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Public Contract Law Journal

Public Contract Law Journal Vol. 49, No. 1

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

Teshale C Smith


  • Examines the federal government's contracting approach to addressing natural disasters.
  • Analyzes federal contracting in response to natural disasters.
  • Discusses opportunities for the federal government to adopt advance contracting at a local level to address future natural disasters.
The Case for FEMA Adopting a Localized Advance Contracting Strategy: Addressing Major Challenges & Issues that Hindered FEMA's 2017 Hurrican Response & Recover Efforts

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I. Introduction

After Hurricane Maria hit Puerto Rico in September 2017, one of the most pressing issues for storm survivors was access to clean water. Officials estimated that more than one in three residents in Puerto Rico did not have access to clean water. 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. 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. As a result, residents were limited to using bottled water. However, bottled water was expensive and hard to find. Two months after Hurricane Maria hit, at least seventy-four cases of leptospirosis had been reported, which were likely the result of ingesting contaminated food and water. Two of these cases resulted in death.

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), was not prepared to provide the response Puerto Rico needed after Hurricane Maria, a Category 4 hurricane that occurred in close succession to two other major hurricanes that hit the United States in 2017. FEMA routinely dealt with logistical issues that impeded its disaster response efforts in Puerto Rico, including its ability to deliver supplies to storm survivors. 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. 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.” 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. 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, 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.”

One mechanism for achieving its objectives in this new era of multiple, simultaneous billion-dollar disasters is to improve its advance contracting strategy. Both pre-disaster planning and contracting play a key role in short-term and long-term disaster recovery. 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. 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. 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. 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.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.

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.” In the Post-Katrina Emergency Management Reform Actpassed in 2006, Congress dedicated several sections to improving the federal government’s planning and preparedness efforts. 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.” The goals of the National Preparedness System are achieved through the National Response Framework and the National Disaster Recovery Framework, 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. FEMA oversees and coordinates the federal disaster response system through its headquarters and ten regional offices. FEMA also establishes a joint field office led by a Federal Coordinating Office after a declaration has been made. The regional and joint field offices work with state/ local officials to coordinate disaster preparedness, response, and recovery efforts for the impacted jurisdiction.

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. 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. 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.

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. Individual assistance provides direct aid to affected households, which may include housing assistance, crisis counseling, case management services, legal services, and disaster unemployment assistance. 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.

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. 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. 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. In 2015, FEMA issued a Notice of Proposed Rulemaking to update the individual assistance factors, but no final rule has been published. 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.”

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. 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. 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.”

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.” 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. 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.

FEMA has a vast contracting department dedicated solely to procuring goods and services before and after a natural disaster. FEMA’s disaster contracting is primarily the responsibility of the Disaster Acquisition Response Team (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. DART is located in three regional offices when not deployed to disasters. Each regional office has a contracting officer that serves as the first response for contracting if a disaster occurs in a region. They may request additional contracting services once a disaster hits.

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. 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. 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.” FEMA reportedly currently has advance contracts in place for approximately fifty-six different types of goods and services.

Most of FEMA’s advance contracts are indefinite delivery, indefinite quantity (IDIQ) contracts. IDIQ contracts can either be single award or multiple award. Multiple-award contracts are given preference in the Federal Acquisition Regulation. FEMA’s current policy for disaster contracts is to award multiple-award IDIQ contracts for a five-year period. 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. 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.”

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. 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. Four of the major hurricanes — Harvey, Irma, Maria, and Nate — 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, producing a record-setting $265 billion in damage. There is evidence that this “unprecedented scale” of disasters is becoming the “new normal” and future hurricanes will be more intense and costly.

As noted by FEMA Administrator Brock Long, the “unprecedented scale” of the 2017 hurricanes “stretched response and recovery capabilities at all levels of government.” 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.” FEMA’s procurement team was also stretched to its limits during the 2017 hurricane response. According to FEMA’s After-Action Report, the increased contracting demands from the 2017 hurricane season “severely taxed” FEMA’s contracting team. In a recent report, GAO continued to express concern regarding the staffing needs of FEMA’s contracting team. 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.”

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. In response to Hurricane Maria, nearly half of the federal contracts were awarded outside of the competitive bidding process.

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. 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.” 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.

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. The media and members of Congress have scrutinized FEMA’s failure to adequately vet contractors after the 2017 hurricanes. 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. 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.

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. 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. Acccording to Tribute Contracting, FEMA “initated the call to talk about the contract.” 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. The $156 million contract was eventually terminated “for cause” because Tribute Contracting had only delivered 50,000 of the required thirty million meals. 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.

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. This lack of direction and guidance contributed to challenges in using advance contracts to respond to the 2017 hurricanes.

Additionally, many of FEMA’s advance contracts met capacity and required new post-disaster contracts after Hurricane Harvey. The post-disaster contracts for the same goods and services as the advance contracts were more expensive. 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.

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. 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. 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. 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.

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.” 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. 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.” 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.” 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.” FEMA’s unpreparedness resulted in major issues with distribution and prevented critical supplies from being delivered to the disaster survivors in Puerto Rico. Thousands of containers of food, water, and medicine were stuck in ports and warehouses on the island.

FEMA’s unpreparedness also stemmed from its policy that resources should be allocated equally between disasters. Because the effects of disasters fall unevenly on different sectors of society, “equal resources would inevitably have lead to unequal results.” 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.” 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.

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, 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.

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. 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. 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. 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. 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. 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.

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.

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. 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.

The second factor that should be evaluated is the expected trauma to communities in the region. 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.” 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.

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.” 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.

The fourth factor that should be evaluated in the individualized assessment is the estimated cost of assistance following a natural disaster in that jurisdiction. 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. Historical data from DRF will provide data on how much public assistance and individual assistance was obligated to states during previous disasters. 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. Other reports that can be used include GAO reports on FEMA’s response-and-recovery effects in that jurisdictionand FEMA’s After-Action reports on key findings and lessons learned following disaster response-and-recovery efforts for a particular disaster. 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. 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.

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. 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. 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.

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. 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.

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. 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.

V. Conclusion

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.