Expedited Procurement Procedures for Emergency Construction Services (2012)

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63 CHAPTER SIX EMERGENCY PROCUREMENT LAW, LEGAL CASE STUDIES, AND RELEVANT CASE LAW Catastrophic failure. “The sudden failure of a major ele- ment or segment of the highway system due to an external cause. The failure must not be primarily attributable to grad- ual and progressive deterioration or lack of proper mainte- nance. The closure of a facility because of imminent danger of collapse is not in itself a sudden failure.” Emergency repairs. “Those repairs including temporary traffic operations undertaken during or immediately follow- ing the disaster occurrence for the purpose of: 1. Minimizing the extent of the damage, 2. Protecting remaining facilities, or 3. Restoring essential traffic.” Natural disaster. “A sudden and unusual natural occur- rence, including but not limited to intense rainfall, floods, hurricanes, tornadoes, tidal waves, landslides, volcanoes or earthquakes which cause serious damage.” Serious damage. “Heavy, major or unusual damage to a highway which severely impairs the safety or usefulness of the highway or results in road closure. Serious damage must be beyond the scope of heavy maintenance.” FHWA cites, as an example of a catastrophic failure from an external cause, a bridge suddenly collapsing after being struck by a barge (Kirk 2011). Other definitions will be important in answering this question. The President of the United States has authority under Title 42, United States Code, Chapter 68–Disaster Relief, §5121, et seq., to declare emergencies. Consequently, while the most common forms of emergencies are those natural disasters cited previously, the impacts of a terrorist attack can also be classified as emergencies, as was done for New York City on September 11, 2001. States have their own definitions of what constitutes an emergency. For example, Caltrans relies on the California Public Contract Code, Section 1102, which defines an emer- gency as “a sudden unexpected occurrence that poses clear and imminent danger, requiring immediate action to prevent or mitigate the loss or impairment of life, health, property, INTRODUCTION Among the most important legal issues confronting a public agency that is faced with an emergency are those associated with procurement of the repair. The agency’s decision maker may confront the following questions: • Does this situation fit within the definition of emer- gency repair work? • Do we have procurement laws that specifically address emergencies, and how much are our hands tied to use truly expedited procurement procedures? • How do we contract with contractors and others to get them on board with the repair? • What are our risks for a protest or a lawsuit because of what we are doing? Although these may be legal questions, they are also policy and project management questions—procurement goes to the heart of how the agency will respond to and rem- edy the problem. Given that quick action is paramount, the agency needs to consider the answers to these questions well before an emergency hits. This chapter will give some guid- ance as to what the answers are. EMERGENCY REPAIR WORK DEFINED There is a significant difference between what is required to conduct a valid procurement for emergency and nonemergency situations. In general, agencies faced with an emergency have the flexibility to take whatever actions are appropriate to address the emergency. Often, the required scope of work must be quan- tified before expedited construction can commence. Therefore, having flexibility in the procurement of preliminary design consultant is beneficial. The need for flexibility can also mean that the agency may not be awarding construction contracts to the lowest responsive, responsible bidder, drawing scrutiny on whether the remediation is truly emergency repair work. 23 CFR 668.103 provides important definitions that bear upon this question relative to the policy and program guidance for the administration of emergency funds for the repair or reconstruction of federal-aid highways suffering serious damage from natural disasters. Key definitions from this statute include the following:

64 or essential public services.” Another example is Florida, where an “emergency” for FDOT will be a state of emer- gency declared by an Executive Order or a Proclamation of the Governor, triggered by a determination by the gover- nor “if she or he finds an emergency has occurred or that the occurrence or the threat thereof is imminent” [Section 252.36(2), F.S.]. Hawaii’s definition is tied to the definition of “emergency procurement,” which can be used when the following condi- tions occur: 1. A situation of unusual or compelling urgency creates a threat to life, public health, welfare, or safety by a major natural disaster, epidemic, riot, fire, or such other reason determined by the head of the purchas- ing agency; 2. The emergency condition generates an immediate and serious need for goods, services, or construction that cannot be met through normal procurement methods and the government would be seriously injured if the purchasing agency is not permitted to employ the means it proposes to use to obtain goods, services, or construction; and 3. Without the needed goods, services, or construction, the continued functioning of government, the pres- ervation or protection of irreplaceable property, or the health and safety of any person will be seriously threatened (Section 103D-307, HRS). The consequences of an agency finding that an emer- gency exists are profound. It not only is the triggering event for using a specific type of procurement approach, but will also potentially result in sources of funding. A declaration of an emergency under federal law can make money avail- able under both FHWA and FEMA programs. In the case of FHWA programs, funds are made available to reimburse the state for expenditures related to bringing roads back into usable condition. In the case of FEMA programs, funds may be available up front to fund emergency efforts (Perry and Hines 2007). Some agencies have tried to argue that they have the right to use emergency procurement methods to avoid the lapse of funds at the end of the fiscal year. An example is Illinois, which specifically provides that emergency contracting may be done when “immediate action is necessary to avoid laps- ing or loss of federal or donated funds.” Other state procure- ment handbooks point out that failure to plan ahead, or the possibility of loss of funds at the end of the fiscal year, is not an “emergency.” The Alaska Field Operations Guide, for example, states in the introduction that the “potential loss of funds at the end of the fiscal year is not considered an emer- gency” (Perry and Hines 2007). PROCUREMENT AND PROJECT DELIVERY APPROACHES GOVERNING EMERGENCY REPAIRS Once an agency concludes that it has an emergency requir- ing repairs to its facility, it must decide not only what work needs to be done, but also what type of project delivery and procurement processes it will use. FHWA’s June 26, 2008, Memorandum on the Procurement of Federal-Aid Construc- tion Projects confirms that emergencies do not require award to the lowest responsive, responsible bidder. This memoran- dum states that emergency repair work may be accomplished by contract, negotiated contract, or public agency force account methods under 23 CFR 668.105(i). The Model Procurement Code (ABA 2000) provides guidance on emergency procurements, giving the decision maker the authority to procure, “with such competition as is practicable under the circumstances.” §3-206 of the Code (Emergency Procurements) states— Notwithstanding any other provision of this Code, the Chief Procurement Officer, the head of a Purchasing Agency, or a designee of either officer may make or authorize others to make emergency procurements when there exists a threat to public health, welfare, or safety under emergency conditions as defined in regulations; provided that such emergency procurements shall be made with such competition as is practicable under the circumstances. A written determination of the basis for the emergency and for the selection of the particular contractor shall be included in the contract file. The commentary to the code highlights that this type of procurement does not permit the delay involved in using more formal competitive methods. Noting that while in a particular emergency an award may be made without any competition, the commentary makes it clear that the intent of the code is to require as much competition as practicable in a given situa- tion and that any procurements treat all bidders fairly. Every state has its own version of emergency procurement language adapted from the Model Procurement Code. For example, the Virginia Public Procurement Act states that in the case of an emergency, a contract may be awarded without competitive sealed bidding or competitive negotiation; how- ever, such procurement shall be made with “such competi- tion as is practicable under the circumstances.” It requires a written determination of the basis for the emergency and for the selection of the particular contractor. Likewise, the public body will be required, among other things, to issue a written notice stating that the contract is being awarded on an emergency basis and identify what is being procured and the selected contractor. FDOT’s (2010) emergency procurement procedures state that FDOT may conduct procurement activities for repair, restoration, and other services “as necessary to cope with the emergency.” Although noting that competitive propos-

65 als “should be acquired, whenever practical,” “in no way should it prevent, hinder, or delay necessary action in coping with the emergency.” The procedures go on to say that at least three quotes/proposals should be considered if FHWA or FEMA reimbursement will be requested, “but in no way should it prevent, hinder, or delay necessary action in coping with the emergency.” Some agencies use cost reimbursable (also called force account) processes for their emergency procurements. Cal- trans does so, and specifically notes that when time is of the essence to reopen the roadway or facility, or there is a need to prevent imminent failure, a no-bid, sole source, emergency contract is allowed for this cost-reimbursable work (Caltrans 2010). Selection of the contractor under Caltrans processes is made on factors that include (a) availability of resources; (b) mobilization response time; (c) proven management abil- ities; and (d) current contractor’s license. Agencies that have the authority to use DB and other alternative delivery processes will frequently use them for emergency repair work. FWHA cites numerous examples of delivery systems and procurement approaches that use DB for emergency repairs. Notable is the Louisiana Depart- ment of Transportation and Development, which awarded a $40 million DB contract for the emergency repair of the I-10 Twin Span Bridge project, which is the bridge over Lake Pontchartrain between New Orleans and Slidell. The Twin Spans were severely damaged by Hurricane Katrina, and the primary factor in using DB was to accelerate the project schedule in order reopen I-10 to traffic as quickly as possible. Among the major emergency repair projects using DB is MnDOT’s I-35W project, which is discussed in more detail later in this chapter. CONTRACTING APPROACHES A variety of contracts can be used in emergency repair con- tracts: oral contracts, letter contracts, limited acquisitions, or full and open competitive bidding. Frequently an agency will issue a modification to an existing contract for work in the area. This type of action can raise an issue over whether the procurement is within the scope of the original contract. To avoid this issue, an agency may decide to procure a new contract, whether on a force account basis or on a stipulated price. The key question is what flexibilities exist in the agen- cy’s contracting procedures to address emergency situations (Perry and Hines 2007). One of the common legal problems that agencies face is that they are in such a rush to get to a contract that they loosely address important contract issues, such as scope of work, cost, and record-keeping obligations of the contractor. An example was cited by the auditors for the city and county of Honolulu, as they examined the Sole Source, Emergency, and Profes- sional Services Procurement Practices of the City and County (Report No. 05-01, March 2005). The report noted that in December 2003 and January 2004, heavy rains damaged roads in the heavily traveled streets in downtown Honolulu. Hono- lulu initiated emergency road repaving services, and contacted three vendors. Only two agreed to handle these repairs. The city budgeted $1 million for each of the two contractors and issued $500,000 purchase orders to each of the contractors to initiate the repairs. Both contractors reported to the auditors that the city did not require them to guarantee their repaving work, and one of the contractors commented that had the city included a requirement for a guarantee in the purchase order, the contractor would have agreed to provide it. The auditor also noted that the city’s procurement files lacked any information identifying the actual locations of the roads to be repaved. One of the contractors involved in the emergency repaving project told the auditors that the scope of work for the emergency repairs was not well defined and was a moving target. A few months after the first set of purchase orders, the city issued a second purchase order for the remaining $500,000 budgeted for the emergency repaving work, simply using a copy of the original emer- gency procurement request to justify the purchase. However, the city failed to provide any additional information on the emergency request form on the road locations that would be repaved, even though repair work was under way. The auditors concluded that setting aside $1 million for emer- gency repaving without specifying the stretches of road to be restored is “an open-ended approach that is not a prudent way to control the expenditure of city funds for this work.” To avoid problems of having to quickly enter into contract- ing relationships, many DOTs have used IDIQ contracts to literally put a contractor on call to perform a specific set of services. This is a contract arrangement extensively used by the federal government to enter into a contract that identifies the type of work to be performed, and generally negotiates most rates, but does not specify where and when the work is to be performed until the work is needed. Specific work assignments and work details are set forth by the issuance of task orders against the IDIQ. This allows an agency to have contractors on standby, and generally multiple contractors are awarded these contracts. There are many nuances to this type of contracting approach, but suffice it to say that this is a pru- dent way of being able to mobilize a contractor on emergency projects. For example, the oil and gas industry routinely uses IDIQ contracts to address emergency responses for environ- mental incidents, including oil spills. FDOT uses them exten- sively to stage prehurricane debris removal efforts. CONFLICTS AND CASE LAW Unlike many other areas of construction and government contract law, relatively few cases address legal issues associ-

66 ated with an emergency procurement. It is highly likely that there are informal protests over an agency’s actions that are not reported. Many of these protests would likely deal with “normal” issues associated with selection, such as whether the evaluation of the proposers was flawed and whether the agency made a mistake in how it assessed one proposer ver- sus another. Other likely disputes are more typical construc- tion disputes dealing with delays, differing site conditions, changes, and failure to perform the work as specified. There is nothing unique about emergency procurements that would affect the way these types of issues are to be handled, unless the contract (e.g., purchase order) was less than complete. The three cases discussed here involve unique issues associated with the procurement of emergency transporta- tion projects. Each provides an example of what could go wrong and how an agency might have to respond. Challenges Over Whether a Project Should Be Considered for Emergency Procurement Techniques As noted earlier, there are opportunities for disputes over whether a situation can be properly characterized as an “emergency” that allows the use of emergency procurement legislation. One of the cases addressing this directly is Sloan v. Department of Transportation, a South Carolina case decided in 2008. In 2000, the South Carolina DOT (SCDOT) entered into a construction contract with Eagle Construction Company (Eagle) for a road-widening project. Eagle was consistently behind schedule and, as a result, was default terminated. Eventually, SCDOT rescinded the default letter and ter- minated the contract with Eagle for convenience. SCDOT justified this action by concluding that the involvement of Eagle’s bonding company in a default situation would delay the project by 6 months, and that even if SCDOT had itself performed a competitive bidding process for a replacement contractor, it would have taken 4 months. Two weeks after SCDOT terminated Eagle for conve- nience, Sanders Brothers Construction Company (Sanders), an existing subcontractor on the project, began working on the project. Although approximately $5–6 million remained unpaid on the Eagle contract, SCDOT directly negotiated a contract with Sanders for just under $8 million. SCDOT did not solicit bids to complete the project. SCDOT’s director of construction wrote a memorandum to SCDOT’s executive director, asking that the project be subject to the emergency procurement procedures of South Carolina law “due to the significant delays on this project and enor- mous inconvenience to the public” caused by the Eagle delays and termination. He noted that the emergency procurement was justified based on public safety and convenience, stating that “a large number of residences and commercial businesses have been and are continuing to be adversely impacted by the construction. Traffic control devices are in place throughout the majority of the project and at many high volume inter- sections. These conditions are an ongoing safety concern and also cause significant inconvenience for residences and busi- ness owners.” He further took the position that the procure- ment of a replacement contract through the standard bidding procedures would cause an unacceptable delay and increase frustration among the already frustrated public who live and conduct business in the area. The executive director approved his request to procure a replacement contractor using a nego- tiated contract method. Sloan, a taxpayer, read about the negotiated contract between SCDOT and Sanders, and ultimately filed a lawsuit on the grounds that this situation did not constitute an emergency. Sanders ultimately completed all of the work by the time the case was heard. The South Carolina court noted that ordinarily this would mean the case would be moot. However, since there were no cases dealing with SCDOT’s authorization of emergency procurement, it wanted to hear the case anyway: “Because this is a matter that could occur at any time (given the inherent unpredictability of emergencies), we find there is an urgent nature to this issue.” The South Carolina Supreme Court noted that the general rule regarding contracts is that the work must be advertised for at least 2 weeks, and then the “lowest qualified bidder” must be chosen. The only exception is in cases of emergen- cies, as determined by the Secretary of the State Department of Transportation. SCDOT argued that it had the discretion to decide what would be considered an emergency. Because the alternative to using the emergency procurement pro- vision would have been to leave the construction project unfinished, and therefore a dangerous work zone, for 4 to 6 months, SCDOT argued that the facts of the case showed that it properly exercised its discretion. The court disagreed. It cited two references in the South Carolina procurement codes that dealt with emergencies. One read that emergency procurements can only be used when there is “an immediate threat to public health, welfare, critical economy and efficiency, or safety under emergency conditions …. and provided, that such emergency procure- ments shall be made with as much competition as is prac- ticable under the circumstances.” Another code reference defined “emergency” as: “a situation which creates a threat to public health, welfare, or safety such as may arise by rea- son of floods, epidemics, riots, equipment failures, fire loss, or such other reason as may be proclaimed by [an authorized official]. The existence of such conditions must create an immediate and serious need for supplies, services, informa- tion technology, or construction that cannot be met through normal procurement methods and the lack of which would seriously threaten: (1) the functioning of State government; (2) the preservation or protection of property; or (3) the health or safety of any person.”

67 The South Carolina Supreme Court held that there was not an emergency as defined in that regulation or as the word “emergency” is understood in its plain meaning—which is, by its very nature, a sudden, unexpected onset of a serious condition. It stated, Here, there was a five-mile construction zone which, according to the DOT, had “safety concerns.” These hazards, however, had existed throughout the course of the construction project and likely would have been present to some degree in any major construction project of this type. Put simply, these safety concerns did not appear unexpectedly [at the time of the termination], thereby suddenly creating a public safety risk. Furthermore, the record reflects that any urgency felt by the DOT was, in large part, due to the delays on the project and the resultant frustration by the affected community. These factual circumstances, however, do not constitute an emergency under [the South Carolina Code], as that plain and ordinary term was likely intended by the Legislature. Challenges to the Procurement Processes Used by an Agency Although the advantages of using DB are well known and well documented, some state statutes make it difficult to implement the process. Among the statutes that create the most challenges are those that call for construction projects to be awarded to the lowest bidder. These type of statutes impede (or even preclude) an agency’s use of qualifications and technical proposals as a component of the selection pro- cess. This can be a problem for an agency that wants to use these factors in the selection of an emergency repair contrac- tor on a DB basis. One of the most recent cases looking at the procurement practices of a state came in Pennsylvania, Brayman Con- struction Corp. v. Pennsylvania (2011). This case involved a contractor who mounted a successful challenge to a two-step design-build best value (DBBV) procurement by Pennsylva- nia DOT (PennDOT). The project arose out of PennDOT’s desire to rebuild two bridges whose structural integrity had been compromised by cracks, corroding, and other defects. PennDOT sought to reduce the overall time from the start of design to completion of the project by using a relatively new internal PennDOT publication, Publication 448, Innovative Building Toolkit (PennDOT 2011), which established meth- ods for innovative procurements, including DB. In reliance on Publication 448, PennDOT issued an advertisement seeking statements of interest from DB teams wishing to enter into a DBBV contract for the project. The advertisement requested, among other things, each team’s qualifications, resumes of key personnel, and organiza- tion charts. The advertisement notified respondents that PennDOT would “short-list” three firms based on weighted selection criteria. The short-listed firms would each receive an RFP and would then be asked to submit a technical approach with a price. Seven teams submitted timely state- ments of interest, including a venture between Brayman Construction and its designer, Dewberry-Goodkind. The Brayman team was not one of the short-listed teams. Brayman eventually sought an injunction in state court, asking that PennDOT’s handling of the procurement be declared illegal and in violation of the state’s procurement code. Specifically, Brayman argued that the state statute required competitive sealed bidding for this project, and PennDOT was not authorized to utilize the DBBV method. Following a hearing at the preliminary injunction, the state court ruled that the DBBV procurement was overly subjec- tive and that PennDOT’s reliance on Publication 448 was not authorized under state law. It preliminarily enjoined PennDOT from seeking and evaluating two-step DBBV “or any other ‘innovative method’ that does not award the bid based on sealed competitive bids” for its procurements. Despite this, however, the court ruled that, “in the interest of public safety,” PennDOT was permitted to continue with its procurement of the two bridges through DBBV to avoid delays and potential safety issues. PennDOT and Brayman both appealed to the Pennsylvania Supreme Court. The Supreme Court rejected PennDOT’s argument that its use of the DBBV method was valid, because, among other things, Pennsylvania law expressly allowed a two- step process when retaining design-professionals. The court concluded that the DB contract ultimately to be awarded by PennDOT was for the design and construction of the bridges, not just the pure design of the bridges. The Supreme Court also adopted the trial court’s analysis on the issue of subjectivity—that the best value methodology should be stricken because such a two-step process entails evaluating bids based on factors not enumerated in the IFB. The court specifically noted that the agency’s employees at the injunction hearing “were unable to give a clear descrip- tion of how its best-value analysis works.” Indeed, some PennDOT employees conceded that the process is “kind of nebulous” and includes “some subjectivity” on the qualita- tive assessment of key personnel resumes submitted. Although the Supreme Court affirmed the ruling of the lower court as to the DBBV procurement on future projects, it also adopted the lower court’s “carve-out” with respect to PennDOT’s current bridge project. The court noted that out of Pennsylvania’s 25,000 state-owned bridges, the bridges in question were ranked to be in the 26th worst condition. Because these bridges carry more than 40,000 vehicles per day, the Supreme Court found safety considerations to jus- tify allowing PennDOT to use the DBBV method for these particular bridges. Although Brayman was the clear winner on the issue of whether PennDOT could use the DBBV process under Pub- lication 448, it ultimately lost the real battle. Because Bray-

68 man did not make the short list under the DBBV process, it was not given an opportunity to bid on the bridge project. As for PennDOT, the Pennsylvania courts made it clear that the Publication 448 procurement processes were problematic because of their lack of objectivity. Although PennDOT did not use this procurement on a stated “emergency” basis, one can conclude that the same issues would have arisen had it done so directly. An inter- esting feature of this case is that the Pennsylvania court essentially examined it from the perspective of an emer- gency procurement, finding that the safety concerns on these bridges justified PennDOT going on with the process even though it was flawed. Challenges of the Merits of the Agency’s Procurement Evaluation The August 1, 2007, collapse of the I-35W Bridge near Min- neapolis is considered one of the most significant structural failures in the United States. This evening rush-hour collapse killed 13 people, injured more than 140 more, and caused state departments of transportation around the country to rethink the safety of their existing infrastructure assets. This collapse set into motion an expedited procurement process by MnDOT to replace the bridge. Flatiron–Manson, a joint venture (Flatiron), was awarded a DB contract on October 8, 2007, and the bridge was open for traffic on September 18, 2008, less than 14 months after it had collapsed. Although the industry has widely praised MnDOT and Flatiron for this exceptional performance, the procure- ment of the bridge was somewhat controversial. Shortly after the award to Flatiron, a Minnesota taxpayer filed a lawsuit seeking an injunction and declaratory relief that Flatiron’s proposal should have been rejected as being nonresponsive. The taxpayer was unsuccessful at the trial court, and appealed to the Minnesota Court of Appeals. The decision of this appellate court, Sayer v. Minnesota Department of Transportation, was issued on July 28, 2009. It too rejected the taxpayer’s arguments and found the procurement by MnDOT to be proper. The subsequent appeal to the Supreme Court was decided in 2010, and affirmed the previous courts’ rulings. Although the I-35W litigation was not technically based on an “emergency” procurement, its lessons are helpful in understanding the potential legal issues confronting an agency using a classic emergency procurement process. MnDOT decided to use a DBBV procurement process. The RFP was sent to a short list of teams, and contained detailed project-specific requirements. MnDOT also issued instructions to proposers, which stated that the contract would be awarded only to a proposal that met the standards established by MnDOT and described the weighted criteria by which the proposals would be evaluated. A six-member technical review committee (TRC) evalu- ated the four proposals that were ultimately submitted. Flat- iron’s proposal received the highest technical score, 91.47 out of 100 possible points. The next highest score was 67.88 out of 100. Although Flatiron had the highest price and tied with another company for submitting the longest delivery time, its high technical score enabled Flatiron to win under MnDOT’s best value formula. The taxpayer argued that the TRC should have rejected Flatiron’s proposal because it was nonresponsive to the RFP by having two technical components that deviated from the RFP and the invitation to propose (ITP). One compo- nent involved Flatiron’s statement that it would be working outside of specified right-of-way (ROW) limits. The other was that Flatiron proposed a design that used concrete-box girders with only two webs each, contradicting the RFP’s requirement that concrete-box designs use a minimum of three webs. The taxpayer argued that under Minnesota law MnDOT did not have discretion to determine whether a proposal responded to the specifications of the RFP, and had no choice but to reject Flatiron’s proposal as being nonresponsive. The Minnesota Supreme Court noted that in a traditional DBB process, the taxpayers might be right. However, under Minnesota’s 2001 DB statute, MnDOT was authorized to use a “best value selection process,” which, by its nature, allowed the consideration of factors other than cost when awarding contracts. The court noted that the design in a DB RFP is not complete and that the proposers will be submit- ting technical approaches based on these incomplete designs. As to the ROW issue, the taxpayer relied upon an instruc- tion in the ITP that proposed work for the project was not to include any additional ROW, and that Flatiron’s proposal required work outside the ROW defined in the RFP for the purpose of lowering Second Street. MnDOT countered by arguing that this instruction was added after MnDOT received a request for clarification from another contractor that was planning to take additional ROW and add traffic capacity in an area of the project that would have required more environmental review and more municipal consent. MnDOT claimed that the instruction relied upon by the tax- payer was not intended to be a “project-wide directive” to proposers on ROW limitations and that neither the ITP nor the RFP forbade any proposer from obtaining ROW on Sec- ond Street. The court agreed with MnDOT and rejected the taxpayer’s argument that Flatiron’s proposal was nonrespon- sive because it involved additional ROW on Second Street. As to the concrete-box girder issue, the court found that Flatiron’s proposal included eight webs, four in each direc- tion of traffic, but only two webs per concrete-box girder. The court interpreted the RFP to require a minimum of three webs per direction of traffic, not three webs per concrete-box

69 girder. Because Flatiron’s proposal exceeded this minimum requirement, the court rejected the taxpayer’s argument that the proposal was nonresponsive. It is noteworthy that the appellate court had focused on the DB statute. It believed that the legislature’s intent is to per- mit the TRC to apply its judgment and to evaluate proposals where no finished design exists. As a result, the court found that the TRC had discretion to decide whether a DB proposal is responsive, which decision could only be reversed if there was an error of law, or if the TRC’s findings were arbitrary, capricious, or unsupported by substantial evidence. The two issues raised by the taxpayer did not trigger any reason to overturn the TRC’s decision. This was not addressed by the majority opinion of the Supreme Court, but was cited by a concurring opinion. CONCLUSIONS Three conclusions can be drawn from the legal case studies: 1. The SCDOT case demonstrates the need to be sure that a given situation actually meets the state’s statutory definition of an emergency before proceeding with expedited or abbreviated procurement procedures. 2. The PennDOT case shows that an expedited procure- ment process can be justified for the right reasons even if its procedures are flawed. In other words, safety trumps legal procedures. 3. The Minnesota case illustrates the requirement for transparency and consistency in emergency procurements.