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Public Contract Law Journal

Public Contract Law Journal Vol. 53, No. 2

A Donkey at the Kentucky Derby: Defining the Stafford Act’s “Feasible and Practicable” to Support Use of Local Contractors

Katherine Miller


  • The Stafford Act’s preference for using local contractors is easily ignored by those responsible for contracting after a disaster.
  • Recommendations include redefining and clarifying “feasible and practicable” and amending the Federal Emergency Management Agency to increase accountability and incentivize the use of local contractors.
A Donkey at the Kentucky Derby: Defining the Stafford Act’s “Feasible and Practicable” to Support Use of Local Contractors
Stacy Revere via Getty Images

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With scientists warning that climate change will increase the intensity of hurricanes, the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) will be used by the federal government with greater frequency. But the Stafford Act is not without its flaws. After Hurricane Katrina, a Federal Emergency Management Agency (FEMA) officer declared that the Stafford Act is like “bringing a donkey to the Kentucky Derby.” In § 5150 of the Stafford Act, Congress directs that “to the extent feasible and practicable,” federal funds should be given to contractors and businesses local to the area affected. However, it is unclear what qualifies as “feasible and practicable.” To best prepare for the likely increase in the Stafford Act’s use, Congress should clarify the ambiguity of the term “feasible and practicable” found in the Stafford Act’s § 5150’s preference for local contractors. As of now, the preference for use of local contractors is easily ignored by those responsible for contracting after a disaster. Ignoring local contractors, and instead using larger, out of state companies, contributed to the federal mismanagement after both Hurricanes Katrina and Maria. Failure to clarify this preference will result in more failed federal responses to disasters. This Note will discuss the benefits of the preference for local contractors and recommend two possible definitions of “feasible and practicable” that will ensure that more locals are being used as a part of the federal government’s response to emergencies and major disasters. Finally, the Note will recommend two amendments to the Stafford Act’s reporting requirements of FEMA that will ensure greater accountability and incentivize the use of local contractors.

I. Introduction: A Warmer Planet Means More Billion Dollar Disasters

Scientists warn that as the planet continues to grow warmer, hurricanes may become more intense. Models show that even if climate change does not increase the frequency of hurricanes, a higher proportion will “reach very intense (Category 4 or 5) levels.” More intense storms will increase flooding, which will worsen as sea levels continue to rise. These factors mean that the risk of “billion-dollar disaster[s]” from hurricanes is high. Three out of the five costliest hurricanes in the history of the United States occurred in 2017: Hurricanes Harvey, Irma, and Maria. Those three storms, which all happened within one month of each other, killed hundreds, caused an estimated $265 billion in damages, and impacted the lives of 25.8 million people.

Federal assistance to state and local governments in the wake of natural disasters is not automatic. The process of receiving federal aid begins when a governor determines that the state’s resources are overwhelmed by the emergency or disaster and asks the President for federal assistance. After FEMA meets with the state officials, it makes a recommendation to the President, who can either make a declaration of a major disaster or emergency, or deny the governor’s request.

The frequency of disaster declarations by U.S. Presidents has increased dramatically since 1953. From 1960 to 1969, the average number of declarations was 18.6 per year, but from 2000 to 2009 the average was 57.1 per year. In 2011, ninety-nine major disasters were declared. According to the National Oceanic and Atmospheric Administration (NOAA), “The U.S. has sustained 373 weather and climate disasters since 1980 where overall damages/costs reached or exceeded $1 billion,” costing the United States $2.630 trillion. In 2023 (as of November 8), there have been twenty five disasters with losses of over $1 billion each. The increase in declarations could be due to increases in population and developments of new communities, changes in federal policy, and changes in state policies and circumstances, in addition to an increase in weather-related events previously discussed.

Congress should amend the Stafford Act, which gives statutory authority to FEMA to respond to emergencies and disasters. Section 5150 of the Act says that local contractors should be used where “feasible and practicable.” However, without a clear definition of “feasible and practicable,” the Government Accountability Office (GAO) gives high discretion to the agency’s decision in bid protests, which means that the preference can be easily ignored by agencies. This Note argues that the phrase “feasible and practicable” should be defined as either “reasonably capable of being done in the particular situation,” or alternatively defined as a list of exceptions of when it is not feasible and practicable to use local contractors. Either proposed definition will strengthen the preference, making it a stricter requirement. A stronger preference means that more local contractors will be used, which benefits the community and economy, as this Note will discuss further in Section IV. Congress should also amend the Stafford Act’s reporting requirements of FEMA regarding the use of local contractors to ensure public accountability and easily accessible information. Defining “feasible and practicable” and strengthening FEMA’s reporting requirements is critically important now as hurricanes continue to grow in intensity due to climate change.

This Note begins with overviews of the federal government’s response to natural disasters, the Stafford Act, and § 5150’s preference for local contractors. Next, the Note will set the scene of the immense and catastrophic damage caused by Hurricanes Katrina and Maria. The Note then analyzes § 5150 in detail and argues that using local contractors after disasters is best for local communities. Also argued are the downsides to not using local contractors. Following this analysis, the Note returns to Hurricane Katrina and Hurricane Maria as examples of what happens when local contractors are not used and discusses areas where local contractors would have helped. The Note proposes two definitions of “feasible and practicable”—either as “reasonably capable of being done in the particular situation” or as a list of limited exceptions where it is permissible to use non-local contractors. Defining the phrase “feasible and practicable” in either of these ways will strengthen the preference, leading to more local contractors being used, which is better for the local economy and recovery. Finally, the Note argues for stronger reporting requirements in the Stafford Act to ensure that FEMA faces public accountability when not using local contractors.

II. Overview of the Federal Response to Natural Disasters and the Preference for Local Contractors

In this section, this Note will provide background information regarding the history of federal emergency management, an overview of the Stafford Act, and an analysis of the Stafford Act’s § 5150 preference for local contractors.

A. Federal Aid Before the Robert Stafford Act

Prior to 1950, for a state or local government to receive federal aid after a disaster, Congress had to meet and act on that specific request. In 1950, Congress passed the Federal Disaster Relief Act, which gave the President of the United States authority to declare a disaster. President Eisenhower issued the first declaration on May 2, 1953, for tornado damage in Georgia. After 1953, federal legislation was passed each decade with significant updates in the 1970s which “addressed distinct problems caused by natural disasters.” President Carter created FEMA in 1978 after decades of the federal government inching towards more involvement in emergency management. FEMA was incorporated into the Department of Homeland Security in 2003. FEMA plays a critical role in executing the Stafford Act, which will be discussed further below.

B. Brief Overview of the Robert Stafford Act

In 1988, the Robert T. Stafford Disaster Relief and Emergency Assistance Act amended the Disaster Relief Act of 1974. The Stafford Act gives FEMA its statutory authority to respond to emergencies. The Stafford Act gives federal agencies the authority to contract for “equipment, services, materials, and supplies and for the employment of experts and consultants.”

There are three types of declarations under the Stafford Act: Fire Management Assistance, emergencies, and major disasters. Fire Management Assistance is authorized by the President to state or local governments “for the mitigation, management, and control of any fire on public or private forest land or grassland that threatens such destruction as would constitute a major disaster.”

An emergency is defined as:

any occasion or instance for which, in the determination of the President, Federal assistance is needed to supplement State and local efforts and capabilities to save lives and to protect property and public health and safety, or to lessen or avert the threat of a catastrophe in any part of the United States.

Emergency declarations “do not provide assistance for repairs and replacement of public infrastructure or nonprofit facilities.” The President declares emergencies, which can be done prior to an incident occurring, such as before a hurricane. An emergency declaration can be used before a hurricane to help local governments evacuate people or prepare responders. The average number of emergency declarations from 1974 to 2016 was 8.8 per year, but the average number from just 2010 to 2016 was 10.6 per year, showing a slight increase. In 2022, President Biden declared 10 emergencies, including for the Mississippi water crisis, Hurricane Ian, Tropical Storm Nicole, and a winter storm in New York. As of November 2023, President Biden has declared 12 emergencies for winter storms, tropical storms, and hurricanes, among other emergencies. Since 1953 (the year of the first declaration by President Eisenhower), New York, Massachusetts, and Maine have received the most emergency declarations (as of 2016). Emergency declarations are most frequently used for winter storms, hurricanes, droughts, and floods.

Lastly, a “major disaster” is defined in the Stafford Act 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.

Like emergencies, once the President declares a major disaster, federal assistance can be given to state and local governments, private and nonprofit organizations, and individuals. Assistance can be in the form of programs such as temporary housing, unemployment assistance, crisis counseling, and community disaster loans. An average of 35.8 major disasters were declared from 1953 to 2016. There has been a steady increase in major disaster declarations since the 1990s: the average in the 1990s was 45.8; from 2000 to 2009 it was 57.1; and from 2010 to 2016 it was up to 58.7 per year. In 2022, President Biden declared 47 major disasters, including for the severe storms in Kentucky, Hurricane Ian, and Hurricane Nicole. As of November 2023, President Biden has declared 66 major disasters, including for Kentucky’s severe storms, Hurricane Idalia in Florida, and the Hawaii wildfires, among many others. Federal assistance from the Stafford Act can be used after an emergency or major disaster is declared for debris clearance, distribution of supplies, reconstruction and other activities. Major disaster declarations are most frequently used in response to floods, tornadoes, winter storms, or hurricanes. Texas, California, Oklahoma, New York, and Florida have received the most major disaster declarations.

The process for receiving federal aid begins with a state governor requesting assistance. A governor cannot request federal assistance until determining that the state’s own resources are overwhelmed. FEMA representatives then meet with the state to create a Preliminary Damage Assessment, and subsequently make a recommendation to the President. The President can make a declaration or deny the governor’s request for federal aid.

According to FEMA’s website, “Once there is a presidential declaration of a major disaster or emergency, FEMA coordinates and collaborates with federal, state, local and tribal agencies to get assistance to survivors.” If a contractor is interested in working with the federal government, it must be registered in the System for Award Management (SAM). FEMA lists many commodities that are most needed from contractors after a disaster, which include (but are not limited to) infant/toddler products, tarps, blankets, water, meals, generators, cots, portable toilets, and consumable medical supplies kits. The U.S. Army Corps of Engineers works with FEMA to coordinate debris management, temporary emergency power, temporary housing and critical public facilities, temporary roofing, infrastructure assessment, technical assistance and water/wastewater response, and support to urban search and rescue. Discussed next is the Stafford Act’s § 5150: Use of local firms and individuals.

C. Section 5150: The Preference for Local Contractors

When a disaster occurs and the state’s resources are overwhelmed, the Stafford Act gives the President the authority to declare an emergency or major disaster, and then either federal agencies help the cleanup, or grants are given to state and local governments to pay for the cleanup. The federal government heavily relies on private industry, including in its response to disasters. Federal procurement law states that, besides a few exceptions, government contracts must be acquired through “full and open competition” by way of “competitive procedures.” Full and open competition “means that all responsible sources are permitted to compete.” The requirement for “competitive procedures” can be fulfilled through the solicitation of sealed bids, competitive proposals, or another combination of competitive procedures. Competitive procedures ensure the government receives the best products at the lowest price, prevents fraud, promotes accountability, and uses taxpayer dollars wisely. However, in contradiction to this usual requirement for full and open competition, § 5150 says the following:

In the expenditure of Federal funds for debris clearance, distribution of supplies, reconstruction, and other major disaster or emergency assistance activities which may be carried out by contract or agreement with private organizations, firms, or individuals, preference shall be given, to the extent feasible and practicable, to those organizations, firms, and individuals residing or doing business primarily in the area affected by such major disaster or emergency.

The Stafford Act’s preference for local contractors is implemented in the Federal Acquisition Regulations (FAR) Part 18, which gives guidance on Emergency Acquisitions. FAR 18.203 says,

Preference will be given to local organizations, firms, and individuals when contracting for major disaster or emergency assistance activities when the President has made a declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act. Preference may take the form of local area set-asides or an evaluation preference.

The U.S. Court of Federal Claims has described its interpretation of § 5150, explaining that “[it does] not interpret the Stafford Act to establish a preference for local private vendors vis-à-vis local governmental entities or agency cooperators. Rather, the statute was intended to promote the use of local contractors over non-local contractors.” The court makes clear that § 5150’s purpose is to favor local contractors over nonlocals.

This section is just what it says it is, which is a preference. Agencies are encouraged, but not required to use, local contractors. The local preference “can be implemented by the inclusion in a solicitation of a clause creating a price preference for local firms or by a set-aside that only permits local firm to compete.” In 2006, Congress amended the local preference “by requiring that expenditures of federal funds for emergency assistance activities to companies that are not local be justified in writing.”

The FAR defines a “local firm” as “a private organization, firm, or individual residing or doing business primarily in a major disaster or emergency area.” The Stafford Act does not define what counts as a “local” contractor, but GAO describes the term. GAO does not provide an acceptable number of miles from the disaster area a business must be to be considered “local”; rather, GAO found that the phrase “doing business primarily” means where the contractor does the majority of their business, rather than the single largest location of their business. While GAO has provided this clarity on what counts as a local business, GAO has not given clarity on what counts as “feasible and practicable.” Strengthening the Stafford Act’s preference for local contractors by defining “feasible and practicable” will lead to more local contractors being used. Local contractors are best for the community and economy, as discussed further in Section IV. Without clarifying the definition of “feasible and practicable,” Congress risks more problematic federal responses like after Hurricanes Katrina and Maria.

III. Setting the Scene: Hurricanes Katrina and Maria

A. Hurricane Katrina: Background

According to the National Weather Service, Hurricane Katrina was one of the five deadliest hurricanes ever to hit the United States and the costliest. Katrina caused 1,833 fatalities and $108 billion in damage. In addition to its historic and destructive magnitude, Katrina is also well known for the highly criticized federal response, which will be discussed further below.

On August 24, 2005, Tropical Storm Katrina formed near the Bahamas and continued to grow until it made its first landfall on Florida on August 25, as a Category One hurricane. After entering the warmer waters of the Gulf of Mexico, Katrina grew into a Category Five storm. By August 28, evacuations were taking place across the region. New Orleans’ first ever mandatory evacuation notice was issued, and the New Orleans Superdome became a “shelter of last resort” for those who could not evacuate. Although the storm weakened into a Category Three storm, Katrina hit Louisiana with winds up to 125 miles per hour and hit Mississippi with winds up to 120 miles per hour. On August 29, while over Mississippi, Katrina weakened to “below-hurricane” status. Katrina caused extremely high storm surges—possibly up to twenty feet near the Mississippi-Alabama border—significant beach erosion, winds possibly up to 140 miles per hour in Louisiana, tree damage, multiple tornadoes, and rainfall over twelve inches in some areas.

In addition to the lives lost, Katrina completely engulfed or washed away many homes. Because of the heavy rainfall, high winds, and storm surge, the New Orleans levees—which separated the city from the lakes around it—catastrophically broke. By August 31, eighty percent of New Orleans was under water. Unfortunately, the neighborhoods that were at most risk of flooding, by being below sea level, were areas where New Orleans’s lowest income and most vulnerable populations lived. Cities in Mississippi were also underwater, some requiring citywide curfews. It was especially difficult for the low-income communities who lacked a place to go or access to a car, resulting in them being stuck in the city. New Orleans was mostly African American with nearly thirty percent of its citizens living in poverty, and “Katrina exacerbated these conditions and left many of New Orleans’s poorest citizens even more vulnerable than they had been before the storm.” This Note will later show how using local contractors would have benefitted the local economy, helping this vulnerable community recover.

B. Hurricane Maria: Background

Like Hurricane Katrina, Hurricane Maria in 2017 is notorious for both its damage and the federal response, with some specifically criticizing “the Stafford Act’s execution in Puerto Rico [which] created a race, class, and disability-rights catastrophe . . . .” The federal government’s response to Hurricane Maria shows that they did not learn from the mistakes after Hurricane Katrina.

Hurricane “Maria is the third costliest hurricane in United States” history according to the National Hurricane Center. But even before Maria was a tropical depression in the Atlantic Ocean, Puerto Rico was already suffering from Hurricane Irma which had hit on September 6, 2017. Irma was a Category Five hurricane, which killed four people, cut power for two-thirds of the island, and cut clean water supplies to thirty-four percent of islanders. Eleven days after Irma hit, a new storm became Hurricane Maria on September 17, 2017. On September 18, the hurricane intensified, and by the time it neared Dominica it was Category Five. Dominica was hit on September 19, 2017. Hurricane Maria hit Puerto Rico on September 20 as just below a Category Five hurricane. Up to thirty inches of rain fell, and the entire island lost power. The storm remained a major hurricane until September 24 and weakened into a tropical storm on September 28. While other locations were hit, this Note will focus on Puerto Rico. Thousands died in Puerto Rico, even months after Hurricane Maria. In August 2018, the Puerto Rican government estimated that 2,975 fatalities occurred because of Maria. This high death toll was caused in part from interruptions to health care. In Section V, this Note will discuss the failures of the federal response and how using local contractors would have prevented those issues.

IV. Analyzing § 5150: What It Means and Why It’s Significant

First, this section will discuss what are accepted interpretations of, and more importantly, remaining ambiguities surrounding the meaning of “feasible and practicable.” Second, it will analyze why the lack of a definition is significant and needs clarification. Third, it will discuss the benefits of using local contractors in disaster-relief contracts, as well as the downsides of not using the local preference. This Note then presents two case studies of the federal responses to Hurricanes Katrina and Maria which illustrate how using local contractors would have benefitted those communities.

A. What Is “Feasible and Practicable”?

While on its face the preference for local contractors is straightforward, it has not proved to be clear. The GAO has clarified what counts as a “local” contractor. The GAO, however, has confirmed that the phrase “feasible and practicable” remains unclear. The GAO’s decision in HAP Construction confirmed that “[n]either the language of the statute nor, as the parties agree and our research confirms, the legislative history of the Stafford Act, defines the terms ‘preference,’ ‘feasible,’ and ‘practicable.’” There is neither a definition in the Stafford Act itself for “feasible” or “practicable” nor in the FAR.

Both the GAO and the U.S. Court of Federal Claims have jurisdiction over protests from local contractors who claim that a Stafford Act contract was given to a non-local contractor, when they were both local and capable of performing. Given the absence of a definition for GAO (which frequently hears bid protests) to apply, GAO gives discretion to agencies when reviewing whether using a local contractor was feasible and practicable. GAO confirmed that

[w]here a statute requires that a preference be given to a class of potential contractors, but does not specify a particular evaluation formula, agency acquisition officials have broad discretion in selecting evaluation factors that should apply to an acquisition to effectuate the statutory mandate, and the relative importance of those factors.

In HAP Construction, a disappointed offeror challenged the U.S. Army Corps of Engineers’ decision to not use local contractors for the removal of debris after storms in the U.S. Virgin Islands and Puerto Rico. Here, the GAO upheld the agency’s decision that use of such contractors was “not feasible because the procurement history did not provide a basis for concluding that there would be adequate competition which would ensure reasonable prices is consistent with an appropriate definition of both the terms ‘feasible’ and ‘practicable.’”

This discretion goes even further, however. According to GAO, agencies are “entitled to substantial deference, and [the agency’s decision] should be upheld if it is reasonable.” Because of this substantial deference, GAO will not overturn an agency’s decision regarding a statute unless it is unreasonable or inconsistent with Congress’s intent. This high level of deference means that it is unlikely that a protest claiming that an agency reached an erroneous decision regarding what was feasible or practicable will ever be sustained. If that is true, then what is the purpose of including a preference for local contractors if the agency has no incentive to use local contractors because the agency’s decision not to will almost certainly be upheld?

B. Why the Lack of a Clear Definition Is Significant

There have been decades of confusion about what “feasible and practicable” means. GAO decided HAP Construction in 1998 and acknowledged that there was no clear definition of “feasible and practicable.” Hurricane Katrina also “highlighted the need for clarification of the Act’s [local contractor] preference.” After Hurricane Katrina, William T. Woods, GAO’s Director of Acquisition and Sourcing Management, testified before the Senate. Woods noted that agencies were unsure how to apply § 5150. A FEMA coordinating officer, Scott Wells, stated after Hurricane Katrina that “’[the Stafford Act is] like bringing a donkey to the Kentucky Derby.’” The House Congressional Select Bipartisan Committee even agreed that the local preference implementation confusion should be resolved. But, as is evident from the federal response to Hurricane Maria discussed in Section V, no changes have clarified the local preference.

The local preference also has been criticized as being toothless, which is proved by the Puerto Rico Small Business Contracting Act of 2018, which was passed in response to Hurricane Maria. The Act adds additional incentives for contracting with local companies, rather than with state contractors. According to some, “This Act would not be necessary if the Stafford Act, as it currently stands, adequately ensured that future disaster contracts go largely to businesses in the affected areas.” As the number of disasters continues to rise and climate change increases the amount of damage, it is likely that § 5150 will be used more frequently. Any lingering uncertainty as to what “feasible and practicable” means would be cured by a congressional decision to amend the Stafford Act to add a definition.

C. Benefits of Using Local Contractors

The Stafford Act’s preference for local contractors provides many benefits to both the local community and government. The local preference is also an important social policy. Advocates for using small businesses (many of which are local) “argue that smaller firms offer unequaled advantages to the U.S. economy by generating competition, creating innovations, and providing more jobs than any other sector.” Using the local preference may lead to lower prices for the federal government because local companies will not have shipping costs. A significant upside to the use of local contractors is that it will greatly help the local economy that will undoubtedly be struggling after an emergency or disaster, as did the low-income community after Katrina. The Disaster Relief Act of 1970, the precursor to the Stafford Act, also included a preference for local contractors “as a means of achieving community revitalization through the infusion of money into the affected area.” An original stated purpose of the Stafford Act was “‘providing a long-range economic recovery program for major disaster areas.’”

Disasters are detrimental to businesses, with twenty-five percent of businesses that close during a disaster unable to reopen again. Having local contractors provide clean-up and other services after a disaster logistically helps the community recover, as well as helps local businesses, their employees, and families. Significantly, employing locals “ensure[s] that the needs of the community are being communicated and met, since local businesses likely have a better understanding of the terrain and the various factors that go into rebuilding their own community.” It is also easier to communicate and coordinate with single local contractors, rather than a larger organization, which would presumably (but not necessarily) be larger than a local business.

The United States procurement system highly values competition. With high competition, “the government receives its best value in terms of price, quality, and contract terms and conditions.” Having the local preference encourages local businesses to bid for federal contracts, which increases competition, but if the local businesses are not awarded contracts because the local preference is not adhered to, they will be disincentivized to even try to compete. Because of the many benefits of using local contractors when assisting in disaster relief, the federal government should be required to do so, through a strong definition of when it is feasible and practicable.

D. Costs of Not Adhering to the Local Preference

Not adhering to the preference for local contractors creates avoidable costs to the federal government and sends millions of dollars to areas not impacted by the disaster. Out of state companies may cost more as they likely end up using multiple tiers of subcontracting with locals to complete the work. Multiple subcontracting tiers are associated with increased costs. Subcontractors also earn less than the prime contractor; therefore, a local subcontractor who needs economic help would receive less than its out-of-state prime contractor. The local preference was created to “stimulate community revitalization by using the Federal Government’s procurement system.” If, however, the local preference is not adhered to because the definition of “feasible and practicable” does not strongly require its usage, then the social policies that the local preference was created to help are not helped at all. When the local preference is not used, contracts can be consolidated across wider areas and awarded to one large business, rather than going to individual local companies. While this option may provide some benefits, contract consolidation can lead to higher cost and poorer performance as larger companies “have more layers of management, less direct communication among decision makers, and more opportunities for divergent interests to emerge.” Doubters may argue that socioeconomic goals like preferring local contractors can create more costs because it restricts competition. But using large out of state contractors after Katrina actually led to higher costs for the government. Indeed, “some evidence exists that local debris removal contractors in the disaster zone were offering better prices than the four companies to whom the U.S. Army Corps of Engineers awarded contracts following the hurricane. . . .” If any contract price is being increased, it should be going into the pockets of local contractors instead of out of state businesses who have not been economically impacted by the emergency or disaster. Critics may also argue that local contractors may be unable to complete the work because their business has been physically impacted by the disaster. But GAO guidance on what counts as “local” does not mean that the contractor must be in the area that was hit hardest by the disaster or emergency. For example, a contractor who frequently works in a town flooded after a hurricane could be based in a nearby town that is not flooded and still be considered local. Next, this Note will show how using local contractors would have helped communities in Mississippi and Louisiana recover from Hurricane Katrina.

V. Katrina and Maria: How Neglecting Local Contractors Contributed to the Federal Government’s Criticized Responses

As previously discussed, Hurricanes Katrina and Maria caused catastrophic damage and loss of life. The federal government’s responses have been highly criticized in general, as discussed below. This Note argues that after both Hurricanes Katrina and Maria, using local contractors would have greatly benefitted the communities and avoided some of the ineffective response measures.

A. Hurricane Katrina Analyzed: How Not Using Local Contractors Hurtthe Community

Louisiana Governor Kathleen Blanco issued a state of emergency on August 26, 2005. On August 28, Governor Blanco sent a letter to President George W. Bush asking for a disaster declaration in order to comply with the requirements of the Stafford Act. Her letter read in part, “I have determined that this incident will be of such severity and magnitude that effective response will be beyond the capabilities of the state and affected local governments and that supplementary federal assistance will be necessary.” A major disaster was declared for Florida on August 28, and for Louisiana, Mississippi, and Alabama on August 29.

Unfortunately, FEMA took days to establish operations in New Orleans, despite historic damages. After filling up the Superdome (which had limited supplies), authorities had no plans to help others, leading thousands to break into another convention center in the hope of shelter and supplies. The New Orleans Mayor Ray Nagin told reporters at the time that the “‘state and federal government are doing a two-step dance,’” and it was not clear who was in charge. Because of the poor response, political changes also occurred:

President George W. Bush had originally praised his director of FEMA, Michael D. Brown, but as criticism mounted, Brown was forced to resign, as was the New Orleans Police Department Superintendent. Louisiana Governor Blanco declined to seek re-election in 2007 and Mayor Nagin left office in 2010. In 2014 Nagin was convicted of bribery, fraud and money laundering while in office.

In February 2006, Congress published the results of its investigation in the disaster and government response, which was titled “A Failure of Initiative.” The over 500-page report summarizes some issues as “information gaps,” some caused by local first responders being completely overwhelmed, and due to the fact that “the National Response Plan did not adequately provide a way for federal assets to quickly supplement or, if necessary, supplant first responders.” They also outline that the failures were caused by a lack of flexibility and adaptability by all levels of government, by elements of the National Response Plan being “executed late, ineffectively, or not at all,” and by “FEMA logistics and contracting systems . . . not support[ing] a targeted, massive, and sustained provision of commodities,” among many others.

The Committee’s report specifically discusses the ambiguity of § 5150 of the Stafford Act. During the contract award process, some public officials complained that not enough local firms were being awarded contracts. The U.S. Army Corps of Engineers awarded the debris removal contracts in both Mississippi and Louisiana to the company AshBritt, a mere seventy-two hours after the request for proposals (RFP) was posted. AshBritt was the sole contractor for debris removal in Mississippi and Louisiana, but the company is not based in Mississippi or Louisiana. The House Committee was not able to determine how much of AshBritt’s work was subcontracted out to locals. The House Committee found the following statistics, which show how little of the billions spent on recovery efforts went to local companies and communities:

Of approximately $3.1 billion FEMA had awarded by Nov. 4, only $52.4 million, or about 1.7 percent, had gone to Mississippi firms. Of the $476 million that has been spent by the Corps of Engineers in Mississippi as of Nov. 2, about 28.5 percent has gone to Mississippi companies through direct contracts and subcontracts. Of the $164 million AshBritt has been paid so far by the Corps, only about $30 million, about 18 percent, has made it to Mississippi subcontractors.

Representative Chip Pickering of Mississippi notably said that “Congress wrote the Stafford Act to maximize the impact of federal dollars by giving preference to local contractors, strengthening the damaged economy and providing jobs to communities and victims of the disaster.” He also stated that “Mississippians have the ability, capacity and personal incentive to do this work. We want to rebuild and restore our home state, and these federal contracts will help our economy more through local contractors than sending the money to out-of-state corporations.” The House Committee concluded its discussion by saying, “Ambiguities regarding the implementation of local contractor preference under the Stafford Act should be resolved. In addition, clear, unambiguous remedies and penalties for failure to meet such statutorily mandated preferences may need to be considered.”

While investigations have found that the federal response to Hurricane Katrina was caused by a plethora of issues (including FEMA’s procurement system being “grossly” understaffed and a lack of pre-planning), using local contractors would have helped. After Katrina, multiple layers of subcontracting led to higher costs of contracts. Because of contracts going to out-of-state firms, some local companies went out of business. CorpWatch (a watchdog organization) found in its report after Katrina that “politically connected companies ineffectively perform contracts while small and local businesses are left out of the process.” The same report detailed that while a Texas (non-local) funeral services firm did a shoddy job identifying bodies, filling out death certificates, had questionable items billed to the government and charged “$12,500 per body, . . . local mortuary owners attempted to volunteer their services to FEMA and Louisiana, but were turned away.” CorpWatch also found that a mere 16.6% of contracts awarded after Katrina went to businesses in the three most affected states. Billions of dollars of relief could have been awarded to local contractors, who would pay locals to complete the work, instead of out-of-state companies that do not need economic help provided by the contracts. And with evidence that out-of-state companies charged more, and did not complete the work well, recovery contracts after Katrina should have been required to go to local contractors.

B. Hurricane Maria Analyzed: How Not Using Local Contractors Hurt the Community

Unfortunately, despite occurring twelve years after Katrina, the response to Hurricane Maria was similarly troubled. On September 20, 2017, the day Maria hit Puerto Rico, President Trump declared a major disaster for Puerto Rico, which through the Stafford Act allowed the federal government to help the local government.

According to some, “[FEMA] agents failed to get adequate supplies to Puerto Rican victims of Maria because they did not take care to tailor their aid to Puerto Ricans’ culture, demographics, language, problem with poverty, health problems, and life ways.” After President Trump declared a major disaster, FEMA increasingly sent more staff until, on September 25, 10,000 federal staff were in both Puerto Rico and the Virgin Islands. President Trump at a speech, days later, noted that the federal response was difficult: “The response and recovery effort probably has never been seen for something like this. . . . This is an island surrounded by water, big water, ocean water.” After receiving criticism from locals and the Mayor of San Juan Carmen Yulín Cruz, President Trump tweeted in part, “They [Puerto Ricans] . . . want everything to be done for them when it should be a community effort. 10,000 Federal workers now on Island doing a fantastic job.”

One issue with the response was FEMA remaining centralized in San Juan, and not venturing out into “rural, mountain communities,” some of whom would go weeks without receiving aid. It is unclear whether this outcome was because of the chaos, confusion over FEMA’s command structure, or the presence of many different organizations.

FEMA has since been critiqued by law Professor Yxta Maya Murray for

[sending] to Puerto Rico personnel that 1) did not speak Spanish, 2) used technology to communicate with victims even though poor Puerto Ricans did not have access to intelligent devices and the power grid had been down since September 20, 3) gave out food boxes containing items laden with sugar and salt to victims with heart disease and diabetes, and 4) could not foresee that the elderly would constitute an especially vulnerable population, who would die as a result of lack of care and power—often when their ventilators and other medical equipment failed as a result of power loss.

These specific failures are significant because an estimated 2.8 million Puerto Ricans speak only Spanish, and a large portion of Puerto Ricans have diabetes and high blood pressure, making the quality of the food significant.

An example of out of state contracting hurting Puerto Rico is the Puerto Rican Electric Power Authority (PREPA) contracting with a small contractor from Montana named Whitefish Energy. While he denies any connection to the company, then Secretary of the Interior Ryan Zinke was from Whitefish, Montana, and his son had worked for Whitefish Energy. The contract was worth $300 million and intended to bring back electricity to the entire island of Puerto Rico. Whitefish had no experience in Puerto Rico, in emergencies, or disasters; rather they were a “two-years-old, two-man operation . . . .” PREPA stated that Whitefish was awarded the contract because Whitefish had promised to get workers to Puerto Rico fast, with “‘less money required up front.’” Despite the criticism, as of October 23, 2017, Whitefish claimed to have 280 workers in Puerto Rico, most of them subcontracted out from Puerto Rican linemen. PREPA’s Executive Director Ricardo Ramos said he was content with the work that they were completing. But after backlash and an investigation, PREPA cancelled the contract with Whitefish two months later. This example shows how using an out-of-state contractor can cause more harm than good.

Using local contractors would have undoubtedly lessened the issues discussed above, as locals “could tell federal responders who needs help, and how to help them, thus alerting agents to intersectional issues of which they might be unaware.” Out-of-state contractors, especially in Puerto Rico (where fewer individuals speak English than in the continental United States), will likely be extremely unfamiliar with the language and area, whereas locals would speak the language and have better information. The language barrier caused issues when locals were filling out FEMA aid applications. Local contractors would also have understood the difficulties in providing home addresses because of their unique ways of organizing homes. Unfortunately, despite the benefits of using local contractors, “90% of federal contracts in the rebuilding of Puerto Rico were awarded to companies that are not based or headquartered in Puerto Rico.” Local contractors would have been able to “navigate the twisty mountain roads to find isolated victims . . .” in ways FEMA was not able or prepared to do, would speak the language, and would avoid multiple levels of subcontracting.

Hurricanes Katrina and Maria are just two examples of local contractors being neglected in favor of out-of-state contractors. However, Congress can solve this problem easily by amending the Stafford Act.

VI. Congress Should Define “Feasible and Practicable” and Add Reporting Requirements to Prevent the Next Katrina or Maria

Congress should implement two changes to the Stafford Act to encourage the use of local contractors: (1) defining the phrase “feasible and practicable” to clear ambiguity, either as a traditional definition or as a list of narrow exceptions; and (2) increasing FEMA’s reporting requirements to the public and Congress.

Nothing in the legislative history of the Stafford Act helps determine what the terms “feasible” and “practicable” are intended to mean.” The term “feasible and practicable” has been used in statutes for decades, going back to at least 1910. With no applicable definition found in the Stafford Act or its legislative history, the term “feasible and practicable” is seemingly used as a legal term of art in legislation, with the authors hoping agencies and readers will instinctively understand when something is feasible and practicable.

To solve the problem of local contractors being overlooked, the Stafford Act should be amended to define the term “feasible and practicable” as “reasonably capable of being done in the particular situation,” or as a presumption that using local contractors is feasible and practicable unless an exception applies. Doing so will result in local contractors being used more often, which will create improved federal responses by benefiting local communities and economies.

Black’s Law Dictionary does not have a definition of “feasible.” Merriam-Webster defines “feasible” as “capable of being done or carried out.” Black’s defines “practicable” as “reasonably capable of being accomplished; feasible in a particular situation” and “capable of being used.” Merriam-Webster defines it as “capable of being put into practice or of being done or accomplished” and “capable of being used.”

When these definitions are put together, it creates a two-part test. Whatever is being done must meet the lower threshold of being “feasible,” meaning that it is simply possible to be accomplished. Second, it must also be “practicable,” which is a higher standard. “Practicable” involves the “particular situation,” so, although a task may be feasible, it could fail to be practicable given the circumstances. Using these definitions, together the term “feasible and practicable” in the Stafford Act then can be defined as “reasonably capable of being done in the particular situation.”

This definition brings up the legal definition of the term “reasonable,” which is used in many different contexts, causing some to note that “[i]t is extremely difficult to state what lawyers mean when they speak of ‘reasonableness.’” Black’s Law Dictionary defines “reasonable” as “fair, proper, or moderate under the circumstances; sensible” and “according to reason.” Even though “reasonableness” is frequently litigated in a variety of legal contexts, this proposed definition will still be usable, since lawyers and courts are comfortable litigating what is reasonable versus unreasonable, and that knowledge will transfer to this new context.

Applying this definition would make the preference for using local contractors into a stronger requirement. The federal government would need to use a local contractor for work in a disaster area if doing so was reasonably capable of being done in that particular disaster area. While this definition would help require more local contractors to be used, this definition of the preference could still be easily defeated by contracting officers arguing that it is not reasonably capable of using local contractors for a laundry list of reasons or that the situation did not allow for it.

Alternatively, Congress should amend the Stafford Act to give specific exceptions explaining when it is not feasible and practicable to use local contractors. Examples of exceptions include (a) when no local contractor lives within a 200-mile radius who does this type of work; (b) when no contractor within the state bids on the contract; or (c) when a local contractor who bids on the work is clearly incapable of performing it. By framing the definition as a list of limited exceptions, the local preference would become a presumed requirement. This would be preferable to defining “feasible and practicable” as “reasonably capable of being done in the particular situation,” because that could be easily maneuvered around, which would create no real change in how often local contractors are being used. There is no reason that prepared local contractors, who already have accounts and who are looking to compete for federal contracts, will not be as quick or prepared as out-of-state companies.

The Stafford Act definitions section has been amended many times, the most recent being in 2018. This progression shows that it is reasonable to suggest that Congress amend the Stafford Act to define “feasible and practicable.”

In response to the backlash of the federal response to Hurricane Katrina, on October 4, 2006, President Bush signed the Post-Katrina Emergency Reform Act. This amended § 5150 to add the following:

Any expenditure of Federal funds for debris clearance, distribution of supplies, reconstruction, and other major disaster or emergency assistance activities which may be carried out by contract or agreement with private organizations, firms, or individuals, not awarded to an organization, firm, or individual residing or doing business primarily in the area affected by such major disaster shall be justified in writing in the contract file.

This amendment requires that if the agency chooses not to contract with a local contractor, it must “justify” its decision in writing in the contract’s file. But, as the response to Hurricane Maria discussed in Section V has shown us, this amendment did not solve the issue of local contractors not being used after disasters.

In addition to defining “feasible and practicable,” Congress should further emphasize the importance of using local contractors by amending the Stafford Act’s § 5189h: Agency Accountability. The Stafford Act outlines two types of agency accountability in regards to contracts: § 5189h(d)(1) describes FEMA publishing certain information regarding each contract FEMA enters in excess of $1,000,000, and § 5189h (d)(2) describes FEMA’s obligations to report to Congress at the end of each fiscal year regarding what contracts they entered into.

The requirements of FEMA’s public publishing are as follows:

Not later than 10 days after the first day of each month, the Administrator of the Federal Emergency Management Agency shall publish on the website of the Federal Emergency Management Agency the specifics of each contract in excess of $1,000,000 that the Federal Emergency Management Agency enters into, including—

(A) the name of the party;

(B) the date the contract was awarded;

(C) the amount and scope of the contract;

(D) if the contract was awarded through a competitive bidding process;

(E) if no competitive bidding process was used, the reason why competitive bidding was not used; and

(F) the authority used to bypass the competitive bidding process.

Congress should amend this section by adding a subpart (G), which would require FEMA to include if the contract went to a local contractor, and, if it did not, which limited exception from the newly defined “feasible and practicable” applies (such as when no contractor within the state bids on the contract). This addition will add a level of public accountability to FEMA as these reports are published each month and will be particularly relevant after an emergency or disaster. It will also enable local contractors who were passed over for the contract to quickly see to whom the contract was given, and FEMA’s justification for its choice. If the local contractor feels that the exception is not met, then they will be better suited to file a timely protest.

Additionally, the requirements of FEMA’s reports to Congress are as follows:

Not later than 10 days after the last day of the fiscal year, the Administrator of the Federal Emergency Management Agency shall provide a report to the appropriate committees of Congress summarizing the following information for the preceding fiscal year:

(A) The number of contracts awarded without competitive bidding.

(B) The reasons why a competitive bidding process was not used.

(C) The total amount of contracts awarded with no competitive bidding.

(D) The damage category codes, if applicable, for contracts awarded without competitive bidding.

Congress should amend this section by requiring this same information for local contractors, including the number of contracts awarded to local contractors and not awarded to local contractors, an explanation of why a local contractor was not used, and the total amount of federal money going to non-local contractors. While only reported annually, adding this amendment will provide another incentive for FEMA to use local contractors and would encourage stronger accountability to Congress. It will also add another layer of public accountability, as those interested can look to this report to Congress, instead of having to cobble together this information from monthly reports on FEMA’s website.

Alternatively, FEMA may issue rulemaking in accordance with its procedures to define the term “feasible and practicable.” However, this Note recommends Congress amending the Stafford Act to define the phrase to avoid the frequent back and forth of regulations that can follow changes in the presidential administrations. Because clarifying “feasible and practicable” is essential to future disaster responses, Congress should amend the Stafford Act for a permanent solution, rather than a possibly easier regulation that could be reversed.

To summarize, Congress should amend the Stafford Act to define “feasible and practicable” as “reasonably capable of being done in the particular situation,” or with a list of exceptions where it is allowed to use a non-local contractor. Next, Congress should amend the Stafford Act to require FEMA to report on its use, or non-use, of local contractors on their website monthly, and to Congress annually. While these recommended changes may not result in local contractors receiving all of FEMA’s contracts after an emergency or disaster, these changes will provide clarity to a recognized ambiguity and will incentivize FEMA to comply with the local preference.

VII. Conclusion: Send the Money to Communities That Actually Need It

As the planet continues to warm, hurricanes will continue to become more intense, increasing the risk of “billion-dollar disasters.” With the rates of emergencies and major disasters gradually increasing, the Stafford Act will be used more frequently and will continue to be vital to the recovery process of local communities. Because of this increase, any withstanding confusion or ambiguity in the phrase “feasible and practicable” should be resolved. The preference for local contractors was added into the Stafford Act to help local communities recover economically from disasters, but, if the preference is never used because the phrase “feasible and practicable” is easy to work around, then what is the point of even having the preference?

Congress should amend the Stafford Act to define “feasible and practicable” as “reasonably capable of being done in the particular situation,” or by defining it with a set of limited exceptions where it is not feasible and practicable to use local contractors. Adding either definition, but particularly the second, will help local communities economically recover from disasters more quickly.

Congress should also amend FEMA’s reporting requirements. Doing so will require FEMA to acknowledge when it is not adhering to § 5150’s preference for local contractors, incentivizing FEMA to use them whenever possible. It will also lead to greater accountability to the public, to contractors, and to Congress.

While this Note focused on the Stafford Act in relation to the changing climate and increase in weather disasters, it is also a relevant discussion for pandemics. Emergencies, hurricanes, tornadoes, and other disasters will continue to occur; Congress cannot change that. But Congress can do all in its power to ensure that when these catastrophic natural disasters cause devastating damage, the federal government is giving its money to communities that desperately need it.