[Senate Report 116-320]
[From the U.S. Government Publishing Office]
Calendar No. 623
116th Congress} { Report
SENATE
2d Session } { 116-320
======================================================================
TO REPEAL SECTION 692 OF THE
POST-KATRINA EMERGENCY MANAGEMENT REFORM ACT OF 2020
__________
R E P O R T
of the
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
to accompany
S. 4165
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
December 14, 2020.--Ordered to be printed
__________
U.S. GOVERNMENT PUBLISHING OFFICE
WASHINGTON : 2020
-----------------------------------------------------------------------------------
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
RON JOHNSON, Wisconsin, Chairman
ROB PORTMAN, Ohio GARY C. PETERS, Michigan
RAND PAUL, Kentucky THOMAS R. CARPER, Delaware
JAMES LANKFORD, Oklahoma MAGGIE HASSAN, New Hampshire
MITT ROMNEY, Utah KAMALA D. HARRIS, California
RICK SCOTT, Florida KYRSTEN SINEMA, Arizona
MICHAEL B. ENZI, Wyoming JACKY ROSEN, Nevada
JOSH HAWLEY, Missouri
Gabrielle D'Adamo Singer, Staff Director
Joseph C. Folio III, Chief Counsel
Barrett F. Percival, Professional Staff Member
David M. Weinberg, Minority Staff Director
Zachary I. Schram, Minority Chief Counsel
Michelle M. Benecke, Minority Senior Counsel
Laura W. Kilbride, Chief Clerk
Calendar No. 623
116th Congress} { Report
SENATE
2d Session } { 116-320
======================================================================
TO REPEAL SECTION 692 OF THE POST-KATRINA EMERGENCY MANAGEMENT REFORM
ACT OF 2006
_______
December 14, 2020.--Ordered to be printed
_______
Mr. Johnson, from the Committee on Homeland Security and Governmental
Affairs, submitted the following
R E P O R T
[To accompany S. 4165]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (S. 4165) to repeal
section 692 of the Post-Katrina Emergency Management Reform Act
of 2006, having considered the same, reports favorably thereon
with an amendment and recommends that the bill, as amended, do
pass.
CONTENTS
Page
I. Purpose and Summary..............................................1
II. Background and the Need for Legislation..........................1
III. Legislative History..............................................3
IV. Section-by-Section Analysis......................................4
V. Evaluation of Regulatory Impact..................................4
VI. Congressional Budget Office Cost Estimate........................4
VII. Changes in Existing Law Made by the Bill, as Reported............4
I. Purpose and Summary
S. 4165, a bill to repeal section 692 of the Post-Katrina
Emergency Management Reform Act of 2006, repeals a unique
Department of Homeland Security (DHS) contracting requirement
that conflicts with subsequent legislation and Government-wide
procurement regulations that place limits on excessive
subcontracting.
II. Background and the Need for Legislation
Following Hurricane Katrina in 2005, Congress enacted the
Post-Katrina Emergency Management Reform Act (PKEMRA) of 2006
to address various shortcomings identified in preparation for
and response to Hurricane Katrina.\1\ One of those reforms
required DHS to limit tiered subcontracting. Section 692 of
PKEMRA prohibits ``the use of subcontracts for more than 65
percent of the cost of cost-reimbursement type contracts.''\2\
---------------------------------------------------------------------------
\1\Post-Katrina Emergency Management Reform Act of 2006, Pub. L.
No. 109-295, Sec. 691, 120 Stat. 1355, 1457 (2006) (codified at 6
U.S.C. Sec. 791).
\2\U.S. Gov't Accountability Office, GAO-15-783, Disaster
Contracting: FEMA Needs to Cohesively Manage Its Workforce and Fully
Address Post-Katrina Reforms 39 (2015), https://www.gao.gov/assets/680/
672771.pdf.
---------------------------------------------------------------------------
After Hurricane Katrina, Congress moved to reform the
Federal Emergency Management Agency's (FEMA) disaster
contracting processes and practices. Two of those reforms
stressed the importance of advance contracts that are entered
into before a disaster occurs to reduce the need for FEMA to
enter into non-competitive contracts, and to limit excessive
use of subcontractors. Although FEMA outlined an advance
contracting strategy in its report to Congress in 2007, they
did not issue a final rule to address section 692 of PKEMRA.\3\
---------------------------------------------------------------------------
\3\U.S. Dep't of Homeland Sec., Fed. Emergency Mgmt. Agency,
Advance Contracting of Goods and Services Report to Congress (2007).
---------------------------------------------------------------------------
In 2010, DHS published a proposed rule prohibiting the use
of excessive contracting, but did not immediately act to
implement the final rule due to challenges identified by the
small business community. The Government Accountability Office
stated in a September 2015 report that, ``DHS policy officials
said they have delayed implementing this rule because of
comments they received that indicate the limitation would have
a negative impact on small businesses. Officials explained that
FEMA uses type-contracts primarily for construction services
that often bring an array of specialists together on one job,
creating the need for subcontracting.''\4\
---------------------------------------------------------------------------
\4\U.S. Gov't Accountability Office, supra note 2, at 39.
---------------------------------------------------------------------------
To satisfy the requirements in PKEMRA, FEMA created an
advance contracting strategy, which was outlined in its report
to Congress in 2007.\5\ According to their strategy, FEMA
stated that the agency ``[w]ill maximize the use of advance
contracts to the extent they are practical and cost-effective,
which will help preclude the need to procure goods and services
under unusual and compelling urgency.'' The DHS Office of
Inspector General concurred with the agency, stating it,
``[b]elieve[s] Section 692 of the Post-Katrina Act may
adversely affect future disaster response and recovery
contracting by reducing the funds available to small and local
businesses while potentially impairing FEMA's ability to
respond quickly to catastrophic disasters.''\6\
---------------------------------------------------------------------------
\5\U.S. Dep't of Homeland Sec., supra note 3.
\6\U.S. Dep't of Homeland Sec., Office of Inspector Gen., OIG-08-
81, Hurricane Katrina Multitier Contracts (2008), https://
www.oig.dhs.gov/sites/default/files/assets/Mgmt/OIG_08-81_Jul08.pdf.
---------------------------------------------------------------------------
Furthermore, the Duncan Hunter National Defense
Authorization Act for Fiscal Year 2009 (NDAA FY'09) resulted in
the amendment of the Federal Acquisition Regulation (FAR) to
impose a Government-wide limit on agencies' use of tiered
subcontractors for cost-type contracts or orders. Section 866
of NDAA FY'09 achieved this goal by ``requiring prime
contractors demonstrate the added value they provide to
subcontract work that exceeds 70 percent of the total
contract''.\7\
---------------------------------------------------------------------------
\7\Letter from Christine Ciccone, Assistant Sec'y for Legislative
Affairs, U.S. Dep't of Homeland Sec., to Mitch McConnell, Majority
Leader, U.S. Senate (May 16, 2019) (on file with author).
---------------------------------------------------------------------------
The unique requirement imposed on DHS by section 692 of
PKEMRA conflicts with the requirement in the FAR. It is the
intent of Congress, as required by section 866 of the NDAA
FY'09, that subcontracting should still be limited, but that
under unique and unusual circumstances, may be necessary if the
prime contractor can demonstrate their value is necessary
despite making up a minority of the contract's share. This
legislation would repeal section 692 of PKEMRA and put DHS on
par with every other Federal agency in so far as they are bound
by section 866 of the NDAA FY'09 and resulting FAR regulations.
As amended in Committee, the bill also provides DHS'
oversight committees with more transparency into the order of
succession at DHS. In addition to the Federal Vacancies Reform
Act of 1998 (FVRA)\8\ and an executive order that outline the
order of succession at DHS,\9\ the Homeland Security Act of
2002 authorized the Secretary of DHS to designate a ``further''
line of succession for an individual to act as Acting Secretary
in the event that the Secretary, Deputy Secretary, and Under
Secretary for Management cannot serve.\10\ The same subsection
requires the Secretary to notify this Committee and the
Committee on Homeland Security of the House of Representatives
of any vacancies that require notification under the FVRA.\11\
S. 4165 as amended would maintain the authorities provided in
the Homeland Security Act and the requirement to inform the
committees of applicable vacancies, but add a new requirement
that the Secretary also notify the committees within three days
if he or she changes the ``further'' order of succession.
Finally, it would add the same three-day notification
requirement for any changes the Secretary makes to the order of
succession for the Deputy Secretary.\12\ These modifications
will ensure that Congress is kept abreast of the order of
succession of DHS' senior leadership.
---------------------------------------------------------------------------
\8\5 U.S.C. Sec. Sec. 3345 et seq.
\9\The White House, Office of the Press Secretary, Amending the
Order of Succession in the Department of Homeland Security Executive
Order (Dec. 9, 2016), available at https://
obamawhitehouse.archives.gov/the-press-office/2016/12/09/executive-
order-amending-order-succession-department-homeland-security.
\10\Codified at 6 U.S.C. Sec. 113(g)(1), (2).
\11\Id. at Sec. 113(g)(3).
\12\This includes the DHS Delegation No. 0106, DHS Orders of
Succession and Delegations of Authority for Named Positions, or any
successor document.
---------------------------------------------------------------------------
III. Legislative History
Senator Ron Johnson (R-WI) introduced S. 4165, to repeal
section 692 of the Post-Katrina Emergency Management Reform Act
of 2006, on July 2, 2020. The bill was referred to the
Committee on Homeland Security and Governmental Affairs of the
Senate.
The Committee considered S. 4165 at a business meeting on
July 22, 2020. Senator Carper (D-DE) offered an amendment, as
modified, requiring the Secretary of Homeland Security to
submit written notification to Congress when modifications are
made to the order of succession of the Acting Secretary or
Deputy Secretary of DHS. The Committee adopted the amendment,
as modified, by voice vote en bloc with Senators Johnson,
Portman, Paul, Lankford, Romney, Scott, Enzi, Hawley, Peters,
Carper, Hassan, Harris, and Rosen present. Senator Scott asked
to be recorded as having voted ``No'' for the record.
The Committee ordered the bill, as amended, reported
favorably by voice vote en bloc with Senators Johnson, Portman,
Paul, Lankford, Romney, Scott, Enzi, Hawley, Peters, Carper,
Hassan, Harris, and Rosen present.
IV. Section-by-Section Analysis of the Bill, as Reported
Section 1. Repeal
This section repeals section 692 of the Post-Katrina
Emergency Management Reform Act of 2006.
Section 2. Notification requirements related to modifications to the
Order of Succession in the Department of Homeland Security or
Delegations of the Deputy Secretary
This section amends the Homeland Security Act of 2002 to
require the Secretary of DHS to notify the Committee on
Homeland Security and Governmental Affairs of the Senate and
the Committee on Homeland Security of the House of
Representatives of any vacancies that require notification
under the Federal Vacancies Reform Act of 1998.
It also requires the Secretary of DHS to notify the
Committee on Homeland Security and Governmental Affairs of the
Senate and the Committee on Homeland Security of the House of
Representatives within three days of any modifications made by
the Secretary to the order of succession for the Acting
Secretary of DHS under the Homeland Security Act, as well as
any modification made by the Secretary to the order of
succession outlined for the Deputy Secretary in Delegation No.
0106, DHS Orders of Succession and Delegations of Authority for
Named Positions, or any successor document.
V. Evaluation of Regulatory Impact
Pursuant to the requirements of paragraph 11(b) of rule
XXVI of the Standing Rules of the Senate, the Committee has
considered the regulatory impact of this bill and determined
that the bill will have no regulatory impact within the meaning
of the rules. The Committee agrees with the Congressional
Budget Office's statement that the bill contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act (UMRA) and would impose no costs
on state, local, or tribal governments.
VI. Congressional Budget Office Cost Estimate
CBO failed to provide the Committee with a cost estimate in
time for the final reporting deadline of the 116th Congress.
VII. Changes in Existing Law Made by the Bill, as Reported
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill, as reported, are shown as follows: (existing law
proposed to be omitted is enclosed in brackets, new matter is
printed in italic, and existing law in which no change is
proposed is shown in roman:
UNITED STATES CODE
* * * * * * *
TITLE 6: DOMESTIC SECURITY
* * * * * * *
CHAPTER 2: NATIONAL EMERGENCY MANAGEMENT
* * * * * * *
Subchapter II: Comprehensive Preparedness System
* * * * * * *
PART D: PREVENTION OF FRAUD, WASTE, AND ABUSE
* * * * * * *
[SEC. 692. LIMITATIONS ON TIERING OF SUBCONTRACTORS.
(a) Regulations.--The Secretary shall promulgate
regulations applicable to contracts described in subsection (c)
to minimize the excessive use by contractors of subcontractors
or tiers of subcontractors to perform the principal work of the
contract.
(b) Specific Requirement.--At a minimum, the regulations
promulgated under subsection (a) shall preclude a contractor
from using subcontracts for more than 65 percent of the cost of
the contract or the cost of any individual task or delivery
order (not including overhead and profit), unless the Secretary
determines that such requirement is not feasible or
practicable.
(c) Covered Contracts.--This section applies to any cost-
reimbursement type contract or task or delivery order in an
amount greater than the simplified acquisition threshold (as
defined by section 134 of title 41) entered into by the
Department to facilitate response to or recovery from a natural
disaster or act of terrorism or other man-made disaster.]
* * * * * * *
HOMELAND SECURITY ACT OF 2002
* * * * * * *
TITLE I: DEPARTMENT OF HOMELAND SECURITY
* * * * * * *
SEC. 103. OTHER OFFICERS.
(a) * * *
* * * * * * *
(g) * * *
(1) * * *
(2) * * *
(3) Notification [of vacancies] requirements.--
(A) * * *
(B) Revisions to order of succession.--The
Secretary shall submit written notification to
the committees referred to in subparagraph (A)
not later than 3 days after--
(i) making any modification to the
order of succession pursuant to
paragraph (2); or
(ii) making any modification to Annex
B of DHS Delegation 0106, which sets
forth the order of succession for the
Deputy Secretary of Homeland Security,
to the Delegation to the Senior
Official Performing the Duties of the
Deputy Secretary, or to any successor
document.
[all]