August 28, 2009 Federal Emergency Management Agency Public Assistance Arbitration Process

August 28, Briefing Objectives…  Review Section 601 of the American Recovery & Reinvestment Act of 2009 (ARRA)  Discuss 44 CFR §  Explain the Eligibility Criteria for Arbitration  Detail the Time Limits & Timeframes  Describe the Process 

August 28, The ARRA…  Became Law on February 17, 2009  Establishes an Arbitration Option  Included a Provision Designed to Expedite the Resolution of Disputed Projects  Applies only to Hurricane Katrina & Rita Disasters  Project Costs Must Be Greater Than $500,000

August 28, Arbitration is Limited to…  DR-1603-LA  DR-1604-MS  DR-1605-AL  DR-1606-TX  DR-1607-LA Gulf Coast Katrina & Rita Disasters

August 28, CFR §  Published on August 31, 2009  Provides Time Frames  Sets Arbitration Criteria  Establishes Arbitration Procedures  Provides Final Agency Action  Establishes Responsibility for Arbitration Expenses

August 28, Requirements for an Arbitration Request…  FEMA Determinations or Decisions Made On or After February 17, 2009  No Final Decision Prior to February 17, 2009  Projects Must Cost More Than $500,000  Statutory Time Limits for Appeals Apply  Pending Appeal Must Be Withdrawn by Applicant by October 30, 2009

August 28, st Appeal, Time Limits…  Applicant Must Request, in writing, Arbitration within 60 Days of August 31, 2009 (October 30, 2009)  Appeals Pending a Decision on 2/17/09 Must be Withdrawn, in writing, within 60 Days of August 31, 2009 (October 30, 2009) 1 st Appeals Pending a Decision On 2/17/09 Arbitration is In Lieu Of Filing or Continuing a 1 st or 2nd Appeal

August 28, nd Appeal, Time Limits…  2 nd Appeals Pending or in Receipt of Final Decisions on or After February 17, Applicant Must Request Arbitration, in writing, by October 30, 2009  If Applicant opts for Arbitration - 2 nd Appeal Must be Withdrawn, in writing, by October 30, nd Appeals Pending a Decision On 2/17/09 Arbitration is In Lieu Of Filing or Continuing a 1st or 2nd Appeal

August 28, Time Limits for a Determination…  After August 31, The Applicant Must Request Arbitration, in writing, within 30 Days of the Determination in Dispute  Disputes Must Be Eligible for an Appeal Per Time Limits in 44 CFR § Arbitration is In Lieu Of Filing or Continuing a 1st or 2nd Appeal

August 28, Arbitration Panel…  US Civilian Board of Contract Appeals (CBCA)  Panel is Composed of Three Arbitrators  Panel for each Appeal Chosen By the Arbitration Administrator  Arbitration Administrator Notifies All Parties of Names of Arbitrators on the Panel

August 28, Content of Request for Arbitration…  Written Statement of Dispute and Request for Arbitration  All Documentation Supporting the Applicant’s Position  All information necessary for the arbitration panel to make an informed decision  There is no limit on amount of documentation that may be provided  Applicants are encouraged to describe their claims in sufficient detail to make the circumstances of the dispute clear to the arbitration panel  Withdrawal of Pending Appeal, if Applicable  Disaster Number  Name and Address of Applicant’s Authorized Representative or Counsel

August 28, Submission by Applicant…  Must Submit Written Request & Documentation Simultaneously to Grantee, the FEMA Regional Administrator and Arbitration Administrator  Within 30 Calendar Days of Receipt of Notice of the Determination  Appeals Pending a Decision on 2/17/09 and 2 nd Appeal Decisions Between 2/17/09 – 10/30/09  The Applicant Must Request Arbitration within 60 Days From Date Final Rule Was Published – October 30, 2009  Submit a Withdrawal of the Pending Appeal, if Applicable by October 30, 2009

August 28, Submission by Grantee…  Within 15 Days of Receipt of Request from Applicant  Forward Name and Address of the Grantee’s Authorized Representative or Counsel Simultaneously to:  FEMA Regional Administrator  Arbitration Administrator  Applicant  May Forward a Written Recommendation in Support or Opposition to the Applicant’s Request Simultaneously to:  FEMA Regional Administrator  Arbitration Administrator  Applicant

August 28, Submission by FEMA…  Within 30 Days of Receipt of Request from Applicant  Simultaneously Forward FEMA’s Response to:  Grantee  Arbitration Administrator  Applicant  Written Submission to Include:  Memorandum in Support FEMA’s Response  A Copy of the Project Worksheet  All Supporting Documentation  Name and Address of Authorized Representative or Counsel

August 28, Arbitration Panel’s Responsibilities…  Provide a Docket Number for Each Request for Arbitration it Receives  Arbitration Administrator Selects 3 Members for the Arbitration Panel  Contacts All Parties to set up a Preliminary Conference by Telephone  Set the Date and Location for the Hearing if a Hearing Has Been Requested  Render Final Determination Based on Relevant Written Materials and Oral Presentations, if any.

August 28, Preliminary Conference…  Held Within 10 Days After Panel Receives FEMA’s Response to the Request for Arbitration  Teleconference with All Parties  Purpose:  Address Future Conduct of the Case  Clarification of Disputed Issues  Possible Arbitrator Disqualification  Schedule of Hearings and Hearing Location if Requested  Applicant and/or FEMA Must Request Hearing Prior to Preliminary Conference  Other Administrative Matters

August 28, Hearing…  Name of Presenter if Hearing is Requested  Hearing Held Within 60 Calendar Days After Preliminary Conference  Oral Presentation  In Person  Or by Telephone  All Parties Must be Able to Simultaneously Hear All Other Participants  The Parties May Not Engage in Discovery or Provide Additional Paper Submissions at the Hearing  Panel May Request Additional Written Materials from Either Party  And Parties May Make Request to Submit Additional Written Materials Following the Hearing. Discretion to Grant Request Rests with the Panel.

August 28, Review by the Arbitration Panel…  Will Consider All Relevant Written Materials  Will Consider Oral Presentations  Panel May Seek Independent Expert Advice  Engineers  Architects  Subject Matter Experts

August 28, Finality of Decision…  Majority of the Panel Will Constitute a Final Decision  Final Decision is Binding for All Parties  No Further Administrative Review  Not Subject to Judicial Review  Except as Permitted by 9 U.S.C. 10

August 28, Definitions…  Appeal – Two-level Procedure under 44 CFR § to Resolve an Agency Determination with an Agency Decision  Application – A Project Worksheet Before it is Approved  ARRA – American Recovery & Reinvestment Act of 2009  CBCA – US Civilian Board of Contract Appeals  Decision – Outcome of an Appeal or Arbitration Request  Determination – Non Appealed FEMA Action in Dispute  Docket Number – Tracking Number Provided by the CBCA

August 28, Definitions, cont…  Final Rule – Regulations Based on Section 601 of the ARRA  Hearing – Oral Presentation Requested by the Applicant or FEMA  Panel – The Arbitration Panel from the CBCA  Preliminary Conference – Panel Initiated Teleconference With All Parties  Project – Project Worksheet  May Include More Than One Site  May Include More than One Project Worksheet  Time Limit – Number of Days to File an Appeal, Arbitration Request or Issue a Decision

August 28, Where to submit?  Civilian Board of Contract Appeals  Mailing Address 1800 F Street, NW Washington, DC  Street Address Sixth Floor 1800 M Street, NW Washington, DC 20036

August 28,  From Louisiana, please also send your request to:  FEMA ATTN: Gary Jones Acting Regional Administrator 800 N. Loop 288 Denton, Texas  State ATTN: Mark Riley Deputy Director Governor's Office of Homeland Security and Emergency Preparedness (GOHSEP) 7667 Independence Blvd Baton Rouge, LA 70806

August 28,  If you have any administrative questions regarding the CBCA's process, you may contact the Clerk of the Board at: Phone (202) ; and Fax (202) See also the CBCA’s webpage at

August 28, Questions ?

August 28, Links    

August 28, 2009