Disaster Contract Transparency Act of 2019

II 116TH CONGRESS 1ST SESSION S. 2421 To amend the Robert T. Stafford Disaster Relief and Emergency Assistance Act to improve accountability of disaster contracts, and for other purposes. IN THE SENATE OF THE UNITED STATES AUGUST 1, 2019 Mr. SCOTT of Florida (for himself and Mr. LANKFORD) introduced the fol- lowing bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs A BILL To amend the Robert T. Stafford Disaster Relief and Emer- gency Assistance Act to improve accountability of dis- aster contracts, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Disaster Contract 4 Transparency Act of 2019’’. 5 SEC. 2. DEBRIS REMOVAL CONTRACT OVERSIGHT. 6 (a) IN GENERAL.—Title IV of the Robert T. Stafford 7 Disaster Relief and Emergency Assistance Act (42 U.S.C. 8 VerDate Sep 11 2014 23:29 Aug 15, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S2421.IS S2421 kjohnson on DSK79L0C42 with BILLS 2 •S 2421 IS 5170 et seq.) is amended by adding at the end the fol- 1 lowing: 2 ‘‘SEC. 431. PUBLIC ASSISTANCE GRANT PROGRAM ELIGI- 3 BILITY AND OVERSIGHT FOR DEBRIS RE- 4 MOVAL. 5 ‘‘(a) DEFINITIONS.—In this section— 6 ‘‘(1) the term ‘Administrator’ means the Ad- 7 ministrator of the Federal Emergency Management 8 Agency; 9 ‘‘(2) the term ‘Agency’ means the Federal 10 Emergency Management Agency; 11 ‘‘(3) the term ‘covered State’ means a State for 12 which a major disaster or emergency was declared 13 under this Act during the 5-year period preceding 14 the date on which the State requests assistance for 15 debris removal under the public assistance grant 16 program; 17 ‘‘(4) the term ‘covered unit of local government’ 18 means a unit of local government for which a major 19 disaster or emergency was declared under this Act 20 during the 5-year period preceding the date on 21 which the State requests assistance for debris re- 22 moval under the public assistance grant program; 23 and 24 VerDate Sep 11 2014 23:29 Aug 15, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S2421.IS S2421 kjohnson on DSK79L0C42 with BILLS 3 •S 2421 IS ‘‘(5) the term ‘public assistance grant program’ 1 means the public assistance grant program author- 2 ized under sections 403, 406, 407, 418, 419, 428, 3 and 502(a). 4 ‘‘(b) ELIGIBILITY.— 5 ‘‘(1) IN GENERAL.— 6 ‘‘(A) ADVANCE CONTACT REQUIRED.—Ex- 7 cept as provided in subparagraph (B), a covered 8 State or covered unit of local government shall 9 not be eligible for assistance for debris removal 10 under the public assistance grant program, in- 11 cluding direct Federal assistance for debris re- 12 moval provided by the Corps of Engineers, un- 13 less the covered State or covered unit of local 14 government has in effect, prior to the major 15 disaster or emergency declaration under this 16 Act for which the covered State or covered unit 17 of local government is seeking debris removal 18 assistance, an advance contract for debris re- 19 moval services that collectively provides ade- 20 quate coverage, as determined by the Adminis- 21 trator, for debris removal for the entire State. 22 ‘‘(B) GRACE PERIOD.—Subparagraph (A) 23 shall not apply during the 1-year period begin- 24 ning on the date on which a State or unit of 25 VerDate Sep 11 2014 23:29 Aug 15, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S2421.IS S2421 kjohnson on DSK79L0C42 with BILLS 4 •S 2421 IS local government becomes a covered State or 1 covered unit of local government. 2 ‘‘(2) REPORTING.—For purposes of deter- 3 mining eligibility under paragraph (1), each covered 4 State shall submit, on an annual basis, a report to 5 the Administrator on all advanced contracts in effect 6 for the covered State or covered units of local gov- 7 ernment within the State, including, for each ad- 8 vanced contract— 9 ‘‘(A) the name of the contractor; 10 ‘‘(B) the contract terms and conditions; 11 ‘‘(C) the reimbursement rates; 12 ‘‘(D) verification and oversight agree- 13 ments; 14 ‘‘(E) geographic coverage of the contract; 15 ‘‘(F) capacity of contractor; and 16 ‘‘(G) debris removal assets owned by the 17 contractor. 18 ‘‘(c) REIMBURSEMENT OF DEBRIS REMOVAL CON- 19 TRACTS.—With respect to reimbursing advance contracts 20 for debris removal services described in subsection (b), the 21 Administrator shall reimburse for such services at the 22 lower of— 23 ‘‘(1) the rate of the Federal contract, if any; 24 VerDate Sep 11 2014 23:29 Aug 15, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S2421.IS S2421 kjohnson on DSK79L0C42 with BILLS 5 •S 2421 IS ‘‘(2) the rate of the State advance contract, if 1 any; or 2 ‘‘(3) the rate of the unit of local government 3 advance contract. 4 ‘‘(d) PENALTIES FOR CONTRACTORS.— 5 ‘‘(1) IN GENERAL.—Except as provided in para- 6 graph (3), any contractor who breaches or otherwise 7 fails to honor an advance contract for debris removal 8 service entered into with a State or unit of local gov- 9 ernment shall not be eligible for any Federal reim- 10 bursement funds for debris removal services for not 11 less than 10 years after the date on which the ad- 12 vance contract is breached. 13 ‘‘(2) DETERMINATION OF BREACH.—A deter- 14 mination of whether an advance contract for debris 15 removal service is breached or otherwise not honored 16 under paragraph (1) shall be made by a court of 17 competent jurisdiction. 18 ‘‘(3) WAIVER OF PENALTY.—The Administrator 19 may waive paragraph (1) if the Administrator deter- 20 mines such waiver is necessary due to— 21 ‘‘(A) a labor or supply shortage; or 22 ‘‘(B) no alternative contractors being avail- 23 able to perform the necessary services. 24 ‘‘(e) OVERSIGHT.— 25 VerDate Sep 11 2014 23:29 Aug 15, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S2421.IS S2421 kjohnson on DSK79L0C42 with BILLS 6 •S 2421 IS ‘‘(1) IN GENERAL.—Not later than 180 days 1 after the date of enactment of this section, the Ad- 2 ministrator shall develop and implement guidance 3 and procedures, including clear and unambiguous 4 rules, with respect to the oversight of debris removal 5 contracts entered into under the public assistance 6 grant program, including, at a minimum— 7 ‘‘(A) a requirement that— 8 ‘‘(i) all States and units of local gov- 9 ernment receiving debris removal assist- 10 ance under the public assistance grant pro- 11 gram take the primary role in the over- 12 sight function of debris removal; and 13 ‘‘(ii) the Agency shall verify compli- 14 ance with the requirements of this section 15 and any regulations promulgated under 16 this section; 17 ‘‘(B) guidance for State and local debris 18 monitors regarding debris removal operations, 19 debris operations oversight, and contractor 20 oversight, including contractor monitoring; 21 ‘‘(C) checklists, job aids, eligibility require- 22 ments, contract requirements, debris manage- 23 ment planning guidance, and other items, as 24 VerDate Sep 11 2014 23:29 Aug 15, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S2421.IS S2421 kjohnson on DSK79L0C42 with BILLS 7 •S 2421 IS determined necessary by the Administrator, for 1 State and local debris monitors; 2 ‘‘(D) guidance for State and local debris 3 monitors on how to ensure that subgrant recipi- 4 ents meet the grant requirements and eligibility 5 criteria for the public assistance grant program 6 under which the grant was awarded in all areas 7 of the debris removal operation; 8 ‘‘(E) a list of the specific debris removal 9 monitoring responsibilities expected to be com- 10 pleted by a State for which a public assistance 11 grant program grant is awarded; and 12 ‘‘(F) a list of the specific debris removal 13 monitoring responsibilities expected to be com- 14 pleted by recipients of a subgrant of a grant 15 from a public assistance grant program. 16 ‘‘(2) REVIEW AND UPDATE OF GUIDANCE AND 17 PROCEDURES.—The Administrator shall review and 18 update the guidance and procedures required under 19 paragraph (1) as appropriate, but not less frequently 20 than once every 3 years. 21 ‘‘(3) REQUIREMENTS.— 22 ‘‘(A) IN GENERAL.—In developing the 23 guidance and procedures required under para- 24 graph (1), the Administrator shall— 25 VerDate Sep 11 2014 23:29 Aug 15, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S2421.IS S2421 kjohnson on DSK79L0C42 with BILLS 8 •S 2421 IS ‘‘(i) except as provided in subpara- 1 graph (B), require that not later than 45 2 days after a grant is awarded under the 3 public assistance grant program for debris 4 removal, and once every 45 days thereafter 5 for the duration of the grant, the State 6 shall submit a report to the Administrator 7 on the progress of the debris removal; and 8 ‘‘(ii) ensure that oversight of debris 9 removal operations can be accomplished in 10 all units of local government of a State in 11 which debris removal operations are being 12 carried out, such as through real-time re- 13 porting on operations. 14 ‘‘(B) WAIVER OF REPORTING REQUIRE- 15 MENT.—The Administrator may waive the re- 16 porting requirement described in subparagraph 17 (A)(i), if the Administrator determines, on a 18 case-by-case basis, that such reporting require- 19 ment would negatively impact disaster recovery 20 efforts. 21 ‘‘(f) TRAINING.—The Administrator shall provide 22 training on appropriate debris removal guidance and pro- 23 cedures to— 24 ‘‘(1) Agency debris monitors; and 25 VerDate Sep 11 2014 23:29 Aug 15, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S2421.IS S2421 kjohnson on DSK79L0C42 with BILLS 9 •S 2421 IS ‘‘(2) appropriate State and private entities. 1 ‘‘(g) FIELD PRESENCE OF FEDERAL COORDINATING 2 OFFICERS.— 3 ‘‘(1) IN GENERAL.—The Administrator shall 4 develop a documented risk-based approach for 5 grants awarded under the public assistance grant 6 program that Federal coordinating officers ap- 7 pointed under section 302 can use to determine ap- 8 propriate cost-effective field presence required for 9 debris removal oversight. 10 ‘‘(2) VERIFYING DEBRIS AMOUNTS AND REIM- 11 BURSEMENT.— 12 ‘‘(A) IN GENERAL.—The Administrator 13 shall require that any entity applying for debris 14 removal assistance under the public assistance 15 grant program shall, as part of the assistance 16 application, enter into a debris removal moni- 17 toring contract to conduct oversight and 18 verification of debris removal by contractors, 19 which shall require that one of the verification 20 methods approved by the Administrator under 21 subparagraph (B) be used to conduct the over- 22 sight and verification. 23 ‘‘(B) VERIFICATION METHODS.—For pur- 24 poses of subparagraph (A), the Administrator 25 VerDate Sep 11 2014 23:29 Aug 15, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S2421.IS S2421 kjohnson on DSK79L0C42 with BILLS 10 •S 2421 IS shall, on an annual basis, develop and publish 1 a list of approved verification methods, which 2 may include— 3 ‘‘(i) a digital photograph of each load 4 of debris to validate load tickets; 5 ‘‘(ii) a digital photograph of each 6 truck used to haul debris to verify truck 7 certifications; and 8 ‘‘(iii) measurements of debris piles 9 and mulch piles for comparison and 10 verification against a photograph described 11 in clauses (i) and (ii). 12 ‘‘(3) PENALTIES FOR INACCURATE ACCOUNTING 13 OF DEBRIS REMOVAL AMOUNTS.—Any discrepancy 14 between the reported amount of debris collected by 15 a contractor and the verified amount, as determined 16 using an approved verification method under para- 17 graph (2)(B), shall incur a penalty at 2 times the 18 reimbursement rate of the documented discrep- 19 ancy.’’. 20 (b) ADVANCE CONTRACTING.—Section 691 of the 21 Post-Katrina Emergency Management Reform Act of 22 2006 (6 U.S.C. 791) is amended— 23 (1) in subsection (b), by adding at the end the 24 following: 25 VerDate Sep 11 2014 23:29 Aug 15, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S2421.IS S2421 kjohnson on DSK79L0C42 with BILLS 11 •S 2421 IS ‘‘(5) ADDITIONAL CONTRACTS.—If it is deter- 1 mined under subsection (e)(2) that an advanced con- 2 tract is needed for a good or service described in 3 such subsection, the Administrator shall, to the 4 greatest extent possible, enter into 1 or more ad- 5 vance contracts for that good or service. 6 ‘‘(6) PRIORITY.—To the greatest extent pos- 7 sible, the Administrator shall use advance contracts 8 for goods and services before making new post-dis- 9 aster contract awards for the same or similar goods 10 and services.’’; and 11 (2) by adding at the end the following: 12 ‘‘(e) ANNUAL REPORTS.—Not later than 180 days 13 after the date of enactment of this subsection, the Admin- 14 istrator shall submit to the appropriate committees of 15 Congress a report on advanced contracts that contains— 16 ‘‘(1) a comprehensive list of advance contracts 17 in effect as of the date the report, which shall in- 18 clude— 19 ‘‘(A) the contracting entity; 20 ‘‘(B) the award amount; 21 ‘‘(C) the good or service being provided 22 under the contract; and 23 ‘‘(D) the duration of the contract; and 24 VerDate Sep 11 2014 23:29 Aug 15, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S2421.IS S2421 kjohnson on DSK79L0C42 with BILLS 12 •S 2421 IS ‘‘(2) a review of the need for advance contracts 1 that may be lacking as of the date of the report 2 for— 3 ‘‘(A) debris removal services; 4 ‘‘(B) prefabricated and portable buildings; 5 ‘‘(C) inspection services; 6 ‘‘(D) installation of power transmission 7 equipment; and 8 ‘‘(E) other goods and services determined 9 by the Administrator to be appropriate for ad- 10 vance contracts.’’. 11 (c) EFFECTIVE DATE.—Subsections (b) and (c) of 12 section 431 of the Robert T. Stafford Disaster Relief and 13 Emergency Assistance Act, as added by subsection (a) of 14 this section, shall not take effect until the date that is 15 1 year after the date of enactment of this Act. 16 Æ VerDate Sep 11 2014 23:29 Aug 15, 2019 Jkt 089200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6301 E:\BILLS\S2421.IS S2421 kjohnson on DSK79L0C42 with BILLS