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  • 1. DEBRIS CONTRACTSBrandon BrownCatherine Fairchild51st Annual Workshop on Transportation LawNew Orleans, LouisianaJuly 2012
  • 2. Hurricane Katrina debris would fill thisfootball field and reach over 10 ½ miles high.
  • 3. DEBRIS• Debris must be removed as quickly as possible – fire, police and EMS must get to the people who need them.• Debris must be removed quickly – to ensure as much continuity of business as possible, it is critical to recovery.• Debris removal is complicated and can be extraordinarily dangerous for local and state employees, federal employees, contractors and volunteers.• Debris removal is expensive – estimates range from around 27 percent of Hurricane Katrina recovery costs to as much as 40 percent of all disaster related LA 23 at Empire costs.
  • 4. LA 23
  • 5. WHOSE PROBLEM IS THIS?• Louisiana Department of Transportation & Development (LA DOTD)• FEMA/United States Army Corps of Engineers• Federal Highway Administration• Local Governments/Local Communities• Lawyers. We are in the business of solving problems – often unexpected ones – and disasters trigger an avalanche of problems. It’s our job to help our clients as best we can.
  • 6. DEBRIS: “EMERGENCY REPAIR” FHWA EMERGENCY RELIEF PROGRAM1) Is this a Federal-aid highway or road on Federal lands?2) Does the estimated cost of repairs meet the $700K disaster eligibility threshold?3) Will the debris removal occur within the first 180 days of the occurrence of the disaster? The FHWA wants the “first push” to clear the roadway done as quickly as possible.4) Is this debris ER-eligible debris?5) Consider whether the federal share has been broadened – Congress expanded the 100 percent federal share to encompass all ER program expenses for repair and reconstruction projects related to the Gulf Coast hurricanes.The FHWA encourages states to use competitively bid pre-establishedemergency repair contracts for debris removal. FHWA division offices willwork with states to ensure that these contracts are up-to-date. FHWA Form1273 must be included in all contracts.
  • 7. DEBRIS: FEMA PUBLIC ASSISTANCE PROGRAM• Under federal law (the Stafford Act), states can use the U.S. Army Corps of Engineers for debris removal or contract directly with debris companies with eventual reimbursement from FEMA.• The federal share of FEMA reimbursement funding to an affected area will be stated in the disaster declaration, but will be no less than 75 percent.• With Hurricane Katrina about half of the affected parishes used the Corps and the remaining affected parishes contracted for debris work to be reimbursed by FEMA.• If desired, FEMA staff will review debris removal contracts for reasonableness prior to contract award.
  • 8. DEBRIS: FEMA PUBLIC ASSISTANCE PROGRAMFEMA recommends competitive pre-negotiated debris contracts.Time and Materials Contracts may be used for short periods of time immediately after the disaster to mobilize contractors foremergency removal efforts. They must have a dollar ceiling or a not-to-exceed limit for hours (or both), and should beterminated immediately when this limit is reached. Such contracts should be limited to 70 hours of actual work. The contractshould state that: (1) price for equipment applies only when equipment is operating, (2) hourly rate includes operator, fuel,maintenance, and repair, (3) the community reserves the right to terminate the contract at its convenience, and (4) thecommunity does not guarantee a minimum number of hours.Unit Price Contracts. Prices should be based on weight (tons) or volume (cubic yards) of debris hauled, and should be used whenthe scope-of work is not well defined. It requires detailed monitoring of pick-up, hauling, and dumping to ensure that quantitiesare accurate. Unit price contracts may be complicated by the need to segregate debris for disposal.Lump Sum Contracts establish the total contract price using a one-item bid from the contractor. It should be used only when thescope of work is clearly defined, with areas of work and quantities of material clearly identified. Lump-sum contracts can bedefined in two ways: (1) Area Method – the scope of work is based on one-time clearance of a specified area. Controls arenecessary to ensure that additional material is not brought into the area or (2) Pass Method – the scope of work is based on acertain number of passes through a specified area, such as a given distance along a right-of-way. The contract should specify howthe debris is to sorted, identify specific roads and streets to be covered, the time intervals between passes, and the required timeframe for completing a pass.
  • 9. DEBRI$ CONTRACT$: HELPING OUR CLIENT ALLOCATE RI$K• The major benefit of reaching an agreement about contracts before a disaster happens is to get a lower price for debris management services.• We don’t want to be negotiating in the weakest possible position – sweating out a storm and running on generator power while people are crying from rooftops for help.• We don’t want our clients mentioned in the New York Times because the amount being paid per cubic yard has attracted the scrutiny of investigators from the U.S. House of Representatives Homeland Security Committee.• Caveat: There is a limit to how much a contractor can be expected to have at the ready – preparation for these debris contracts is expensive and cannot, in fairness, function as a free insurance policy for the government. Consider a minimum amount guarantee (quantity or dollar figure) that contractors will receive that serves as compensation for maintaining the capabilities to have goods and services in place when needed.
  • 10. DEBRIS CONTRACT COMPLEXITIES• Several localities could be involved (e.g., a decentralized/large area – not the same as centralized events like a bus accident or the Oklahoma City bombing).• The disaster event may combine different types of events (e.g., hurricane + flooding). Debris removal could be delayed because of submerged roads and bridges.• Use a systematic and phased contract system to reduce the potential of having all “new” contractors for a disaster event and to avoid having the same contractor for all debris contracts.• LA DOTD prefers to contract per area engineer assignments within districts rather than district-wide. This means that the contract will follow the existing structure and hierarchy for the area (e.g., the area engineer is the disaster event project engineer/manager). This makes for smaller more manageable contracts, better distribution of available resources, more competition, reinforces one-level subcontracting and reduces the impact of poor performance or default.• Tie payment to tangible results – a completed and delivered product (a commoditized service).• Plan for things like flat tires from debris, requiring tarps on debris hauler trucks, and “unusual” requests (e.g., body bags).• Include “leaner and hanger” items within the scope of “vegetative debris” to reduce monitoring costs and excessive/unnecessary cutting.• Consider scope of work of “mowable/maintained areas of right-of-way” rather than simply right-of-way to right-of-way.• Provide for pass-through of landfill tipping fees to reduce unit prices, eliminate price fixing/shopping and improve productivity.• Consider the complexities of different waste streams and that states can tweak regulatory definitions of “waste” in some instances to lessen the burden in debris management.• Include pay items and specifications for (1) “hourly crews” (start-up, hot spot and wrap-up work), (2) open burning, air curtain burning and vegetative debris grinding, and (3) exotic debris streams (e.g., e-waste, marsh grass, small engines, etc.).• Include specifications on contractor training of subcontractors regarding the details of the contract.• Local, state and federal agencies need contracting officers and staff of their own.• Word of warning: Local, state and federal officials should be on the lookout for the hauling of ineligible debris, water placed in the bottoms of dump trucks to increase weight, inaccurate truck-load capacities, and the double-counting of loads (e.g. trucks reentering disposal sites). Taking photographs of those involved in debris management can encourage compliance with federal regulations and honest reimbursement claims. // Managing debris successfully after disasters: Considerations and recommendations for emergency managers by David A. McEntire, PhD, Journal of Emergency Management, Vol. 4, No. 4, July/August 2006.• Word of Warning: The Defense Contract Audit Agency found regarding debris (1) the need for improved observation tower locations at dump sites, (2) lack of standard procedures for determining the amount of debris hauled to dump sites, (3) lack of controls over the billing process and (4) safety violations. // Statement of Mr. Thomas F. Gimble, Principal Deputy Inspector General, Department of Defense, Before the Subcommittee on Federal Financial Management, Government Information, and International Security, Senate Committee on Homeland Security and Governmental Affairs on Management and Oversight of Federal Disaster Recovery: Operation Blue Roof, April 10, 2006.
  • 11. CONTRACT SUCCESS• With Hurricane Gustav, LA DOTD had 5 retainer contracts for debris in place. LA DOTD issued a Notice to Proceed for 4 of the 5 contracts the day that Hurricane Gustav made landfall (September 1, 2008).• LA DOTD advertised for bids and awarded an Emergency Contract for debris in September 2008 with a Notice to Proceed on October 2, 2008.• In October 2008, with Hurricane Ike, LA DOTD, issued a Notice to Proceed on the fifth retainer contract.• LA DOTD qualified for an additional 5 percent FEMA reimbursement because of LA DOTD’s proactive effort to have (1) a written debris management plan and (2) pre-approved contractors (FEMA Public Assistance Pilot Program).• LA DOTD uses feedback from “after action reviews” to determine what contract changes should be made and what revisions may be needed to improve the LA DOTD debris management plan.
  • 12. A very special thanks to Mr. Rhett Desselle, P.E. of LA DOTD , Mr. EricLanier and Mr. Huntington Hodges of LA DOTD, Location and Survey. Brandon Brown (225) 242-4656 Catherine Fairchild (225) 242-4659