FEMA's contracting oversight is lax, auditors say

Agency may be violating Brooks Act of 1972, though FEMA's counsel disputes that

The Federal Emergency Management Agency hasn't been tough enough in handling some public assistance and technical assistance contracts, according to an audit released today.

About $30 billion has been spent through public assistance contracts for disaster recovery distributed by FEMA in the last decade. The audit of FEMA’s management of those contracts was done by the Foxx & Co. accounting firm at the request of the Homeland Security Department’s Office of Inspector General.

The auditors alleged that FEMA may not be adhering to the Brooks Act of 1972 in awarding the public and technical assistance contracts, although agency officials disputed that finding and are seeking an opinion from the Justice Department.


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Under the Brooks Act, federal agencies are required to select engineering and architecture firms based on their competency, qualifications and experience. At FEMA, task orders were awarded based on equal distribution of dollars among the three qualified contractors, rather than on the contractors' expertise for a specific task order, Foxx & Co. said.

However, FEMA’s attorneys disagreed that FEMA violated the law.

“FEMA’s counsel said that the application of the Brooks Act to the issuance of Public Assistance-Technical Assistance Contracts task orders was an issue across the government, different agencies dealt with it differently, and there was no governmentwide ruling on this issue," the auditors wrote. "FEMA’s chief counsel is in the process of requesting an opinion from the Department of Justice on the application of the Brooks Act to individual task order awards."

Foxx & Co. reviewed FEMA’s management of fiscal 2008 task orders to respond to flooding in Iowa and Hurricanes Gustav and Ike that totaled about $188 million. The audit also found that FEMA did not establish performance standards for the contractors and did not evaluate their performance.

Also, FEMA contract managers had not received written guidance or training on how to evaluate contractor performance or to certify billing invoices, the auditors said.

The audit made five recommendations, stating that FEMA should:

  • Have its chief counsel request an opinion from the Justice Department on how the Brooks Act applies to task orders for public and technical assistance.
  • Establish performance expectations and evaluation criteria for those contracts.
  • Develop policies, procedures, and processes to monitor and evaluate contractor performance for the public assistance-technical assistance contracts.
  • Develop performance and evaluation criteria for the Long-Term Community Recovery contractor program.
  • Include all active public assistance-technical assistance contract task order files in the contract management system.

FEMA officials generally agreed with the recommendations.

About the Author

Alice Lipowicz is a staff writer covering government 2.0, homeland security and other IT policies for Federal Computer Week.

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