6 U.S.C. § 791 — Advance contracting

Page 412 TITLE 6—DOMESTIC SECURITY § 777 (b) Pilot program project approval The Administrator shall not approve a project under the pilot program after December 31, 2008. (Pub. L. 109–295, title VI, § 689i, Oct. 4, 2006, 120 Stat. 1454.) § 777. Public assistance pilot program (a) Pilot program (1) In general The President, acting through the Adminis- trator, and in coordination with State and local governments, shall establish and conduct a pilot program to— (A) reduce the costs to the Federal Gov- ernment of providing assistance to States and local governments under sections 5170b(a)(3)(A), 5172, and 5173 of title 42; (B) increase flexibility in the administra- tion of sections 5170b(a)(3)(A), 5172, and 5173 of title 42; and (C) expedite the provision of assistance to States and local governments provided under sections 5170b(a)(3)(A), 5172, and 5173 of title 42. (2) Participation Only States and local governments that elect to participate in the pilot program may participate in the pilot program for a par- ticular project. (3) Innovative administration (A) In general For purposes of the pilot program, the Ad- ministrator shall establish new procedures to administer assistance provided under the sections referred to in paragraph (1). (B) New procedures The new procedures established under sub- paragraph (A) may include 1 or more of the following: (i) Notwithstanding section 5172(c)(1)(A) of title 42, providing an option for a State or local government to elect to receive an in-lieu contribution in an amount equal to 90 percent of the Federal share of the Fed- eral estimate of the cost of repair, restora- tion, reconstruction, or replacement of a public facility owned or controlled by the State or local government and of manage- ment expenses. (ii) Making grants on the basis of esti- mates agreed to by the local government (or where no local government is involved, by the State government) and the Admin- istrator to provide financial incentives and disincentives for the local government (or where no local government is involved, for the State government) for the timely or cost effective completion of projects under sections 5170b(a)(3)(A), 5172, and 5173 of title 42. (iii) Increasing the Federal share for re- moval of debris and wreckage for States and local governments that have a debris management plan approved by the Admin- istrator and have pre-qualified 1 or more debris and wreckage removal contractors before the date of declaration of the major disaster. (iv) Using a sliding scale for the Federal share for removal of debris and wreckage based on the time it takes to complete de- bris and wreckage removal. (v) Using a financial incentive to recycle debris. (vi) Reimbursing base wages for employ- ees and extra hires of a State or local gov- ernment involved in or administering de- bris and wreckage removal. (4) Waiver The Administrator may waive such regula- tions or rules applicable to the provisions of assistance under the sections referred to in paragraph (1) as the Administrator determines are necessary to carry out the pilot program under this section. (b) Report (1) In general Not later than March 31, 2009, the Adminis- trator shall submit to the appropriate com- mittees of Congress a report regarding the ef- fectiveness of the pilot program under this section. (2) Contents The report submitted under paragraph (1) shall include— (A) an assessment by the Administrator of any administrative or financial benefits of the pilot program; (B) an assessment by the Administrator of the effect, including any savings in time and cost, of the pilot program; (C) any identified legal or other obstacles to increasing the amount of debris recycled after a major disaster; (D) any other findings and conclusions of the Administrator with respect to the pilot program; and (E) any recommendations of the Adminis- trator for additional authority to continue or make permanent the pilot program. (c) Deadline for initiation of implementation The Administrator shall initiate implementa- tion of the pilot program under this section not later than 90 days after October 4, 2006. (d) Pilot program project duration The Administrator may not approve a project under the pilot program under this section after December 31, 2008. (Pub. L. 109–295, title VI, § 689j, Oct. 4, 2006, 120 Stat. 1455.) PART D—PREVENTION OF FRAUD, WASTE, AND ABUSE § 791. Advance contracting (a) Initial report (1) In general Not later than 180 days after October 4, 2006, the Administrator shall submit a report under paragraph (2) identifying— (A) recurring disaster response require- ments, including specific goods and services, for which the Agency is capable of con- tracting for in advance of a natural disaster Page 413 TITLE 6—DOMESTIC SECURITY § 791 or act of terrorism or other man-made dis- aster in a cost effective manner; (B) recurring disaster response require- ments, including specific goods and services, for which the Agency can not contract in ad- vance of a natural disaster or act of ter- rorism or other man-made disaster in a cost effective manner; and (C) a contracting strategy that maximizes the use of advance contracts to the extent practical and cost-effective. (2) Submission The report under paragraph (1) shall be sub- mitted to the appropriate committees of Con- gress. (b) Entering into contracts (1) In general Not later than 1 year after October 4, 2006, the Administrator shall enter into 1 or more contracts for each type of goods or services identified under subsection (a)(1)(A), and in ac- cordance with the contracting strategy identi- fied in subsection (a)(1)(C). Any contract for goods or services identified in subsection (a)(1)(A) previously awarded may be main- tained in fulfilling this requirement. (2) Considered factors Before entering into any contract under this subsection, the Administrator shall consider section 5150 of title 42. (3) Prenegotiated Federal contracts for goods and services The Administrator, in coordination with State and local governments and other Fed- eral agencies, shall establish a process to en- sure that Federal prenegotiated contracts for goods and services are coordinated with State and local governments, as appropriate. (4) Prenegotiated State and local contracts for goods and services The Administrator shall encourage State and local governments to establish prenegotiated contracts with vendors for goods and services in advance of natural disas- ters and acts of terrorism or other man-made disasters. (c) Maintenance of contracts After the date described under subsection (b), the Administrator shall have the responsibility to maintain contracts for appropriate levels of goods and services in accordance with sub- section (a)(1)(C). (d) Report on contracts not using competitive procedures At the end of each fiscal quarter, beginning with the first fiscal quarter occurring at least 90 days after October 4, 2006, the Administrator shall submit a report on each disaster assistance contract entered into by the Agency by other than competitive procedures to the appropriate committees of Congress. (e) Updated report Not later than 180 days after December 31, 2020, the Administrator shall submit to the ap- propriate committees of Congress an updated re- port that contains— (1) the information required in the initial re- port under subparagraphs (A) and (B) of sub- section (a)(1); and (2) an updated strategy described in sub- section (a)(1)(C) that clearly defines— (A) the objectives of advance contracts; (B) how advance contracts contribute to disaster response operations of the Agency; (C) how to maximize the award of advance contracts to small business concerns, as de- fined in section 632 of title 15; and (D) whether and how advance contracts should be prioritized in relation to new post- disaster contract awards. (f) Additional Duties of the Administrator (1) Head of contracting The Administrator shall ensure that the head of contracting activity of the Agency— (A) not later than 270 days after December 31, 2020, updates the Disaster Contracting Desk Guide of the Agency to provide specific guidance— (i) on whether and under what cir- cumstances contracting officers should consider using existing advance contracts entered into in accordance with this sec- tion prior to making new post-disaster contract awards, and include this guidance in existing semi-annual training given to contracting officers; and (ii) for contracting officers to perform outreach to State and local governments on the potential benefits of establishing their own pre-negotiated advance con- tracts; (B) adheres to hard copy contract file man- agement requirements in effect to ensure that the files relating to advance contracts entered into in accordance with this section are complete and up to date, whether the files will be transferred into the Electronic Contract Filing System of the Agency or re- main in hard copy format; (C) notifies contracting officers of the 3- day time frame requirement for entering completed award documentation into the contract writing system of the Agency when executing notice to proceed documentation; (D) not later than 180 days after December 31, 2020, revises the reporting methodology of the Agency to ensure that all disaster con- tracts are included in each quarterly report submitted to the appropriate congressional committees under this section on disaster contract actions; (E) identifies a single centralized resource listing advance contracts entered into under this section and ensures that source is cur- rent and up to date and includes all avail- able advance contracts; and (F) communicates complete and up-to-date information on available advance contracts to State and local governments to inform their advance contracting efforts. (2) Master acquisition planning schedule Not later than 180 days after December 31, 2020, the Administrator shall update and im- plement guidance for program office and ac- quisition personnel of the Agency to— Page 414 TITLE 6—DOMESTIC SECURITY § 792 (A) identify acquisition planning time frames and considerations across the entire acquisition planning process of the Agency; and (B) clearly communicate the purpose and use of a master acquisition planning sched- ule. (Pub. L. 109–295, title VI, § 691, Oct. 4, 2006, 120 Stat. 1457; Pub. L. 116–272, § 3(a), Dec. 31, 2020, 134 Stat. 3349.) Editorial Notes AMENDMENTS 2020—Subsecs. (e), (f). Pub. L. 116–272 added subsecs. (e) and (f). Statutory Notes and Related Subsidiaries FINDINGS Pub. L. 116–272, § 2, Dec. 31, 2020, 134 Stat. 3349, pro- vided that: ‘‘Congress finds that— ‘‘(1) the Post-Katrina Emergency Management and Reform Act of 2006 [Post-Katrina Emergency Manage- ment Reform Act of 2006] (Public Law 109–925 [Pub. L. 109–295, title VI]; 120 Stat. 1394) required the Federal Emergency Management Agency to establish advance contracts, which are established prior to disasters and are typically needed to quickly provide life-sus- taining goods and services in the immediate after- math of a disaster; ‘‘(2) the catastrophic hurricanes and wildfires in the United States in 2017 highlighted the importance of these advance contracts in disaster response; ‘‘(3) in a report issued by the Government Account- ability Office entitled ‘2017 Disaster Contracting: Ac- tion Needed to Better Ensure More Effective Use and Management of Advance Contracts’, the Government Accountability Office identified a number of chal- lenges with advance contracts and recommended ac- tions to improve management by the Federal Emer- gency Management Agency of these contracts for fu- ture disasters; and ‘‘(4) section 691 of the Post-Katrina Emergency Management Reform Act of 2006 (6 U.S.C. 791) should be amended to incorporate the recommendations made by the report described in paragraph (3) to en- sure more effective use and management of advance contracts.’’ REPORT Pub. L. 116–272, § 3(b), Dec. 31, 2020, 134 Stat. 3351, pro- vided that: ‘‘The Administrator of the Federal Emer- gency Management Agency shall regularly update the appropriate committees of Congress (as defined in sec- tion 602 of the Post-Katrina Emergency Management Reform Act of 2006 (6 U.S.C. 701)) on the progress of the Federal Emergency Management Agency in imple- menting the recommendations of the Government Ac- countability Office in the report entitled ‘2017 Disaster Contracting: Action Needed to Better Ensure More Ef- fective Use and Management of Advance Contracts’, as required under section 691 of the Post-Katrina Emer- gency Management Reform Act of 2006 (6 U.S.C. 791), as amended by subsection (a).’’ § 792. Repealed. Pub. L. 117–253, § 1, Dec. 20, 2022, 136 Stat. 2360 Section, Pub. L. 109–295, title VI, § 692, Oct. 4, 2006, 120 Stat. 1458, related to limitations on tiering of sub- contractors. § 793. Oversight and accountability of Federal disaster expenditures (a) Authority of Administrator to designate funds for oversight activities The Administrator may designate up to 1 per- cent of the total amount provided to a Federal agency for a mission assignment as oversight funds to be used by the recipient agency for per- forming oversight of activities carried out under the Agency reimbursable mission assignment process. Such funds shall remain available until expended. (b) Use of funds (1) Types of oversight activities Oversight funds may be used for the fol- lowing types of oversight activities related to Agency mission assignments: (A) Monitoring, tracking, and auditing ex- penditures of funds. (B) Ensuring that sufficient management and internal control mechanisms are avail- able so that Agency funds are spent appro- priately and in accordance with all applica- ble laws and regulations. (C) Reviewing selected contracts and other activities. (D) Investigating allegations of fraud in- volving Agency funds. (E) Conducting and participating in fraud prevention activities with other Federal, State, and local government personnel and contractors. (2) Plans and reports Oversight funds may be used to issue the plans required under subsection (e) and the re- ports required under subsection (f). (c) Restriction on use of funds Oversight funds may not be used to finance ex- isting agency oversight responsibilities related to direct agency appropriations used for disaster response, relief, and recovery activities. (d) Methods of oversight activities (1) In general Oversight activities may be carried out by an agency under this section either directly or by contract. Such activities may include eval- uations and financial and performance audits. (2) Coordination of oversight activities To the extent practicable, evaluations and audits under this section shall be performed by the inspector general of the agency. (e) Development of oversight plans (1) In general If an agency receives oversight funds for a fiscal year, the head of the agency shall pre- pare a plan describing the oversight activities for disaster response, relief, and recovery an- ticipated to be undertaken during the subse- quent fiscal year. (2) Selection of oversight activities In preparing the plan, the head of the agency shall select oversight activities based upon a risk assessment of those areas that present the greatest risk of fraud, waste, and abuse.