Public bodies must justify use of emergency procurement procedures

Public bodies are being reminded that they must carefully justify any decision to invoke emergency procurement procedures, as these rules are not designed for automatic or prolonged use.

In a recent interview with JIS News, Chief Public Procurement Policy Officer at the Ministry of Finance and Public Service, Jovell Barrett, explained that emergency procurement is governed by strict conditions that require proper assessment before activation.

He noted that once those conditions are met, swift action is both legitimate and expected.

“Where the conditions have been satisfied and they can justify the decision to use the emergency procurement, then I am sure that the public will appreciate the fact that they are able to act quickly and to approve the contracts that they need to approve to respond to the emergency that has been created,” he said.

Responding to a question as to how long emergency procurement measures may remain in effect, Barrett pointed out that emergencies differ in nature and severity.

“In the previous dispensation of the emergency procurement rules, the rule was that after a month you need to switch back to normal procurement. But… I’m sure that for the people in Westmoreland and St Elizabeth, it is now months after Hurricane Melissa, and they’re still having an emergency. They’re still in a crisis, there’s still a need to respond to address the situation that they’re facing,” he said.

“I cannot…. say that the emergency ends after 30 days. And so, the rules do allow for some flexibility in terms of at what point do you actually return to normal procurement. But generally speaking, it’s a question for every procurement activity as to whether or not the conditions and the definition of an emergency is satisfied,” he reiterated.

Barrett further explained that legal mechanisms, such as formal emergency declarations, often serve as the basis for applying special procurement procedures.

“For example, if you relied on a declaration by the Prime Minister pursuant to the Disaster Risk Management Act as the justification for you using emergency [procurement], when that declaration is lifted, then you’ve lost the ground that you would have relied on for the emergency,” he pointed out.

Importantly, he underscored that emergency procurement cannot continue once the necessity ceases to exist, regardless of whether a declaration remains active.

“Even if the declaration is still in place, but there’s no longer a need to respond to protect the public interest, to safeguard life, public health… then you’ve no longer satisfied the definition of what an emergency is. And so, you cannot use the emergency procurement procedures,” he stated.

Barrett pointed out that the responsibility for determining the continued applicability of emergency measures lies with the leadership of the procuring entity.

“So, for every procurement activity that you’re doing, you have to make the assessment as to whether or not the definition of an emergency is still satisfied and that may be within a day, two days, a month, two months. It is up to the head of the procuring entity to make that assessment,” he said.

He highlighted transparency as a critical safeguard in the process.

“As the head of an entity, you have the ability to make that determination with the requirement that you need to publish the notice with all of the details, so that we can all assess and make a determination as to whether or not you were justified in your actions,” Barrett said.

- JIS News

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