Post-Katrina reconstruction liability: Exposing the inferior risk-bearer

Harvard Journal on Legislation

Volumn 43, Issue 2, 2006, Pages 287-327

  Schooner, Steven L ^a   Siuda Pfeffer, Erin ^b  

^a GEORGE WASHINGTON UNIVERSITY   (United States)

^b NONE

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[No Author keywords available]

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EID: 33746319395     PISSN: 0017808X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (316)

1. See, e.g., GOV'T ACCOUNTABILITY OFFICE, GAO-04-1068T, SEPTEMBER 11: HEALTH EFFECTS IN THE AFTERMATH OF THE WORLD TRADE CENTER ATTACK 1 (2004), available at http://www.gao.gov/new.items/d041068t.pdf [hereinafter GAO, WTC HEALTH EFFECTS] ("When the [World Trade Center] buildings collapsed on [September 11], nearly 3,000 people died and an estimated 250,000 to 400,000 people were immediately exposed to a mixture of dust, debris, smoke, and various chemicals.");
2. GOV'T ACCOUNTABILITY OFFICE, GAO-05-1053T, HURRICANE KATRINA: PROVIDING OVERSIGHT OF THE NATION'S PREPAREDNESS, RESPONSE, AND RECOVERY ACTIVITIES 1 (2005), available at http://www.gao.gov/new.items/d051053t.pdf ("[Hurricane Katrina] affected over a half million people .... [Standing water and high temperatures have created a breeding ground for disease .... Hurricane Katrina also resulted in environmental challenges, such as water and sediment contamination from toxic materials released into the floodwaters.").
3. See, e.g., GOV'T ACCOUNTABILITY OFFICE, GAO-06-461R, AGENCY MANAGEMENT OF CONTRACTORS RESPONDING TO HURRICANES KATRINA AND RITA 1 (2006), available at http://www.gao.gov/new.items/d06461r.pdf [hereinafter GAO, AGENCY MANAGEMENT OF KATRINA CONTRACTORS] ("Congress has appropriated over $62 billion as an initial commitment . . . to the Gulf Coast states impacted by the . . . hurricanes."). These costs are dwarfed by the costs associated - directly and indirectly - with the September 11 attacks on New York City and Washington, D.C. Congress initially appropriated $40 billion to assist with disaster recovery. 2001 Emergency Supplemental Appropriations Act for Recovery from and Response to Terrorist Attacks on the United States, Pub. L. No. 107-38, 115 Stat. 220. Shortly thereafter, it supplemented this amount with an open-ended appropriation for the establishment of the Victim Compensation Fund. See September 11th Victim Compensation Fund of 2001, Pub. L. No. 107-42 § 406(b), 115 Stat. 230, 240 (codified at 49 U.S.C. § 40101 note (Supp. II 2002)). Indirect costs include, among other things, forgone federal taxes, see Victims of Terrorism Tax Relief Act of 2001, Pub. L. No. 107-134, 115 Stat. 2427 (codified in scattered sections of 26 U.S.C. and other titles), and lost state and city revenue,
4. see GOV'T ACCOUNTABILITY OFFICE, GAO-05-269, SEPTEMBER 11: RECENT ESTIMATES OF FISCAL IMPACT OF 2001 TERRORIST ATTACK ON NEW YORK (2005), available at http://www.gao.gov/new.items/d05269.pdf.
5. New Public Management (NPM), which gained hold in the United States in the mid1990s under the moniker "reinventing government," is a movement to transform the public sector. For the two works that are largely responsible for popularizing "reinvention" principles in this country, see generally AL GORE & NAT'L PERFORMANCE REVIEW, FROM RED TAPE TO RESULTS: CREATING A GOVERNMENT THAT WORKS BETTER & COSTS LESS (1993),
6. and DAVID OSBORNE & TED GAEBLER, REINVENTING GOVERNMENT: How THE ENTREPRE-NEURIAL SPIRIT Is TRANSFORMING THE PUBLIC SECTOR FROM SCHOOLHOUSE TO STATE HOUSE, CITY HALL TO PENTAGON (1992). NPM seeks to apply traditionally private sector business techniques to the provision of public services and to thereby enable government to provide such services with greater productivity and efficiency.
7. See Jamil E. Jreisat, The New Public Management and Reform, in HANDBOOK OF PUBLIC MANAGEMENT PRACTICE AND REFORM 539, 541-42 (Kuotsai Tom Liou ed., 2001). Proponents of NPM advocate increased privatization and the "contracting out" of government services.
8. See GRAEME A. HODGE, PRIVATIZATION: AN INTERNATIONAL REVIEW OF PERFORMANCE 40 (1999);
9. see also Robert B Denhardt & Janet Vinaznt Denhardt, The New Public Service: Serving Rather Than Steering, 60 PUB. ADMIN. REV. 549, 550-52 (2000);
10. E. S. Savas, Privatization and the New Public Management, 28 FORDHAM URB. L.J. 1731, 1731-32 (2001) (providing several examples of privatization - both domestic and international - ranging from the protection of North Atlantic salmon to the renovation of military housing).
11. See GAO, AGENCY MANAGEMENT OF KATRINA CONTRACTORS, supra note 2, at 1 ("The private sector is an important partner with the government in responding to and re-covering from natural disasters .... [S]uch partnerships increasingly underlie critical government operations.").
12. See id. at 2-4 (reporting that government contracts awarded in the wake of Hurricanes Katrina and Rita suffered from inadequate planning, did not clearly communicate responsibilities, and did not sufficiently utilize oversight personnel).
13. See generally Ctrs. for Disease Control & Prevention, Physical Health Status of World Trade Center Rescue and Recovery Workers and Volunteers-New York City, July 2002-August 2004, 53 MORBIDITY & MORTALITY WKLY. REP. 807 (2004), available at http://www.cdc.gov/mmwr/PDF/wk/mm5335.pdf [hereinafter MMWR Report].
14. See, e.g., 151 CONG. REC. H10235, 40-42 (daily ed. Nov. 16, 2005) (statement of Rep. Major Owens, and Letter from the National Council for Occupational Safety and Health (Oct. 6, 2005)); Michelle Chen, Relief Workers May Be Next Wave of Katrina Victims, NEW-STANDARD, Sept. 23, 2005, http://newstandardnews.net/content/index.cfm/items/2395. The Centers for Disease Control and Prevention has published guidelines and recommendations for Hurricane Katrina relief workers in an effort to address health and safety issues preemptively.
15. See Ctrs. for Disease Control & Prevention, Hurricane Information for Response and Cleanup Workers, http://www.bt.cdc.gov/disasters/hurricanes/workers.asp (last visited Apr. 15, 2006).
16. The doctrine of sovereign immunity is a relic of royalty - originating from the English common law premise that the King could do no wrong - and its continued life under American jurisprudence is not easily justified. See United States v. Lee, 106 U.S. 196, 207 (1882) ("[W]hile the exemption of the United States ... from being subjected ... to ordinary actions in the courts has ... been repeatedly asserted here, the principle has never been discussed or the reasons for it given, but it has always been treated as an established doctrine."); ALFRED C. AMAN, JR., & WILLIAM T. MAYTON, ADMINISTRATIVE LAW § 12.1, at 342-43 (1993) (citations omitted). But see Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907) ("A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.");
17. AMAN & MAYTON, supra, § 14.1.3, at 532 (suggesting a functionalist justification for the doctrine of sovereign immunity, namely, that the doctrine insulates the government's official actions from undue influence) (citations omitted). Indeed, many academics have expressed dissatisfaction with the doctrine of sovereign immunity.
18. See, e.g., Erwin Chemerinsky, Against Sovereign Immunity, 53 STAN. L. REV. 1201, 1202 (2001) ("Sovereign immunity is inconsistent with a central maxim of American government: no one, not even the government, is above the law.");
19. David P. Currie, Ex Parte Young After Seminole Tribe, 72 N.Y.U. L. REV. 547, 548 (1997) ("Sovereign immunity is a rotten idea. If states commit wrongs, they should be accountable for them").
20. See infra text accompanying notes 55-65.
21. See Press Release, Associated Gen. Contractors of Am., Senate Bill Would Limit Contractors' Risk of Law Suits for Aiding in Rescue and Recovery Efforts in Gulf Coast (Sept. 22, 2005), available at http://www.agc.org/galleries/pr/05-094.doc [hereinafter AGC Press Release].
22. S. 1761, 109th Cong. (2005).
23. See id. § 5.
24. See AGC Press Release, supra note 10.
25. See Gov't Accountability Office, Our Nation's Fiscal Outlook: The Federal Government's Long-Term Budget Imbalance, http://www.gao.gov/special.pubs/longterm (last visited Apr. 15, 2006) ("Absent policy change, a growing imbalance between expected federal spending and tax revenues will mean escalating and ultimately unsustainable federal deficits and debt.");
26. PETER G. PETERSON, RUNNING ON EMPTY 9-10 (2004) ("[I]n just three years [(2001 to 2003)] U.S. voters witnessed a negative swing of over $10 trillion in the ten-year federal deficit outlook. By the year 2014, that will amount to $90,000 in additional federal debt for every household.");
27. Rudolph G. Penner & Alice M. Rivlin, Dimensions of the Budget Problem, in RESTORING FISCAL SANITY 2005: MEETING THE LONG-RUN CHALLENGE 17, 17-34 (Alice M. Rivlin & Isabel Sawhill eds., 2005).
28. Deficit hawks, who place great emphasis on keeping the federal budget under control and the federal deficit low, have become increasingly alarmed at the rate of government spending in the wake of Hurricane Katrina. See Donald Lambro & Amy Pagan, Defer Drug Benefit to Offset Katrina, Deficit Hawks Urge, WASH. TIMES, Sept. 20, 2005, at A2 ("Deficit hawks both inside and outside of Congress say adding the cost of recovery and rebuilding to the deficit is a bad idea."). If the government were to provide contractors with indemnification, it would essentially be insuring its contractors against liabilities they incur to individuals injured by the contractors' negligence, resulting in further government expenditures after national disasters.
29. See infra notes 173-175 and accompanying text (discussing indemnification for unusually hazardous risks). Under the GCRA, however, the government would bear no economic responsibility for harm resulting from contractors' negligent acts.
30. The Senate hearing on the GCRA included frank disparagement of the plaintiffs' bar. See infra text accompanying notes 132, 136-138. This is to be expected in light of the political leanings of the GCRA's sponsor (Sen. John Thune (R-S.D.)) and co-sponsors (Sen. Jim DeMint (R-S.C.); Sen. Michael B. Enzi (R-Wyo.); Sen. James M. Inhofe (R-Okla.); Sen. Trent Lott (R-Miss.); Sen. Lisa Murkowski (R-Alaska); Sen. Rick Santorum (R-Pa.); Sen. Ted Stevens (R-Alaska); and Sen. David Vitter (R-La.)). See 151 CONG. REC. S10378 (2005); 151 CONG. REC. S10514, 10515 (2005); 151 CONG. REC. S10594, 10596 (2005); 151 CONG. REC. S11130, 11131 (2005). See generally REPUBLICAN NAT'L COMM., 2004 REPUBLICAN PARTY PLATFORM: A SAFER WORLD AND A MORE HOPEFUL AMERICA (2004), available at http://www.gop.com/media/2004platform.pdf ("America's litigation system is broken. Junk and frivolous lawsuits are driving up the cost of doing business in America by forcing companies to pay excessive legal expenses to fight off or settle often baseless lawsuits . . . .");
31. Nathaniel L. Bach, Note, Trial Lawyer on the Ticket: Electoral Rhetoric and the Depiction of Lawyers in the 2004 Presidential Campaign, 19 GEO. J. LEGAL ETHICS 317, 319-36 (2006) (analyzing the tort reform "cornerstone" of the Bush-Cheney domestic policy agenda during the 2004 presidential election).
32. See GUIDO CALABRESI, THE COSTS OF ACCIDENTS: A LEGAL AND ECONOMIC ANALYSIS 24 (1970). This is not, of course, to suggest that the GCRA's only flaw is its failure to address the principle goals of tort law.
33. See infra note 79 (discussing the GCRA's encroachment upon states' rights). Such problems, however, are beyond the scope of this Article.
34. See Boyle v. United Techs. Corp., 487 U.S. 500, 511-12 (1988). For a more extensive discussion of the government contractor defense, see infra Part III.A.
35. See infra text accompanying notes 113-119.
36. As discussed infra Part III.B, the GCRA does not preserve the possibility of victim compensation by either diluting the government's sovereign immunity or mandating that the government indemnify its contractors. It merely leaves individuals without a remedy if they are injured by the tortious acts of contractors involved in, among other things, debris removal or reconstruction work in disaster zones.
37. See infra notes 121-124 and accompanying text.
38. The law and economics literature suggests the desirability of allocating risk to the party who can most effectively reduce the costs of harm or who can best bear the risk. See Guido Calabresi & Jon T. Hirschoff, Toward a Test for Strict Liability in Torts, 81 YALE L.J. 1055, 1060 (1972) (proposing that liability should rest with the party best positioned "to make the cost-benefit analysis between accident costs and accident avoidance costs, and to act on the decision once made");
39. see also Richard A. Posner & Andrew M. Rosenfield, Impossibility and Related Doctrines in Contract Law: An Economic Analysis, 6 J. LEGAL STUD. 83, 88-92 (1977) (analyzing risk allocation in the context of contract impossibility).
40. See generally RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW (5th ed. 1998);
41. Richard A. Posner, A Theory of Negligence, 1 J. LEGAL STUD. 29 (1972).
42. Guide Calabresi's categorization of accident cost reduction efforts into three tiers of "subgoals" is instructive. See CALABRESI, supra note 17, at 26-31. "Primary" cost reduction encompasses efforts to reduce the number and severity of accidents. Id. at 26-27. "Secondary" cost reduction addresses the societal costs that indirectly result from the accident, such as rehabilitation and care of the injured. Id. at 27-28. Societal costs may be reduced, and possibly minimized, by spreading accident losses - shifting the risk of these costs from individuals (i.e., potential injurers and victims) to society in the aggregate. See id. at 39-42. Finally, tertiary cost reduction involves managing the transactional costs of the administrative or market machinery that is used to achieve primary and secondary cost reduction. Id. at 64-66. From this, Calabresi persuasively argues that the party best equipped to reduce the costs of the accident should bear those costs. Id. at 40-42.
43. 48 C.F.R. § 52.228-7 (2005). The FAR "is established for the codification and publication of uniform policies and procedures for acquisition by all executive agencies." Id. § 1.101.
44. Act of Aug. 28, 1958, Pub. L. No. 85-804, 72 Stat. 972 (codified as amended at 50 U.S.C. §§ 1431-1435 (2000)); see also 48 C.F.R. §§ 50.403-1 to -3 (2005).
45. See Patrick E. Tolan, Jr., Environmental Liability Under Public Law 85-804: Keeping the Ordinary Out of Extraordinary Contractual Relief, 32 PUB. CONT. L.J. 215, 260-61 (2003) (explaining that the legislative history of Public Law 85-804 indicates that indemnification should be limited to research, development, and production in the fields of nuclear power or highly volatile missile fuels);
46. Michael Abramowicz, Predictive Decisionmaking, 92 VA. L. REV. 69, 108-13 (2006) (suggesting nuclear safety regulation as a candidate for "predictive decisionmaking," as an alternative to the limited liability model found in, for example, the Price-Anderson Act, 42 U.S.C. § 2210 (2000)).
47. Consolidated Appropriations Resolution, 2003, Pub. L. No. 108-7, div. K, tit. III, 117 Stat. 11, 517-18 (2003).
48. 42 U.S.C. §§ 300aa-10 to -34 (2000).
49. Section two of the GCRA lists the congressional findings supporting the bill's proposed relief. These findings emphasize that government contractors provide vital assistance in responding to national disasters and that fears of future litigation may discourage this assistance. See S. 1761, 109th Cong. § 2 (2005). The GCRA is thus intended "to ensure that... contractors continue to answer the governmental requests for assistance in times of great need." Id. § 2(12)(a).
50. See Richard S. Markovits, Liberalism and Tort Law: On the Content of the Corrective-Justice-Securing Tort Law of a Liberal, Rights-Based Society, 2006 U. ILL. L. REV. 243, 249, 287 (2006) (arguing that governments of "rights-based [s]tates" are obligated to "maximize the rights-related interests" of their citizens, and thus should have "legally enforceable ... duties" to (1) avoid committing torts against their citizens, (2) reduce the occurrence of torts between citizens, and (3) provide victims of tortious conduct with appropriate opportunities to seek redress). Markovits concludes that "government officials can promulgate goal-oriented tort legislation if, but only if ... the legislation in question does not on balance disserve the rights-related interests of the relevant society's members and participants." Id. at 250; see also id. at 283-85. Responsible government should focus on serving the public interest.
51. See Mark Seidenfeld, A Civic Republican Justification for the Bureaucratic State, 105 HARV. L. REV. 1511, 1514 (1992) ("[G]overnment's primary responsibility is to enable the citizenry to deliberate about altering preferences and to reach consensus on the common good.").
52. See infra notes 128 and 135 (discussing bills to reduce contractor liability proposed in the mid-1980s).
53. See 48 C.F.R. § 13.201(b) (2005) (making government purchase cards the "preferred method" for micro-purchases).
54. Second Emergency Supplemental Appropriations Act to Meet Immediate Needs Arising from the Consequences of Hurricane Katrina, 2005, Pub. L. No. 109-62, § 101(2), 119 Stat. 1990, 1992. Although government purchase cards were first used during the Reagan administration in the late 1980s, their use gained momentum in the early 1990s with former Vice President Al Gore's National Performance Review, which strongly urged agencies to increase their reliance on government purchase cards. See Neil S. Whiteman, Charging Ahead: Has the Government Purchase Card Exceeded Its Limit?, 30 PUB. CONT. L.J. 403, 407-11 (2001). The 1994 enactment of the Federal Acquisition Streamlining Act, Pub. L. No. 103-355, 108 Stat. 3243 (codified in scattered sections of 10 U.S.C. and 41 U.S.C.), fueled government purchase card activity by (1) creating a $2500 "micropurchase" threshold (and thereby exempting purchases under that threshold from many of the onerous regulations that govern most procurements), see 41 U.S.C. $428(b), (f) (2000), and (2) allowing agencies' procurement organizations to delegate purchasing authority to nonprocurement cardholding personnel, see id. § 428(c);
55. see also Whiteman, supra, at 411-12.
56. 41 U.S.C. § 428(f); 48 C.F.R. § 2.101 (2005).
57. After the attacks of September 11, 2001, the micro-purchase threshold for supplies or services acquired by the Department of Defense for the purpose of defending the United States against terrorist attacks was increased to $15,000. Federal Acquisition Regulation; Temporary Emergency Procurement Authority, 67 Fed. Reg. 56,120-21 (Aug. 30, 2002) (codified in scattered sections of 48 C.F.R.).
58. See Memorandum from Clay Johnson III, Deputy Dir. for Mgmt., Office of Mgmt. & Budget, Executive Office of the President, Limitation on Use of Special Micro-purchase Threshold Authority for Hurricane Katrina Rescue and Relief Operations (Oct. 3, 2005), available at http://63.161.169.137/omb/procurement/micro-purchase_guidance_10-03-05.pdf (requesting that agencies not use the increased micro-purchase authority unless there are "exceptional circumstances"). Nonetheless, purchase card usage appears robust. The Inspector General of the Department of Homeland Security estimated the value of Katrinarelated purchase card transactions, as of December 30, 2005, at approximately $50.9 million.
59. See PRESIDENT'S COUNCIL ON INTEGRITY AND EFFICIENCY, PCIE 12-17-05 TO 12-30-05 BIWEEKLY REPORTING PERIOD: HURRICANE KATRINA AGENCY DATA, available at http://www.dhs.gov/interweb/assetlibrary/OIG_PCIE_123005.pdf [hereinafter HURRICANE KATRINA AGENCY DATA].
60. See Bill Marsh, Here Is Your New Federal Credit Card, Here Is Your New Purchase Limit, N.Y. TIMES, Sept. 18, 2005, § 4, at 14;
61. Steven L. Schooner, Fiscal Waste? Priceless, L.A. TIMES, Sept. 14, 2005, at B13.
62. FED. PROCUREMENT DATA CTR., U.S. GEN. SERVS. ADMIN., FEDERAL PROCUREMENT REPORT FY 2003 § 1, at 13 (2003), available at http://www.fpdsng.com/downloads/FPR_Reports/FPR2003a.pdf.
63. See generally The Use and Abuse of Government Purchase Cards: Hearing Before the H. Subcomm. on Governmental Efficiency, Financial Management and Intergovernmental Relations of the H. Comm. on Governmental Affairs, 107th Cong. (2002);
64. OFFICE OF THE INSPECTOR GEN., DEP'T OF DBF., REP. No. D-2002-029, DoD PURCHASE CARD PROGRAM AUDIT COVERAGE (2001), available at http://www.ignet.gov/randp/cards/dod-D-2002-029.pdf;
65. GEN. ACCOUNTING OFFICE, GAO-02-676T, GOVERNMENT PURCHASE CARDS: CONTROL WEAKNESSES EXPOSE AGENCIES TO FRAUD AND ABUSE (2002), available at http://www.gao.gov/new.items/d02676t.pdf;
66. GEN. ACCOUNTING OFFICE, GAO-04-717T, PURCHASE CARDS: INCREASED MANAGEMENT OVERSIGHT AND CONTROL COULD SAVE HUNDREDS OF MILLIONS OF DOLLARS (2004), available at http://www.gao.gov/new.items/d04717t.pdf.
67. For a lengthy discussion of the purchase card program's fundamental flaws, which lead to widespread abuse and fraud, see Jessica Tillipman, The Breakdown of the United States Government Purchase Card Program and Proposals for Reform, 2003 PUB. PROCUREMENT L. REV. 229, 234-41 (2003).
68. See Steven L. Schooner & Neil S. Whiteman, Purchase Cards and Micro-Purchases: Sacrificing Traditional United States Procurement Policies at the Altar of Efficiency, 2000 PUB. PROCUREMENT L. REV. 148, 158-64 (2000);
69. Whiteman, supra note 33, at 442-55.
70. But see Jeff P. MacHarg, Note, Doing More With Less-Continued Expansion of the Government Purchase Card Program by Increasing the Micropurchase Threshold: A Response to Recent Articles Criticizing the Government Purchase Card Program, 31 PUB. CONT. L.J. 293, 305-11 (2002).
71. See OFFICE OF MGMT. & BUDGET, EXECUTIVE OFFICE OF THE PRESIDENT, CIRCULAR No. A-123, MANAGEMENT'S RESPONSIBILITY FOR INTERNAL CONTROL app. B, at 6-13 (2005), available at http://www.whitehouse.gov/omb/circulars/a123/a123_appendix_b.pdf.
72. Typically, government purchases between $2500 and $250,000 would be set aside for small businesses. See 48 C.F.R. §§ 19.501, .502-1(b), .502-2(a), .502-2(b) (2005); see also Schooner, supra note 37, at B13 ("Anecdotal information and experience suggests that the lion's share of purchase card transactions benefit large businesses. That's not surprising, given the convenience offered by stores such as Wal-Mart, Staples, Home Depot and Best Buy.");
73. Whiteman, supra note 33, at 456 ("The Government makes the bulk of its purchase card transactions from large businesses.").
74. Telephone Interview with Paul Murphy, President, Eagle Eye, in Fairfax, Va. (Sept. 9, 2005). Eagle Eye is a commercial service that processes and repackages government procurement data. See Eagle Eye, Inc., About Eagle Eye, http://www.eagleeyeinc.com/Search.FPC?pg= 10 (last visited Apr. 15, 2006).
75. Proclamation No. 7924, 70 Fed. Reg. 54,227 (Sept. 8, 2005), available at http://www.whitehouse.gov/news/releases/2005/09/20050908-5.html.
76. 40 U.S.C. § 3142 (Supp. II 2002). To be clear, the Davis-Bacon Act does not mandate that firms employ only union workers: it merely requires that firms pay "prevailing" wage rates and benefits, which typically correlate with those enjoyed by union workers. See id.
77. See Proclamation No. 7924, 70 Fed. Reg. at 54,227 ("The wage rates imposed by [the Davis-Bacon Act] increase the cost ... of providing Federal assistance to [areas affected by Hurricane Katrina] .... Suspension of [the Davis-Bacon Act] will result in greater assistance to these devastated communities and will permit the employment of thousands of additional individuals."); see also News Release, Congressman Charlie Norwood, Ad-ministration Grants Norwood Request for Temporary Suspension of Davis-Bacon Act Restrictions on Rebuilding After Katrina (Sept. 8, 2005), available at http://www.house.gov/apps/list/press/ga09_norwood/DavisBacon.html.
78. See, e.g.. Editorial, A Shameful Proclamation, N.Y. TIMES, Sept. 10, 2005, at A16;
79. Thomas B. Edsall, Bush Suspends Pay Act in Areas Hit by Storm, WASH. POST, Sept. 9, 2005, at D3;
80. Susan Jones, Democrats, Unions Blast Bush Over Federal Rebuilding Effort, CNSNews.com, Sept. 9, 2005, http://www.cnsnews.com/Politics/Archive/200509/POL20050909a.html.
81. Proclamation No. 7959, 70 Fed. Reg. 67,899 (Nov. 3, 2005), available at http://www.whitehouse.gov/news/releases/2005/11/20051103-9.html.
82. See infra Part III.B.
83. "[Individual moral rights holders whose tort-related rights have been sacrificed by [their] government['s] failure[ ] [to secure these rights by legislation] will have a moral right to receive compensation from the government. . . ." Markovits, supra note 30, at 291.
84. Similar liability protection can be found in the Support Anti-Terrorism by Fostering Effective Technologies Act of 2002 (SAFETY Act), 6 U.S.C. §§ 441-44 (Supp. II 2002). As discussed infra Part III.A.3, however, the GCRA is vastly different from the SAFETY Act, chiefly because the SAFETY Act applies only to extraordinarily risky and evolving technologies. Although the SAFETY Act was a unique approach to liability protection when passed in 2002, Congress has indicated its intention to use the SAFETY Act as a model for other private sector industries not only through the proposal of the GCRA, but also through the Public Readiness and Emergency Preparedness Act (PREP Act), Pub. L. 109-148, div. C, 119 Stat. 2680, 2818-32 (2005) (to be codified at 42 U.S.C. §§ 247d-6d to -6e), discussed infra Part III.A.3.
85. S. 1761, 109th Cong. § 5(d) (2005).
86. See infra note 62 (discussing of the importance of government direction, and consequent lack of contractor discretion, in the application of the government contractor defense).
87. In Yearsley v. W.A. Ross Construction Co., 309 U.S. 18, 20-22 (1940), the Supreme Court refused to hold a public works contractor liable for erosion of the plaintiff's property allegedly caused by construction performed under a federal government contract, applying agency principles to extend the government's sovereign immunity to the contractor. After Yearsley, lower courts struggled to apply the defense to a wider range of cases, specifically to those involving products manufactured according to government specifications. See Randal R. Craft, Jr., The Government Contractor Defense: Evolution and Evaluation, in THE GOVERNMENT CONTRACTOR DEFENSE: A FAIR DEFENSE OR THE CONTRACTOR'S SHIELD? 3, 7-9 (Juanita M. Madole ed., 1986) (discussing relevant opinions between 1940 and 1980).
88. Enacted in 1946, the FTCA, ch. 753, §§ 401-424, 60 Stat. 812, 842-47 (codified as amended in scattered sections of 28 U.S.C.), initially exposed the military to liability. See, e.g.. Brooks v. United States, 337 U.S. 49, 50-52 (1949) (holding that service members can pursue negligence claims against the government for injuries not incident to service). Soon after passage of the FTCA, however, the Supreme Court ruled that the government is not liable under the FTCA when service members' injuries "arise out of or are in the course of activity incident to service." Feres v. United States, 340 U.S. 135, 146 (1950). After Feres, defense supply contractors became the target of choice in product liability suits because the government was no longer an available defendant. That situation proved unfair, because contractors, compelled to execute clear government directives, did not exercise independent discretion. The Court further complicated the legal treatment of military contractors in Stencel Aero Engineering Corp. v. United States, 431 U.S. 666 (1977), a case in which malfunctions in a government-specified, contractor-manufactured, aircraft ejection system injured a serviceman. When the serviceman alleged negligence against both the contractor and the United States, the contractor cross-claimed seeking indemnity from the government, alleging that "any malfunction ... was due to faulty specifications, requirements, and components provided by the United States." Id. at 667-68. The Court relied on Feres to dismiss both the serviceman's claim against the government and the contractor's request for indemnification. See id. at 669, 673-74. Feres and Stencel thus placed military contractors in a bind. See R. Todd Johnson, Comment, In Defense of the Government Contractor Defense, 36 CATH. U. L. REV. 219, 227 (1986) ("The Feres-Stencel doctrine created an insurmountable dilemma ... by excusing the government both from suit by serviceman and from indemnification actions brought by the contractor."). Their only option was to assert the still-developing government contractor defense discussed in this section. See, e.g., id. at 224-27;
89. Kateryna Rakowsky, Note, Military Contractors & Civil Liability, 2 STAN. J. C.R. & C.L. (forthcoming 2006).
90. 534 F. Supp. 1046 (E.D.N.Y. 1982), aff'd, 818 F.2d 187 (2d Cir. 1987).
91. Id. at 1055. The court elaborated on the third element by explaining that a contractor was required to inform the government of information known to it, but unknown to the government, regarding the hazards of the product. Id. at 1057. The Agent Orange approach was adopted in large part by the Ninth Circuit in McKay v. Rockwell International Corp., 704 F.2d 444, 451 (9th Cir. 1983), which modified the first prong to allow the defense where the government either established or approved reasonably precise design specifications. Thereafter, most courts followed the McKay formulation of the government contractor defense. See Craft, supra note 55, at 14-25. However, the Eleventh Circuit remained a notable exception. See Shaw v. Grumman Aerospace Corp., 778 F.2d 736, 740, 745-46 (11th Cir. 1985) (allowing use of the defense only if the contractor either participated only minimally in design specifications or warned the government of all known risks and disclosed known alternative designs).
92. 487 U.S. 500 (1988). Boyle involved the death of a serviceman who drowned when he was unable to release the escape hatch of a submerged helicopter. Id. at 502. The plaintiff sued the contractor that supplied the military with the helicopter, alleging, among other things, that the escape hatch was defectively designed to be outward-opening, which made it impossible for his son to release the hatch when subject to water pressure. Id. at 503.
93. Id. at 511-12.
94. Id. at 512.
95. Id. Focusing on the discretionary function exception to the FTCA, the Court reasoned that it makes little sense to subject a contractor to state tort suits for manufacturing products that conform to designs fashioned or approved by a federal official when the federal official would enjoy immunity from similar suits. Although the FTCA waives the government's sovereign immunity for negligent or wrongful acts or omissions, 28 U.S.C. § 2674 (2000), it expressly exempts matters in which the government exercises a discretionary function, id. § 2680(a). In an earlier case, Berkovitz v. United States, 486 U.S. 531 (1988), the Supreme Court elaborated on the requirements that must be met before the discretionary function exemption may be applied. First, a mandatory statute or regulation prescribing a specific course of action must not have constrained the government decision being challenged. Id. at 536. Second, the government decision, when not so constrained, must have been grounded in social, economic, or political policy. Id. at 536-37. Thus under the FTCA's discretionary function exemption, the government's right to assert sovereign immunity is most likely to be engaged when a government official exercises discretion. In contrast, the protection offered by the government contractor defense as established in Boyle will most often be engaged when the contractor demonstrates its lack of discretion. Because such a lack of contractor discretion necessarily implies the presence of discretion on the part of government officials, the government contractor defense ensures that contractors are afforded liability protection only in those cases where the government itself would receive such protection under the FTCA's discretionary function exemption. See Peter C. Brown, Blowing the Lid Off Pandora's Box: A Look at the Effect of the Design-Build Contract on the Government Contractor Defense, CONSTRUCTION LAW., July 1997, at 17, 17. Sanner v. Ford Motor Co., 364 A.2d 43 (N.J. Super. Ct. Law Div. 1976), decided before Boyle, illus-trates the importance of establishing the element of government discretion in any assertion of the government contractor defense. In Sanner, a passenger, who sustained injuries after being thrown out of a vehicle manufactured by Ford for the military, alleged that the company negligently failed to install safety belts. Id. at 43-44. Prior to manufacturing the vehicle, Ford offered the Army a design that included safety belts, which the Army rejected, "because occupants could be compromised due to deterred egress and escape in tactical situations as well as enhancing injuries in the event of a roll-over." Id. at 44-46. The court accepted the government contractor defense, finding that "Ford had no discretion to exercise with respect to installation of seat belts, roll bars or other restraints. The decision was that of the ... Army[, which] specifically rejected the installation of these so-called safety devices." Id. at 47.
96. See, e.g., Carley v. Wheeled Coach, 991 F.2d 1117, 1123-28 (3d Cir. 1993) (civilian ambulance manufacturer); Yeroshefsky v. Unisys Corp., 962 F. Supp. 710, 717, 719-21 (D. Md. 1997) (manufacturer of keyboard equipment for the United States Postal Service); Andrew v. Unisys Corp., 936 F. Supp. 821, 829-32 (W.D. Okl. 1996) (manufacturer of letter sorting machines for the United States Postal Service); Lamb v. Martin Marietta Energy Sys., Inc., 835 F. Supp. 959, 966-68 (W.D. Ky. 1993) (company in charge of operating a nuclear facility for the Department of Energy). But see, e.g., In re Haw. Fed. Asbestos Cases, 960 F.2d 806, 810-12 (9th Cir. 1992) (precluding insulation supplier from asserting the government contractor defense because its products were not military equipment).
97. The FAR distinguishes contracts for services (from custodial to clerical and medical) from those for supplies (end items or widgets, from furniture to fighter aircraft) and construction (building, repairing, or renovating structures or improving real estate). Service contracts "directly engage[ ] the time and effort of a contractor whose primary purpose is to perform an identifiable task rather than to furnish an end item of supply." 48 C.F.R. § 37.101 (2005).
98. See, e.g., Hudgens v. Bell Helicopter/Textron, 328 F.3d 1329, 1334-45 (11th Cir. 2003) (accepting government contractor defense of a company providing helicopter maintenance to the Army); Richland-Lexington Airport Dist. v. Atlas Props., Inc., 854 F. Supp. 400, 421-24 (D.S.C. 1994) (applying the defense to a company supplying decontamination services to the Environmental Protection Agency). In the context of a service contract, the Boyle test remains essentially the same: (1) the government must have approved reasonably precise procedures to be followed in providing the service, (2) the contractor's performance must have conformed to those procedures and, (3) the contractor must have warned the government about dangers in those procedures that were known to it, but not to the government. See Hudgens, 328 F.3d at 1335. This test continues to focus on the "overriding question of who, the government or the contractor, ultimately had the most significant discretion in controlling the end result." Paul M. Laurenza & Michael W. Clancy, The Government Contractor Defense: Post-Boyle Expansion and the SAFETY Act, 80 FED. CONTRACTS REP. 477, 481 (2003).
99. S. 1761, 109th Cong. § 5(d)(1) (2005).
100. See Boyle, 487 U.S. at 512.
101. See Carley, 991 F.2d at 1125 ("[I]t is necessary only that the government approve, rather than create, the specifications . . . .").
102. See Trevino v. Gen. Dynamics Corp., 865 F.2d 1474, 1480 (5th Cir. 1989) ("The mere signature of a government employee on the 'approval line' . . . , without more, does not establish the government contractor defense."). Guidelines for contractors regarding the successful assertion of the defense emphasize the need to ensure that the government actually approved precise specifications or procedures. For example, one author has advised that to assert a successful government contractor defense, [T]he actual approving authority . . . should prepare to discuss not only what the Government wanted in terms of design, but the level of expertise among the government design approval team, and how dependent the approval officials were on the contractor's designers for purposes of contract review .... [T]he Government should also provide a record of communications between the contractor and the Government, documenting the "give and take" in the design process that shows conscious government approval of every design suggestion and change. John J. Michels, Jr., The Government Contractor Defense: The Limits of Immunity After Boyle, 33 A.F. L. REV. 147, 160 (1990);
103. see also Carl L. Vacketta et al., The "Government Contractor Defense" in Environmental Actions, BRIEFING PAPERS, Dec. 1989, at 7 (advising government contractors to "do whatever [they] can to facilitate Govt [sic] review and inspection of every aspect of [their] contract work"). Conversely, plaintiffs are advised that their "best line of attack" in response to a defendant's assertion of the government contractor defense is to argue that the government did not exercise the requisite discretion over specifications.
104. See Charles E. Cantu & Randy W. Young, The Government Contractor Defense: Breaking the Boyle Barrier, 62 ALB. L. REV. 403, 420-22 (1998).
105. See, e.g., Raymond B. Biagini & Ray M. Aragon, The Government Contractor Defense: Limiting Product Liability in the New Procurement Environment, 39 GOV'T CONTRACTOR 1169, at 3 (1997) ("[Only] the contractor that proves 'the Government made me do it' can share in the Government's sovereign immunity.").
106. Ralph C. Nash & John Cibinic, Postscript: The Circuit Court View of the Government Contractor Defense, 4 NASH & CIBINIC REP. ¶ 52 (1990).
107. Oversight Hearing on the Impact of Certain Governmental Contractor Liability Proposals on Environmental Laws: Hearing on S. 1761 Before the Subcomm. on Superfund and Waste Management of the S. Comm. on Environment and Public Works, 109th Cong. 79 (2005) [hereinafter Hearing] (statement of Craig S. King, government contracts attorney). Craig King has further argued that "[u]nder Supreme Court standards, the Government contractor defense would apply to disaster relief efforts without S. 1761." Id. at 75.
108. See id. (written statement of Craig S. King).
109. See id. at 78 (statement of Craig S. King).
110. S. 1761, 109th Cong. § 5(d)(4)(B) (2005) (referring to "the submission of a request for a certification"). The GCRA would encompass both past performance and future performance. See id. (defining certification as a determination that "a government contract was or will be necessary for the recovery of a disaster zone," and focusing the certification inquiry in part upon "the scope of work that the government contract does or will require") (emphasis added). Because the language of the GCRA does not specify the source of the submission, it leaves open the possibility that a request could be submitted either by the government, a contractor, or another entity, such as an insurance company. See id. § 5(d)(4)(A) (providing that the Chief of Engineers is responsible for reviewing "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").
111. Pursuant to the GCRA, the term "disaster zone" includes those geographical areas affected by Hurricane Katrina as well as any other region affected by a major disaster requiring federal assistance exceeding $15 billion. Id. § 3(1).
112. W. § 5(a)(1), (d)(4).
113. See id. § 5(d)(4)(c); cf. supra text accompanying notes 67-71 (emphasizing that the ordinary government contractor defense only protects contractors who explicitly follow government direction and limit their own exercise of discretion).
114. S. 1761 § 3(2)(A)(ii) (defining "government contract" to include contracts entered into by federal, state, and local governments). In other words, the Corps certification would override negotiated or legislated allocations of risk in state, local, or municipal contracts, even if the federal government was not a party to those contracts. This is not an isolated intrusion on state authority; the GCRA establishes exclusive federal jurisdiction for lawsuits arising out of the performance of a contract in a disaster zone. See id. § 5(a). Thus, in the unlikely event that a contractor has not been granted certification (meaning that the government contractor defense would not insulate it from liability), a negligently harmed individual can assert state tort claims only in federal court. Moreover, individuals injured by a Corps-certified state or local government contractor are denied recourse in a wide range of federal causes of action. The GCRA expressly prohibits any action against a contractor engaged in disaster-recovery work (whether certified or not) under federal laws or regulations that are administered by the Secretary of the Army, the Secretary of Transportation, or the Administrator of the Environmental Protection Agency. Id. § 4(a). This means that individuals cannot hold contractors accountable for violations of, for example, the Clean Water Act, 33 U.S.C. §§ 1251-1387 (2000), which is administered by the Environmental Protection Agency, see id. § 1251(d). The propriety and constitutionality of these encroachments upon states' rights, however, are beyond the scope of this Article.
115. S. 1761 § 5(d)(1), (2).
116. The defense of qualified immunity protects "government officials [as opposed to private parties such as contractors] . . . from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). An official's qualified immunity is overcome only by showing that the government official knew or should have know that his or her actions would cause injury to the plaintiff. See id. at 818-19. Similarly, the showing required to overcome the GCRA's rebuttable presumption is quite taxing. See S. 1761 § 5(d)(3). However, qualified immunity operates somewhat differently than a "mere defense to liability" of the sort provided by the GCRA; qualified immunity is "an entitlement not to stand trial under certain circumstances" and may be "effectively lost if a case is erroneously permitted to go to trial." Mitchell v. Forsyth, 472 U.S. 511, 512 (1985); see also Karen M. Blum, Qualified Immunity: A User's Manual, 26 IND. L. REV. 187, 190 (1993).
117. See BLACK'S LAW DICTIONARY 1224 (8th ed. 2004) (defining a rebuttable presumption as "[a]n inference drawn from certain facts that establish a prima facie case, which may be overcome by the introduction of contrary evidence") (citations omitted).
118. S. 1761 § 5(d)(3).
119. See, e.g., Hearing, supra note 72, at 78-79 (statement of Craig S. King).
120. See GAO, AGENCY MANAGEMENT OF KATRINA CONTRACTORS, supra note 2, at 1 ("The [hurricane] response efforts . .. suffered from [inadequate planning and preparation ... [and insufficient numbers and inadequate deployment of personnel to provide for effective contractor oversight.");
121. see also GOV'T ACCOUNTABILITY OFFICE, GAO-05-274, CONTRACT MANAGEMENT: OPPORTUNITIES TO IMPROVE SURVEILLANCE ON DEPARTMENT OF DEFENSE SERVICE CONTRACTS 2 (2005), available at http://www.gao.gov/new.items/d05274.pdf (finding that twenty-six out of ninety contracts reviewed suffered from insufficient quality assurance surveillance);
122. GOV'T ACCOUNTABILITY OFFICE, GAO-04-605, REBUILDING IRAQ: FISCAL YEAR 2003 CONTRACT AWARD PROCEDURES AND MANAGEMENT CHALLENGES 5 (2004), available at http://www.gao.gov/new.items/d04605.pdf ("The agencies encountered various contract administration challenges ... stemming in part from ... lack of clearly defined roles and responsibilities .... [D]efining key terms and conditions of the contracts remain[s a] major concern[ ].")
123. "A letter contract is a written preliminary contractual instrument that authorizes a contractor to begin ... manufacturing supplies or performing services." 48 C.F.R. § 16.603-1 (2005). Because letter contracts permit work to proceed before the contracting parties achieve a meeting of the minds, they offer a recipe for disaster. Although Congress permits use of these "undefinitized contractual actions," "[t]he general policy has been to greatly restrict the use of such transactions because they are open-ended arrangements that place the risk of excessive costs largely on the Government." JOHN CIBINIC, JR., & RALPH C. NASH, JR., FORMATION OF GOVERNMENT CONTRACTS 1073-74 (1998);
124. see also 48 C.F.R. § 16.603-3 (2005) (imposing procedural limitations on letter contracts).
125. Anthony Zelenka, president of Bertucci Contracting Corporation, explained that his company went to work on an oral agreement to execute a written contract. Hearing, supra note 72, at 24 (statement of Anthony Zelenka). Warren Perkins, vice-president of Boh Brothers
126. Construction Company, indicated that his company was doing work "on little more than a handshake. . . . We did not demand the time we would normally take to scrutinize contractual terms and conditions." Id. at 36 (statement of Warren Perkins). Further, Mr. Perkins stated that "the work that was asked of us had no specifications, had nothing to rely on, no design specifications, no specifications whatsoever." Id. at 44. Mr. Perkins expressed doubt in the government's ability to adequately direct disaster relief efforts. See id. at 22 ("[T]he contracting agencies have to guide and direct the recovery effort. . . . [But] we cannot be sure that the agencies are in charge."). This open-ended style of contracting is not unique to post-Katrina recovery efforts. Sweeping changes in the procurement environment emphasizing outcome over process have made the government more akin to a commercial purchaser; this trend has minimized government's involvement in, and control over, product design. See Steven L. Schooner, Fear of Oversight: The Fundamental Failure of Businesslike Government, 50 AM. U. L. REV. 627, 630-31 (2001) [hereinafter Schooner, Fear of Oversight] (explaining that, at a macro level, the reinvented procurement system is (1) defined by greater purchaser discretion, (2) less encumbered by bureaucratic constraint and internal oversight, and (3) more businesslike).
127. See generally Steven L. Schooner, Commercial Purchasing: The Chasm Between the United States Government's Evolving Policy and Practice, in PUBLIC PROCUREMENT: THE CONTINUING REVOLUTION 137 (Sue Arrowsmith & Martin Trybus eds., 2003) [hereinafter Schooner, Commercial Purchasing]. As the government delegates more discretion to contractors, "the new regime . . . casts doubt on contractors' ability to enjoy the Government contractor defense's protection."
128. Biagini & Aragon, supra note 70, at 3.
129. The lack of competition utilized in awarding contracts, although an inexact proxy, gives credence to the disturbing picture of Katrina-related contracting practices derived from anecdotes. Despite the competition mandates of the Competition in Contracting Act (CICA) of 1984, Pub. L. No. 98-369, §§ 2701-2753, 98 Stat. 494, 1175-1203 (codified as amended in scattered sections of 10 U.S.C., 31 U.S.C. and 41 U.S.C.), that pervade the federal acquisition system, competitive contract awards have been the exception, not the rule. See generally 48 C.F.R. pt. 6 (2005). As of December 30, 2005, of the 579 contracts in excess of $ 500,000 awarded by the Department of Homeland Security for Katrina relief, only 115 (or just under 20%) employed full and open competition. HURRICANE KATRINA AGENCY DATA, supra note 36;
130. see also 48 C.F.R. $ 6.102 (2005) (listing "[t]he competitive procedures available for use in fulfilling the requirement for full and open competition"). In contrast, 378 (65%) of those contracts were awarded "no bid/sole source."
131. HURRICANE KATRINA AGENCY DATA, supra note 36. Government-wide, a similar trend emerges: of the 905 contracts in excess of $ 500,000, only 246 (just over 25%) employed full and open competition, while 542 (approximately 60%) were awarded "no bid/sole source." Id.
132. Over time, contrary to Congress's intent to reduce litigation, the GCRA might provoke increased litigation against the government pursuant to the FTCA. The GCRA would insulate contractors from liability even when the government aggressively outsources disaster-area work without giving proper attention to contract drafting or engaging in any meaningful oversight. Under the GCRA, a negligently injured individual in need of compensation would have only one option remaining-to sue the government. The FTCA waives the government's sovereign immunity and permits a suit in tort absent an exercise of discretion. Here, an injured party might assert that the government delegated the exercise
133. Charles R. Babcock, 600 People Monitoring Hurricane Contracts, WASH. POST, Jan. 13, 2006, at D2 ("The federal government has sent nearly 600 auditors and investigators to the Gulf Coast region to monitor $ 8.3 billion in contracts awarded to help victims of last year's hurricanes, according to year-end figures released by the Department of Homeland Security.").
134. See Steven Kelman & Steven L. Schooner, Scandal or Solution?, CONT. MGMT., Jan. 2006, at 62, 62. The contracting workforce has desperately required a dramatic recapitalization after the bipartisan, post-Cold War, 1990s initiative to reduce the contracting workforce.
135. See generally GEN. ACCOUNTING OFFICE, GAO-03-443, FEDERAL PROCUREMENT: SPENDING AND WORKFORCE TRENDS (2003), available at http://www.gao.gov/new.items/d03443.pdf;
136. OFFICE OF THE INSPECTOR GEN., DEP'T OF DEF., REP. No. D-2000-088, DoD ACQUISITION WORKFORCE REDUCTION TRENDS AND IMPACTS (2000), available at http://www. dodig.osd.mil/audit/reports/fy00/00-088.pdf;
137. Schooner, Fear of Oversight, supra note 87, at 671-72.
138. The 1990s workforce reductions left the government woefully unprepared for the dramatic increase in procurement spending since September 11 and Hurricane Katrina. In the last four years, after years of stagnation, government contracting dollars have increased dramatically, with yearly rates of growth between 6.5% and 22.1%. See FED. PROCUREMENT DATA CTR., U.S. GEN. SERVS. ADMIN., TRENDING ANALYSIS REPORT FOR THE LAST 5 YEARS, http://www.fpdsng.com/downloads/top_requests/FPDSNG5YearViewOnTotals.xls (last visited Apr. 15, 2006). However, these increased expenditures on government contracts have not been accompanied by a corresponding increase in the workforce.
139. See supra note 91.
140. See generally Steven L. Schooner, Feature Comment: Empty Promise for the Acquisition Workforce, 47 GOV'T CONTRACTOR ¶ 203 (2005), available at http://ssrn.com/abstract= 719685;
141. Griff Witte & Robert O'Harrow, Jr., Short-Staffed FEMA Farms Out Procurement, WASH. POST, Sept. 17, 2005, at D01. At some level, this problem is exacerbated by pressure from the current administration to outsource. Outsourcing, or its more palatable pseudonym, "competitive sourcing," has been one of five government-wide initiatives in the Bush management agenda.
142. See, e.g., OFFICE OF MGMT. & BUDGET, EXECUTIVE OFFICE OF THE PRESIDENT, THE PRESIDENT'S MANAGEMENT AGENDA, FISCAL YEAR 2002 17-18 (2002), available at http://www.whitehouse.gov/omb/budget/fy2002/mgmt.pdf;
143. Dru Stevenson, Privatization of Welfare Services: Delegation by Commercial Contract, 45 ARIZ. L. REV. 83, 83 (2003) ("President Bush is a major advocate of ... hiring private firms to do the government's work.")
144. (citing David J. Kennedy, Due Process in a Privatized Welfare System, 64 BROOK. L. REV. 231, 232 (1998));
145. see also Matthew Diller, Form and Substance in the Privatization of Property Programs, 49 UCLA L. REV. 1739, 1763 (2002) ("Governor Bush sought to hand administration of the state's welfare system over to ... Lockheed Martin .. . and Electronic Data Systems.").
146. David Safavian, while serving as administrator for federal procurement policy under the Bush administration, made clear that the administration had no plans to invest in a recapitalization of the acquisition workforce. See David H. Safavian, Feature Comment: Delivering Results for the Acquisition Workforce, 47 GOV'T CONTRACTOR ¶ 267 (2005)
147. (responding to Schooner, supra note 92,
148. by claiming that "[a]n across-the-board call for more billets is an overly simplistic approach to a complex and challenging issue. . . . OMB does not support an increase in billets merely to establish an arbitrary level for the acquisition corps.")- Sadly, Safavian's indictment for obstructing investigations and making false statements during his prior position at the General Services Administration set back, and may have crippled, serious procurement reform for the remainder of the Bush administration. Press Release, U.S. Dep't of Justice, Former GSA Chief of Staff David H. Safavian Indicted for Obstruction of Proceedings and False Statements (Oct. 5, 2005), available at http://www.usdoj.gov/opa/pr/2005/October/05_crm_521.htm.
149. A simple "lesson learned" in Iraq was that, if the government relies heavily upon contractors, the government must maintain, invest in, and apply appropriate professional resources to select, direct, and manage those contractors. Unfortunately, insufficient contract management resources were applied. See, e.g., Hearing on Contracting Issues in Iraq: Hearing Before the Subcomm. on Readiness and Management Support of the S. Comm. on Armed Services, 109th Cong. 2 (2006) (statement of Stuart W. Bowen, Jr., Special Inspector General for Iraq Reconstruction), available at http://www.sigir.mil/reports/pdf/testimony/SIGIR_Testimony_06-001T.pdf ("[T]he important lesson is that oversight works .... But, it works more efficiently the earlier it is put in place. Provisions for formal oversight of Iraq reconstruction should have been established at the very beginning of the endeavor.");
150. Major Gen. George R. Fay, AR 15-6 Investigation of the Abu Ghraib Detention Facility and 205th Military Intelligence Brigade, in INVESTIGATION OF INTELLIGENCE ACTIVITIES AT ABU GHRAIB 1, 52 (2005), available at http://www.defenselink.mil/news/Aug2004/d20040825fay.pdf ("[T]here was no credible exercise of appropriate oversight of contract performance at Abu Ghraib.").
151. See generally Steven L. Schooner, Contractor Atrocities at Abu Ghraib: Compromised Accountability in a Streamlined, Outsourced Government, 16 STAN. L. & POL'Y REV. 549 (2005). Indeed, this problem exists across the entire spectrum of government contracts.
152. See Steven Kelman, Strategic Contracting Management, in MARKET BASED GOVERNANCE: SUPPLY SIDE, DEMAND SIDE, UPSIDE, AND DOWNSIDE 88, 89-90, 93 (John D. Donahue & Joseph S. Nye, Jr. eds., 2002) ("[T]he administration of contracts[,] once they have been signed, has been the neglected stepchild of [the procurement system reform] effort[ ].").
153. See Seidenfeld, supra note 30, at 1514.
154. Hearing, supra note 72, at 95 (statement of Craig S. King, government contract attorney) ("There is no doubt on earth this statute is patterned after the SAFETY Act.").
155. 6 U.S.C. §§ 441-444 (Supp. II 2002). See generally Alison M. Levin, Note, The SAFETY Act of 2003: Implications for the Government Contractor Defense, 34 PUB. CONT. L.J. 175 (2004).
156. 6 U.S.C. § 442(d)(1). Note that there is a difference between designation as a QUATT and certification as a QUATT. Compare 6 C.F.R. §§ 25.3, 25.5 (2005) (contemplating QUATT designation), with id. §§ 25.6, 25.7 (contemplating QUATT certification). Although a QUATT designation triggers certain liability limitations, the rebuttable presumption of the government contractor defense only applies to a technology that has received QUATT certification. See id. § 25.6. QUATT certification is only available once a technology has been designated a QUATT. See id. § 25.7(1). It entails a further level of government review than that required for QUATT designation. Compare id. § 25.3(b) (listing the criteria to be considered for designation), with id. § 25.6(a) (listing the additional criteria to be considered for certification).
157. For a discussion of the SAFETY Act's purpose and legislative history, see Levin, supra note 97, at 176-78;
158. see also Laurenza & Clancy, supra note 65, at 482 ("[Protection for contractors against the potential extraordinary liability that may result from an act of terrorism is essential if the federal government is to be able to work effectively with the private sector in the development and procurement of anti-terrorism technologies.").
159. This point cannot be overemphasized. For a cogent articulation of this principle (in the context of indemnification), see, for example, Tolan, supra note 26, at 260-61 (emphasizing the unique and extraordinary nature of the contractual requirements, particularly in research and development, that proved uninsurable because they involved, for example, nuclear power or highly volatile missile fuels).
160. Pub. L. 109-148, div. C, 119 Stat. 2680, 2818-32 (2005) (to be codified at 42 U.S.C. §§ 247d-6d to -6e).
161. PREP Act sec. 2, §319F-3(a)(1), 119 Stat. at 2818 (to be codified at 42 U.S.C. § 247d-6d(a)(1)). The PREP Act includes a rather confusing definition of "covered countermeasure." See id. sec. 2, § 319F-3(i)(1), 119 Stat. at 2827-28 (to be codified at 42 U.S.C. § 247d-6d(i)(1)). Essentially, the term encompasses drugs, biological products, or devices that are authorized for use in diagnosing, mitigating, preventing, treating, or curing a pandemic or epidemic.
162. Id. sec. 2, § 319F-3(b)(1), 119 Stat. at 2819-20 (to be codified at 42 U.S.C. § 247d-6d(b)(1)). Like the SAFETY Act and the GCRA, the PREP Act makes an exception for willful misconduct. Id. sec. 2, § 319F-3(d), 119 Stat. at 2824 (to be codified at 42 U.S.C. § 247d-6d(d)).
163. See S. 1761, 109th Cong. § 5(a)(1) (2005).
164. See id. While the scope of Hurricane Katrina's destruction may be unprecedented, describing the work as routine reflects the nature of the work, rather than the importance of the work.
165. Both the missile-jamming systems, produced by BAE Systems Information and Electronic Systems Integration, and the computer network, produced by Accenture, have been certified as QUATTs. Dep't of Homeland Security, Recent SAFETY Act Designations/Certifications, https://www.safetyact.gov/dhs/sacthome.nsf/Awards?OpenForm (last visited Apr. 15, 2006).
166. Hearing, supra note 72, at 96 (statement of Craig S. King).
167. See supra Part III. A.2.
168. But see Hearing, supra note 72, at 95 (statement of Craig S. King) ("Basically all the same types of protections that we are talking about [in the SAFETY Act] would be [in S. 1761]. There would be a certification process, the whole sort of thing.").
169. The criteria are (1) prior United States Government use or demonstrated substantial utility and effectiveness, (2) availability of the technology for immediate deployment in public and private settings, (3) existence of extraordinarily large or unquantifiable potential third-party liability risk exposure to seller (or another provider of the technology), (4) substantial likelihood that the technology will not be deployed unless SAFETY Act protections are extended, (5) magnitude of risk exposure to the public if the technology is not deployed, (6) evaluation of all scientific studies that can be feasibly conducted to assess the capability of the technology to substantially reduce risks of harm, and (7) whether the technology would be effective in facilitating the defense against acts of terrorism. 6 U.S.C. § 441(b) (Supp II 2002).
170. See id. § 441(b)(4); infra notes 130-135 and accompanying text (discussing the lack of empirical evidence that threats of liability will significantly inhibit the market for the disaster relief activities covered by the GCRA).
171. 6 U.S.C. § 442(d)(2).
172. Generally, the government expects contractors to purchase insurance and, accordingly, the government willingly pays contractors to obtain that insurance. Prospective indemnification is employed only under extraordinary circumstances (for example, in the nuclear industry) in which contractors either cannot obtain insurance for a certain risk or cannot afford prohibitively priced premiums. See, e.g., Act of Aug. 28, 1958, Pub. L. No. 85-804, 72 Stat. 972 (1958) (codified as amended at 50 U.S.C. §§ 1431-1435 (2000)); 48 C.F.R. §§ 50.403-1 to -3 (2005) (allowing government indemnification of contractors for unusually hazardous or nuclear risks). Thus, indemnification - through which the govern-ment, in effect, directly insures contractors rather than reimbursing the contractor for its insurance costs - derives from a market failure in the insurance industry. See generally Ralph C. Nash & John Cibinic, Risk of Catastrophic Loss: How to Cope, 2 NASH & CIBINIC REP. ¶ 44 (1988). Bear in mind, however, that the indemnification debate focuses upon prospective allocation of risk between the government and its contractors-it does not suggest that members of the public, if injured, should have no remedy.
173. In addition to fairness, economic efficiency also appears to dictate that the costs incurred as a result of accidents be allocated to "the party or activity which can most cheaply avoid them." See Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View at the Cathedral, 85 HARV. L. REV. 1089, 1096-97 (1972);
174. see also Posner & Rosenfield, supra note 22, at 88-92.
175. But see Gillian Hadfield, Of Sovereignty and Contract: Damages for Breach of Contract by Government, 8 S. CAL. INTERDISC. L.J. 467, 515-18 (1999) (suggesting that the allocation of risk to the party best able to bear the risk is less appropriate when the government is one of the contracting parties). Hadfield asserts that private sector assumptions of efficiency fail when transported to the public sector because "[t]o the extent that government has superior risk-bearing capacity, it does not act in order to profit from this characteristic." Id. at 516. In other words, the government transfers risk for reasons other than efficiency. See id.
176. Posner and Rosenfield defined the superior risk-bearer as the party better able to insure against the risk, which is determined by its (1) ability to determine, in advance, the probability that the risk will occur and the magnitude of the loss if the risk does in fact occur, and (2) ability to diversify the risk away by pooling it with other uncertain events. Posner & Rosenfield, supra note 22, at 90-92. Economist Christopher Bruce has similarly focused on the parties' abilities to mitigate damages resulting from the occurrence of the risk through insurance.
177. See Christopher J. Bruce, An Economic Analysis of the Impossibility Doctrine, 11 J. LEGAL STUD. 311, 322-23 (1982).
178. In Dalehite v. United States, 346 U.S. 15, 24 (1953), the Supreme Court held that the FTCA prohibited a claim against the government by victims of the explosion of ammonium nitrate fertilizer stored in a ship at the docks in Texas City. A negligence suit was filed against the government because the fertilizer involved "had been produced and distributed at the instance, according to the specifications and under the control of the United States." Id. at 18. Although Dalehite involved the issue of government liability rather than contractor liability, the dissenting opinion of Justices Jackson, Black, and Frankfurter emphasized the irrationality of imposing the cost of harm on the injured parties who quite obviously were the inferior risk bearers: The disaster was caused by forces set in motion by the Government, completely controlled or controllable by it. Its causative factors were far beyond the knowledge or control of the victims; they were not only incapable of contributing to it, but could not even take shelter or flight from it.
179. Id. at 48 (Jackson, J., dissenting) (emphasis added). For additional information on the Texas City disaster, see generally HUGH W. STEPHENS, THE TEXAS CITY DISASTER 1947 (1997);
180. Samuel B. Kent, The Texas City Disaster, 1947, Hugh W. Stephens, 28 J. MAR. L. & COM. 675, 677 (1997) (book review);
181. Local 1259, Int'l Ass'n of Fire Fighters, The Texas City Disaster: April 16, 1947, http://www.locall259iaff.org/disaster.html (last visited Apr. 15, 2006) (detailing the events of the tragic day through an historical account, pictures, and personal stories).
182. See supra Part III.A.I.
183. The least cost risk avoider is often conflated with the superior risk bearer. For example, Posner and Rosenfield perceive that the superior risk bearer is not only better able to insure against the risk, but is also better able to prevent the risk from materializing in the first place. See Posner & Rosenfield, supra note 22, at 90.
184. See Robert Cooler, Unity in Tort, Contract, and Property: The Model of Precaution, 73 CAL. L. REV. 1, 3 (1985) ("Even when necessary or unavoidable, an accident. . . causes harm. The affected parties, however, can usually take steps to reduce the probability or magnitude of the harm. The parties to a tortious accident can take precautions to reduce the frequency or destructiveness of accidents").
185. Certification under the GCRA would most likely be granted in this case: the majority of the contractor's work was the performance of demolition activities in a declared disaster zone. See S. 1761, 109th Cong. §§ 5(a)(1), 5(d)(4) (2005); supra text accompanying notes 77-81.
186. See Hearing, supra note 72, at 31 (statement of Dr. Beverly Wright, Director, Deep South Center for Environmental Justice, Xavier University) ("If contractors no longer fear legitimate legal liability, where is the incentive to do good work?"); id. at 55 (statement of Dr. Joel Shufro, Executive Director, New York Committee for Occupational Health and Safety) ("What S. 1761 does is to shift the costs of personal injuries and property damage from the government contractors to the workers and/or the residents in the disaster areas."); id. at 10 (statement of Sen. Barbara Boxer) ("[The GCRA] sends a ... message . . . to the contractors, well, do your best, because if you make a mistake, if you burn toxics, if you do some other things, you know, you won't be held responsible.").
187. At the Hearing, Senator Thune emphasized that the GCRA "would not in any way limit any contractor's liability for recklessness or willful misconduct." Hearing, supra note 72. at 4 (statement of Sen. John Thune). However, by limiting contractors' liability for negligent acts, the GCRA insulates contractors from the consequences of a significant portion of their activities.
188. '"[M]oral hazard' refers to the tendency for insurance against loss to reduce incentives to prevent or minimize the cost of loss." Tom Baker, On the Genealogy of Moral Hazard, 75 TEX. L. REV. 237, 239 (1996)
189. (citing Joseph E. Stiglitz, Risk, Incentives and Insurance: The Pure Theory of Moral Hazard, 8 GENEVA PAPERS ON RISK & INS. 4 (1983) ("[T] he more and better insurance that is provided against some contingency, the less incentive individuals have to avoid the insured event, because the less they bear the full consequences of their actions."));
190. see also Kenneth J. Arrow, The Economics of Moral Hazard: Further Comment, 58 AM. ECON. REV. 537, 537-38 (1968);
191. Kenneth J. Arrow, Uncertainty and the Welfare Economics of Medical Care, 53 AM. ECON. REV. 941, 961-62 (1963);
192. Mark V. Pauly, The Economics of Moral Hazard: Comment, 58 AM. ECON. REV. 531, 535 (1968). Baker also explained that "economists' models demonstrate[ ] . . . that insurance inevitably increases the occurrence, magnitude, or cost of that which is insured against." Baker, supra, at 241. In other words, "[c]ontrol of moral hazard is essential to prevent . . . dissipat[ion of] any deterrent force that the tort system possesses."
193. Seth J. Chandler, The Interaction of the Tort System and Liability Insurance Regulation: Understanding Moral Hazard, 2 CONN. INS. L.J. 91 (1996). In the context of contracting activities, moral hazard can result when a contractor is insulated from liability for negligent behavior during the course of performance and thus has a reduced incentive to take reasonable precautions against risky activities.
194. See Samir B. Mehta, Additional Insured Status in Construction Contracts and Moral Hazard, 3 CONN. INS. L.J. 169, 182 (1996). In Dalehite v. United States, 346 U.S. 15 (1953), not only did the dissenting Justices point out the irrationality of imposing harm on the inferior risk bearer, see id. at 24, but they also quite reasonably anticipated the moral hazard problem that results when parties are insulated from liability, see id. at 50 (Jackson, J., dissenting) ("It is our fear that the Court's adoption of the Government's view in this case may inaugurate an unfortunate trend toward relaxation of private as well as official responsibility.").
195. See Ronald A. Cass & Clayton P. Gillette, The Government Contractor Defense: Contractual Allocation of Public Risk, 77 VA. L. REV. 257, 260 (1991) ("[T]he immediate effect of the [government contractor] defense is to place the full cost of mishaps on injured parties who, but for government involvement, would be able to shift that cost to the contractors.") (citations omitted).
196. "The most important objective ... is the assurance of prompt and adequate compensation of the public." A. J. ROSENTHAL ET AL., CATASTROPHIC ACCIDENTS IN GOVERNMENT PROGRAMS 12, 72-76 (1963).
197. Hearing, supra note 72, at 9 (statement of Sen. Barbara Boxer).
198. Id. at 6 (statement of Sen. James Jeffords).
199. The Department of Justice (DOJ) objected to a 1985 bill that would have reduced the liability of contractors, because it did not "believe that government indemnification of contractor losses is the appropriate way to solve the problems faced by government contractors because of changing tort liability." Indemnification of Government Contractors: Hearing on S. 1254 Before the S. Comm. on the Judiciary, 99th Cong. 21 (1985) (statement of Richard K. Willard, Acting Assistant Attorney General, Civil Division, Department of Justice). Indeed, "[i]n the .. . few years [before 1985], the efforts of government contractors to transfer their product liability exposure to the government [had] increased dramatically." Id. at 22. Although DOJ acknowledged "that the changes in the tort system have created problems for contractors, [it did] not believe that indemnification [was] an appropriate response, and certainly it [would not have corrected] the underlying reasons for these problems." Id. at 25.
200. While some QUATT certifications no doubt shift risk to negligently injured individuals, the underlying policy is that the social good enjoyed by the public derived from individual QUATTs employed in combating terrorism outweighs the risks borne by potential victims. This is analogous to the nuclear industry, which might prove unsustainable without protection from potential liability. See infra text accompanying notes 173-174. But, as discussed infra Part III.C, no empirical evidence suggests any such market failure in, for example, debris removal.
201. S. 1761, 109th Cong. § 2(10) (2005).
202. Senator John Thune (R-S.D.), who introduced S. 1761, explained: [B] ecause of the ongoing multi-billion dollar class action cases filed against the contractors who assisted the Government in the cleanup of the World Trade Center, I have concerns that other major disaster cleanups, including Hurricane Katrina, may be stymied due to the potential for future lawsuits being brought against contractors who carry out major disaster cleanups on behalf of the Government.
203. Hearing, supra note 72, at 3 (statement of Sen. John Thune); see also id. at 8 (statement of Sen. David Vitter).
204. See, e.g., id. at 38 (statement of Warren Perkins) ("1 can assure you that responsible contractors throughout the Country are paying close attention. . . . They are aware of the litigation that followed [the September 11 attacks]. . . . [T]hey are deeply concerned."); id. at 25 (statement of Anthony Zelenka) ("Take a look at what happened [to contractors] in New York after the terrorists on 9/11. . . . I believe passing the [GCRA] is necessary to ensure that contractors like me will be there to do the work in the future without fear of reprisals.").
205. See id. at 12 (statement of Sen. John Thune).
206. At the hearing, Dr. Beverly Wright called this premise a "complete fabrication," citing local contractors' dissatisfaction with their lack of opportunity to compete for no-bid contracts for post-Katrina work. Dr. Wright discussed how local contractors were ready and willing to accept the work and the corresponding liability. See Hearing, supra note 72, at 32-33 (statement of Dr. Beverly Wright).
207. At similar hearings twenty years ago, Senator Charles Grassley (R-Iowa) asked the Aerospace Industries Association (AIA) whether any members of its association "no longer bid on government contracts because of the fear of liability suits." Indemnification of Government Contractors: Hearing on S. 1254 Before the S. Comm. on the Judiciary, 99th Cong. 88-89 (1985). AIA asserted that it lacked sufficient information to respond at the hearing and, in a subsequent written response, was no more convincing. Even responding "on a non-attribution basis," AIA failed to identify a single firm, and instead merely asserted that "[t]he consequences of unusually hazardous or nuclear risks arising under government contract . . . influence the business decision process." Id. at 96 (Letter from Lloyd R. Kuhn, Vice President of Legislative Affairs, AIA to Sen. Charles E. Grassley, Member, Senate Comm. on the Judiciary (June 28, 1985)). Similarly, one year earlier, when Representative Sam Hall (D-Tex.) requested an estimate of the number of contractors who had restricted their bidding for government contracts due to liability concerns, the National Association of Manufacturers was unable to give him "reliable data," stating merely that "we do feel that there are clearly contractors who will not bid for certain types of contracts, and that there are certain types of contractors who will not seek this type of business."
208. Government Contractors' Product Liability and Indemnification Acts: Hearing on H.R. 4083 and H.R. 4199 Before the Subcomm. on Administrative Law and Governmental Relations of the H. Comm. on the Judiciary, 98th Cong. 39 (1984) (statement of T. Richard Brown, Vice President, Law Department, Electronics and Defense Sector of TRW Inc., on behalf of the National Association of Manufacturers). When Representative Hall revisited the issue with John M. Geaghan of Raytheon Company, Mr. Geaghan admitted that he knew of no instance when the company refused to pursue a government contract due to liability concerns. Id. at 161.
209. See Hearing, supra note 72, at 25 (statement of Anthony Zelenka) ("[T]here are people out there who want to capitalize on this tragedy and others like it. Lawsuits have been filed against contractors who have performed the types of rescue and recovery work my firm has been doing in New Orleans."). Of course, the GCRA's advocates deny any animosity toward the plaintiff 's bar.
210. See id. at 38 (statement of Warren Perkins) ("I am not here to bash plaintiff attorneys.").
211. Government contractors have identified a lawsuit filed against Boh Brothers Construction Company as a sign that "[t]he madness has already started in Louisiana." See id. at 26 (statement of Anthony Zelenka). The lawsuit accused Boh Brothers of performing faulty bridge repair work which was apparently performed by an entirely different contractor, and the suit was dismissed, of course.
212. See id. at 26 (statement of Anthony Zelenka); id. at 33 (statement of Warren Perkins).
213. One contractor beseeched the Senate "not [to] let the trial lawyers penalize the contractors like me who report for duty." Id. at 27 (statement of Anthony Zelenka).
214. See supra notes 128, 131 (discussing Congress's rejection of proposed bills to reduce contractor liability in the 1980s);
215. see also supra note 129 (contrasting the mere desire to avoid ex post liability with the social necessity of averting real market failures in the provision of essential or crucial technologies or services).
216. See infra Part IV.A.
217. See infra notes 134-135 and accompanying text.
218. See Stan Soloway, Baghdad's Lessons for New Orleans, Gov. EXEC., Oct. 1, 2005, at 44-45, available at http://www.govexec.com/features/1005-01/1005-01advp2.htm ("[M]any of the flexibilities contained in the [FAR] . . . are poorly understood . . . includ[ing] limited as opposed to full and open competition, higher levels under which purchases can be made instantly, and more. . . . [T]hese flexibilities enable[ ] us to meet the demands for speed and agility integral to any recovery effort.");
219. J. Catherine Kunzsee, Pre-Disaster Contracting: The Use of Indefinite-Delivery/Indefinite-Quantity Contracts, ANDREWS GOV'T CONT. LITIG. REP., Feb. 27, 2006, at 13 (discussing the importance of indefinite-delivery/indefinite-quantity contracts in responding to national disasters);
220. see also OFFICE OF FED. PROCUREMENT POLICY, EMERGENCY PROCUREMENT FLEXIBILITIES: A FRAMEWORK FOR RESPONSIVE CONTRACTING & GUIDELINES FOR USING SIMPLIFIED ACQUISITION PROCEDURES (2003), available at http://www.whitehouse.gov/omb/procurement/emergency_procurement_flexibilities. pdf.
221. See Hearing, supra note 72, at 17 (statement of Major General Don T. Riley, U.S. Army Corps of Engineers). For example, contracts were awarded under shortened time periods under the unusual and compelling urgency exception to the CICA, 10 U.S.C. § 2304(c)(2) (2000); 41 U.S.C. §253(c)(2) (2000), and on the basis of verbal and letter contracts as authorized by the FAR, 48 C.F.R. §6.302-2 (2005).
222. See Hearing, supra note 72, at 17.
223. Hearing, supra note 72, at 40 (statement of Major General Don T. Riley).
224. While General Riley testified that during the few weeks before November 2004, several contracts attracted only between one and five bidders, he did not identify any contracts that failed to attract a single bid. See id. (statement of Major General Don T. Riley). General Riley also acknowledged that there may be other reasons, unrelated to liability concerns, to explain the low level of interest in these particular contracts. See id. While there may be some indications that the level of competitive bidding for Katrina relief contracts is occasionally less than optimal, there is no evidence of a total incapacity to attract bids and no reason to believe that fear of liability is the primary cause of any deficiencies in contractor interest. See infra text accompanying notes 130-135.
225. See Hearing, supra note 72, at 86 (statement of Paul Becker, President, Willis Construction Practice);
226. ROBERT E. KEETON, INSURANCE LAW: BASIC TEXT §1.2 (1971) ("Insurance is an arrangement for transferring and distributing risk.");
227. see also KENNETH S. ABRAHAM, DISTRIBUTING RISK: INSURANCE, LEGAL THEORY, AND PUBLIC POLICY 64-66 (1986) (discussing the importance of accurate assessment and classification of risks).
228. See KEETON, supra note 146 ("As one understands a greater percentage of the relevant facts, the element of guessing in his description of risk is reduced, and his prediction is more reliable."). Insurance companies have expressed concerns about underwriting contractors working in disaster zones for several reasons: uncertain site conditions; unusual and unknown health hazards; questions regarding chemicals released during clean-up; the limited nature of tools available to assess environmental factors; varying local, state, and federal standards; the fast track nature of the work to be done; and unclear contractual provisions.
229. See id. at 86-87 (statement of Paul Becker).
230. "[I]f insurance companies do not or can not [sic] understand the risks they are being asked to insure, they have a very difficult time providing the risk financing which allows companies to operate." Id. (written statement of Paul Becker).
231. The Executive Vice President of Bovis, a contractor involved in the post-September 11 clean-up, testified that "given the dangerous conditions, the retroactive nature and the unknown aspects of [the post-September 11] unprecedented effort, commercial insurance companies would not provide the coverage needed and ultimately only limited liability coverage was obtained." Hearing, supra note 72, at 51 (statement of Michael Feigin, Executive Vice President, Chief Administrative Officer, Bovis Lend Lease Holdings, Inc.). The President of Willis, a global insurance broker, testified that his company was only able to secure limited insurance coverage for contractors working at Ground Zero. Id. at 85 (statement of Paul Becker);
232. see also Steven Greenhouse, Contractors at Ground Zero Denied Insurance for Cleanup, N.Y. TIMES, Jan. 18, 2002, at B1.
233. See SIERRA CLUB, POLLUTION AND DECEPTION AT GROUND ZERO REVISITED: WHY IT COULD HAPPEN AGAIN 14 (2005), available at http://www.sierraclub.org/groundzero/report2005.pdf ("Any emergency involving the destruction of a large building is likely to cause a release of hazardous substances."). The New Orleans area stored massive amounts of toxic chemicals.
234. See Hearing, supra note 72 (written statement of Dr. Beverly Wright) ("Dozens of toxic time bombs along Louisiana's Mississippi River petrochemical corridor, the 85-mile stretch from Baton Rouge to New Orleans, make the region a major environmental justice battleground. The corridor is commonly referred to as Cancer Alley.").
235. Some injured parties sue the contractors simply because they "are the only [people] in there that can be sued." Id. at 56 (statement of Anthony Zelenka); see also supra notes 56, 62 (describing the scope of the government's sovereign immunity under the FTCA).
236. But see supra note 89 (arguing that the government's sovereign immunity may be limited when it abdicates its discretionary function).
237. Id. at 48 (statement of Michael Feigin); see also id. at 8 (statement of Sen. David Vitter) ("We know from true, recent experience after 9/11 that there could well be a flurry of class action lawsuits to try to profit from the emergency measures that needed to be taken [after Hurricane Katrina] . . . ."); id. at 25-26 (statement of Anthony Zelenka) ("Hundreds of lawsuits were filed against contractors for the heroic work they did to clean up Ground Zero in a short amount of time at the express direction of the Federal, State, and local authorities.").
238. Id. at 48 (statement of Michael Feigin) ("[T]he problem isn't that we don't believe that we can sustain a standard of negligence. We believe that we've done nothing wrong. . . . But the legal fees alone could put a company like ours . . . out of business."). In response to pressure from the contracting community, Congress eventually appropriated $1 billion to fund an insurance program covering injuries to workers incurred during clean-up of the World Trade Center site. See Consolidated Appropriations Resolution, 2003, Pub. L. No. 108-7, div. K, tit. III, 117 Stat. 11, 517-18 (2003);
239. Jeffrey H. Birnbaum, Clients' Rewards Keep K Street Lobbyists Thriving, WASH. POST, Feb. 14, 2006, at A1 ("The [General Contractors Association of New York] paid Carmen [Group Inc.] $500,000 to persuade the federal government to cover its members' insurance premiums for cleanup work at Ground Zero after the terrorist attacks of Sept. 11, 2001. After three years of lobbying, the government agreed . . . ."). The government also appropriated separate funds to ease the burden September 11-based claims would have on New York's workers' compensation system. Pub. L. No. 107-117, div. B, ch. 8, 115 Stat. 2230, 2312-13 (2002).
240. See generally GOV'T ACCOUNTABILITY OFFICE, GAO-04-1013T, SEPTEMBER 11: FEDERAL ASSISTANCE FOR NEW YORK WORKERS' COMPENSATION COSTS (2004), available at http://www.gao.gov/new.items/d041013t.pdf.
241. Joel Shufro, executive director of the New York Committee for Occupational Safety and Health, testified about these health problems at the Hearing: Unfortunately, four years following the devastating attacks on the World Trade Center, respiratory illness, psychological distress and financial devastation have become a new way of life for many of the responders . . . . Many of the workers are disabled by chronic pulmonary problems. Some are unable to work. Many have also suffered substantial economic disruption . . . and do not have health insurance and are unable to pay for treatment or needed medicine. . . . [T]here are grave concerns about the potential for workers developing slower starting diseases, such as cancer, in the future. Hearing, supra note 72, at 54;
242. see also GAO, WTC HEALTH EFFECTS, supra note 1, at 7-15;
243. MMWR Report, supra note 6, at 808 (finding that of those Ground Zero workers who participated in a Centers for Disease Control and Prevention study, 60% suffered from lower respiratory symptoms and 74% suffered from upper respiratory symptoms);
244. Greg Sargent, Zero for Heroes, NEW YORK MAG., Oct. 27, 2003, at 28, available at http://www.newyorkmetro.com/nymetro/news/politics/columns/citypolitic/n_9384/ (discussing a severe pulmonary disease, and consequent financial stresses, suffered by a contractor employee). Some of these health problems may have directly resulted from contractor negligence. For example, according to a Centers for Disease Control and Prevention study, on the three days following September 11, when exposure was greatest, only 21% of the participants reported using respiratory protection.
245. MMWR Report, supra note 6, at 808. On any given day after that, nearly 50% of the workers were not wearing respiratory protection, something Mr. Shufro attributed to "a management problem."
246. Hearing, supra note 72, at 66 (statement of Dr. Joel Shufro). Although some workers had protection and decided not to wear it, "Ground Zero workers-lacking proper training and accurate official safety information-had little incentive to wear the 'uncomfortable and unmanageable' respiratory gear."
247. Michelle Chen, Ground Zero: The Most Dangerous Workplace, NEWSTANDARD, Jan. 24, 2005, http://newstandardnews.net/content/index.cfm/items/1402.
248. Furthermore, some workers received no more than a paper mask. Id.; Hearing, supra note 72, at 60 (statement of Dr. Joel Shufro).
249. See Scott Gold & Ann M. Simmons, "Katrina Cough" Floats Around, L.A. TIMES, Nov. 4, 2005, at A10.
250. Hearing, supra note 72, at 14 (statement of Sen. Hillary Clinton);
251. see also Press Release, Office of Commc'ns, New York City Dep't of Health and Mental Hygiene, Most WTC Health Registry Enrollees Reported New or Worsened Respiratory Symptoms After 9/11/01 (Nov. 22, 2004), available at http://www.nyc.gov/html/doh/html/press_archive04/pr151-1122.shtml.
252. See, e.g., Differing Site Conditions Clause, 48 C.F.R. §52.236-1 (2005) (anticipating subsurface or latent physical conditions that differ from the contract or unknown and unusual site conditions); Changes Clause, 48 C.F.R. §52.243-1 (2005) (anticipating of potential changes within the scope of the contract); Government Furnished Property Clause, 48 C.F.R. §52.245-2(a)(3)-(4) (2005) (anticipating potentially defective, or late delivery of, government-furnished property); Termination for Convenience Clause, 48 C.F.R. §52.249-2 (2005) (anticipating the government's need to end contracts for a host of noncontractual reasons). All of these clauses include a similar remedy for the occurrence of unanticipated contingencies: reimbursement of all allowable costs, plus an allowance for profit. See Joshua I. Schwartz, Liability for Sovereign Acts: Congruence and Exceptionalism in Government Contracts Law, 64 GEO. WASH. L. REV. 633, 695-97 (1996) (discussing the use of standardized clauses to anticipate unforeseeable contingencies in government contracts).
253. The FAR define a contingency as "a possible future event or condition arising from presently known or unknown causes, the outcome of which is indeterminable at the present time." 48 C.F.R. §31.205-7(a) (2005). [Contingencies] that may arise from presently known or unknown conditions, the effect of which cannot be measured so precisely as to provide equitable results to the contractor and to the Government. . . are to be excluded from cost estimates, but should be disclosed separately . . . to facilitate the negotiation of appropriate contractual coverage.
254. Id. §31.205-7(c)(2);
255. see also Foster Constr. C.A. v. United States, 435 F.2d 873, 887 (Ct. Cl. 1970) (noting the "long-standing, deliberately adopted procurement policy" that bid ders "need not consider how large a contingency should be added to the bid to cover the risk");
256. Richard J. Kendall, Changed Conditions as Misrepresentations in Government Construction Contracts, 35 GEO. WASH. L. REV. 978, 979-82 (1967).
257. Contingency planning strikes at the core of federal procurement policy. See Ralph C. Nash, Jr., Risk Allocation in Government Contracts, 34 GEO. WASH. L. REV. 693, 698-700 (1966) (["T]erms and conditions . . . are an attempt . . . to define the remedies of the parties for most foreseeable contingencies that may occur . . . . [T]hese standard terms and conditions represent a relatively thorough statement of intended risk allocation.").
258. See Schooner, Fear of Oversight, supra note 87, at 695-96.
259. In addition to these options, the contractor may choose to absorb the additional costs and continue performance. For example, the contractor may forego making a claim if its assessment of the 1990s reforms-such as the evaluation of past performance-persuades it that the opportunity cost of pursuing the claim outweighs the value of the claim against the government. See Schooner, supra note 94, at 697-98.
260. A contracting officer is a government employee with actual, legal authority to bind the government in contract. See 48 C.F.R. §1.602-1 (2005) (providing that contracting officers have authority to enter into, administer, or terminate contracts and make related determinations and findings);
261. see also RALPH C. NASH, JR., STEVEN L. SCHOONER & KAREN R. O'BRIAN, THE GOVERNMENT CONTRACTS REFERENCE BOOK: A COMPREHENSIVE GUIDE TO THE LANGUAGE OF PROCUREMENT 127 (2d ed. 1998).
262. 48 C.F.R. §43.103(a).
263. Id. §§43.103(b), .201.
264. Id. §§ 33.206, 52.233-1; see also 41 U.S.C. §§ 601-613 (2000).
265. See supra text accompanying notes 113-120.
266. 48 C.F.R. §52.228-7(a), (c)(1) (2005);
267. see also id. §§ 28.301, 31.205-19 (2005) (providing a policy prescription and cost principles regarding insurance of government contractors).
268. Id. § 52.228-7(c)(2). The government limits its assumption of liability to claims based on death, bodily injury, or property damage arising out of performance of the contract. Id. It disallows indemnification for liabilities that, under the terms of the contract, were the responsibility of the contractor or that were attributable to the contractor's "willful misconduct or lack of good faith." Id. § 52.228-7(e).
269. See 48 C.F.R. § 52.228-7(a), (c). Under the indemnification provision, contractors are only reimbursed for "final judgments or settlements approved in writing by the Government." Id. § 52.228-7(c)(2). Therefore, contractors do not necessarily avoid the up-front costs associated with litigation through this type of contractual agreement.
270. See Hearing, supra note 72, at 76 (statement of Craig S. King). Note, however, that when a contractor is facing a third-party suit that may be reimbursable under the FAR, the government is given the option to "settle or defend the claim and to represent the Contractor in or to take charge of any litigation." 48 C.F.R. § 52.228-7(g)(3) (2005). In the event that the government chooses to exercise this right, the contractor is able to avoid litigation expenses.
271. 48 C.F.R. § 28.311-1 (2005).
272. 48 C.F.R. § 52.228-7(d), In the context of disaster recovery, the potential liability is significant. Thus, it is unlikely that the government would have appropriated sufficient funds, thereby leaving contractors with a large amount of residual liability. See Richard A. Smith, Indemnification of Government Contractors, BRIEFING PAPERS, Oct. 1982, at 1 (discussing the application of the Antideficiency Act, Pub. L. No. 97-258, 96 Stat. 877 (1982) (codified as amended in scattered sections of 31 U.S.C.)).
273. See supra Part III.A.3 (discussing the SAFETY Act and the PREP Act).
274. See, e.g., H.R. REP. No. 2232 (2d Sess. 1958) (indicating Congress's intent to authorize the use of indemnification where commercial insurance was unavailable).
275. Pub. L. No. 85-804, 72 Stat. 972 (1958) (codified at 50 U.S.C. §§ 1431-1435 (2000)). See generally Kevin P. Mullen, Extraordinary Contractual Relief: Public Law 85-804 in the Homeland Security Era, PROCUREMENT LAW., Summer 2002, at 1 (providing a comprehensive overview of the history and substance of Public Law 85-804). Other examples of statutory indemnification authority also exist. See 10 U.S.C. § 2354 (2000) (allowing the military to indemnify research and development contractors for "unusually hazardous risks"); 42 U.S.C. § 241(a)(7) (2000) (allowing the Department of Health and Human Services to indemnify contractors under the same terms as the military as outlined in 10 U.S.C. § 2354); 42 U.S.C. § 2458(b) (2000) (allowing the National Aeronautics and Space Administration to indemnify users of space vehicles).
276. 48 C.F.R. § 50.403-1 (2005); see also id. § 52.250-1 (providing a clause to be inserted in contracts that have been approved for indemnification). Like the FAR third-party liability provisions, the government's liability under Public Law 85-804 does not extend to claims that arise from contractors' willful misconduct or lack of good faith. Compare 48 C.F.R. § 52.250-l(d) with id. § 52.228-7(e). Thus far, thirteen major agencies have been granted indemnification authority: the Atomic Energy Commission; Department of Agriculture; Department of Commerce; Department of Defense; Department of Health and Human Services; Department of the Interior; Department of Transportation; Department of the Treasury; Federal Emergency Management Agency; General Services Administration; National Aeronautics and Space Administration; Tennessee Valley Authority; and Government Printing Office. Exec. Order No. 10,789, 23 Fed. Reg. 8897 § 21 (Nov. 14, 1958), as amended by Exec. Order No. 11,051, 27 Fed. Reg. 9683 (Sept. 27, 1962); Exec. Order No. 11,382, 32 Fed. Reg. 16,247 (Nov. 28, 1967); Exec. Order No. 11,610, 36 Fed. Reg. 13,755 (July 22, 1971); Exec. Order No. 12,148, 44 Fed. Reg. 43, 239 (July 20, 1979); Exec. Order No. 13,232, 66 Fed. Reg. 53,941 (Oct. 20, 2001).
277. The FAR directs agencies not to use their authority under Public Law 85-804 "when other adequate legal authority exists." 48 C.F.R. § 50.102(a). The FAR also warns agencies to avoid granting indemnification "in a manner that encourages carelessness and laxity on the part of persons engaged in the defense effort." Id.
278. See supra note 14 and accompanying text.
279. 48 C.F.R. § 52.250-l(b) ("[T]he Government shall . . . indemnify the Contractor against . . . [c]laims (including reasonable expenses of litigation or settlement) by third persons (including employees of the Contractor) for death; personal injury; or loss of, damage to, or loss of use of property.").
280. Exec. Order No. 11,610, 36 Fed. Reg. 13,755 (July 22, 1971); cf. 48 C.F.R. § 52.228-7(d) (subjecting the FAR third party liability provisions to the availability of appropriated funds at the time a contingency occurs).
281. See supra note 171 and accompanying text.
282. See ROSENTHAL, supra note 125, at 97-108 (discussing the benefits and shortcomings of government indemnification of contractors for catastrophic accidents).
283. Consolidated Appropriations Resolution, 2003, div. K, tit. III, 117 Stat 11, 517-18 (2003) ("[FEMA] is directed to provide . . . up to $1,000,000,000 to establish a captive insurance company or other appropriate insurance mechanism for claims arising from debris removal . . . .");
284. see also U.S. GEN. SERVS. ADMIN., CATALOG OF FEDERAL DOMESTIC ASSISTANCE 1749-50 (2005), available at http://12.46.245.173/CFDA/pdf/catalog.pdf (detailing the history, objectives, and application process for the creation of the captive insurance company);
285. Act of July 22, 2003, 2003 N.Y. Sess. Laws 839-41 (McKinney) (codified at N.Y. INS. LAW §§7001-7012 (McKinney 2003)) (authorizing formation of a captive insurance company for liability arising out of disaster relief at the World Trade Center after September 11).
286. See U.S. GEN. ACCOUNTING OFFICE, GAO-03-926, DISASTER ASSISTANCE: INFORMATION ON FEMA's POST 9/11 PUBLIC ASSISTANCE TO THE NEW YORK CITY AREA 16 (2003) [hereinafter GAO, FEMA's 9/11 ASSISTANCE]; U.S. GEN. ACCOUNTING OFFICE, GAO04-72, SEPTEMBER 11 : OVERVIEW OF FEDERAL DISASTER ASSISTANCE TO THE NEW YORK CITY AREA 26 (2004) [hereinafter GAO, 9/11 FEDERAL ASSISTANCE]; Steven Greenhouse, Contractors at Ground Zero Denied Insurance for Cleanup, N.Y. TIMES, Jan. 18, 2002, at B1.
287. GAO, FEMA's 9/11 ASSISTANCE, supra note 183, at 15-16;
288. GAO, 9/11 FEDERAL ASSISTANCE, supra note 183, at 26-27. Although FEMA initially indicated that the insurance fund would be limited to claims for injuries occurring after September 29, 2001, when the rescue work officially ended, it subsequently backed off from that position.
289. Jennifer Steinhauer, City May Bear $350 Million in 9/11 Claims, N.Y. TIMES, Apr. 9, 2004, at Bl;
290. Mike McIntire, New York and FEMA End Dispute Over 9/11 Medical Claims, N.Y. TIMES, Apr. 13, 2004, at B3.
291. Hearing, supra note 72, at 48 (statement of Michael Feigin).
292. See id. at 51 (statement of Michael Feigin); Complaint, DiVirgilio v. Silverstein Properties, 04-CV-07239 (S.D.N.Y. Sept. 10, 2004) (initiating a class action lawsuit on behalf of approximately 800 people involved in the clean-up and rescue efforts at Ground Zero against, inter alia, the four government contractors that led the clean-up: Turner Construction; AMEC Construction; Tully Construction; and Bovis Lend Lease).
293. Concern about the potential long-term health effects of September 11 is widespread and has led to the creation of the World Trade Center Health Registry. See World Trade Center Health Registry, http://www.nyc.gov/html/doh/html/wtc/index.html (last visited Apr. 15, 2006);
294. see also Kirk Johnson, Inquiry Opens Into Effects of 9/11 Dust, N.Y. TIMES, Sept. 6, 2003, at B1. Any future negative health effects could give rise to lawsuits against the city or its contractors that would be covered by the captive fund.
295. See Hearing, supra note 72, at 51 (statement of Michel Feigin) ("But for the WTC Captive [fund] . . . expenses for lawyers and consultants would have exceeded any fees made in a matter of months. . . . In short, absent the captive [fund], responding to a disaster when called would have . . . put us out of business.").
296. See, e.g., id. at 16 (statement of Sen. Hillary Clinton (D-N.Y.)); id. at 69 (statement of Dr. Beverly Wright).
297. See GAO, FEMA's 9/11 ASSISTANCE, supra note 183, at 30.
298. Hearing, supra note 72, at 49 (statement of Michael Feigin).
299. See Devlin Barrett, Sept. 11-Related Cancers May Not Appear for Decades, Doctors Say, BIOTERRORISM WK., Sept. 27, 2004, at 11.
300. See Hearing, supra note 72, at 85 (statement of Paul Becker, President).
301. For example, the PREP Act, unlike the GCRA or the SAFETY Act, provides for the establishment of a fund to compensate individuals negligently injured by covered countermeasures. See Pub. L. 109-148, div. C, 119 Stat. 2680, 2829-32 (2005) (to be codified at 42 U.S.C. §247d-6e). This use of a fund suggests that Congress looked for guidance on how to manage risk from other prior endeavors besides the SAFETY Act, perhaps to one of the victim
302. See generally SIERRA CLUB, supra note 150 (discussing the federal government's failure to adequately warn, protect, account for, and treat individuals living and working in lower Manhattan after September 11).
303. Michael Feigin of Bovis Lend Lease claimed that the "current World Trade Center related litigation demonstrates the need for additional clarity, not only to protect contractors from liability, but also to eliminate or discourage the costly and time consuming process of the litigation itself. " Hearing, supra note 72, at 52 (statement of Michael Feigin). Earlier, however, he had admitted that Bovis had received compensation for its work at Ground Zero and had fewer litigation expenses and potential liabilities due to the September 11 captive insurance program. See id. at 31. Thus, a program based on the September 11 fund would recognize and address the financial threats contractors face when they assist the government in disaster relief.
304. 42 U.S.C. §§ 300aa-10 to -34 (2000).
305. See generally DEP'T OF HEALTH AND HUMAN SERVS., HEALTH RES. AND SERVS. ADMIN., NATIONAL VACCINE INJURY COMPENSATION PROGRAM FACT SHEET (2004), http://www.hrsa.gov/vaccinecompensation/fact_sheet.htm [hereinafter VICP FACT SHEET].
306. See VICP FACT SHEET, supra note 197;
307. GEN. ACCOUNTING OFFICE, GAO/HEHS-00-8, VACCINE INJURY COMPENSATION: PROGRAM CHALLENGED TO SETTLE CLAIMS QUICKLY AND EASILY 4-5 (1999), available at http://www.gao.gov/new.items/he00008.pdf [hereinafter GAO, VACCINE INJURY COMPENSATION]. Prior to the creation of the VICP, the threat of litigation faced by vaccine manufacturers resulted in serious vaccine shortages which, in turn, decreased the rate of child immunization.
308. See Compensating Vaccine Injuries: Are Reforms Needed?: Hearing Before the H. Subcomm. on Criminal Justice, Drug Policy, and Human Resources of the H. Comm. on Gov't Reform, 106th Cong. 106 (1999) (statement of Thomas E. Balbier, Jr., Director, National Vaccine Injury Program).
309. The Secretary of Health and Human Services is the designated respondent in lawsuits filed under the VICP. VICP FACT SHEET, supra note 197. The vaccine manufacturer and administrator are not involved in the proceedings. 42 U.S.C. § 300aa-11(a)(3).
310. 42 U.S.C. § 300aa-15(i)(2); 26 U.S.C. §9510 (2000). The fund, however, is available to compensate for vaccine-related injuries that occurred both before and after its establishment. 42 U.S.C. § 300aa-15(i).
311. H.R. REP. No. 99-908, pt. 1, at 3 (1986);
312. see also GAO/HHES-00-8, supra note 198, at 5 ("VICP features designed to expedite the process include a relaxation of the rules of evidence, discovery, and other legal procedures that can prolong cases in the legal system.").
313. Concerns raised include the VICP's processing time, the adversarial nature of the process, the imbalance between the resources available to the opposing parties, and the fund balance. See Compensating Vaccine Injuries: Are Reforms Needed?: Hearing Before the Subcomm. on Criminal Justice, Drug Policy, and Human Resources of the H. Comm. on Government Reform, 106th Cong. 32-34 (1999) (statement of Linda Mulhauser, a petitioner of the VICP fund);
314. id. at 58-59 (statement of Marcel Kinsbourne, pediatric neurologist); id. at 79-91 (statement of Clifford J. Shoemaker, Senior Partner, Shoemaker & Horn);
315. GAO, VACCINE INJURY COMPENSATION, supra note 198, at 19 ("While VICP was expected to provide compensation for vaccine-related injuries quickly and easily, these expectations have often not been met.");
316. id. at 7-11, 16.