RE: INTERPRETATION OF 61 O.S. 130 (1990) AND EMERGENCIES PURSUANT TO THE PUBLIC COMPETITIVE BIDDING ACT
ATTORNEY GENERAL HENRY HAS ASKED ME TO RESPOND TO YOUR REQUEST FOR AN INTERPRETATION OF THE STATUTORY SECTION OF THE COMPETITIVE BIDDING ACT DEALING WITH EMERGENCIES. DUE TO THE FACT THAT YOU INDICATED THIS INFORMATION WAS NEEDED IMMEDIATELY AND THAT YOU WOULD ACCEPT AN UNOFFICIAL OPINION AS OPPOSED TO A FORMAL OPINION, I AM RESPONDING BY LETTER.
YOUR INQUIRY REGARDING COMPETITIVE BIDDING ASKS IN EFFECT:
WHEN AN EMERGENCY IS DECLARED TO EXIST BY A TWO-THIRDS VOTE OF ALL OF THE MEMBERS OF THE GOVERNING BODY OF A PUBLIC AGENCY, IS THE CONTRACT AMOUNT LIMITED BY TITLE 61 O.S. 130 (1990)?
THE RELEVANT PORTIONS OF 61 O.S. 130 STATE AS FOLLOWS:
"THE PROVISIONS OF THE PUBLIC COMPETITIVE BIDDING ACT WITH REFERENCE TO NOTICE AND BIDS SHALL NOT APPLY WHENEVER THE GOVERNING BODY OF A PUBLIC AGENCY DECLARES BY A TWO-THIRDS (2/3) VOTE OF ALL OF THE MEMBERS OF THE GOVERNING BODY THAT AN EMERGENCY EXISTS;
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THE GOVERNING BODIES OF ALL PUBLIC AGENCIES ARE FURTHER AUTHORIZED, UPON APPROVAL OF TWO THIRDS (2/3) OF ALL OF THE MEMBERS OF THE GOVERNING BODY, TO DELEGATE TO THE CHIEF ADMINISTRATIVE OFFICER OF A PUBLIC AGENCY THE THE GOVERNING BODIES OF ALL PUBLIC AGENCIES ARE FURTHER AUTHORIZED, UPON APPROVAL OF TWO THIRDS (2/3) OF ALL OF THE MEMBERS OF THE GOVERNING BODY, TO DELEGATE TO THE CHIEF ADMINISTRATIVE OFFICER OF A PUBLIC AGENCY THE AUTHORITY TO DECLARE AN EMERGENCY SITUATION, IN WHICH EVENT THE PROVISIONS OF THE PUBLIC COMPETITIVE BIDDING ACT WITH REFERENCE TO NOTICE AND BIDS SHALL NOT APPLY, BUT SUCH AUTHORITY SHALL NOT EXTEND TO ANY CONTRACT EXCEEDING TWENTY-FIVE THOUSAND DOLLARS ($25,000.00) IN AMOUNT; . . ."
IN REVIEWING THE LANGUAGE OF SECTION 130, IT MUST FIRST BE NOTED THAT TWO DIFFERENT SITUATIONS ARE ADDRESSED. FIRST, THE SITUATION IS ADDRESSED WHERE THE MEMBERS OF THE GOVERNING BODY OF THE PUBLIC AGENCY VOTE TO DECLARE THAT AN EMERGENCY EXISTS. SECOND, THE SITUATION IS ADDRESSED WHERE THE MEMBERS OF THE GOVERNING BODY OF THE PUBLIC AGENCY VOTE TO DELEGATE TO THE CHIEF ADMINISTRATIVE OFFICER OF THE AGENCY THE POWER AND AUTHORITY TO DECLARE THAT AN EMERGENCY EXISTS.
THE LANGUAGE OF 60 O.S. 130 ALSO STATES THAT SUCH AUTHORITY SHALL NOT EXTEND TO ANY CONTRACT EXCEEDING TWENTY-FIVE THOUSAND DOLLARS IN AMOUNT, FOR PUBLIC AGENCIES LIKE SCHOOL DISTRICTS. HOWEVER, THE DOLLAR LIMIT IS PART OF THE SENTENCE RELATING TO THE SECOND SITUATION DESCRIBED ABOVE, WHERE THE AGENCY DELEGATES TO THE CHIEF ADMINISTRATIVE OFFICER THE POWER TO DECLARE AN EMERGENCY. IT DOES NOT APPEAR TO APPLY TO THE SITUATION WHERE THE FULL GOVERNING BOARD DECLARES AN EMERGENCY.
THE INITIAL SENTENCE OF 60 O.S. 130(A) DESCRIBES THE GOVERNING BODY OF THE PUBLIC AGENCY DECLARING AN EMERGENCY, AND CONTAINS NO EXPRESS LIMITATION ON CONTRACT LIMITS. NOTE ALSO THAT THE STATUTE SETS FORTH THE LIMITED CIRCUMSTANCES WHEN AN EMERGENCY CAN BE DECLARED AND INCLUDES TWO REQUIREMENTS WHEN IT STATES:
"EMERGENCY AS USED IN THIS SECTION SHALL BE LIMITED TO CONDITIONS RESULTING FROM A SUDDEN UNEXPECTED HAPPENING OR UNFORESEEN OCCURRENCE OR CONDITION AND SITUATION WHEREIN THE PUBLIC HEALTH OR SAFETY IS ENDANGERED." (EMPHASIS ADDED.)
SECTION 130 ALSO REQUIRES THAT THE REASONS FOR DECLARING AN EMERGENCY AND NOT COMPLYING WITH THE PUBLIC COMPETITIVE BIDDING ACT SHALL BE ENTERED INTO THE OFFICIAL MINUTES OF THE GOVERNING BODY OF THE PUBLIC AGENCY.
THEREFORE, IT IS MY OPINION THAT THE LANGUAGE OF THE STATUTE IS UNAMBIGUOUS AS TO THE APPLICABILITY OF THE DOLLAR LIMITS ON CONTRACTS UNDER EMERGENCIES PURSUANT TO 61 O.S. 130. THE DOLLAR LIMITS IMPOSED BY THE STATUTE ONLY APPLY WHERE THE AUTHORITY TO DECLARE AN EMERGENCY IS DELEGATED BY THE GOVERNING BODY TO THE CHIEF ADMINISTRATIVE OFFICER OF THE AGENCY. WHERE THE MEMBERS OF THE GOVERNING BODY VOTE TO DECLARE AN EMERGENCY, SECTION 130 DOES NOT IMPOSE A DOLLAR LIMIT ON CONTRACTS NOT SUBJECT TO NOTICE AND BIDDING REQUIREMENTS.
WHETHER THE DISASTER AND ATTENDANT MASSIVE DAMAGES INFLICTED UPON THE OOLOGAH-TALALA PUBLIC SCHOOLS PROPERTY CONSTITUTE AN EMERGENCY CONTEMPLATED BY SECTION 130 IS A QUESTION OF FACT TO BE DETERMINED BY THE LOCAL SCHOOL BOARD, OF COURSE.
(GLEN D. HAMMONDS)