levels of crisis, which are used to issue warnings to local government and internal operational organizations. Oregon differentiates based on whether a routine level of competition can be used to address the emergency or if time demands that the DOT move directly to a standing list of prequalified design consultants and construction contractors. The Oregon model appears to support the second chapter one fundamental, “experience counts,” by planning to uti- lize routine procurement procedures to the greatest extent possible. The Oregon Tier 1 selection utilizes a “mini-solic- itation” that includes the following content: • “Response deadline and location for submittals, • Project description and objectives (and information from project prospectus, if available), • Programmed budget for construction (and right-of- way if applicable), • Schedule to complete the requested Services, and pro- grammed bid let date (if applicable), • General scope of work and period of performance expected under the Work Order Contract, • If available, a detailed statement of work… required if cost proposals will be evaluated ... • Selection criteria and weighting” (ODOT 2010). TABLE 16 COMPARISON OF EMERGENCY OPERATIONS MODES State Agency Modes of Operations Alabama (AEMA 2009) Level I Disaster declared Extensive multiagency statewide response Federal response and recovery assistance 24-hour emergency operations Emergency procurement and construction Level II Potential or emergency or disaster Requires multiagency response Possible federal assistance Potential emergency operations, procure- ment and construction Level III May required multia- gency response Daily activities are hindered Level IV Day-to-day emergency response Within capabilities of local government California (Lo 1997) Disaster Mode Governor declares an emergency Establish statewide stan- dardized EMS Emergency operations, procurement, and construction Incident Mode Mitigating congestion through a quick response to traffic incidents Florida (FDOT 2010) Governor-Declared Emergency Statewide events Secretary-Declared Emergency Localized event Louisiana (LOSP 2011) Catastrophic Emergency Executive order required Record keeping enhanced Usual Emergency Determination required; written quotes Scope of emergency procurement Oregon (ODOT 2010) Two-Tier Selection Tier 1, Solicitation and independent selection Tier 2, Selection from a pool of qualified firms Figure 24 is the response to a survey question regarding the difference between DOT project delivery methods and procurement procedures for routine versus emergency proj- ects. With the exceptions of sole source and “other” procure- ments, there is not an appreciable difference between the delivery method and procurement procedure selections for routine and emergency projects. Although the survey did not specifically ask for the information, one would assume that the major difference is probably the pace at which the emer- gency projects are brought under contract, as demonstrated by the Oregon DOT “mini-solicitation.” Both observations connect with the information in the literature that advises

40 sticking to the routine procurement process as much as is both practical and expedient (Christenson and Meeker 2002; Thorn 2006; Perry and Hines 2007; Houston 2011). There is a discomfort level associated with changing procurement procedures that are founded in law. By adjusting existing procedures to fit the crisis timeline, the agency minimizes the hesitancy that its personnel will feel when asked to step outside their comfort zone in an emergency. The I-40 Beck- ham County Bridge Pier Replacement case study in chapter two is an excellent example of how the Oklahoma DOT was able to expeditiously react to an emergency without throw- ing out its traditional process. ODOT made two adjustments. First, it awarded sole source contracts to contractors and material suppliers that were working near the incident to immediately erect shoring to keep the overpass from col- lapsing. Second, it limited its emergency repair solicitation to 12 contractors known to be qualified to do the work. The agency then adjusted is internal process by requiring all the individuals necessary to review bids and award a contract to be physically present at the bid opening. Hence, the per- manent repair contract was awarded within a week of the incident. The combination of the content analysis, literature, and case study results leads to the conclusion that emergency procurements can be successfully executed using traditional procedures that have been adjusted to comply with the need for speed and accorded a higher level of priority. The third fundamental is “incentivize key elements of success.” The Virginia DOT Emergency Contract Manual (2012) furnishes guidance in this regard: “The liquidated damages … amount may not be sufficient to encourage the Contractor to complete the contract on time. If this is the case, adding incentive and disincentive provision to the contract may be necessary…An analysis establishing the road users cost impact is required to support the incentive and disincentive” (VDOT 2012). The survey found that 60 percent of the respondents rated I/D schemes as either important or essential to the success of emergency proj- ects. This leads to a recommendation for future research on the efficacy of I/D schemes on the success of emer- gency projects. Planning for Emergency Contract Execution The three remaining chapter one fundamentals are “mini- mize design reviews,” “control the internal technocracy,” and “commit to extraordinary effort.” They all speak to having a plan to adjust internal design and construction administration processes to permit the award of design and construction contracts as fast as is prudent and practi- cal. Since the previous section showed that most emergency repair, restoration, and replacement projects will be deliv- ered using traditional DBB, the idea of minimizing design reviews supports the award of the construction contract in an expeditious manner. Therefore, it is important to develop a plan for quantifying the scope of emergency work. A paper by two contractors indicated that pricing was directly related to the owner’s ability to develop a solid scope of work before asking for bids: [Owners] can reduce costs by “doing their homework” and by utilizing proper partnering, flexibility, risk allocation, and processes…. Proper “homework” preparation includes developing sound geotechnical and environmental data prior to the bid…. including hiring the best possible geotechnical and environmental firms to provide early, pre-bid data on the project (Christensen and Meeker 2002, italics added). FIGURE 24 Survey project delivery methods and procurement procedures.

41 The remainder of that paper emphasizes the issues deal- ing with underground conditions from both the geotechnical impact on the design and the environmental impact on the construction contractor’s operations. The NYSDOT case study demonstrates one tool to react rapidly to emergency technical requirements: the IDIQ con- tract. IDIQ is a federal contracting term; these contracts are also called “push button contracts” by FDOT, “master con- tracts” by WSDOT, and “if and when directed” contracts by the New Jersey DOT (Perry and Hines 2007). The IDIQ essentially creates a contractual mechanism to put a con- struction contractor or an engineering design consultant on standby to do a series of specific types of projects using a task order, without having to advertise and award each task order. Many DOTs use IDIQ-like contracts to retain general engi- neering consultants (GEC) for planning, design, and analysis work. NYSDOT’s IDIQ for emergency bridge construction allowed it to rapidly react to the aftermath of a hurricane. EMERGENCY PROJECT PLANS FOR MAINTENANCE PROJECTS Based on the survey responses, the average DOT delivers both emergency construction and maintenance projects. The availability of federal funds often determines whether an emergency project is classified as a maintenance or a con- struction project. Additionally, most DOTs have a robust internal maintenance workforce complete with its own inventory of equipment and stockpiles of common mainte- nance project materials. Hence, the magnitude of the dam- age and the availability of state-owned equipment will lead to most small emergency projects being completed using internal resources. Emergency Maintenance Provisions The content analysis found that both the California (2010) and Oregon (2004) DOTs have provisions in their emergency management plans for executing emergency contracts when the situations exceeds in-house capabilities. Oregon puts it this way: “Many repairs of damage from emergency or extraordinary circumstances require resources or expertise not available with maintenance forces. If the situation war- rants it, the State Maintenance Engineer, under ODOT Sub- Delegation Order SUB-11, may declare an emergency for the situation” (Oregon DOT 2004). This declaration triggers the ability to consummate “contracts without calling for formal bids.” Caltrans takes it a step further and stipulates two pos- sible contracting methods that become available to its main- tenance force to augment their capacity, as well as assigns responsibilities for the various portions of the procurement among its operating divisions: Successful emergency force account and emergency limited bid project delivery requires the cooperation of the Divisions of Maintenance (Maintenance), Procurement and Contracts, and Construction. Maintenance assesses damage, defines project scope, and estimates the cost to deliver emergency force account and emergency limited bid contracts… District construction takes an active role in assisting Maintenance in scoping and estimating emergency force account and emergency limited bid contract projects…. [and] takes the lead on contractor selection for emergency force account work (Caltrans 2010). Oregon differentiates between “emergency/urgency maintenance” and “extraordinary maintenance” in its main- tenance guide (2004). The first category pertains to repair, restoration, and replacement projects that are not eligible for emergency funding outside the DOT’s operating budget; the second category pertains to emergency projects that may qualify for external funding reimbursement from special state or federal sources. The Oregon manual also prescribes a different level of authority to trigger emergency contract- ing procedures. Since “emergency/urgency maintenance” are typically projects necessary because of high-probability events of small scale such as bridge damage from accidents, localized flooding, or unexpected structural deficiencies found during routine inspections, the state maintenance engineer is vested with the authority to declare an emer- gency situation that qualifies for using expedited procure- ment procedures. Conversely, “extraordinary maintenance” projects result from low-frequency, large-scale events that can be defined as disasters and require a declaration of an emergency by the governor or a national authority. The split between the two types of projects gives the Oregon DOT the ability to react more quickly to small, high-frequency emergencies because the authority to trigger expedited procurement procedures is held at a lower level and within the maintenance organization itself, eliminating the need to seek action from an elected official at the state or national level. Table 16 shows that other states have a similar differentiation based level of declaration authority, although not specifically for maintenance like Oregon. The differen- tiation of emergency maintenance by source of funds is quite logical and furnishes an example of an effective practice that other agencies can used to add structure to their emergency management documents. Emergency Maintenance Contract Tools Some DOTs, including California (2010), Florida (2010), and Oregon (2004), maintain a standing list of prequali- fied contractors who are able and willing to work during an emergency. Additionally, 50 percent of the survey respon- dents indicated that they also maintain a standing list of prequalified consulting engineering firms and construction contractors for potential use in an emergency. The technique enables a DOT to catalog availability of specific special- ties, skills, equipment, and materials before an emergency

42 and furnishes a ready resource to reduce reaction time in an emergency. Tangentially, this practice may insulate the agency from award protests by making registration for the standing list a condition precedent to being awarded a con- tract through emergency sole source or limited competition procedures (Blanchard 2007). FDOT requires its emergency standing list contractors to register and submit bids for typical emergency items such as debris removal before the hurricane season (FDOT 2010). This allows FDOT to obtain competitive pricing for emergency work before the emergency occurs based on the market rather than based on an urgent need. It is important to enumerate the specific qualifications and capabilities to be added to the emergency standing list. Each DOT consid- ers a number of unique factors to procure a contractor for emergency repair contracts. However, the common theme is that the contractor must have the “capacity and ability” to provide adequate staff numbers to work on multiple fronts (Schexnayder and Anderson 2010). Caltrans (2006), which uses postproject performance evaluations on routine proj- ects, furnishes a list of other typical factors: • “Availability of resources • Mobilization response time • Proven management abilities • Current contractor’s license • Corporate cooperation history” (Caltrans 2006). Finally, 28 of 30 survey respondents cited “highly quali- fied” designers and contractors as either important or essen- tial to the success of an emergency project. Connecting this result with the fact that 50 percent of the respondents actu- ally use a standing list of prequalified designers and con- tractors and the results of the content analysis previously discussed leads to the conclusion that maintaining an emer- gency designer/contractor standing list is an effective means to expedite emergency procurement procedures. CONCLUSIONS, EFFECTIVE PRACTICES, AND FUTURE RESEARCH RECOMMENDATIONS The analysis and findings in this chapter yielded a number of conclusions, effective practices, and recommendations for future research. Conclusions The following conclusions were reached: • The emergency procurement document content analy- sis found that state DOT definitions can be grouped in four categories: – Event-oriented emergencies; – Loss type emergencies; – Time-related emergencies; and – Location-based emergencies. • The survey results and content analysis both found that delegating the authority to waive routine contracting constraints is necessary to achieve a quick response and mitigate the overall impact on the public. • The Title 23 prohibition on using ER funding for aspects not related to the emergency condition support the conclu- sion that including betterments in an emergency project violates the fundamental purpose of the procedures: to restore service to pre-emergency levels and eliminate immediate hazards. Note that betterments may be funded with other non-ER federal funds if they are eligible. • The combination of the content analysis, literature, and case study results leads to the conclusion that emer- gency procurements can be successfully executed using traditional procedures to the greatest extent prac- tical and adjusting them to account for the higher level of priority that results from the emergency nature of the procurement. • The survey regarding the need for “highly qualified” designers, the fact that 50 percent of the respondents use a standing list of prequalified designers and con- tractors, and the results of the content analysis lead to the conclusion that maintaining an emergency designer/contractor standing list is an effective means to expedite emergency procurement procedures. Effective Practices The synthesis of various DOT documents, the literature, and the survey results yielded a number of effective practices that most DOTs could use in their emergency contracting plans and programs: • The “mini-solicitation” used by the ODOT Tier 1 selec- tion process provides a model for expedited selection of design consultants in an emergency. • The survey responses and the literature support retain- ing a consultant to prepare a preliminary scope of work and do limited geotechnical and environmental test- ing as an effective practice that could be included in a DOT’s emergency procurement plan. • The ODOT approach to emergency maintenance projects by categorizing them based on the source of funding and then delegating the authority to declare an emergency for a project funded by state operating funds to the state maintenance engineer provides a means to expedite response to high-frequency, small- scale emergencies without having to wait for permis- sion from outside the maintenance organization. Future Research Recommendations The following are recommendations for future research on topics covered in this chapter:

43 • The survey found that fewer than half of the respond- ing DOTs had a document that provided guidance for expediting the procurement of emergency projects, and only 5 of the 30 DOTs had a “contract document that was specifically developed for emergency proj- ects.” Thus, research is needed to define the appropri- ate content of DOT emergency project delivery plans as well as the form and content of tailored emergency contracts and their efficacy for agencies that have used them. The research would aid DOTs to prepare written policies and procedures for each method of procure- ment used for engineering and design-related services funded with federal-aid highway program funds and submitted to FHWA for approval as specified in 23 CFR 172.9(a). • Survey respondents identified incentives and disincen- tives as important to emergency project success, and this finding was validated by the literature review and content analysis. Therefore, research on the costs and benefits of I/D schemes and their impact on the success of emergency projects is recommended. • Research on preliminary project scoping contracts is recommended to identify the optimal content of this type of contract and document its effectiveness through analysis of its costs and benefits in terms of time/user costs and impact on construction cost growth.