Non-competitive emergency contract

A non-competitive emergency contract is a contract awarded without the usual competitive solicitation because a pressing emergency makes delay harmful to the public interest. In the Government of Canada, the Treasury Board's contracting authorities describe it as entering into or amending a contract in response to a pressing emergency, where the requirement is urgent and the applicable trade-agreement urgency provisions or exemptions apply. The authority is set out in the Treasury Board contracting authorities.

It is an emergency exception to competitive procurement, not a separate type of contract. The buyer may approach one supplier or a limited number of suppliers instead of running an open tender. The decision to treat a requirement as an emergency belongs to the government contracting authority, never to the supplier.

The conditions that define a pressing emergency

Treasury Board's Contracting Policy Notice 2007-04 identifies a pressing emergency as a situation where delay would be injurious to the public interest. The same notice states that the requirement cannot be satisfied by normal contracting procedures because of the urgency. Both tests must be met. A tight deadline alone, or a late start on planning, does not meet them. You can read the wording in Contracting Policy Notice 2007-04.

The Treasury Board authorities add a third condition for requirements covered by trade agreements. The responsible minister must invoke the applicable national-security or extreme-urgency provision, or an exemption to the agreements must apply.

Who can award one and how much they can spend

The Public Services and Procurement Canada (PSPC) minister may enter into a non-competitive emergency contract or contractual arrangement on behalf of any client, including PSPC, up to $25 million. That figure includes applicable taxes, fees and amendments, as stated in the CanadaBuys guidance on emergency requirements.

Other federal departments work under their own Treasury Board delegations. The current delegation text identifies a general limit of $3 million for other departments, subject to the stated conditions, as set out in the Treasury Board contracting authorities.

Special emergency authorities also exist for particular situations:

• Global Affairs Canada has authorities for major crises abroad, including natural disasters, humanitarian and food crises, conflict and political upheaval, certain national-security-related threats, and crises affecting Canadians and eligible family members.
• Marine-pollution response allows a non-competitive emergency contract for actual or potential pollution, including hazardous vessels, cargo loss, oil spills and hazardous or noxious substances, within the authority's stated limit.

Comparable urgency rules elsewhere

Other jurisdictions use similar exceptions. NATO's urgency condition applies where competitive bidding would delay the supply of materiel, services or work beyond the delivery date specified and justified by the customer, as described in a NATO audit document. The United States Federal Acquisition Regulation uses the term unusual and compelling urgency, which lets an agency limit the number of sources when full and open competition would cause serious injury through delay. The United Kingdom's defence procurement guidance likewise permits non-competitive procedures for crisis-related or unforeseeable extreme urgency.

What it means for a supplier bidding on Canadian public contracts

Emergency awards rarely appear as open tenders, so suppliers should be ready before a crisis. Buyers may contact a single supplier or a few, and they often ask for pricing, availability, delivery information and technical compliance details on short notice. A supplier with current capability statements and clear delivery data can respond faster.

• You cannot declare an emergency yourself. Only the contracting authority can invoke the authority.
• Expect the award to carry the conditions of the applicable authority, including delegated approvals, limits of liability or indemnification, and any trade-agreement requirements.
• Dollar limits apply, and they include taxes, fees and amendments, so a contract that grows through amendments can reach its ceiling.
• Keep your registration with federal buyers current so that departments can find and approach you.