The disaster wrought by Hurricanes Harvey, Irma, and Maria has also occasioned a flood of federal relief dollars into the areas impacted. Projects seeking federal funding must meet a variety of legal requirements, each of which warrant separate analysis. Here, we discuss a single federal construction contract requirement and how it has changed in light of these natural disasters: the requirement that federal contracts have written affirmative action programs.

Over the course of the last month, the U.S. Department of Labor, and specifically the Office of Federal Contract Compliance Programs (OFCCP), has worked to support relief efforts from the devastation of Hurricanes Harvey, Irma, and Maria by temporarily relaxing federal contractors’ requirements to have written affirmative action programs. The OFCCP’s National Interest Exemptions—or NIEs—protect contractors for a limited time and in limited areas: for a period of three months (subject to possible extension) following these weather events, new Federal contracts to provide hurricane relief efforts will be exempt from the written affirmative action programs contained in Executive Order 11246, the Vietnam Era Veterans Readjustment Assistance Act (VEVRAA), and Section 503 of the Rehabilitation Act of 1973. But these exemptions are limited in breadth, as well as temporally and geographically.

What contracts are covered?

The NIEs apply to new supply & service and construction contracts which are entered into within the three-month period (discussed below) and which are solely for the specific purposes of providing hurricane relief. Let’s break that down. According to OFCCP, the contract must be:

  1. New. That means that if it is a contract entered into before the NIE applied, even if for hurricane relief, it is not covered by the NIE.
  2. For the specific purpose of providing hurricane relief. The OFCCP takes a Justice Stewart “I know it when I see it” approach to defining this requirement. While the OFCCP says it has notified all federal contracting agencies of the NIE and provided them with “language to include in new supply & service and construction contracts,” it goes on to state that “Federal contracting officers know the terms and conditions of the contracts they execute. Therefore, they are in the best position to determine what constitutes a supply & service or construction contract specifically to provide Hurricane Harvey relief and whether it is appropriate to include the NIE language in the contract.”
  3. Solely for the specific purpose of providing hurricane relief. So if the contract is for hurricane relief and something else, it is not covered by the NIE.

Further, the NIEs also apply to subcontractors as long as the subcontractor is providing goods or services as part of a prime contract specifically for hurricane relief.

For what time period does the NIE apply?

  • For Hurricane Harvey: applies to new supply & service and construction contracts entered into between September 1, 2017, and December 1, 2017 (with possible extension).
  • For Hurricane Irma: applies to new supply & service and construction contracts entered into between September 8, 2017, and December 8, 2017 (with possible extension).
  • For Hurricane Maria: applies new supply & service and construction contracts entered into between September 21, 2017, and December 21, 2017 (with possible extension).

What geographic areas are covered?

For all three hurricanes, this is defined as any area that has been designated a Designated Area by FEMA to receive both individual and public assistance (FEMA categories A and B). For Harvey, the OFCCP lists some specific counties in Texas: Aransas, Bee, Brazoria, Calhoun, Chambers, Colorado, Fayette, Fort Bend, Galveston, Goliad, Hardin, Harris, Jackson, Jasper, Jefferson, Kleberg, Liberty, Matagorda, Montgomery, Newton, Nueces, Orange, Refugio, Sabine, San Jacinto, San Patricio, Victoria, Waller, Wharton. The ultimate list is available on FEMA’s website: www.fema.gov/disasters.

What the NIE does not exempt?

New supply & service and construction contracts falling under NIE continue to be subject to the nondiscrimination requirements of EO 11246, VEVRAA, and Section 503, and must still meet the following FAR requirements:

  • Posting of the “Equal Opportunity is the Law” notice under all three laws;
  • Record keeping and record retention requirements under all three laws; and
  • Employment listing with the appropriate employment service delivery system as required under VEVRAA.

Louisiana’s legal community has grown accustom to offering pro bono legal assistance to Louisiana storm victims. After addressing foremost concerns like shelter, food, water, and clothing, disaster victims are left to grapple with more intricate setbacks like insurance claims and FEMA appeals, landlord-tenant disputes, contractor fraud and contract disputes, custody and domestic disagreements, consumer issues, and lost legal documents, to name a few.

The 2017 hurricane season has largely spared Louisiana relative to other U.S. states like Texas and Florida, and U.S. territories like the USVIs and Puerto Rico, where millions were left without power and basic necessities weeks after Hurricane Maria. Louisiana lawyers are paying it forward and expanding a “disaster legal hotline”—normally reserved for low-income Louisiana residents—to help those devastated by the hurricanes in Puerto Rico and the USVIs.

Louisiana’s efforts are a leading example of a national program established in 1978 by the Federal Emergency Management Agency (FEMA) in partnership with the American Bar Association Young Lawyers Division (ABA YLD) to provide pro bono disaster legal services to low-income survivors of a federally-declared disaster. When the Federal Government issues a disaster declaration in a particular state, FEMA and the ABA YLD, through the state’s young lawyer representative, coordinate with bar associations, legal aid groups, and law firms to implement the program, known as Disaster Legal Services (DLS). In Louisiana, the Disaster Legal Services program is administered with the Louisiana State Bar Association through the Louisiana Civil Justice Center (LCJC), which was formed after Hurricane Katrina and works to expand access to justice to low-income populations around Louisiana. The LCJC operates a year-round civil legal aid hotline, which is adapted to intake disaster-related calls for the Disaster Legal Services program.

the largest intake in the history of the Federal Disaster Legal Services program.

Louisiana displayed its pro bono capacity following the historic Baton Rouge flooding in August 2016, when more than 4,300 individuals called into the disaster legal hotline—the largest intake in the history of the Federal Disaster Legal Services program.

Louisiana’s legal community, all too familiar with disasters, is now graciously leveraging its experience to help our fellow Americans as their needs transition from “boots on the ground” to “suits on the ground.” Storm victims who qualify for Disaster Legal Services can contact the Louisiana Civil Justice Center at 1-800-310-7029.

A federal disaster declaration has been issued in Louisiana for Orleans and Livingston Parishes following the tornadoes and severe storms that hit South Louisiana on February 7, 2017. The declaration was issued on February 11, 2017, by President Donald Trump upon the request of Louisiana Governor John Bel Edwards.

FEMA individual assistance will be available for residents and homeowners in Orleans and Livingston Parishes, including grants or low-cost loans for temporary housing, home repairs, and uninsured property losses, among other programs. To register with FEMA, visit DisasterAssistance.gov, call the FEMA Helpline at (800) 621-FEMA (3362), or download the FEMA mobile app.

Homeowners may be eligible for up to $200,000 to replace or repair their primary residence through the Home and Personal Property Loans program administered through the U.S. Small Business Administration (SBA). Homeowners and renters may be eligible for up to $40,000 to repair or replace damaged or destroyed personal property.

Businesses of any size and most private nonprofit organizations may be eligible for loans of up to $2 million to repair or replace real property, machinery, equipment fixtures, inventory, and leasehold improvements through the Business Physical Disaster Loans program administered through the SBA.

Small businesses, small agricultural cooperatives, and most private nonprofit organizations may be eligible for SBA Economic Injury Disaster Loans to help meet working capital needs caused by the disaster, regardless of property damage. The SBA’s economic injury program extends beyond Orleans and Livingston Parishes, to the contiguous Louisiana Parishes of Ascension, East Baton Rouge, Jefferson, Plaquemines, St. Bernard, St. Helena, St. John the Baptist, St. Tammany and Tangipahoa.

More details on the SBA programs, including loan details and interest rates, can be found at the SBA Fact Sheet for Louisiana Declaration #15045 & #15046.

FEMA has provided a summary of key federal aid programs that can be made available as needed under the disaster declaration.

A Disaster Recovery Center (DRC) is opening in Orleans Parish effective February 13, 2017, at East New Orleans Public Library, 5641 Read Blvd., New Orleans, LA 70127. Homeowners, renters, and businesses can visit the DRC to apply for or seek information regarding federal disaster assistance. Representatives will be on site from the Governor’s Office of Homeland Security and Emergency Preparedness, the Federal Emergency Management Agency, U.S. Small Business Administration, the City of New Orleans, and other volunteer groups and agencies.

FEMA can be reached by phone at (800) 621-FEMA (3362).

The SBA Customer Service Center can be reached by phone at (800) 659-2955.

The Federal Emergency Management Agency (“FEMA”) has issued another extension to policyholders under the National Flood Insurance Program (“NFIP”) to file a proof of loss with supporting documentation for claims related to the August 2016 flooding.

Under the new extension, announced by FEMA on December 2, 2016, policyholders will now have a total of 180 days from the date of loss to provide a completed, signed, and sworn-to proof of loss to their insurer.

A proof of loss package should include an itemization of damaged items, with photographs, receipts, and other supporting documentation evidencing the value of the damaged items. A proof of loss is necessary for the NFIP to make payment on a claim. You can read more about a proof of loss here.

Read the complete FEMA statement regarding the most recent extension here.

 

The Federal Emergency Management Agency (FEMA) has denied relief to more than 2,500 disaster victims from the August 2016 flooding in Louisiana because of insufficient proof of homeownership. “Thousands of people live in homes that they don’t own outright because properties were passed on to family members without successions,” the Baton Rouge Area Foundation (BRAF) explained in a press release.

BRAF hopes to reverse this trend through a program that aims to clear property title on flood-damaged homes so disaster victims can become eligible for FEMA funds and other federal grants to rebuild. “This free program will find all potential heirs to the properties and ask them to sign over their ownership—typically small amounts—to the person living in the home,” the BRAF press release stated.

The program will benefit from the use of a smartphone app, which allows homeowners to streamline the data collection required in the title-clearing process. BRAF collaborated with the American Bar Association Center for Innovation and Stanford University Law School to create the app.

Applicants will have to meet certain income eligibility levels, and the property must be the applicant’s primary residence and be located in the qualifying parishes of East Baton Rouge, Livingston or Ascension.

The BRAF program, supported by a grant from the W.K. Kellogg Foundation, is being overseen by Southeast Louisiana Legal Services, a civil legal aid organization that serves the state’s low-income population. The program is a collaborative effort among the Baton Rouge Bar Foundation, Baton Rouge Bar Association, Louisiana State Bar Association, Louisiana Bar Foundation, Southern University Law Center, LSU Law Center, Louisiana Appleseed, Equal Justice Works, and East Baton Rouge Redevelopment Authority, the Capital Area United Way, the Greater New Orleans Foundation.

Tom Cook’s article in the Baton Rouge Business Report provides helpful insight on the meaning and application of FEMA’s “substantial damage” standard to Baton Rouge homeowners affected by the August floods. Cook explains that determining “substantial damage” is a bit of “a mystery,” and that online research of the term may prove bewildering.

In short, Cook explains that affected structures are inspected by FEMA representatives who estimate damage to said structures in terms of a damage percentage. Using the percentage rating, FEMA determines an overall building damage calculation. FEMA compiles these determinations of damaged homes and provides them to municipal building departments for use in determining whether to issue a building permit with or without raising the damaged home’s slab elevation–a potentially costly endeavor for affected homeowners.

Ultimately, Cook points out that “the final decision lies with the municipalit[ies],” which Cook describes as having “worked hard to make the process as painless as possible.” Under this framework, Cook believes that very few homes will be rendered worthless due to costly slab elevation requirements.

The Louisiana Recovery Task Force has outlined programs that may help Louisiana companies get back to business following the historic August 2016 flooding.

More than 14,000 businesses were affected by the flooding. The concepts outlined by the Louisiana Task Force include providing banks with certain guarantees to incentive lending; compiling data on consumers and client in affected areas for use by businesses in deciding how to reopen; offering business counseling for navigating the recovery process; and giving small grants and loans to revive business operations. These programs would supplement the disaster loans offered by the U.S. Small Business Administration (SBA). Economic injury disaster loans through the SBA have a current deadline of May 15, 2017.

The programs outlined by the Louisiana Recovery Task Force may require additional funding from Congress, which has already approved approximately $438 million, $12 million of which is flagged for economic development. Louisiana is seeking approximately $4 billion more from the federal government to aid recovery.

Louisianans in parishes affected by August flooding now have until Monday, Nov.14, 2016, to register for federal disaster assistance. The State of Louisiana and FEMA advise that the deadline to apply for disaster assistance has been extended, so that all eligible residents have enough time to apply for assistance. Federal officials hope this additional time will ensure that everyone affected by the August severe storms and flooding has an opportunity to register for FEMA assistance. The goal is to reach all flood survivors who still need help.

Registration is open to survivors in Acadia, Ascension, Avoyelles, East Baton Rouge, East Feliciana, Evangeline, Iberia, Iberville, Jefferson Davis, Lafayette, Livingston, Pointe Coupee, St. Helena, St. James, St. Landry, St. Martin, St. Tammany, Tangipahoa, Vermilion, Washington, West Baton Rouge and West Feliciana Parishes.

This new deadline also applies to homeowners, renters and businesses submitting applications for low-interest disaster loans from the U.S. Small Business Administration (SBA).

FEMA mitigation specialists will be stationed at the Home Depot at 9460 Cortana Blvd. in Baton Rouge from October 17, 2016 through Oct. 29, 2016 to answer questions, offer home improvement tips, and explain methods to prevent and lessen damage from future disasters. Free reference booklets on protecting your home from flood damage will also be available. More information can be found online.