Gulf Coast Recovery Act - Prohibits any person or entity awarded a government contract to perform rescue, recovery, repair, or reconstruction work in any part of a disaster zone, as a result of the performance of that work, from being subject to liability that any private party may seek to impose under any provision of federal law (including any regulation) that: (1) is administered by the Secretary of the Army, the Administrator of the Environmental Protection Agency (EPA), or the Secretary of Transportation; and (2) otherwise permits the filing of a lawsuit by a private individual.
Sets forth provisions with respect to a federal cause of action for claims arising out of, relating to, or resulting from the performance of a government contract in a disaster zone for: (1) the search, rescue, or recovery of individuals or property dislocated by the disaster; (2) the demolition, removal, repair, or reconstruction of structures or utilities damaged by the disaster; (3) the clean-up or remediation of property polluted by the disaster; (4) the removal of debris deposited by the disaster (including dredging); or (5) the dewatering of property flooded by the disaster. Makes the Chief of Engineers of the Department of the Army exclusively responsible for the review of any government contract that any person or entity claims to be necessary for the recovery of a disaster zone from a disaster for the purpose of establishing a government contractor defense in any lawsuit for claims relating to the performance of a government contract.
[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 1761 Placed on Calendar Senate (PCS)]
Calendar No. 222
109th CONGRESS
1st Session
S. 1761
To clarify the liability of government contractors assisting in rescue,
recovery, repair, and reconstruction work in the Gulf Coast region of
the United States affected by Hurricane Katrina or other major
disasters.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
September 22, 2005
Mr. Thune (for himself, Mr. Vitter, Mr. Lott, Ms. Murkowski, and Mr.
Inhofe) introduced the following bill; which was read the first time
September 26, 2005
Read the second time and placed on the calendar
_______________________________________________________________________
A BILL
To clarify the liability of government contractors assisting in rescue,
recovery, repair, and reconstruction work in the Gulf Coast region of
the United States affected by Hurricane Katrina or other major
disasters.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Gulf Coast Recovery Act''.
SEC. 2. FINDINGS.
Congress finds that--
(1) while public officials have the responsibility and
expertise to direct and control the Federal, State and local
response to any disaster, those officials lack the manpower and
equipment necessary to take all of the many steps necessary to
implement such a response;
(2) in the wake of a disaster, public officials have to
depend on private contractors for logistical and other support;
(3) historically, private contractors have answered the
call, providing valuable service to the public in times of
disaster;
(4) those contractors answered the call on September 11,
2001, and in the following weeks and months, working hand-in-
hand with Federal, State, and local officials to rescue the
survivors of the terrorist attacks on that historic date, to
recover the bodies of those who died, to remove mountains of
debris, to reconstruct the Pentagon, and ultimately, to restore
some sense of normalcy to New York City and Arlington,
Virginia;
(5) the expertise and equipment that private contractors
contributed to the Federal, State, and local response to the
terrorist attacks on September 11, 2001, greatly enhanced that
response, increasing not only the efficiency but also the
effectiveness of that response;
(6) the support that private contractors provide to
Federal, State, and local officials in times of disaster--
(A) make it safer for police, firefighters, and
other rescue workers to search for, rescue, and recover
both persons and property dislocated by the disaster;
and
(B) enable those officials to quickly address
dangerous conditions that threaten life and property,
to restore basic public services, and to protect public
safety and health;
(7) it is in the national interest to have private
contractors assist public officials in times of disaster;
(8) by providing support to the Federal, State or local
response to a disaster, private contractors risk future
litigation and liability even if those contractors are in full
compliance with all Federal, State, and local laws (including
regulations) that apply to their work;
(9) class action lawsuits have been brought against the
private contractors that supervised the heroic response to the
terrorist attacks on the World Trade Center in New York City on
September 11, 2001;
(10) well-founded fears of future litigation and liability
under existing law discourage contractors from assisting in
times of disaster;
(11) whether private contractors remain willing to offer
their expertise and equipment to public officials in times of
disaster substantially affects, burdens, and deters interstate
commerce and travel;
(12) clarifying the liability that private contractors must
ultimately risk simply to support a Federal, State, or local
response to a disaster will help--
(A) to ensure that those contractors continue to
answer the governmental requests for assistance in
times of great need; and
(B) to limit the legal expenses that regrettably
but inevitably inflate the cost of the recovery from a
disaster; and
(13) temporarily insulating private contractors from any
liability that private parties may seek to impose on the
contractors under certain Federal laws would increase the power
and authority of the Federal agencies that bear the primary
responsibility for the administration of those laws to
effectively direct and control the response to a disaster.
SEC. 3. DEFINITIONS.
In this Act:
(1) Disaster zone.--The term ``disaster zone'' means--
(A) the region of the United States in which major
disasters relating to Hurricane Katrina were declared
by the President on August 29, 2005, in accordance with
section 401 of the Robert T. Stafford Disaster Relief
and Emergency Assistance Act (42 U.S.C. 5170); and
(B) any other region of the United States in which
a major disaster is so declared after that date, if the
disaster requires the provision of Federal assistance
in an amount that exceeds $15,000,000,000, as
determined by the President.
(2) Government contract.--The term ``government contract''
means--
(A) a contract between--
(i) a person, proprietorship, partnership,
limited liability company, or corporation in
the regular business of providing materials,
labor, equipment, or services for construction-
related activities (including construction,
demolition, repair, clean-up, alteration,
remediation, and related engineering); and
(ii) any agency or instrumentality of the
Federal Government or any State or local
government; and
(B) a subcontract at any tier of a contract
described in subparagraph (A).
SEC. 4. LIMITATION ON LIABILITY OF FEDERAL CONTRACTORS UNDER CERTAIN
FEDERAL LAWS.
(a) In General.--Notwithstanding any other provision of law, a
person or entity awarded a government contract to perform rescue,
recovery, repair, or reconstruction work in any portion of a disaster
zone shall not, as a result of the performance of that work, be subject
to liability that any private party may seek to impose under any
provision of Federal law (including any regulation) that--
(1) is administered by the Secretary of the Army, the
Administrator of the Environmental Protection Agency, or the
Secretary of Transportation; and
(2) otherwise permits the filing of a lawsuit by a private
individual.
(b) Effect on Litigation Management.--Nothing in this section
limits or otherwise affects the application of section 5 of this Act.
(c) Effect on Existing Law.--Nothing in this Act limits or
otherwise affects the application, to a person or entity described in
subsection (a), of--
(1) title VII of the Civil Rights Act of 1964 (42 U.S.C.
2000e et seq.);
(2) the Fair Labor Standards Act of 1938 (29 U.S.C. 201 et
seq.); or
(3) a comparable State fair employment practice law.
SEC. 5. LITIGATION MANAGEMENT.
(a) Federal Cause of Action.--
(1) In general.--There shall exist a Federal cause of
action for claims arising out of, relating to, or resulting
from the performance of a government contract, whether oral or
written, in a disaster zone for--
(A) the search, rescue, or recovery of individuals
or property dislocated by the disaster;
(B) the demolition, removal, repair, or
reconstruction of structures or utilities damaged by
the disaster;
(C) the clean-up or remediation of property
polluted by the disaster;
(D) the removal of debris deposited by the disaster
(including dredging); or
(E) the dewatering of property flooded by the
disaster.
(2) Substantive law.--The substantive law for decision in
any action described in paragraph (1) shall be derived from the
law, including choice of law principles, of the State in which
the government contract was performed.
(3) Claims.--A Federal cause of action shall be brought
under this subsection only for claims for injuries or damages
proximately caused by a person or entity awarded a government
contract.
(4) Jurisdiction.--The appropriate United States district
court shall have original and exclusive jurisdiction over all
actions for any claim for loss of property, personal injury, or
death arising out of, relating to, or resulting from the
performance of a government contract, whether oral or written,
for an activity described in any of subparagraphs (A) through
(E) of paragraph (1).
(b) Special Rules.--
(1) In general.--The requirements described in paragraphs
(2) through (4) shall apply to an action brought under this
section.
(2) Punitive damages.--No punitive damages intended to
punish or deter, exemplary damages, or other damages not
intended to compensate a plaintiff for actual losses may be
awarded in such an action.
(3) Interest prior to judgment.--No party to such an action
shall be held liable for interest prior to judgment.
(4) Noneconomic damages.--
(A) Definition of noneconomic damages.--In this
paragraph, the term ``noneconomic damages'' means
damages for losses for physical and emotional pain,
suffering, inconvenience, physical impairment, mental
anguish, disfigurement, loss of enjoyment of life, loss
of society and companionship, loss of consortium,
hedonic damages, injury to reputation, and any other
nonpecuniary losses.
(B) Award of noneconomic damages.--
(i) In general.--Noneconomic damages may be
awarded against a defendant only in an amount
directly proportional to the percentage of
responsibility of the defendant for the harm to
the plaintiff.
(ii) No physical harm.--No plaintiff may
recover noneconomic damages unless the
plaintiff suffered physical harm.
(c) Collateral Sources.--Any recovery by a plaintiff in an action
under this section shall be reduced by the amount of collateral source
compensation, if any, that the plaintiff has received or is entitled to
receive as a result of the same loss of property, personal injury, or
death for which the plaintiff seeks compensation from the defendant.
(d) Government Contractor Defense.--
(1) Applicability.--Should a lawsuit be filed for claims
arising out of, relating to, or resulting from the performance
of a contract that meets the criteria described in paragraph
(2), there shall be a rebuttable presumption that--
(A) all elements of the government contractor
defense are satisfied; and
(B) the government contractor defense applies in
the lawsuit.
(2) Criteria.--The criteria referred to in paragraph (1)
are that--
(A) the contract is a government contract that the
Chief of Engineers has certified as being necessary for
the recovery of a disaster zone from a disaster, as
provided in paragraphs (4) and (5); or
(B) the contract--
(i) is a subcontract of a contract
described in subparagraph (A); and
(ii) is for an amount that was not
reasonably expected, as of the time at which
the subcontract was executed, to exceed
$10,000,000.
(3) Overcoming of presumption.--The presumption described
in paragraph (1) shall be overcome only by evidence showing
that a person or entity awarded a government contract acted
fraudulently or with willful misconduct in submitting
information to the Chief of Engineers in conjunction with the
consideration by the Chief of Engineers of the government
contract.
(4) Exclusive responsibility.--
(A) In general.--The Chief of Engineers shall be
exclusively responsible for the review of any
government contract that any person or entity,
including any governmental entity, claims to be
necessary for the recovery of a disaster zone from a
disaster for the purpose of establishing a government
contractor defense in any lawsuit for claims arising
out of, relating to, or resulting from the performance
of the government contract.
(B) Review of scope.--Upon the submission of a
request for a certification that a government contract
was or will be necessary for the recovery of a disaster
zone from a disaster, the Chief of Engineers shall, not
later than 30 days after the date of receipt of the
request, whether made before or after the award of a
government contract--
(i) review the scope of work that the
government contract does or will require; and
(ii) determine whether the majority of the
work is for 1 or more of the activities
described in subparagraphs (A) through (E) of
subsection (a)(1).
(C) Certification.--If the Chief of Engineers
determines that at least a majority of the work that
the government contract does or will require is for 1
or more of those activities, the Chief of Engineers
shall promptly certify that the government contract is
necessary for the recovery of the disaster zone from a
disaster.
(5) Issuance of certificate.--For each government contract
reviewed and certified by the Chief of Engineers under
paragraph (4), the Chief of Engineers shall promptly issue a
certificate of need for recovery of the applicable disaster
zone from a disaster to the person or entity that submitted the
request for the certification.
(6) Records.--The Chief of Engineers shall maintain records
of certifications made, and certificates issued, under this
subsection.
(e) Effect on Claims and Law.--
(1) Claims for loss; enforcement actions.--Nothing in this
section applies to--
(A) any claim for loss under any workers
compensation law; or
(B) any enforcement action that any governmental
entity may bring against any person or entity allegedly
for violating any Federal or State law (including a
regulation).
(2) Government contractor defense.--Nothing in this section
limits or restricts the government contractor defense as that
defense exists at common law.
(3) Recklessness or willful misconduct.--Nothing in
subsection (b), (c), or (d) affects the liability of any person
or entity for recklessness or willful misconduct.
Calendar No. 222
109th CONGRESS
1st Session
S. 1761
_______________________________________________________________________
A BILL
To clarify the liability of government contractors assisting in rescue,
recovery, repair, and reconstruction work in the Gulf Coast region of
the United States affected by Hurricane Katrina or other major
disasters.
_______________________________________________________________________
September 26, 2005
Read the second time and placed on the calendar
Introduced in Senate
Introduced in the Senate. Read the first time. Placed on Senate Legislative Calendar under Read the First Time.
Read the second time. Placed on Senate Legislative Calendar under General Orders. Calendar No. 222.
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