august 28, 2009 federal emergency management agency public assistance arbitration process
TRANSCRIPT
August 28, 2009
Federal Emergency Management Agency
Public Assistance
Arbitration Process
2 August 28, 2009
Briefing Objectives…
Review Section 601 of the American Recovery & Reinvestment Act of 2009 (ARRA)
Discuss 44 CFR §206.209
Explain the Eligibility Criteria for Arbitration
Detail the Time Limits & Timeframes
Describe the Process
http://www.fema.gov/government/grant/pa/arbitration.shtm
3 August 28, 2009
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
4 August 28, 2009
Arbitration is Limited to…
DR-1603-LA
DR-1604-MS
DR-1605-AL
DR-1606-TX
DR-1607-LA
Gulf Coast Katrina & Rita Disasters
5 August 28, 2009
44 CFR §206.209 Published on August 31, 2009
Provides Time Frames
Sets Arbitration Criteria
Establishes Arbitration Procedures
Provides Final Agency Action
Establishes Responsibility for Arbitration Expenses
6 August 28, 2009
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Pending Appeal Must Be Withdrawn by Applicant by October 30, 2009
7 August 28, 2009
1st 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Appeals Pending a Decision on 2/17/09 Must be Withdrawn, in writing, within 60 Days of August 31, 2009 (October 30, 2009)
1st Appeals Pending a Decision On 2/17/09
Arbitration is In Lieu Of Filing or Continuing a 1st or 2nd Appeal
8 August 28, 2009
2nd Appeal, Time Limits…
2nd Appeals Pending or in Receipt of Final Decisions on or After February 17, 2009 - Applicant Must Request Arbitration, in writing, by October 30, 2009
If Applicant opts for Arbitration - 2nd Appeal Must be Withdrawn, in writing, by October 30, 2009
2nd Appeals Pending a Decision On 2/17/09
Arbitration is In Lieu Of Filing or Continuing a 1st or 2nd Appeal
9 August 28, 2009
Time Limits for a Determination…
After August 31, 2009 - 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 §206.206
Arbitration is In Lieu Of Filing or Continuing a 1st or 2nd Appeal
10 August 28, 2009
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
11 August 28, 2009
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
12 August 28, 2009
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 2nd 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
13 August 28, 2009
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
14 August 28, 2009
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
15 August 28, 2009
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.
16 August 28, 2009
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
17 August 28, 2009
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.
18 August 28, 2009
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
19 August 28, 2009
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
20 August 28, 2009
Definitions… Appeal – Two-level Procedure under 44 CFR §206.206 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
21 August 28, 2009
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
22 August 28, 2009
Where to submit?
Civilian Board of Contract Appeals
Mailing Address1800 F Street, NWWashington, DC 20405
Street AddressSixth Floor1800 M Street, NWWashington, DC 20036
23 August 28, 2009
From Louisiana, please also send your request to:
FEMA
ATTN: Gary JonesActing Regional Administrator800 N. Loop 288Denton, Texas 76209
State
ATTN: Mark RileyDeputy Director Governor's Office of Homeland Security and Emergency Preparedness (GOHSEP)7667 Independence BlvdBaton Rouge, LA 70806
24 August 28, 2009
If you have any administrative questions regarding the CBCA's process, you may contact the Clerk of the Board at: Phone (202) 606-8800; and Fax (202) 606-0019. See also the CBCA’s webpage at www.cbca.gsa.gov.
25 August 28, 2009
Questions ?
26 August 28, 2009
Links
http://www.fema.gov/government/grant/pa/arbitration.shtm
www.fema.gov
http://www.louisianapa.com/
http://www.cbca.gsa.gov/
August 28, 2009