On March 13, the President declared a national emergency in response to the COVID-19 pandemic.  Doing so activated the authorities available to the President under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. §§ 5121-5207 (the “Stafford Act”) to provide federal assistance to state and local governments responding to the emergency, including financial assistance.

The federal assistance is coordinated and provided through the Federal Emergency Management Agency (“FEMA”) under the National Response Framework.  Although the Stafford Act generally does not make funding directly available to private businesses, a large portion of the nearly $50 billion that the President said will be available to FEMA may be used to procure goods and services from contractors assisting the relief effort.

Stafford Act Authorities and the President’s Emergency Declaration

The Stafford Act authorizes the President to issue two types of declarations that allow the federal government to provide assistance to state and local governments in responding to an emergency.  An “emergency” is any situation in which the President determines that “federal assistance is needed to supplement State and local efforts …to save lives and to protect property and public health and safety, or to lessen or avert the threat of a catastrophe….” 42 U.S.C. § 5122(1).  A “major disaster,” by contrast is any “natural catastrophe” that the President determines “causes damage of sufficient severity and magnitude to warrant major disaster assistance.”  42 U.S.C. § 5122(2).

The President’s March 13 letter to cabinet secretaries declared the COVID-19 pandemic to be an “emergency” triggering his Title V authorities, but left open the possibility that he may later declare a “major disaster.”

The major distinction between these two types of declarations is in the range of federal assistance that can be made available as a result of the declaration.

Under an emergency declaration, the President may direct federal agencies to use their resources to support state and local efforts, coordinate all disaster relief assistance, and assist in the distribution of medicine, food and other consumable supplies.  Direct financial assistance can also be provided to state and local governments through congressionally-appropriated funds in the Disaster Relief Fund.  This assistance generally is capped at $5,000,000 per emergency, but the President may authorize additional funds if he determines that (1) continued emergency assistance is immediately required; (2) there is a continuing and immediate risk to lives, property, public health or safety; and (3) necessary assistance will not otherwise be provided on a timely basis.  42 U.S.C. § 5193.

If the President subsequently declares a major disaster, additional federal assistance may be provided, including direct assistance to individuals and additional support such as crisis counseling services, relocation assistance, food distribution, and legal aid services, among other things.

Considerations for Companies that Want to Help

Unlike a natural disaster that causes damage in a defined geographic area, the COVID-19 pandemic is novel, causing widespread challenges throughout the United States.  In addition to those companies that may have capabilities in the pharmaceutical and medical supply industries, we may see immediate needs for local staff augmentation and call center services, logistics and technical support services, local food and consumer goods delivery services, home care services, decontamination services, and distribution of sanitary and household supplies, just to name a few.  Presumably, private sector companies that never before have conducted business with Federal funding will have a role in this effort.

To help with relief efforts, the Federal government likely will be procuring significant amounts of goods and services directly.  State and local governments inevitably will use their Federal funds to ramp up their purchases of required goods and services as well.  Companies that would like to help should consider taking steps now.

Companies that wish to assist with these efforts should register in the Disaster Response Registry in the Federal Government’s System for Award Management (SAM) to ensure that they are eligible for federal contract awards, and also monitor solicitations posted on SAM.gov.  Such contracts may be set aside for local firms.  See Federal Acquisition Regulation (FAR) 26.202 and 26.204.

Companies that wish to support state and local efforts can monitor similar state and local websites for new solicitations.  Those companies with novel solutions that governments may not otherwise contemplate should also consider submitting unsolicited proposals to the relevant authorities.

Companies new to federally funded contracting should be particularly mindful of the risks and responsibilities that accompany such contracts.  Public funding, and Federal funding in particular, is tied to numerous compliance obligations that do not apply in the commercial arena.  Federal contracts will be governed by the FAR and may require certification of compliance with numerous socio-economic, labor, and supply chain and cyber requirements, and in some cases, record keeping requirements, particularly regarding incurred costs.

State and local government issued contracts also impose compliance obligations pursuant to local statutes and regulations and, because of the use of federal funds, will impose additional federally-mandated requirements.  These may include record-keeping and government auditing requirements, compliance with “pay to play” laws, and unique accounting requirements.  Failure to comply with any of these triggers exposure under the federal False Claims Act and state equivalents.  Although these risks can present challenges to companies that do not have government contracting experience, they can be mitigated with careful upfront planning – including making certain that companies read and fully understand the contract before committing to the obligations.

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Photo of Trisha Anderson Trisha Anderson

Trisha Anderson, an experienced national security and cybersecurity lawyer, advises clients on white collar investigations and national security issues, including national security surveillance and law enforcement compliance and litigation, cybersecurity and data privacy, and CFIUS, with a particular focus on information and communications…

Trisha Anderson, an experienced national security and cybersecurity lawyer, advises clients on white collar investigations and national security issues, including national security surveillance and law enforcement compliance and litigation, cybersecurity and data privacy, and CFIUS, with a particular focus on information and communications technologies.

Ms. Anderson rejoined the firm after over a decade of service in the federal government. She held senior positions at the Department of Justice and the Department of the Treasury. Most recently she served as Principal Deputy General Counsel at the Federal Bureau of Investigation, where she handled complex and sensitive matters relating to national security and cyber intrusions.

Photo of Frederic Levy Frederic Levy

Frederic Levy is one of the nation’s leading suspension and debarment lawyers, focusing his practice on the resolution of complex compliance and ethics issues. He has successfully represented numerous high-profile corporations and individuals under investigation by the government in civil and criminal matters…

Frederic Levy is one of the nation’s leading suspension and debarment lawyers, focusing his practice on the resolution of complex compliance and ethics issues. He has successfully represented numerous high-profile corporations and individuals under investigation by the government in civil and criminal matters, including False Claims Act cases, and in suspension and debarment proceedings to ensure their continued eligibility to participate in federal programs. He has also conducted numerous internal investigations on behalf of corporate clients, particularly in the areas of program fraud and export controls, and often involving sensitive personnel or fiduciary matters. He has also advised corporations in voluntary or mandatory disclosures to a variety of federal agencies. Mr. Levy regularly counsels clients on government contract performance issues, claims and terminations, and he litigates such matters before the boards of contract appeals and in the Federal Circuit.

Photo of Michael Wagner Michael Wagner

Mike Wagner helps government contractors navigate high-stakes enforcement matters and complex regulatory regimes.

Combining deep regulatory knowledge with extensive investigations experience, Mr. Wagner works closely with contractors across a range of industries to achieve the efficient resolution of regulatory enforcement actions and government…

Mike Wagner helps government contractors navigate high-stakes enforcement matters and complex regulatory regimes.

Combining deep regulatory knowledge with extensive investigations experience, Mr. Wagner works closely with contractors across a range of industries to achieve the efficient resolution of regulatory enforcement actions and government investigations, including False Claims Act cases. He has particular expertise representing individuals and companies in suspension and debarment proceedings, and he has successfully resolved numerous such matters at both the agency and district court level. He also routinely conducts internal investigations of potential compliance issues and advises clients on voluntary and mandatory disclosures to federal agencies.

In his contract disputes and advisory work, Mr. Wagner helps government contractors resolve complex issues arising at all stages of the public procurement process. As lead counsel, he has successfully litigated disputes at the Armed Services Board of Contract Appeals, and he regularly assists contractors in preparing and pursuing contract claims. In his counseling practice, Mr. Wagner advises clients on best practices for managing a host of compliance obligations, including domestic sourcing requirements under the Buy American Act and Trade Agreements Act, safeguarding and reporting requirements under cybersecurity regulations, and pricing obligations under the GSA Schedules program. And he routinely assists contractors in navigating issues and disputes that arise during negotiations over teaming agreements and subcontracts.

Photo of Ryan Burnette Ryan Burnette

Ryan Burnette advises clients on a range of issues related to government contracting. Mr. Burnette has particular experience with helping companies navigate mergers and acquisitions, FAR and DFARS compliance issues, public policy matters, government investigations, and issues involving government cost accounting and the…

Ryan Burnette advises clients on a range of issues related to government contracting. Mr. Burnette has particular experience with helping companies navigate mergers and acquisitions, FAR and DFARS compliance issues, public policy matters, government investigations, and issues involving government cost accounting and the Cost Accounting Standards.  Prior to joining Covington, Mr. Burnette served in the Office of Federal Procurement Policy in the Executive Office of the President, where he worked on government-wide contracting regulations and administrative actions affecting more than $400 billion dollars’ worth of goods and services each year.