January 31, 2020 Public Contract Law Journal

The Case for FEMA Adopting a Localized Advance Contracting Strategy: Addressing Major Challenges & Issues that Hindered FEMA's 2017 Hurrican Response & Recover Efforts

by Teshale C. Smith

Teshale Smith (tsmith1@law.gwu.edu) 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.

I.  Introduction

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.

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