FEMA Public Assistance Arbitrations

The following are a few examples of arbitrations where the Civilian Board of Contract Appeals overruled FEMA and found an Applicant to be eligible for Public Assistance funding:

• Where FEMA denied payment of overtime costs incurred by a wastewater treatment plant in the early months of the Covid-19 pandemic. See Joint Meeting of Essex and Union Counties., New Jersey, CBCA 7407, 22–1 BCA ¶ 38,223.
• Where FEMA alleged that the Applicant failed to adequately document debris removal work despite satisfying the minimum requirements of FEMA’s debris removal guidance, if not all of FEMA’s best practices. See Village of Pinecrest, Florida, CBCA 7298, 22–1 BCA ¶ 38,196.
• Where FEMA denied repair costs for lack of documentation despite correspondence during project performance that indicated FEMA’s acceptance of the Applicant’s documentation methodology. See School Board of Bay County, Florida, CBCA 7553, 2023 WL 4046061.
• Where FEMA determined damage not to be the direct result of a disaster based on a flawed inspection and analytical methodology. See City of Panama City, Fla., CBCA 7643, 23–1 BCA ¶ 38,339; Apostolic Assembly Church of the Lord Jesus Christ, Inc., CBCA 7510, 2023 WL 5319411.
• Where FEMA found an appeal to be untimely, due to the Recipient’s failure to forward the appeal within the deadline set by 44 CFR 206.206(b)(ii)(A), though the Applicant had conveyed the appeal to the Recipient on time. See Larimer County, Colorado, CBCA 7450, 23–1 BCA ¶ 38,256.
• Where FEMA’s internal guidance classifying Applicants as ‘rural’ or ‘urban’ for the purposes of 42 U.S.C. § 5189a(d) was contradictory. See Municipality of Cabo Rojo, CBCA 6590, 20-1 BCA ¶ 37,517.

Counsel Sam Van Kopp leads our Public Assistance arbitration practice.  Sam clerked for the Civilian Board of Contract Appeals in 2018 and 2019-2020, when the Board promulgated new rules of procedure and decided its first FEMA arbitrations under its modern statutory authority, 42 U.S.C. § 5189a.  Sam wrote the first Thomson Reuters Briefing Paper ever to address Public Assistance arbitrations and continues to write about important Board arbitration decisions.  In conjunction with the National Emergency Managers Association, Sam also hosted the first webinar to discuss the arbitration program with four Board judges and the leader of FEMA’s arbitration program.