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February 17, 2009 Projects Must Cost More Than $500,000 Statutory Time Limits for Appeals Apply Pending Appeal Must Be Withdrawn by Applicant by October 30, 2009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writing, Arbitration within 60 Days of August 31, 2009 (October 30, 2009) Appeals Pending a Decision on 2/17/09 Must be Withdrawn, in writing, within 60 Days of August 31, 2009 (October 30, 2009) 1 st Appeals Pending a Decision On 2/17/09 Arbitration is In Lieu Of Filing or Continuing a 1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Must Request Arbitration, in writing, by October 30, 2009 If Applicant opts for Arbitration - 2 nd Appeal Must be Withdrawn, in writing, by October 30, nd Appeals Pending a Decision On 2/17/09 Arbitration is In Lieu Of Filing or Continuing a 1st or 2nd Appeal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 Applicants 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 Applicants 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 Grantees Authorized Representative or Counsel Simultaneously to: FEMA Regional Administrator Arbitration Administrator Applicant May Forward a Written Recommendation in Support or Opposition to the Applicants 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 FEMAs Response to: Grantee Arbitration Administrator Applicant Written Submission to Include: Memorandum in Support FEMAs Response A Copy of the Project Worksheet All Supporting Documentation Name and Address of Authorized Representative or Counsel

August 28, Arbitration Panels 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 FEMAs 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, Questions ?

August 28, 2009