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Calendar No. 222 

109TH CONGRESS 

1ST SESSION S. 1761 

To clarify the liability of government contractors assisting in rescue, recovery, 

repair, and reconstruction work in the Gulf Coast region of the United 

States affected by Hurricane Katrina or other major disasters. 

IN THE SENATE OF THE UNITED STATES 

SEPTEMBER 22, 2005 

Mr. THUNE (for himself, Mr. VITTER, Mr. LOTT, Ms. MURKOWSKI, and Mr. 

INHOFE) introduced the following bill; which was read the first time 

SEPTEMBER 26, 2005 

Read the second time and placed on the calendar 

A BILL 

To clarify the liability of government contractors assisting 

in rescue, recovery, repair, and reconstruction work in 

the Gulf Coast region of the United States affected by 

Hurricane Katrina or other major disasters. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Gulf Coast Recovery 

5 Act’’. 
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1 SEC. 2. FINDINGS. 

2 Congress finds that— 

3 (1) while public officials have the responsibility 

4 and expertise to direct and control the Federal, 

5 State and local response to any disaster, those offi6 cials lack the manpower and equipment necessary to 

7 take all of the many steps necessary to implement 

8 such a response; 

9 (2) in the wake of a disaster, public officials 

10 have to depend on private contractors for logistical 

11 and other support; 

12 (3) historically, private contractors have an13 swered the call, providing valuable service to the 

14 public in times of disaster; 

15 (4) those contractors answered the call on Sep16 tember 11, 2001, and in the following weeks and 

17 months, working hand-in-hand with Federal, State, 

18 and local officials to rescue the survivors of the ter19 rorist attacks on that historic date, to recover the 

20 bodies of those who died, to remove mountains of de21 bris, to reconstruct the Pentagon, and ultimately, to 

22 restore some sense of normalcy to New York City 

23 and Arlington, Virginia; 

24 (5) the expertise and equipment that private 

25 contractors contributed to the Federal, State, and 

26 local response to the terrorist attacks on September 
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1 11, 2001, greatly enhanced that response, increasing 

2 not only the efficiency but also the effectiveness of 

3 that response; 

4 (6) the support that private contractors provide 

5 to Federal, State, and local officials in times of dis6 aster— 

7 (A) make it safer for police, firefighters, 

8 and other rescue workers to search for, rescue, 

9 and recover both persons and property dis10 located by the disaster; and 

11 (B) enable those officials to quickly ad12 dress dangerous conditions that threaten life 

13 and property, to restore basic public services, 

14 and to protect public safety and health; 

15 (7) it is in the national interest to have private 

16 contractors assist public officials in times of dis17 aster; 

18 (8) by providing support to the Federal, State 

19 or local response to a disaster, private contractors 

20 risk future litigation and liability even if those con21 tractors are in full compliance with all Federal, 

22 State, and local laws (including regulations) that 

23 apply to their work; 

24 (9) class action lawsuits have been brought 

25 against the private contractors that supervised the 
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1 heroic response to the terrorist attacks on the World 

2 Trade Center in New York City on September 11, 

3 2001; 

4 (10) well-founded fears of future litigation and 

5 liability under existing law discourage contractors 

6 from assisting in times of disaster; 

7 (11) whether private contractors remain willing 

8 to offer their expertise and equipment to public offi9 cials in times of disaster substantially affects, bur10 dens, and deters interstate commerce and travel; 

11 (12) clarifying the liability that private contrac12 tors must ultimately risk simply to support a Fed13 eral, State, or local response to a disaster will help— 

14 (A) to ensure that those contractors con15 tinue to answer the governmental requests for 

16 assistance in times of great need; and 

17 (B) to limit the legal expenses that regret18 tably but inevitably inflate the cost of the recov19 ery from a disaster; and 

20 (13) temporarily insulating private contractors 

21 from any liability that private parties may seek to 

22 impose on the contractors under certain Federal 

23 laws would increase the power and authority of the 

24 Federal agencies that bear the primary responsibility 
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1 for the administration of those laws to effectively di2 rect and control the response to a disaster. 

3 SEC. 3. DEFINITIONS. 

4 In this Act: 

5 (1) DISASTER ZONE.—The term ‘‘disaster 

6 zone’’ means— 

7 (A) the region of the United States in 

8 which major disasters relating to Hurricane 

9 Katrina were declared by the President on Au10 gust 29, 2005, in accordance with section 401 

11 of the Robert T. Stafford Disaster Relief and 

12 Emergency Assistance Act (42 U.S.C. 5170); 

13 and 

14 (B) any other region of the United States 

15 in which a major disaster is so declared after 

16 that date, if the disaster requires the provision 

17 of Federal assistance in an amount that exceeds 

18 $15,000,000,000, as determined by the Presi19 dent. 

20 (2) GOVERNMENT CONTRACT.—The term ‘‘gov21 ernment contract’’ means— 

22 (A) a contract between— 

23 (i) a person, proprietorship, partner24 ship, limited liability company, or corpora25 tion in the regular business of providing 
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1 materials, labor, equipment, or services for 

2 construction-related activities (including 

3 construction, demolition, repair, clean-up, 

4 alteration, remediation, and related engi5 neering); and 

6 (ii) any agency or instrumentality of 

7 the Federal Government or any State or 

8 local government; and 

9 (B) a subcontract at any tier of a contract 

10 described in subparagraph (A). 

11 SEC. 4. LIMITATION ON LIABILITY OF FEDERAL CONTRAC12 TORS UNDER CERTAIN FEDERAL LAWS. 

13 (a) IN GENERAL.—Notwithstanding any other provi14 sion of law, a person or entity awarded a government con15 tract to perform rescue, recovery, repair, or reconstruction 

16 work in any portion of a disaster zone shall not, as a result 

17 of the performance of that work, be subject to liability that 

18 any private party may seek to impose under any provision 

19 of Federal law (including any regulation) that— 

20 (1) is administered by the Secretary of the 

21 Army, the Administrator of the Environmental Pro22 tection Agency, or the Secretary of Transportation; 

23 and 

24 (2) otherwise permits the filing of a lawsuit by 

25 a private individual. 
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1 (b) EFFECT ON LITIGATION MANAGEMENT.—Noth2 ing in this section limits or otherwise affects the applica3 tion of section 5 of this Act. 

4 (c) EFFECT ON EXISTING LAW.—Nothing in this Act 

5 limits or otherwise affects the application, to a person or 

6 entity described in subsection (a), of— 

7 (1) title VII of the Civil Rights Act of 1964 (42 

8 U.S.C. 2000e et seq.); 

9 (2) the Fair Labor Standards Act of 1938 (29 

10 U.S.C. 201 et seq.); or 

11 (3) a comparable State fair employment prac12 tice law. 

13 SEC. 5. LITIGATION MANAGEMENT. 

14 (a) FEDERAL CAUSE OF ACTION.— 

15 (1) IN GENERAL.—There shall exist a Federal 

16 cause of action for claims arising out of, relating to, 

17 or resulting from the performance of a government 

18 contract, whether oral or written, in a disaster zone 

19 for— 

20 (A) the search, rescue, or recovery of indi21 viduals or property dislocated by the disaster; 

22 (B) the demolition, removal, repair, or re23 construction of structures or utilities damaged 

24 by the disaster; 
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1 (C) the clean-up or remediation of property 

2 polluted by the disaster; 

3 (D) the removal of debris deposited by the 

4 disaster (including dredging); or 

5 (E) the dewatering of property flooded by 

6 the disaster. 

7 (2) SUBSTANTIVE LAW.—The substantive law 

8 for decision in any action described in paragraph (1) 

9 shall be derived from the law, including choice of law 

10 principles, of the State in which the government con11 tract was performed. 

12 (3) CLAIMS.—A Federal cause of action shall 

13 be brought under this subsection only for claims for 

14 injuries or damages proximately caused by a person 

15 or entity awarded a government contract. 

16 (4) JURISDICTION.—The appropriate United 

17 States district court shall have original and exclusive 

18 jurisdiction over all actions for any claim for loss of 

19 property, personal injury, or death arising out of, re20 lating to, or resulting from the performance of a 

21 government contract, whether oral or written, for an 

22 activity described in any of subparagraphs (A) 

23 through (E) of paragraph (1). 

24 (b) SPECIAL RULES.— 
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1 (1) IN GENERAL.—The requirements described 

2 in paragraphs (2) through (4) shall apply to an ac3 tion brought under this section. 

4 (2) PUNITIVE DAMAGES.—No punitive damages 

5 intended to punish or deter, exemplary damages, or 

6 other damages not intended to compensate a plain7 tiff for actual losses may be awarded in such an ac8 tion. 

9 (3) INTEREST PRIOR TO JUDGMENT.—No party 

10 to such an action shall be held liable for interest 

11 prior to judgment. 

12 (4) NONECONOMIC DAMAGES.— 

13 (A) DEFINITION OF NONECONOMIC DAM14 AGES.—In this paragraph, the term ‘‘non15 economic damages’’ means damages for losses 

16 for physical and emotional pain, suffering, in17 convenience, physical impairment, mental an18 guish, disfigurement, loss of enjoyment of life, 

19 loss of society and companionship, loss of con20 sortium, hedonic damages, injury to reputation, 

21 and any other nonpecuniary losses. 

22 (B) AWARD OF NONECONOMIC DAM23 AGES.— 

24 (i) IN GENERAL.—Noneconomic dam25 ages may be awarded against a defendant 
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1 only in an amount directly proportional to 

2 the percentage of responsibility of the de3 fendant for the harm to the plaintiff. 

4 (ii) NO PHYSICAL HARM.—No plaintiff 

5 may recover noneconomic damages unless 

6 the plaintiff suffered physical harm. 

7 (c) COLLATERAL SOURCES.—Any recovery by a 

8 plaintiff in an action under this section shall be reduced 

9 by the amount of collateral source compensation, if any, 

10 that the plaintiff has received or is entitled to receive as 

11 a result of the same loss of property, personal injury, or 

12 death for which the plaintiff seeks compensation from the 

13 defendant. 

14 (d) GOVERNMENT CONTRACTOR DEFENSE.— 

15 (1) APPLICABILITY.—Should a lawsuit be filed 

16 for claims arising out of, relating to, or resulting 

17 from the performance of a contract that meets the 

18 criteria described in paragraph (2), there shall be a 

19 rebuttable presumption that— 

20 (A) all elements of the government con21 tractor defense are satisfied; and 

22 (B) the government contractor defense ap23 plies in the lawsuit. 

24 (2) CRITERIA.—The criteria referred to in 

25 paragraph (1) are that— 
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1 (A) the contract is a government contract 

2 that the Chief of Engineers has certified as 

3 being necessary for the recovery of a disaster 

4 zone from a disaster, as provided in paragraphs 

5 (4) and (5); or 

6 (B) the contract— 

7 (i) is a subcontract of a contract de8 scribed in subparagraph (A); and 

9 (ii) is for an amount that was not rea10 sonably expected, as of the time at which 

11 the subcontract was executed, to exceed 

12 $10,000,000. 

13 (3) OVERCOMING OF PRESUMPTION.—The pre14 sumption described in paragraph (1) shall be over15 come only by evidence showing that a person or enti16 ty awarded a government contract acted fraudulently 

17 or with willful misconduct in submitting information 

18 to the Chief of Engineers in conjunction with the 

19 consideration by the Chief of Engineers of the gov20 ernment contract. 

21 (4) EXCLUSIVE RESPONSIBILITY.— 

22 (A) IN GENERAL.—The Chief of Engineers 

23 shall be exclusively responsible for the review of 

24 any government contract that any person or en25 tity, including any governmental entity, claims 
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1 to be necessary for the recovery of a disaster 

2 zone from a disaster for the purpose of estab3 lishing a government contractor defense in any 

4 lawsuit for claims arising out of, relating to, or 

5 resulting from the performance of the govern6 ment contract. 

7 (B) REVIEW OF SCOPE.—Upon the sub8 mission of a request for a certification that a 

9 government contract was or will be necessary 

10 for the recovery of a disaster zone from a dis11 aster, the Chief of Engineers shall, not later 

12 than 30 days after the date of receipt of the re13 quest, whether made before or after the award 

14 of a government contract— 

15 (i) review the scope of work that the 

16 government contract does or will require; 

17 and 

18 (ii) determine whether the majority of 

19 the work is for 1 or more of the activities 

20 described in subparagraphs (A) through 

21 (E) of subsection (a)(1). 

22 (C) CERTIFICATION.—If the Chief of Engi23 neers determines that at least a majority of the 

24 work that the government contract does or will 

25 require is for 1 or more of those activities, the 
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1 Chief of Engineers shall promptly certify that 

2 the government contract is necessary for the re3 covery of the disaster zone from a disaster. 

4 (5) ISSUANCE OF CERTIFICATE.—For each gov5 ernment contract reviewed and certified by the Chief 

6 of Engineers under paragraph (4), the Chief of En7 gineers shall promptly issue a certificate of need for 

8 recovery of the applicable disaster zone from a dis9 aster to the person or entity that submitted the re10 quest for the certification. 

11 (6) RECORDS.—The Chief of Engineers shall 

12 maintain records of certifications made, and certifi13 cates issued, under this subsection. 

14 (e) EFFECT ON CLAIMS AND LAW.— 

15 (1) CLAIMS FOR LOSS; ENFORCEMENT AC16 TIONS.—Nothing in this section applies to— 

17 (A) any claim for loss under any workers 

18 compensation law; or 

19 (B) any enforcement action that any gov20 ernmental entity may bring against any person 

21 or entity allegedly for violating any Federal or 

22 State law (including a regulation). 

23 (2) GOVERNMENT CONTRACTOR DEFENSE.— 

24 Nothing in this section limits or restricts the govern-
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1 ment contractor defense as that defense exists at 

2 common law. 

3 (3) RECKLESSNESS OR WILLFUL MIS4 CONDUCT.—Nothing in subsection (b), (c), or (d) af5 fects the liability of any person or entity for reck6 lessness or willful misconduct. 

Calendar No. 222 

109TH CONGRESS 

1ST SESSION S. 1761 

A BILL 

To clarify the liability of government contractors 

other major disasters. United States affected by Hurricane Katrina or struction work in the Gulf Coast region of the assisting in rescue, recovery, repair, and reconSEPTEMBER 26, 2005 

Read the second time and placed on the calendar