Teshale Smith (email@example.com) is a J.D. candidate at The George Washington University Law School and member of the Public Contract Law Journal. She is grateful to Professor Jayna Rust for her patience and valuable guidance in developing this Note. She especially thanks her parents and sister, Tasha Smith, Demetrious Ligon, and Tarnesha Johnson, for their unconditional love, support, and encouragement.
After Hurricane Maria hit Puerto Rico in September 2017,1 one of the most pressing issues for storm survivors was access to clean water.2 Officials estimated that more than one in three residents in Puerto Rico did not have access to clean water.3 Following the disaster, doctors and nurses reported that they were continuously treating patients with gastrointestinal illnesses, which was likely due to ingesting contaminated food and water.4 Although boiling water was an easy way to achieve decontamination, most people did not have access to either electricity or cooking gas to boil water.5 As a result, residents were limited to using bottled water.6 However, bottled water was expensive and hard to find.7 Two months after Hurricane Maria hit, at least seventy-four cases of leptospirosis had been reported,8 which were likely the result of ingesting contaminated food and water.9 Two of these cases resulted in death.10
More capable preparedness efforts focused on the unique needs and challenges in Puerto Rico likely would have reduced the likelihood of such a crisis. The agency responsible for federal preparedness and response efforts for natural disasters, the Federal Emergency Management Agency (FEMA),11 was not prepared to provide the response Puerto Rico needed after Hurricane Maria,12 a Category 4 hurricane that occurred in close succession to two other major hurricanes that hit the United States in 2017.13 FEMA routinely dealt with logistical issues that impeded its disaster response efforts in Puerto Rico, including its ability to deliver supplies to storm survivors.14 In fact, a year after Hurricane Maria devastated Puerto Rico, photos showed what appeared to be thousands of pallets of water bottles meant for storm survivors sitting on a runway tarmac in Ceiba, Puerto Rico.15 The failure to deliver these water bottles was the result of an ineffective response plan, which did not evaluate the unique needs and challenges of Puerto Rico.
The 2017 hurricane season was unprecedented in scale and the “rapid succession of these disasters stretched response and recovery capabilities at all levels of government.”16 Just like after the unprecedented destruction caused by Hurricane Katrina, FEMA must take steps to improve its disaster response to tackle the challenges it faced during the 2017 hurricane season.17 The issues and challenges faced during the 2017 hurricane season have revealed the need for FEMA to improve its disaster response efforts in order to deal with multiple large-scale disasters and to plan response-and-recovery efforts to meet the unique needs and challenges of impacted communities. Due to the threat of climate change,18 it is more important now than ever that FEMA develops innovative methods and strategies to improve its disaster response because billion-dollar disasters, like Hurricane Maria, are becoming the “new normal.”19
One mechanism for achieving its objectives in this new era of multiple, simultaneous billion-dollar disasters is to improve its advance contracting strategy.20 Both pre-disaster planning and contracting play a key role in short-term and long-term disaster recovery.21 An effective advance contracting strategy will combine and maximize the benefit of both pre-disaster planning and contracting to improve disaster response and recovery efforts in this new era of multiple, simultaneous billion-dollar disasters. However, to plan response-and-recovery efforts to meet the unique needs and challenges of the affected communities, the advance contracting strategy should be localized and based on the unique needs and challenges of the impacted jurisdictions.
As such, this Note urges Congress to create a statutory requirement establishing advance contracting teams within FEMA’s ten regional offices across the United States and the use of potential damage assessments to develop advance contracts based on the unique needs of the communities within the jurisdictions of each regional office.22 If FEMA is unable to place teams in all of its regional offices, this Note urges that the advance contracting teams be placed in jurisdictions most vulnerable to major disasters and least likely to have local and state capabilities to respond to such disasters, such as Puerto Rico.
To understand how a localized advance contracting strategy will improve the federal government’s natural disaster response and recovery efforts, it is important to first understand the role and objectives of the federal government before, during, and after a natural disaster, which is discussed in Part II of this Note. Part III discusses four major issues and challenges that FEMA faced during its 2017 hurricane season response and recovery efforts, challenges that could potentially be resolved through the use of a localized advance contracting strategy. Part III then explains how the localized advance contracting strategy could be implemented and the cost and benefits associated with its implementation into the federal government’s disaster response and recovery system.
II. The Federal Government's Role & Processes When Responding to Natural Disasters
A localized advance contracting strategy will allow the federal government to provide a more tailored response to meet the unique needs and challenges of state and local communities and improve its ability to meet its disaster response objectives. The federal government’s current role and process in determining federal assistance and procuring goods and services would also be improved by a localized advance contracting strategy. To understand how the new strategy will improve the federal government’s ability to carry out its duties and objectives for natural disaster response efforts, it is necessary to first understand the federal government’s role and objectives, as well its current processes and methods for federal disaster response efforts.
A. The Federal Government’s Role Versus a State/ Local Government’s Role
Natural disaster response and recovery efforts begin at the local and state level, and the federal government serves in a supporting role.23 The role of the federal government is to “provide an orderly and continuing means of assistance by the Federal Government to State and local governments in carrying out their responsibilities to alleviate the suffering and damage which result” from a major disaster.24 Under the Robert T. Stafford Disaster Relief and Emergency Act, the statute responsible for developing the federal government’s current disaster response system, the federal government’s supporting role begins when the state/ local government has become overwhelmed and the governor has submitted a Stafford Act declaration.25 Once a Stafford Act declaration has been approved, the federal government deploys federal assets to assist the state/ local government with response and recovery efforts.26
The federal government is not just responsible for supporting response-and-recovery efforts. Congress and the President, through statutes and executive orders, have directed the federal government to play a key role in preparing the United States for natural disasters as well. Under the Stafford Act, the federal government’s support should include “encouraging the development of comprehensive disaster preparedness and assistance plans, programs, capabilities, and organizations by the States and by local governments.”27 In the Post-Katrina Emergency Management Reform Act28 passed in 2006, Congress dedicated several sections to improving the federal government’s planning and preparedness efforts.29 In 2011, President Obama signed a Presidential Policy Directive, which established the National Preparedness System to “strengthen the security and resilience of the United States through systematic preparation.”30 The goals of the National Preparedness System are achieved through the National Response Framework31 and the National Disaster Recovery Framework,32 which also emphasize planning and preparedness efforts.
The federal government’s preparedness, response, and recovery efforts in assisting state/ local governments before and after a disaster are overseen and coordinated by FEMA.33 FEMA oversees and coordinates the federal disaster response system through its headquarters and ten regional offices.34 FEMA also establishes a joint field office led by a Federal Coordinating Office after a declaration has been made.35 The regional and joint field offices work with state/ local officials to coordinate disaster preparedness, response, and recovery efforts for the impacted jurisdiction.36
B. The Federal Government’s Method for Determining the Level of Assistance
The federal government relies on one or more of its federal assistance programs, funded by the Disaster Relief Fund, to supplement state/ local preparedness, response, and recovery efforts.37 After a state requests federal assistance, FEMA is responsible for determining the type and extent of federal assistance that is warranted to fulfill the state’s request.38 There are three principal types of federal assistance FEMA may authorize to assist state and local governments after a natural disaster: (1) public assistance, (2) individual assistance, and (3) hazard mitigation assistance.39
Public assistance provides grants to state and local governments and certain private nonprofit organizations to provide emergency protective services, conduct debris removal operations, and repair or replace damaged public infrastructure.40 Individual assistance provides direct aid to affected households, which may include housing assistance, crisis counseling, case management services, legal services, and disaster unemployment assistance.41 Hazard mitigation assistance funds mitigation and resiliency projects and programs, which could include construction of safe rooms, buyouts of frequently flooded property, and retrofitting facilities.42
FEMA evaluates factors used in the preliminary damage assessment and factors specific to each federal assistance program to determine the level of assistance warranted for each disaster.43 For public assistance determinations, federal regulations list six factors to be considered: (1) estimated cost of assistance, (2) localized impacts, (3) insurance coverage, (4) hazard mitigation, (5) recent multiple disasters, and (6) programs of other federal assistance.44 For individual assistance determinations, federal regulations also list six factors to be considered: (1) concentration of damages, (2) trauma to the community, (3) special populations, like the elderly, (4) voluntary agency assistance, (5) insurance, and (6) average amount of individual assistance by state.45 In 2015, FEMA issued a Notice of Proposed Rulemaking to update the individual assistance factors, but no final rule has been published.46 The proposed factors were: “(1) state fiscal capacity and resource availability, (2) uninsured home and personal property losses, (3) disaster impacted population profile, impact to community infrastructure, (5) casualties, and (6) disaster-related unemployment.”47
Based on the evaluation of these factors, FEMA’s Assistant Administrator for the Disaster Assistance Directorate determines and designates the type and extent of assistance to be made available to the affected state and local government.48 Once the declaration and federal assistance have been approved, FEMA reviews the state/ local government’s request and determines the best mechanism for fulfilling such requests.49 FEMA has multiple mechanisms to choose from when fulfilling state and local governments’ disasters assistance request, including the “[p]rocurement of supplies and services” from contracts.”50
C. The Federal Government’s Disaster Procurement Efforts
The procurement of supplies and services through contracts with firms and individuals is a major mechanism used by FEMA and other federal agencies to supplement state/ local response efforts. The Government Accountability Office (GAO) has even stated that federal agencies’ procurement of goods and services plays a “key role in immediate disaster response and longer-term community recovery.”51 FEMA and other federal agencies use disaster assistance to procure resources through contracts with firms and individuals to assist state and local disaster recovery efforts.52 While over nineteen federal agencies procure disaster contracts, FEMA and the Department of Defense are the two main federal agencies responsible for procuring goods and services to support disaster response and recovery efforts.53
FEMA has a vast contracting department dedicated solely to procuring goods and services before and after a natural disaster.54 FEMA’s disaster contracting is primarily the responsibility of the Disaster Acquisition Response Team (DART).55 DART was created after Hurricane Katrina because it was determined that FEMA did not have enough specialized contracting staff to manage contract administration and oversight of several simultaneous large-scale disasters.56 DART is located in three regional offices when not deployed to disasters.57 Each regional office has a contracting officer that serves as the first response for contracting if a disaster occurs in a region.58 They may request additional contracting services once a disaster hits.59
DART can procure goods and services from individuals and firms before or after a disaster. Advance contracts are used to procure goods and services before a disaster strikes.60 Post-disaster contracts are awarded after a natural disaster occurs and are typically awarded only if advance contracts reach their capacity or if goods and services not suitable for advance contracts are needed.61 Advance contracts are preferred over new contracts because, with- out the weight of the urgent need caused by the imminent or current threat of a major disaster, FEMA is able to “maximize competition, conduct market research, and thoroughly evaluate prospective contractors’ qualifications and proposals.”62 FEMA reportedly currently has advance contracts in place for approximately fifty-six different types of goods and services.63
Most of FEMA’s advance contracts are indefinite delivery, indefinite quantity (IDIQ) contracts.64 IDIQ contracts can either be single award65 or multiple award.66 Multiple-award contracts are given preference in the Federal Acquisition Regulation.67 FEMA’s current policy for disaster contracts is to award multiple-award IDIQ contracts for a five-year period.68 IDIQ contracts are considered ideal for disaster response and recovery efforts due to the flexibility of not having to set exact delivery times or quantities.69 Some experts believe that IDIQ contracts provide the necessary flexibility for contracting during a natural disaster, going so far as to describe them as the “most vital contracting mechanism available for crisis and disaster response” because they “operate effectively at all stages of disaster-related contracting.”70
III. Major Issues & Challenges During FEMA's 2017 Disaster Response Efforts
To improve disaster response-and-recovery efforts, it is necessary to identify and understand the issues and challenges faced during previous disasters. This section discusses four major issues and challenges that hindered FEMA’s response-and-recovery efforts during the 2017 hurricane season.
A. FEMA Was Unprepared for the Unprecedented Scale of the 2017 Hurricanes
The biggest challenge FEMA faced during the 2017 hurricane season was its unpreparedness for dealing with the unprecedented scale and rapid succession of the 2017 hurricanes.71 The 2017 hurricane season was one of the most intense hurricane seasons ever recorded, with ten hurricanes forming in the Atlantic, an occurrence not seen in more than a entury.72 Four of the major hurricanes — Harvey,73 Irma,74 Maria,75 and Nate76 — came ashore within six weeks of each other and set new records in intensity and costs to the United States. Hurricanes Harvey, Irma, and Maria were three of the top five costliest hurricanes in the nation’s history,77 producing a record-setting $265 billion in damage.78 There is evidence that this “unprecedented scale” of disasters is becoming the “new normal”79 and future hurricanes will be more intense and costly.80
As noted by FEMA Administrator Brock Long, the “unprecedented scale” of the 2017 hurricanes “stretched response and recovery capabilities at all levels of government.”81 FEMA did not have the workforce capacity to deal with this scale of hurricane activity and was constantly redeploying its federal workforce and “assembl[ing] additional personnel into ad hoc teams to fill necessary gaps.”82 FEMA’s procurement team was also stretched to its limits during the 2017 hurricane response.83 According to FEMA’s After-Action Report, the increased contracting demands from the 2017 hurricane season “severely taxed” FEMA’s contracting team.84 In a recent report, GAO continued to express concern regarding the staffing needs of FEMA’s contracting team.85 The GAO stated that, unless FEMA addresses its contracting team staffing needs, FEMA “is not likely to be well-positioned to respond to future disasters.”86
B. FEMA’s Increased Use of No-Bid Contracts and Risky Contractors
The second major challenge FEMA faced during the 2017 hurricane season, which may have been the result of the procurement team being stretched to its limits, was an increased reliance on no-bid contracts. During the 2018 fiscal year, FEMA awarded $200 million in no-bid contracts for disaster response efforts, the most since 2008.87 In response to Hurricane Maria, nearly half of the federal contracts were awarded outside of the competitive bidding process.88
Increased use of no-bid contracts results in the government giving up its leverage to negotiate prices and services, especially during the time immediately following a disaster.89 As noted by one commentator following FEMA’s award of possibly millions of dollars in sole-source contracts after Hurricane Katrina, “To fill the gaps, [FEMA] [is] forced to acquire much of what it need[s] on the fly, signing deals worth hundreds or millions of dollars with little or no competition when its bargaining position could not [be] worse.”90 No-bid contracts also prevent the government and the taxpayer from enjoying the benefits of full and open competition, which includes best value, integrity, and transparency.91
Another consequence of no-bid contracts, especially those procured following a disaster, is increased reliance on questionable contractors. FEMA contracted with several companies to support the 2017 hurricanes disaster response and recovery efforts that were questionable, and as expected, resulted in overcharges and delivery failures of critical goods and services.92 The media and members of Congress have scrutinized FEMA’s failure to adequately vet contractors after the 2017 hurricanes.93 The common risks associated with the use of a questionable contractor is the government being overcharged and failure to deliver goods and services on time to disaster survivors.94 Furthermore, when the government does not properly vet a contractor to determine if that contractor is capable of fulfilling the contract requirements, an award based on the lowest evaluated price alone can create a false economy because of the additional contractual and administrative costs associated with default, late deliveries, and unsatisfactory performance.95
One of the most reported examples of FEMA’s use of questionable contractors during the 2017 hurricane season involved the largest recovery contract at the time of award in the government’s spending data system.96 FEMA entered into a $156 million contract with a small Atlanta-based company, Tribute Contracting LLC, for direct meals to storm survivors in Puerto Rico.97 Acccording to Tribute Contracting, FEMA “initated the call to talk about the contract.”98 However, not only did Tribute Contracting consist of only one person and have little experience in this level of disaster work, at the time of award, but it was also barred from contracting with the Government Publishing Office.99 The $156 million contract was eventually terminated “for cause” because Tribute Contracting had only delivered 50,000 of the required thirty million meals.100 The use of this risky contractor resulted in the failure of the delivery of critical goods (packaged meals) during a time when Puerto Rico residents were still struggling with food shortages.101
C. FEMA’s Lack of Guidance and Direction on Advance Contracts
A third major challenge FEMA faced during the 2017 hurricane response efforts resulted from FEMA’s failure to provide guidance and direction on how to adequately use advance contracts in support of its response-and-recovery efforts.102 This lack of direction and guidance contributed to challenges in using advance contracts to respond to the 2017 hurricanes.103
Additionally, many of FEMA’s advance contracts met capacity and required new post-disaster contracts after Hurricane Harvey.104 The post-disaster contracts for the same goods and services as the advance contracts were more expensive.105 GAO also found that shortfalls in FEMA’s acquisition planning for advance contracts resulted in a number of bridge contracts, which also put the government at risk of paying higher prices for products and services.106
A report from Senator Claire McCaskill’s office also detailed FEMA’s failure in adequately using advance contracts. The report shows that FEMA did not adequately use advance contracts to purchase common disaster commodities like plastic sheeting and tarps.107 For example, of the $206.9 million in plastic sheeting and tarps contracts for the 2017 hurricanes, only 3.5 percent was acquired through advance contracts.108 Even though plastic sheeting and tarps are essential commodities that FEMA routinely provides disaster survivors, FEMA only had three advance contracts for tarps and zero for plastic sheeting.109 Because the government was pressed for time due to the unprecedented nature of the 2017 hurricanes, it likely paid more money for the same plastic sheeting and tarps in the new eleven contracts it had to use following the disasters.110
D. Inadequate Preparation Resulted in an Ineffective Response in Puerto Rico
Lastly, FEMA’s inadequate preparation for disaster recovery efforts after Hurricane Maria, leaving Puerto Rico without “electricity, clean water, and medical services for extended periods.”111 Unlike its response efforts in Texas and Florida after Hurricanes Harvey and Irma, FEMA faced major personnel and logistical issues during its response efforts in Puerto Rico following Hurricane Maria.112 As one report noted, the difference was partly “because of issues unique to Puerto Rico, an island that already had a weakened infrastructure, a government struggling through bankruptcy — and that had only just been hit by Hurricane Irma.”113 These are important factors that FEMA failed to consider during the pre-planning stage which left it unprepared to “take on a lead role in the aftermath of the disaster, despite clear signs that the island’s government and critical infrastructure would be overwhelmed in the face of such a storm.”114 In fact, “FEMA’s hurricane plans for Puerto Rico were so inadequate that the agency decided to instead use an older plan designed to respond to a tsunami or earthquake.”115 FEMA’s unpreparedness resulted in major issues with distribution and prevented critical supplies from being delivered to the disaster survivors in Puerto Rico.116 Thousands of containers of food, water, and medicine were stuck in ports and warehouses on the island.117
FEMA’s unpreparedness also stemmed from its policy that resources should be allocated equally between disasters.118 Because the effects of disasters fall unevenly on different sectors of society, “equal resources would inevitably have lead to unequal results.”119 As one commentator noted, “Both globally and within the United States, social vulnerability — including inequalities stemming from race, gender, class, age and disability — amplifies the impacts of disasters and the difficulty of recovery.”120 Because poorer and more vulnerable populations like Puerto Rico need more assistance, FEMA’s failure to prioritize the disaster response in Puerto Rico, over those in wealthier jurisdictions like Texas and Florida, resulted in an unequal and inadequate response.121
IV. The Case for Localizing Advance Contracting Efforts
Based on the challenges discussed in the previous section, FEMA must find a way to deal with multiple large-scale disasters in responding to unique communities like Puerto Rico. Since pre-planning activities and disaster contracting is essential to response and recovery efforts,122 a good place to start for tackling these challenges is advance contracting. However, to maximize the use of advance contracting to meet challenges like those from the 2017 hurricane season, FEMA has to implement a strategy that prioritizes their use and focus on regional, local needs of different jurisdictions throughout the United States. Therefore, this section urges Congress to create a statutory requirement establishing advance contracting teams within FEMA’s regional offices across the United States and the use of potential damage assessments to develop advance contracts based on the unique needs of the communities within the jurisdictions of each regional office.123
A. Advance Contracting Should Be Local, Not National
1. Establish Advance Contracting Teams in Regional Offices
The responsibility of advance contracting should be moved from the national level to the local, regional level.124 The updated advance contracting strategy centers around developing advance contracts for each region that are based on individualized assessments of the region’s unique characteristics, which will result in advance contracts being tailored to meet the specific needs of each region. To implement this updated advance contracting strategy, each regional office should have a department dedicated to the procurement of advance contracts.125 If FEMA is unable to place teams in all of its regional offices, the advance contracting teams should be placed in jurisdictions most vulnerable to major disasters and least likely to have local and state capabilities to respond to such disasters, like Puerto Rico. Each advance contracting team will be responsible for overseeing the procurement of advance contracts for its region. The advance contracting team will be responsible for conducting and updating the potential damage assessments for its region, coordinating with state and local officials, completing the pre-solicitation and solicitation for advance contracts, and ensuring expiring advance contracts are properly re-solicited with full and open competition prior to expiration.
2. Conduct Potential Damage Assessment with State and Local Officials
As noted above, the advance contracting teams in each regional office would be responsible for completing a potential damage assessment for that region. The potential damage assessment will contain data specific to each region to assist FEMA and state/ local officials with determining the most suitable products and services for advance contracts. The assessment will be based on similar factors used by FEMA in determining the type and extent of federal assistance warranted after a Stafford Act declaration.126 However, instead of completing preliminary damage assessment after a disaster has occurred, FEMA and state/ local officials will conduct a potential damage assessment in advance of a disaster. The assessment should always be completed in coordination with state/ local officials.127 The frequency and specific time period of the assessment should be determined by the head of the advance contracting office. Moving the responsibility of advance contracting to the local regional level will increase the accuracy of the potential damage assessment for each region.
Once the factors listed in the potential damage assessment have been evaluated, FEMA and state/local officials should work together to identify the most suitable goods and services for advance contracts.128 FEMA and state/ local officials should also determine which goods and services will be procured in advance by FEMA and other federal agencies and which goods and services will be procured in advance by state/ local officials.129
The potential damage assessment should evaluate at least the following four factors: (1) state/ local capabilities to respond to disasters, (2) expected trauma to communities within the region, (3) likelihood of future natural disasters; and (4) estimated cost of assistance for future disasters.130
The first factor that should be included in the potential damage assessment is the capability of jurisdictions within the region to respond to disasters without federal assistance. For FEMA to know what type of support it will need to provide state/ local officials before or after a disaster, FEMA must comprehensively assess a jurisdiction’s disaster preparedness and capabilities.131 Consideration of this factor will inform FEMA on whether it will have to take a greater role in disaster response efforts and, as a result, whether greater resources will be needed for response-and-recovery efforts in that jurisdiction.132
The second factor that should be evaluated is the expected trauma to communities in the region.133 FEMA cites three conditions as indicating a high degree of trauma to a community: “(1) large number of injuries and deaths; large scale disruption of normal community functions and services; and emergency needs such as extended or widespread loss of power or water.”134 This information will help inform FEMA about not only the products and services that will be needed but how much. For example, with a high likelihood of extended or widespread loss of power, FEMA should place electrical utility services at the top of the list of services suitable for advance contracting.135
The third factor that should be evaluated in the assessment is the likelihood of future natural disasters. FEMA officials should assess reliable reports produced on future disaster activity in their region. This data may be obtained from any reliable source as determined by the contracting personnel completing the assessment. One of the most helpful resources in this area will likely be the U.S. Global Change Research Program report, which details how climate change is affecting the United States in order to “assist the Nation and the world to understand, assess, predict, and respond to human-induced and natural processes of global change.”136 Knowing the type of disasters most likely to impact the region will be useful for determining the type of products and/ or services most suitable for advance contracts in responding to the type of disasters native to that region.137
The fourth factor that should be evaluated in the individualized assessment is the estimated cost of assistance following a natural disaster in that jurisdiction.138 The estimated cost of assistance can be calculated using data from numerous sources, including historical data from the Disaster Relief Fund (DRF), previous contracting reports, and other reports containing data and/ or information about previous disaster response-and-recovery efforts for that region.139 Historical data from DRF will provide data on how much public assistance and individual assistance was obligated to states during previous disasters.140 Past contracting reports will also provide data relating to how much federal agencies obligated for advance and post-disaster contracts for past disasters, as well as the top products and services used during those disasters.141 Other reports that can be used include GAO reports on FEMA’s response-and-recovery effects in that jurisdiction142 and FEMA’s After-Action reports on key findings and lessons learned following disaster response-and-recovery efforts for a particular disaster.143 Last, and most importantly, FEMA should use the information from recent exercises in its jurisdiction to determine what products and services would help improve its ability to deal with logistical and distribution hurdles specific to that region.144 The information gathered from these reports will provide the most valuable insight into what products and services are most suitable for advance contracts and the maxi- mum and minimum amount likely required.
B. Costs and Benefits of Implementing a New Strategy
The biggest concern with implementing the above strategy is the cost associated with hiring more personnel and developing more advance contracts that may or may not be used in the future. But the concern about cost should be viewed in connection with the benefits that will be realized from implementing the strategy. The cost savings resulting from implementation will likely cover any additional cost from implementation and may even result in a net gain in FEMA’s contracting department.
Most importantly, it should be noted that the new strategy does not call for more advance contracts; rather, it calls for moving advance contract procurement from the national level to the local level. At this time, there is no way to confirm if the new strategy will result in more or fewer advance contracts. However, coordinating with state/ local officials in the pre-planning process for advance contracts may result in state/ local governments’ increased use of advance contracts and other preparedness efforts, thereby reducing FEMA’s procurement burden in that region. Additionally, if the advance contracts are multiple-award IDIQ contracts for a five-year period, FEMA will have a chance to order the minimum requirement over multiple years and seasons, which will likely prevent waste of any resources.145
FEMA will likely realize the most cost savings from reduced contract costs. More reliance on advance multiple-award IDIQ contracts, which are awarded using competitive procedures, in disaster response and recovery, will result in reduced reliance on sole-source contracts procured after a disaster.146 Furthermore, advance contracts will provide FEMA more time to vet contractors and avoid costs associated with risky contractors. Increased competition and time to vet contracts will result in FEMA obtaining the best value for products and services needed to support disaster response efforts.147 Furthermore, because the advance contracts will be specific to each region, there is a reduced likelihood that advance contracts will reach capacity and FEMA will have to pay higher prices for the same or similar services or products due to the urgent need.148
FEMA may also realize savings from having advance contracting teams in each region. One benefit that may result from such a team is a reduction in bridge contracts, which result in higher contracting costs compared to newly competed contracts.149 Since the team will be focused exclusively on overseeing a small number of advance contracts for that region, compared to tracking fifty-six different contracts nationally, a higher likelihood that expiring contracts may possibly be identified and re-solicited through full and open competition prior to their expiration. Furthermore, if FEMA contracting personnel are not wasting time urgently obtaining post-disaster contracts, its workforce can focus more on administration and oversight, reducing the cost associated with a lack of oversight.150
The new strategy will also provide non-cost related benefits. The individual assessment of each region can provide a mechanism for how FEMA should prioritize its workforce when disasters hit in close succession.151 The potential damage assessments will provide insight on the jurisdictions that need greater assistance and enable FEMA to direct more support to those jurisdictions. Based on the assessment, FEMA should also have a good understanding in advance of the key challenges that it may face in responding to disasters in that region and conduct pre-planning activities such as advance contracting to reduce risks associated with those challenges.152
Due to climate change, major hurricanes are becoming stronger, more frequent, and costlier. Pre-disaster planning is the key to responding to these new disasters. Without proper disaster response planning, the United States does not stand a chance in keeping up with their destruction. One of the best ways to ensure the United States is ready to respond on command to these disasters is effective use of advance contracting. However, without a proper strategy in place for developing effective advance contracts that meet the needs of the affected community, they will be rendered meaningless. For these reasons, Congress should create a statutory requirement implementing the recommended advance contracting strategy to ensure maximum use of advance contracts to the extent practical and cost-effective, as required by the Post-Katrina Act.
- Hurricane Maria made landfall in Puerto Rico on September 20, 2017 as a category 4 hurricane. Nat’l Oceanic & Atmospheric Admin., AL152017, National Hurricane Center Tropical Cyclone Report: Hurricane Maria 2 (2017) [hereinafter NOAA, Hurricane Maria], https://www.nhc.noaa.gov/data/tcr/AL152017_Maria.pdf.
- See Justine Calma, The U.S. Could Have Avoided Puerto Rico’s Water Crisis, Grist (Oct. 20, 2017), https://grist.org/article/the-u-s-could-have-avoided-puerto-ricos-water-crisis/ [https://perma.cc/6DYD-SATD].
- See id.
- See Oren Dorell & Atabey Nuñez, Puerto Rico’s Water Woes Raise Fears Of Health Crisis Six Weeks After Hurricane Maria, USA TODAY (Nov. 2, 2017), https://www.usatoday.com/story/news/world/2017/11/02/puerto-rico-water-woes-raise-fears-health-crisis-six-weeks-after-hurricane-maria/808672001/ [https://perma.cc/TD8H-W7DD].
- See id.
- See id.
- See id.
- “Leptospirosis is a bacterial disease that affects humans and animals.” Leptospirosis, Ctrs. for Disease Control & Prevention, https://www.cdc.gov/leptospirosis/index.html [https://perma.cc/RJ7X-NTFR] (last visited Aug. 3, 2019). “Without treatment, Leptospirosis can lead to kidney damage, meningitis (inflammation of the membrane around the brain and spinal cord), liver failure, respiratory distress, and even death.” Id.
- See Dorell & Nuñez, supra note 4.
- FEMA’s primary mission is to “reduce the loss of life and property and protect the Nation from all hazards, including natural disasters, acts of terrorism, and other man-made disasters, by leading and supporting the Nation in a risk-based, comprehensive emergency management system of preparedness, protection, response, recovery, and mitigation.” 6 U.S.C. § 313(b)(1) (2012).
- FEMA has admitted in its After-Action report that it was not prepared for the devastation left in Puerto Rico by Hurricane Maria and that its preparation efforts failed to take into account a 2011 exercise after action report that anticipated that Puerto Rico “would require extensive federal support in moving commodities.” Fed. Emergency Mgmt. Agency, 2017 Hurricane Season FEMA After-Action Report 12 (2018) [hereinafter FEMA 2017 After-Action Report].
- Hurricane Irma, a Category 5 hurricane, made landfall in the Caribbean Islands on September 6, 2017. See Nat’l Oceanic & Atmospheric Admin., AL112017, National Hurricane Center Tropical Cyclone Report: Hurricane Irma 3 (2017) [hereinafter NOAA, Hurricane Irma]. Hurricane Harvey, a Category 4 hurricane, made landfall along the middle Texas coast on August 26, 2017. See Nat’l Oceanic & Atmospheric Admin., AL092017, National Hurricane Center Tropical Cyclone Report: Hurricane Harvey 3 (2017), [hereinafter NOAA, Hurricane Harvey].
- See Bill Chappell, Puerto Rico Struggles to Deliver Aid to Millions of Stricken Americans, npr (Sept. 26, 2017), https://www.npr.org/sections/thetwo-way/2017/09/26/553722128/puerto-rico-struggles-to-deliver-aid-to-millions-of-stricken-americans [https://perma.cc/UAL9-FR8R].
- See Bill Weir, 20,000 Pallets of Bottled Water Left Untouched in Storm-Ravaged Puerto Rico, CNN (Sept. 20, 2018), https://www.cnn.com/2018/09/12/us/puerto-rico-bottled-water-dump-weir/index.html [https://perma.cc/7G3G-3WQ5].
- FEMA 2017 After-Action Report, supra note 12, at ii.
- Hurricane Katrina revealed weaknesses in the basic elements of preparation, response, and recovery efforts from a catastrophic disaster. U.S. Gov’t Accountability Off., GAO-09-59R, Actions Taken to Implement the Post-Katrina Emergency Management Reform Act of 2006 1 (2008) [hereinafter GAO, Actions Taken to Implement the Post-Katrina Emergency Management Reform Act of 2006]. The Post-Katrina Emergency Management Reform Act of 2006 was enacted to address various shortcomings in the leadership and planning that plagued response and recovery efforts to Hurricane Katrina. Id. at 2; see also Post-Katrina Emergency Management Reform Act of 2006, Pub. L. No. 109-295, §601, 120 Stat. 1355, 1394 (2006).
- The National Oceanic and Atmospheric Administration estimates that the effect of climate change on hurricane activity will likely lead to a $7.3 billion dollar growth of annual losses. See Fast Facts: Climate Change Predictions, Office for Coastal Mgmt., Nat’l Oceanic & Atmospheric Admin., https://coast.noaa.gov/states/fast-facts/climate-change.html [https://perma.cc/LZ65-KDWQ].
- See Peter Tyler, The New Normal—America Needs to Up Its Game When Responding to Natural Disasters, POGO (Oct. 31, 2017), https://www.pogo.org/investigation/2017/10/new-normal-america-needs-to-up-its-game-when-responding-to-natural-disasters/ [https://perma.cc/9EAU-ELKM].
- Advance contracts are contracts procured in advance of a natural disaster for immediate deployment to assist response and recovery efforts. 6 U.S.C. § 791(a)(1)(A) (2012).
- See FEMA 2017 After-Action Report, supra note 12, at ii (FEMA’s Administrator Brock Long made clear that the key to responding to these new disasters will be to “build a culture of preparedness” and for FEMA to “take bold action to improve the Nation’s overall readiness and resiliency for future incidents.”); U.S. Gov’t Accountability Off., GAO-19-93, 2017 Disaster Contracting: Action Needed to Better Ensure More Effective Use and Management of Advance Contracts 1 (2018) [hereinafter GAO, Action Needed to Better Advance Contracts] (stating that federal agencies procurement of goods and services plays a “key role in immediate disaster response and longer-term community recovery.”).
- The statutory requirement would be similar to the statutory section in the Post-Katrina Act establishing emergency response teams. See Post-Katrina Emergency Management Reform Act of 2006 § 633, 120 Stat. at 1421.
- The responsibility for responding to natural disasters begins at the “local level with individuals and public officials in the county, parish, city, or town affected,” which is first supplemented by state government resources. See Dep’t of Homeland Sec., National Response Framework 11, 13 (2016) [hereinafter DHS, National Response Framework], https://www.fema.gov/media-library-data/1466014682982-9bcf8245ba4c60c120aa915abe74e15d/National_Response_Framework3rd.pdf.
- 42 U.S.C. § 5121(b) (2012). Under the Robert T. Stafford Disaster Relief and Emergency Act Act, a “major disaster” is defined as
any natural catastrophe (including any hurricane, tornado, storm, high water, winddriven water, tidal wave, tsunami, earthquake, volcanic eruption, landslide, mudslide, snowstorm, or drought), or, regardless of cause, any fire, flood, or explosion, in any part of the United States, which in the determination of the President causes damage of sufficient severity and magnitude to warrant major disaster assistance under this chapter to supplement the efforts and available resources of States, local governments, and disaster relief organizations in alleviating the damage, loss, hardship, or suffering caused thereby.Id. § 5122(2).
- See id. § 5170; DHS, National Response Framework, supra note 23, at 19. In order to determine if the “severity and magnitude” is beyond the capabilities of the state/local government, the state will typically complete a joint FEMA-State preliminary damage assessment. See id.; 44 C.F.R. § 206.33 (2018). The preliminary damage assessment is used to determine “the impact and magnitude of damage and the resulting unmet needs of individuals, businesses, the public sector, and the community as a whole.” 44 C.F.R. § 206.33 (2018). A damage assessment team, consisting of at least one federal government representative, one state government representative, and one local government representative, survey the damage. See id. § 206.33(b). While the decision on whether the situation is beyond the state’s capabilities rests primarily with the governor of the affected state, FEMA officials are responsible for providing guidance on the “damage criteria, the kind of information to be collected for the particular incident, and reporting requirements.” Id.
- 42 U.S.C. § 5170a(1). A declaration is not always necessary for the federal government to provide assistance, as “FEMA may pre-deploy [f]ederal assets when a declaration is likely and imminent.” See DHS, National Response Framework, supra note 23, at 31.
- 42 U.S.C. § 5121(b)(2).
- See generally Post-Katrina Emergency Management Reform Act of 2006, 120 Stat. at 1394.
- See, e.g., id § 512, 120 Stat. at 1407 (establishing programs for developing and planning mass evacuation plans); id. § 633, 120 Stat. at 1421 (establishing requirement for emergency response teams); id. § 691, 120 Stat. at 1457 (establishing requirement for advance contracts).
- Presidential Policy Directive / PPD-8: National Preparedness, Dep’t. of Homeland Sec., https://www.dhs.gov/presidential-policy-directive-8-national-preparedness [https://perma.cc/3VR6-HJPY] (last visited Apr. 8, 2019).
- The National Response Framework guides the nation’s response to major disasters, regardless of size, and uses mission areas to “define the capabilities necessary to save lives, protect property and the environment, meet basic human needs, stabilize the incident, restore basic services and community functionality, and establish a safe and secure environment to facilitate the integration of recovery activities.” DHS, National Response Framework, supra note 23, at i. The National Response Framework mission areas are prevention, protection, mitigation, response, and recovery. Id. at 1. Planning is one of three capabilities that is common to all the mission areas.
Id. at 21.
- The National Disaster Recovery Framework, which is a companion to the National Response Framework, guides the nation’s recovery efforts following a disaster. See Dep’t. of Homeland Sec., National Disaster Recovery Framework 1 (2016). The primary goal of the National Disaster Recovery Framework is to emphasize “preparing for recovery in advance of disaster” because “[t]he ability of a community to accelerate the recovery process begins with its efforts in pre-disaster preparedness . . . .” Id. at i.
- See 6 U.S.C. § 313(b); DHS, National Response Framework, supra note 23, at 17 (citation omitted).
- See Regional Contact Information, Fed. Emergency Mgmt. Agency [hereinafter Regional Contact Information], https://www.fema.gov/regional-contact-information [https://perma.cc/GCU5-7TAT] (last visited Apr. 8, 2019). FEMA’s regional offices provides support in the following states and territories:
• Region I, located in Boston, Massachusetts, provides regional support for Vermont, Maine, New Hampshire, Massachusetts, Connecticut, and Rhode Island.See id.
• Region II, located in New York, New York, provides regional support for New York, New Jersey, Puerto Rico, and Virgin Islands.
• Region III, located in Philadelphia, Pennsylvania, provides regional support for District of Columbia, Delaware, Maryland, Pennsylvania, Virginia, and West Virginia.
• Region IV, located in Atlanta, Georgia, provides regional support for Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, and Tennessee.
• Region V, located in Chicago, Illinois, provides regional support for Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin.
• Region VI, located in Denton, Texas, provides regional support for Arkansas, Louisiana, New Mexico, Oklahoma, and Texas.
• Region VII, located in Kansas City, Missouri, provides regional support for Iowa, Kansas, Missouri, and Nebraska.
• Region VIII, located in Denver, Colorado, provides regional support for Colorado, Montana, North Dakota, South Dakota, Utah, and Wyoming.
• Region IX, located in San Francisco, California, provides regional support for Arizona, California, Hawaii, Nevada, and the Pacific Islands.
• Region X, located in Seattle, Washington, provides regional support for Alaska, Idaho, Oregon, and Washington.
- See Jared T. Brown & Francis X. McCarthy, Cong. Research Serv., R41981, Congressional Primer on Responding to Major Disasters and Emergencies 9 (Apr. 30, 2014).
- See 6 U.S.C. § 317 (2012) (requiring the establishment of regional offices that would work with state/local governments to ensure “effective, coordinated, and integrated regional preparedness”).
- U.S. Gov’t Accountability Off., GAO-18-472, 2017 Hurricanes and Wildfires: Initial Observations on the Federal Response and Key Recovery Challenges 8 n.16 (2018) [hereinafter GAO, 2017 Hurricanes and Wildfires Observations] (The Disaster Relief Fund is “the primary source of federal disaster assistance for state and local governments when a disaster is declared” and “is appropriated no-year funding, which allows FEMA to fund, direct, coordinate, and manage response and recovery efforts . . . .”)
- See 44 C.F.R. § 206.40(a) (2018).
- See Cong. Research Serv., R44977, Preliminary Damage Assessments for Major Disasters: Overview, Analysis, and Policy Observations 4 (Oct. 4, 2017).
- See 44 C.F.R. § 206.62 (2018); see also, 44 C.F.R. § 206.10 (2018).
- See, e.g., 42 U.S.C. § 5174 (2012).
- See generally 42 U.S.C. § 5170c.
- See 44 C.F.R. § 206.48 (2018).
- See id. § 206.48(a).
- See id. § 206.48(b).
- See Factors Considered When Evaluating a Governor’s Request for Individual Assistance for a Major Disaster, 80 Fed. Reg. 70,116 (proposed Nov. 12, 2015) (to be codified at 44 C.F.R. pt. 206).
- See id. at 80 Fed. Reg. at 70,117.
- See 44 C.F.R. § 206.40(a).
- See GAO, 2017 Hurricanes and Wildfires Observations, supra note 37, at 11.
- See id.
- See GAO, Action Needed to Better Advance Contracts, surpa note 21.
- See 44 C.F.R. § 206.10 (2018).
- Cf. U.S. Gov’t Accountability Off., GAO-18-335, 2017 Disaster Contracting: Observations on Federal Contracting for Response and Recovery Efforts 7 (2018) [hereinafter GAO, 2017 Disaster Contracting Observations]. As of December 2017, the Department of Homeland Security, the head agency for FEMA, and Department of Defense accounted for approximately 97 percent of total contracts obligated across 19 federal agencies in response to Hurricans Harvey, Irma, and Maria. See id.
- See U.S. Gov’t Accountability Off., GAO-15-783, Disaster Contracting: FEMA Needs to Cohesively Manage Its Workforce and Fully Address Post-Katrina Reforms 6 (2015) [hereinafter GAO, FEMA Address of Post-Katrina Reforms]. FEMA’s contracting workforce starts with the Office of the Chief Procurement Officer (also known as the Head of Contracting Activity). See id. Under the Chief Procurement Officer, there are two divisions: Acquisition Operations Division and Acquisition Program and Policy Division. See id. The Acquisition Operations Division controls preparedness, internal operations, and disaster and field operations. See id. The Acquisition Program and Policy division provides customer and program support. See id.
- See id. at 18.
- See id. (citation omitted).
- See id.
- See U.S. Gov’t Accountability Off., GAO-19-281, 2017 Disaster Contracting: Actions Needed to Improve the Use of Post-Disaster Contracts to Support Response and Recovery 12 (2019) [hereinafter GAO, Actions Needed to Improve Post-Disaster Contracts].
- See id.
- See GAO, Action Needed to Better Advance Contracts, supra note 21, at 9. The Post-Katrina Emergency Management Reform Act of 2006 required FEMA to establish advance contracts. See GAO, Actions Taken to Implement the Post-Katrina Emergency Management Reform Act of 2006, supra note 17, at 74.
- See id. at 10. FEMA has also identified other vehicles for obtaining goods and services including Department of Homeland Security strategic sourcing vehicles, blanket purchase agreements, and interagency agreements. See id.
- See Minority Staff of S. Comm. on Homeland Sec. & Governmental Affairs, 115th Cong., Rep. on Failures in FEMA Contracting for Emergency Tarps & Sheeting During the 2017 Hurricane Season 2 (Comm. Print 2018) [hereinafter S. Comm. Rep. on 2017 FEMA Contracting].
- See GAO, Action Needed to Better Advance Contracts, supra note 21, at 8. With respect to goods, FEMA has advance contracts in place for construction supplies, tarps, food and water, cleaning and hygiene supplies, and power equipment and generators. See id. With respect to services, FEMA has advance contracts for engineering services, information technology and communication support, transportation of goods, and housing and lodging assistance. See id.
- See id. at 9. IDIQ contracts “provide for an indefinite quantity . . . of [goods] or services during a fixed period.” FAR 16.504(a); see also GAO, Action Needed to Better Advance Contracts, supra note 21, at 9 n.14.
- “‘Single-award IDIQ contracts’ refers to situations when only one contract is awarded under a solicitation.” U.S. Gov’t Accountability Off., GAO-17-329, Federal Contracts: Agencies Widely Used Indefinite Contracts to Provide Flexibility to Meet Mission Needs 3 (2017).
- Multiple-award IDIQ contracts refer to “situations when contracts are awarded to two or more contractors under a single solicitation.” Id. at 4.
- See FAR 16.504(c).
- See Press Release, Fed. Emergency Mgmt. Agency, Hurricane Recovery Contracting Strategy Announced (Oct. 11, 2005) [hereinafter FEMA Press Release], https://www.fema.gov/news-release/2005/10/11/hurricane-recovery-contracting-strategy-announced [https://perma.cc/JQE5-QALR].
- Cf. GAO, Action Needed to Better Advance Contracts, supra note 21, at 9. However, the government must still order a minimum quantity. See id. (citation omitted).
- Kevin J. Wilkinson, More Effective Federal Procurement Response to Disasters: Maximizing the Extraordinary Flexibilities of IDIQ Contracting, 59 A.F. L. Rev. 231, 286 (2007).
- Cf. FEMA 2017 After-Action Report, supra note 12, at 6.
- See Tyler, supra note 19.
- Hurricane Harvey made landfall along the middle Texas cost on August 26, 2017 as a Category four hurricane. See NOAA, Hurricane Harvey, supra note 13. Hurricane Harvey lasted 117 hours and broke the record for the longest duration, producing 60.58 inches of rainfall in Texas, the most ever recorded in the continental U.S. from a tropical cyclone. See Fast Facts: Weather Disasters, Office For Coastal Mgmt., Nat’l Oceanic & Atmospheric Admin., https://coast.noaa.gov/states/fast-facts/weather-disasters.html [https://perma.cc/ZS2Y-BM6L] (last visited Aug. 3, 2019) [hereinafter NOAA, Weather Disasters Facts].
- Hurricane Irma first made landfall in the Caribbean Islands as a Category 5 hurricane on September 6, 2017 and eventually made landfall in Florida Keys on September 10, 2017 as a Category 4 hurricane. See NOAA, Hurricane Irma, supra note 13. “With maximum winds of 185 miles per hour, Irma became the strongest storm on record to exist in the Atlantic Ocean outside of the Caribbean and Gulf of Mexico.” NOAA, Weather Disasters Facts, supra note 73. Irma “spent three consecutive days as a category [five] hurricane—making it the longest of any cyclone in the world ever recorded to maintain that intensity.” Id.
- Hurricane Maria made landfall in Puerto Rico on September 20, 2017 as a Category 4 hurricane. See NOAA, Hurricane Maria, supra note 1. Hurricane Maria “was the first category [five] hurricane ever to make landfall in Dominica, and the strongest hurricane to make landfall in Puerto Rico since 1928.” NOAA, Weather Disasters Facts, supra note 73. Hurricane Maria was the deadliest of the three category 4 and category 5 storms, with some estimating the morality rate to be as high as 4,645. See id; see also Nishant Kishore et al., Mortality in Puerto Rico after Hurricane Maria, New Eng. J. of Med., 162, 162 (2018).
- Hurricane Nate made landfall at the mouth of the Mississippi River on October 8, 2017. See Nat’l Oceanic & Atmospheric Admin., AL162017, National Hurricane Center Tropical Cyclone Report: Hurricane Nate 3 (2017).
- At $125 billion, Hurricane Harvey is the second costliest weather disaster on record, behind Hurricane Katrina at $161 billion. See Fast Facts: Hurricane Costs, Office for Coastal Mgmt., Nat’l Oceanic & Atmospheric Admin., https://coast.noaa.gov/states/fast-facts/hurricane-costs.html [https://perma.cc/A2F5-HJXV] (last visited Aug. 3, 2019). At $90 billion, Hurricane Maria ranked as the third costliest weather disaster. See id. At $50 billion, Hurricane Irma ranked as the fifth costliest weather disaster. See id.
- See id. (Hurricane Harvey produced $125 billion in damage, Hurricane Maria $90 billion, and Hurricane Irma $50 billion, totaling $265 billion).
- See Tyler, supra note 19 (stating that Federal and state/local governments “should assume multiple disasters within a short space of a few weeks or days is the new normal.”).
- Climate change experts have found that human-induced climate change is supercharging hurricanes, making them stronger, bigger, last longer, and more frequent. See, e.g., Kevin E. Trenberth et al., Hurricane Harvey Links to Ocean Heat Content and Climate Change Adaptation, Earth’s Future (May 9, 2018), https://agupubs.onlinelibrary.wiley.com/doi/pdf/10.1029/2018EF000825; Fourth National Climate Assessment, U.S. Glob. Change Research Program (2018) [hereinafter Fourth National Climate Assessment], https://nca2018.globalchange.gov/ [https://perma.cc/K7LYG79H]. Researchers found that the “[o]cean heat content was highest on record just before northern summer of 2017, supercharging Atlantic hurricanes Harvey, Irma, and Maria.” Trenberth et al., supra note 80. In fact, the National Oceanic and Atmospheric Administration (NOAA) estimates that climate change effect on hurricane activity will likely grown annual losses by $7.3 billion. See Fast Facts: Climate Change Predictions, Office for Coastal Mgmt., Nat’l Oceanic & Atmospheric Admin., https://coast.noaa.gov/states/fast-facts/climate-change.html [https://perma.cc/53AN-DHJ7].
- See FEMA 2017 After-Action Report, supra note 12, at ii.
- See id. at 16.
- See id. at 30.
- See id. (stating that “[o]ver several months of concurrent disaster operations” FEMA contracting staff “modified and monitored existing contracts, issued new contracts, and cancelled underperforming contracts,” as well as “coordinat[ed] the additional oversight and review requirements for many high-value contracts” and “execut[ed] contracting actions for other federal agency partners”).
- See GAO, Actions Needed to Improve Post-Disaster Contracts, supra note 58, at 52.
- See id. at 53.
- See Alexia F. Campbell, Companies Barely Had to Compete for Half of the Federal Contracts Awarded in Puerto Rico so Far, Vox (Nov. 17, 2017), https://www.vox.com/policy-and-politics/2017/11/17/16618476/puerto-rico-federal-contracts [https://perma.cc/WKL8-LSDH].
- See id.
- See Kathleen E. Karelis & David B. Robbins, Government Contracting After a National Disaster, Briefing Papers, Oct. 2005, at 3 (citations omitted).
- See id.
- See Steven L. Schooner, Desiderata: Objectives for a System of Government Contract Law, 11 Pub. Procurement L. Rev. 103, 104 (2002). It is believed that full and open competition allows the government to access “the best contractors, lowest prices, most advanced technology, [favorable] contract terms and conditions, and the highest quality goods and services.” Id.
- See, e.g., S. Comm. Rep. on 2017 FEMA Contracting, supra note 62, at 5-10 (revealing that FEMA’s contract with Bronze Star, LLC, a company formed less than two months before the bidding, for emergency self-help tarps was canceled less than a month after award due to Bronze Star’s failure to deliver).
- See, e.g., id. at 1; Neil Gordon et al., Unworthy Tribute: FEMA Contract Raises Disaster Preparedness Concerns, POGO (Feb. 23, 2018), https://www.pogo.org/analysis/2018/02/unworthy-tribute-fema-contract-raises-disaster-preparedness-concerns/ [https://perma.cc/FA2Q-5Q22]; Press Release, Richard Blumenthal, U.S. Senator for Conn., After Multiple Botched Contracts, Blumenthal and Warren Call for Investigation into FEMA’s Disaster Relief Contracting Process (Feb. 20, 2018) (available at: https://www.blumenthal.senate.gov/newsroom/press/release/after-multiple-botched-contracts-blumenthal-and-warren-call-for-investigation-into-femas-disaster-relief-contracting-process [https://perma.cc/T2YD-6NZF]); Christopher Flavelle & Paul Murphy, FEMA is Spending Billions, and Some Questionable Companies Are Getting Work, Bloomberg (Oct. 19, 2017), https://www.bloomberg.com/news/articles/2017-10-19/fema-is-spending-billions-and-some-questionable-companies-are-getting-work [https://perma.cc/X28X-P227].
- See S. Comm. Rep. on 2017 FEMA Contracting, supra note 62 (stating that the failure to procure pre-positioned contracts results in expedited procurement of new contract which leads to less competition and negative impact on delivery timeline of critical supplies).
- See FAR 9.103(c).
- See Gordon et al., supra note 93; Leyla Santiago & Khushbu Shah, Contractor Promised 30 Million Meals to Puerto Rico. Only 50,00 Were Delivered. Lawmakers Ask Why., CNN (Feb. 6, 2018), https://www.cnn.com/2018/02/06/us/puerto-rico-hurricane-maria-meals/index.html [https://perma.cc/MRV9-5YXK]; Patricia Mazzei and Agustin Armendariz, FEMA Contract Called for 30 Million Meals for Puerto Ricans. 50,000 Were Delivered., N.Y. Times (Feb. 6, 2018), https://www.nytimes.com/2018/02/06/us/fema-contract-puerto-rico.html [https://perma.cc/ZE8C-2GKW].
- See Gordon et al., supra note 93; Santiago & Shah, supra note 96; Mazzei & Armendariz, supra note 96.
- Santiago & Shah, supra note 96.
- See Gordon et al., supra note 93.
- See id.
- See Santiago & Shah, supra note 96. Although FEMA asserted that “[a]t the time of the contract termination there were ample commodity supplies in the pipeline,” Bernardo “Betito” Marquez, mayor of Toa Baja, told CNN that around this time his “municipality of about 80,000 residents in northern Puerto Rico were still struggling with food and water shortages . . . .” Santiago & Shah, supra note 96; see also Ann M. Simmons & Milton Carrero Galarza, Four Months after Hurricane Maria, Puerto Rico Struggles with Lack of Electricity, Food and Water, L.A. Times (Jan. 30, 2018), http://www.latimes.com/nation/la-na-puerto-rico-aid-20180130-story.html [https://perma.cc/UN7H-XBYX].
- See GAO, Action Needed to Better Advance Contracts, supra note 21, at 18.
- See id. at 19.
- See id. at 19–20; see also FEMA 2017 After-Action Report, supra note 12, at 30 (stating that “[g]iven the unprecedented resource needs of consecutive response operations, FEMA not only exhausted commodities on hand but also exhausted pre-negotiated contracts to provide meals, tarps, water, and other resources during the response to hurricanes Harvey and Irma” and as a result during the response to Hurricane Maria, FEMA had to “rapidly solicit vendors outside its pre-negotiated contracts to satisfy resource and program needs.”).
- For example, FEMA awarded fourteen contracts for emergency tarps and sheeting, three of the fourteen contracts were advance contracts and collectively cost $7.3 million. See S. Comm. Rep. on 2017 FEMA Contracting, supra note 62, at 3. Eleven of the fourteen contracts were new contracts competed after the 2017 hurricanes and collectively cost $199.6 million. See id. at 3-4. Additionally, the GAO found that, after contracts for meals with specific nutritional requirements reached capacity after Hurricane Harvey, new contracts were awarded post-disaster to the same vendors who obtained advance contracts but at different prices than those negotiated for the advance contracts. See GAO, Action Needed to Better Advance Contracts, supra note 21, at 19.
- See GAO, Action Needed to Better Advance Contracts, supra note 21, at 22 (citation omitted). “[B]ridge contracts occur when an agency realizes that it will not be able to award a competed or non-competed follow-on contract before the current contract expires and can be done either by extending the current contract’s period of performance or by awarding a new short-term contract to the incumbent vendor(s) to avoid a lapse in service.” Id. at 22 n.33. The GAO has previously reported that when “non-competitive bridge contracts are used frequently or for prolonged periods, the government is at risk of paying more than it should for products and services.” Id. at 22 (citation omitted).
- See generally, S. Comm. Rep. on 2017 FEMA Contracting, supra note 62, 1–13. Plastic sheeting and tarps are used by homeowners to cover small areas of roof damage. See S. Comm. Rep. on 2017 FEMA Contracting, supra note 62 (citation omitted).
- See id. at 3 (citations omitted).
- See id. (citation omitted).
- See id. at 3–4 (citations omitted).
- See Daniel Farber, Response and Recovery After Maria: Lessons for Disaster Law and Policy, 87 Rev. Jurid. U.P.R. 743, 744 (2018).
- See FEMA 2017 After-Action Report, supra note 12, at 29 (stating that “Puerto Rico did not have the same level of preparedness to manage a commodity distribution mission” and that “[m]ajor modes of transportation were closed and debris blocked extensive road networks . . . .”).
- Eric Levenson, 3 Storms, 3 Responses: Comparing Harvey, Irma and Maria, CNN (Sept. 27, 2017), https://www.cnn.com/2017/09/26/us/response-harvey-irma-maria/index.html [https://perma.cc/QKH8-DTLS].
- Danny Vinik, FEMA’s Plan Underestimated Puerto Rican Hurricane, POLITICO (Apr. 15, 2018), https://www.politico.com/story/2018/04/15/puerto-rico-hurricane-fema-disaster-523033 [https://perma.cc/H7UD-2ERA]; see also FEMA 2017 After-Action Report, supra note 12, at 28 (finding that FEMA did not anticipate having to provide “logistical coordination to move and distribute commodities from staging areas to survivors in Puerto Rico” because it was a role that is typically “managed and coordinated at the state or territory level.”).
- Peter Tyler, Passing Grade? Lessons Learned from the 2017 Disasters, POGO (Aug. 15, 2018), https://www.pogo.org/analysis/2018/08/passing-grade-lessons-learned-from-2017-disasters/ [https://perma.cc/GJ77-958V].
- See Amanda Holpuch, Puerto Rico Supply Failure Stops Food and Water Reaching Desperate Residents, The Guardian (Sept. 29, 2017), https://www.theguardian.com/world/2017/sep/29/puerto-rico-crisis-supply-food-water [https://perma.cc/T8K2-HF7M].
- See id.
- See Farber, supra note 111, at 761 (noting that FEMA Administrator, Brock Long, defended attacks that FEMA did not allocate as many resources to Puerto Rico by stating that it received similar resources to those invested after Hurricane Katrina) (citations omitted).
- Id. at 751 n.33, 761 (quoting the National Research Council’s observations that some “population segments are more likely to explore casualties, property damage, psychological impacts, demographic impacts, economic impacts, or political impacts—as direct, indirect, or informational effects.”) (citations omitted).
- Id. at 751–52 (citation omitted).
- See id. at 753, 769 (noting that “Puerto Rico, as a whole, fits the definition of a vulnerable group, lacking almost completely in political power and far poorer than the mainland United States” and many of the “impacted were poor communities living in informal housing” that did not comply with building codes).
- See FEMA 2017 After-Action Report, supra note 12, at ii (FEMA’s Administrator Brock Long made clear that the key to responding to these new disasters will be to “build a national culture of preparedness” and for FEMA to “take bold action to improve the Nation’s overall readiness and resiliency for future incidents.”); GAO, Action Needed to Better Advance Contracts, supra note 21 (stating that federal agencies procurement of goods and services plays a “key role in immediate disaster response and longer-term community recovery.”).
- The statutory requirement would be similar to the statutory section in the Post-Katrina Act establishing emergency response teams. See Post-Katrina Emergency Management Reform Act of 2006 § 633, 120 Stat. at 1421.
- FEMA has 10 regional offices across the United States. See Regional Contact Information, supra note 34.
- The need for the establishment of an advance contracting team is similar to the need that led to the establishment of DART. DART was created after Hurricane Katrina because it was determined that FEMA did not have enough specialized contracting staff to manage contract administration and oversight of several simultaneous large-scale disasters. See GAO, FEMA Address of Post-Katrina Reforms, supra note 54, at 18 (citation omitted). Similarly, after the 2017 hurricanes, it is clear that FEMA’s federal procurement team is not equipped to handle the increased contracting burden that accompanies simultaneous, large scale disasters. See FEMA 2017 After-Action Report, supra note 12, at 30.
- See 44 C.F.R. § 206.48.
- The potential damage assessment team would be similar to the make up of damage assessment teams for preliminary damage assessments, which includes at least one state official, at least one federal official, typically from FEMA’s regional office, and a local official familiar with the area. See 44 C.F.R. § 206.33(b).
- This will allow FEMA to meet its requirement under the Post-Katrina Act to coordinate advance contracts with state/local officials and encourage state and local governments to engage in similar pre-planning and contracting. See 6 U.S.C. § 791(b)(3), (4). Additionally, the GAO has stated that regional coordination with state and local stakeholders can enhance preparedness efforts. See U.S. Gov’t Accountability Off., GAO-09-651, Urban Area Security Initiative: FEMA Lacks Measures to Assess how Regional Collaboration Efforts Build Preparedness Capabilities 30 (2009).
- To ensure the use of advance contracts are cost-effective, as required by the Post-Katrina Act, advance contracts should be multiple-award IDIQ contracts that are awarded using full and open competitive procedures. See Wilkinson, supra note 70 (arguing that IDIQ contracts are the “most vital contracting mechanism available for crisis and disaster response” because it “flexes as procurement needs arise and objectives evolve” which allows it to “operate effectively at all stages of disaster-related contracting.”) (internal citation marks omitted).
- FEMA should identify additional factors it deems important in determining the best products and services suitable for advance contracting.
- Currently, FEMA does not have a reliable method for assessing jurisdictions’ capabilities when determining whether to provide public assistance to a jurisdiction after a disaster. See U.S. Gov’t Accountability Off., GAO-12-838, Federal Disaster Assistance: Improved Criteria Needed to Assess a Jurisdiction’s Capability to Respond and Recover on Its Own 30 (2012). In order to provide a more comprehensive measure of a jurisdiction’s fiscal capacity, the GAO has urged FEMA to adopt the Treasury Department’s Total Taxable Resources (TTR) measure, which will provide more informed data on a jurisdiction’s response and recovery assets and capabilities. See id. at 49.
- In 2017, FEMA’s failure to consider Puerto Rico’s fiscal capacity resulted in its failure to anticipate having to take a lead role in the aftermath of Hurricane Maria, leading to heavy criticism of its response efforts. See, e.g., Farber, supra note 111, at 753, 769; Vinik, supra note 114.
- This factor is currently used by FEMA in making Individual Assistance determinations. See 44 C.F.R. § 206.48(b)(2).
- See id.
- This type of evaluation could have prevented the issues and criticism FEMA has faced as a result of sole-source contracting for fixing the Puerto Rico power grid. Cf. Frances Robles & Deborah Acosta, Puerto Rico Cancels Whitefish Energy Contract to Rebuild Power Lines, N.Y. Times (Oct. 29, 2017), https://www.nytimes.com/2017/10/29/us/whitefish-cancel-puerto-rico.html [https://perma.cc/S5G9-LELY]. Several months after Hurricane Maria, most of the residents in Puerto Rico still faced power outages. See Alan Taylor, After Four Months, Much of Puerto Rico Still Dark and Damaged, Atlantic (Jan. 29, 2018), https://www.theatlantic.com/photo/2018/01/after-four-months-much-of-puerto-rico-still-dark-and-damaged/551756/ [https://perma.cc/W8MV-56QJ]; Ray Sanchez & Leyla Santiago, Most of Puerto Rico Still Without Power, CNN (Apr. 18, 2018), https://www.cnn.com/2018/04/18/us/puerto-rico-mass-power-outage/index.html [https://perma.cc/FK9B-4FEZ].
- 15 U.S.C. § 2931(b) (2012). As required by the Global Change Research Act of 1990, the report is delivered to Congress and the President no less than every four years. See id. § 2936. The most recent report was released in November 2018. See Fourth National Climate Assessment, supra note 80.
- For example, the most recent report makes the following predictions about future climate change effects in the Caribbean:
There is high confidence that increasing frequency of extreme events threatens life, property, and economy in the region, given that the U.S. Caribbean’s vulnerable populations and fragile economies are continually exposed to climate extremes. There is medium confidence that the frequency and intensity of the most extreme hurricanes and droughts will likely increase. There is high confidence that extreme events will likely continue to affect human health and well-being, economic development and tourism, conservation, agriculture, and danger from flooding. There is high confidence that future recovery and cultural continuity will depend on significant and integrated resilience planning across the region, focusing on collaborative actions among stakeholders.See Fourth National Climate Change Assessment, Chapter 20: U.S. Caribbean, U.S. Glob. Change Research Program, https://nca2018.globalchange.gov/chapter/20/ [https://perma.cc/Z93G-4TGP] (last visited Apr. 8, 2019).
- This factor is currently used by FEMA for Public Assistance determinations. See 44 C.F.R. § 206.48(a)(1).
- FEMA even admits in its after-action report that it could have “better leveraged opensource information and preparedness data, such as capability assessments and exercise findings, for Puerto Rico . . . .” FEMA 2017 After-Action Report, supra note 12, at 11.
- See Fed. Emergency Mgmt. Agency, Disaster Relief Fund: Monthly Report 12 (2019), https://www.fema.gov/media-library-data/1552772002358-9cee7fa336c399f38ffce5d42baa0e36/March2019DisasterReliefFundReport.pdf. FEMA is required to produce a report by the tenth day of each month on the Disaster Relief Fund obligations and estimates. See Additional Supplemental Appropriations for Disaster Relief Requirements Act, 2017, Pub. L. No. 115-72, § 1, 131 Stat. 1224, 1225 (2017). FEMA’s most recent publicly available report from March 2019 contains disaster relief fund spending for Sandy, Harvey, Irma, and Maria. See Fed. Emergency Mgmt. Agency, Disaster Relief Fund: Monthly Report 12 (2019), https://www.fema.gov/media-library-data/1552772002358-9cee7fa336c399f38ffce5d42baa0e36/March2019DisasterReliefFundReport.pdf.
- For example, in its February 2018 report, the GAO found that the 19 federal agencies had obligated over $5.6 billion in contracts related to 2017 hurricanes response and recovery efforts. See GAO, 2017 Disaster Contracting Observations, supra note 53. The report also provided obligations specific to each hurricane. See id. at 17, 19, 21.
- The GAO has produced several reports on FEMA’s response and recovery efforts obligations in response to the 2017 hurricanes. See, e.g., U.S. Gov’t Accountability Off., GAO-19-253, U.S. Virgin Islands Recovery: Status of FEMA Public Assistance Funding and Implementation (2019).
- FEMA produced an after-action report on its response and recovery efforts to the 2017 hurricane season. See FEMA 2017 After-Action Report, supra note 12, at vi (details strategic-level findings across five focus areas based on a review of FEMA’s preparation for, immediate response to, and initial recovery operations for the 2017 hurricanes and lessons learned).
- FEMA attributed some of its preparedness shortfalls in Puerto Rico to its failure to take into account information from previous exercises. See id. at 12. FEMA noted that it did not take into account a 2011 exercise after action report that anticipated that Puerto Rico “would require extensive federal support in moving commodities . . . .” Id. It also discusses its failure to take into account a 2014 Alaska Shield National Level Exercise after-action report that stated “resource delivery timelines were longer than expected when working outside the continental United States and that a lack of staff at resource staging areas contributed to challenges in tracking and managing commodity deliveries.” Id.
- FEMA’s current policy is to award multiple-award IDIQ contracts for five year periods. See FEMA Press Release, supra note 68.
- See Karelis & Robbins, supra note 89; cf. S. Comm. Rep. on 2017 FEMA Contracting, supra note 62, at 8 (citations omitted).
- See Schooner, supra note 91.
- During the 2017 hurricane season many of FEMA’s advance contracts reached capacity after Hurricane Harvey and Hurricane Irma. See GAO, Action Needed to Better Advance Contracts, supra note 21, at 19; FEMA 2017 After-Action Report, supra note 12, at 30.
- See GAO, Action Needed to Better Advance Contracts, supra note 21, at 22 (noting that bridge contracts put the government at risk of paying higher prices for products and services) (citation omitted).
- See GAO, FEMA Address of Post-Katrina Reforms, supra note 54, at 18 (noting a Department of Homeland Security Inspector General report “found that FEMA incurred over $5 million in excessive contract costs because of inadequate [oversight] during Hurricane Katrina.”) (citation omitted).
- FEMA noted in its 2017 after action report the need for FEMA to be able to staff multiple concurrent, complex incidents. See FEMA 2017 After-Action Report, supra note 12, at 14.
- This will help avoid a situation like the one faced by FEMA during its response in Puerto Rico, where it was caught off guard by logistical hurdles and resulting in millions from receiving life-saving aid. See id. at 29; Vinik, supra note 114; Holpuch, supra note 116.