DRPP_SOW_Attachment_A.pdf

Solicitation HSFE80-13-R-0013

Attachment A

FEMA

Public Assistance Division

Statement of Work Dispute Resolution Pilot Program

1. PROJECT TITLE: FEMA Public Assistance (PA) Dispute Resolution Pilot Program.

2. PURPOSE: FEMA seeks to engage the services of a Contractor Arbitration Firm to arbitrate eligible disputes arising in the FEMA PA Program, and which are expected to occur in all PA disasters declared on or after October 30, 2012.

3. BACKGROUND:

a. FEMA manages a post-disaster relief program that provides federal grant funding for the repair, restoration and replacement of damaged government and private non-profit facilities and for certain other associated expenses pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act, as amended (the “Stafford Act”). 42 U.S.C. § 5121 et seq. This program is hereafter referred to as the “Public Assistance (PA) Program.”

b. Applicants for the PA Program may include states, local governments, and certain private non-profit facilities (“Applicants”). On occasion, disputes arise between FEMA and Applicants who have applied for federal funding under the PA Program regarding the eligibility and sum of the expenses that should be provided from federal funds to the Applicant, pursuant to the Stafford Act and related FEMA regulations set forth in Title 44, Code of Federal Regulations, and agency policies.

c. The Stafford Act requires that FEMA make available to PA Program Applicants an administrative appeals process through which such Applicants may appeal funding determinations, FEMA has a two-tiered appeal process codified at 44 CFR 206.206.

d. Section 1105 of the Sandy Recovery and Improvement Act (SRIA), Public Law 113-2, directed

FEMA to establish procedures for a Dispute Resolution Pilot Program (DRPP). The purpose of the DRPP is to expedite the resolution of disputes that arise between FEMA and Applicants under the PA Program. The DRPP is available to applicants for Presidentially-declared disasters (which authorize PA) that occurred on or after October 30, 2012. Under the DRPP, FEMA must establish an option for binding arbitration wherein a panel of three neutral, independent and impartial arbitrators is given authority to resolve disputes between PA applicants and FEMA. The SRIA requires implementation by July 29, 2013.

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4. SCOPE:

The Contractor selected for this pilot program will serve as FEMA’s arbitration sponsor and administer the arbitrations requested under the Dispute Resolution Pilot Program (DRPP). The Contractor shall provide the services of a Panel of three (3) neutral, independent and impartial arbitrators to facilitate the arbitrations of the eligible PA Applicants who request arbitration in lieu of a second administrative appeal for damages they incur as a result of Presidentially-declared disasters. The Contractor shall administer the DRPP, entailing multiple arbitrations, which may run concurrently and/or consecutively. A Task Order will be issued for each Presidentially declared disaster occurring on or after October 30, 2012. The number of arbitrations per year is entirely dependent on the level of disaster activity in any given year, however, the estimated number of arbitrations per year is twenty (20). The Contractor will provide sufficient administrative support to manage the program and arbitration cases from their inception through closure. The information collected and generated during the course of the arbitration is the property of FEMA. The Contractor shall furnish the necessary personnel, material, equipment, services and facilities (except as otherwise specified), to perform the tasks in this Statement of Work. The Contractor will sponsor and administer the arbitrations requested under the Dispute Resolution Pilot Program (DRPP) in an effective, efficient and accountable manner.

5. APPLICABLE DOCUMENTS:

a. Section 1105 of the Sandy Recovery and Improvement Act, Public Law 113-2, signed into law by President Obama on January 29, 2013, directs FEMA to establish procedures under which a PA Applicant may request to engage in binding arbitration by a neutral, independent Contractor arbitration panel, to resolve disputes relating to the PA program under section 403, 406 or 407 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. §§ 5170b, 5172, 5173).

b. Subsequent applicable law, regulation and policy.

6. SPECIFIC TASKS:

a. Contractor is responsible for the administration of the DRPP to include docketing, communications, hearings, and records management. The information presented at arbitration may contain material protected by the Privacy Act. The Contractor is responsible for maintaining all information submitted in compliance with HSAR 3052.204-71 Contractor employee access.

i. The contractor shall provide a case manager and a substitute or backup case manager. The case manager is responsible for receipt of the request for arbitration, assigning the panel members, informing the parties of the identification of the panel members, disseminating all government-provided educational materials to the panel members, coordinating the communications between the parties, receiving the administrative record from the government and distributing to the panel members, coordinating the teleconferences, scheduling and coordinating the hearing, and any other case management required. The case manager must have the following qualifications:

A. Must have a bachelor’s degree

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B. Must have at least 15 years of experience with legal case management C. Paralegal certificate is preferred

i. The contractor must maintain an email address dedicated to the receipt of information for arbitrations administered under the DRPP. FEMA will be responsible for informing potential applicants of the email contact information for the Contractor.

ii. The Contractor should also organize and track the arbitration requests it receives.

b. Contractor shall expeditiously identify and select three (3) appropriate panel members for each arbitration. The Contractor is responsible for maintaining a cadre of at least 20 qualified arbitrators dedicated to the DRPP. Upon receipt of a request for arbitration, the contractor case manager shall assign a panel of three (3) arbitrators to the arbitration consisting of a panel chair and two additional arbitrators.

i. The panel chair must have the following qualifications:

A. Must be an attorney, active and in good standing with a state Bar or the DC bar;

and, B. Must have received training from an institution or organization providing judicial, hearing officer, or arbitration training C. Must have at least 15 years of experience as an arbitrator, hearing officer or administrative law judge D. Must have arbitrated or heard more than 20 cases resulting in written decisions within the last 5 years

ii. The second arbitrator must have the following qualifications:

A. Must be an attorney, active and in good standing with a state Bar or the DC bar;

and, B. Must have received training from an institution or organization providing judicial, hearing officer, or arbitration training

C. Must have at least 10 years of experience as an arbitrator, hearing officer or administrative law judge

D. Must have arbitrated or heard more than 5 cases resulting in written decisions within the last 5 years

iii. The Contractor may assign a third arbitrator with the same or comparable qualifications as the second arbitrator (legal arbitrator) or may determine the panel needs an expert in subject matter relevant to the dispute (SME arbitrator). Examples of SMEs that may be beneficial during PA disputes are: Licensed Structural or Civil Engineers, Metallurgists, Arborists, Environmental Specialist, Historical architect, Hydrologist, Arborist, Insurance Specialist, and Forensic Accountants. To the extent an SME arbitrator is used, the SME must have the following qualifications

A. Any license or certification required for the relevant field of expertise; and B. More than 15 years of experience in the relevant subject matter.

C. Familiarity with FEMA PA eligibility requirements is preferred.

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iv. The arbitrators assigned to the Panel must be neutral, independent and impartial. In this context, this means the following: (1) the panel members may not have any material relationship with the parties to the dispute outside of this contract; and (2) The panel members may not have had any part in making the decision that is at issue in the arbitration. The Contractor is responsible for setting forth procedures to vet each prospective panel member for any potential conflicts of interest prior to assigning them to the dispute. In the event either party discovers a conflict of interest during the course of the proceeding, the Contractor is responsible for adjudicating the conflict between the parties pursuant to the regulations governing the process. If a panel member is disqualified, the Contractor is responsible for replacing the panel member with another arbitrator of similar qualifications.

c. Contractor shall administrate the DRPP in accordance with all applicable FEMA regulations, policies and timelines.

i. Arbitration will be initiated when a PA applicant submits a Request for Arbitration form simultaneously to the Contractor and FEMA following an administrative first appeal decision. The Request for Arbitration form and will consist of a fillable PDF containing basic information including the applicant’s name and contact information, nature of the dispute, amount of the dispute, and other preliminary information.

ii. The Contractor is responsible for issuing to the parties an electronic notice of docketing within two (2) business days of receipt of the request for arbitration. The Notice of Docketing should identify the panel members, set briefing deadlines in accordance with FEMA regulations governing the process, and provide any other preliminary instructions. The Notice of Docketing must be delivered electronically to all parties.

iii. FEMA will provide basic Public Assistance training materials and guides to the Contractor in an electronic format. The Contractor is responsible for maintaining a copy of these training materials on a web-based system accessible to its arbitrators. Once assigned, Panel members are responsible for reviewing the materials prior to a Hearing (as discussed in section c(xii) or, in the event a hearing does not occur, prior to issuing a Decision in the matter.

iv. Within 15 days of receipt of the Request for Arbitration, FEMA will provide to the Contractor three (3) electronic copies of the administrative record. The Contractor is responsible for transmitting these materials to the panel members.

v. Within 15 days of receipt of the Request for Arbitration, the State or Grantee will forward the name of its representative and may provide a written recommendation related to the applicant’s request for arbitration. The recommendation will be provided via electronic means to the email address maintained by the Contractor. The Contractor is responsible for transmitting this recommendation to the panel members.

vi. Within 45 days of receipt of the request for arbitration, the applicant will provide a written statement of claim. The written statement of claim will be provided via electronic means to the email address maintained by the Contractor. The Contractor is responsible for transmitting this statement of claim to the panel members.

vii. Within 75 days of receipt of the request for arbitration, FEMA will provide a response to applicant’s written statement of claim. FEMA’s response will be provided via electronic means to the email address maintained by the Contractor. The Contractor is responsible for transmitting FEMA’s response to the panel members.

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viii. After receipt of FEMA’s response, the Contractor shall issue an electronic Notice of Teleconference setting a Prehearing Teleconference. The Contractor is responsible for scheduling and setting up the teleconference. The Prehearing Conference must be held within 15 calendar days of the Panel’s receipt of FEMA’s response to applicant’s written statement of claim.

ix. Following the preliminary teleconference, the Contractor shall issue an electronic Scheduling Order and, if necessary, decisions on any preliminary legal issues arising during the prehearing phase of the arbitration. In lieu of issuing oral decision(s) on prehearing legal issues discussed at the close or shortly after the teleconference, the Contractor may request further legal briefing on the legal or procedural matters discussed during the teleconference before issuing a decision.

x. Any party may raise a jurisdictional or arbitrability challenge at any time during the arbitration. When jurisdiction or arbitrability has been challenged, the other party will have the right to respond within 15 calendar days. The panel may suspend or continue the arbitration proceedings during the pendency of the challenge. The panel must rule upon the challenge prior to any hearing in the matter and will dismiss with prejudice any matter that is untimely or outside the panel’s jurisdiction. A vote of the majority of the Contractor’s three-arbitrator Panel shall determine which party prevails. The decisions must be signed by each panel member and delivered electronically to all parties.

xi. Should no hearing be requested by the Applicant, the Contractor shall issue a decision on the merits of the dispute based on the legal briefs submitted by the parties and the administrative record within 60 days of the close of the record, as set by the Panel and the parties.

xii. If requested by the Applicant, the Contractor shall arrange and conduct a hearing on the merits of the dispute. Hearings shall be held either in person or through electronic means, e.g., telephonically, as long as the parties may simultaneously hear and respond to each other. The Contractor shall, in conjunction with the Applicant and FEMA, determine the time, date and duration of the hearing. The Contractor must have or have access to a hearing facility located in or within 20 miles of Washington D.C. that has the following characteristics:

A. Parking on site or nearby B. Hearing or Conference Room that holds approximately 20 persons. The conference room must have the following capabilities:

Video-conference Teleconference A/V projection Internet capability Microphones A dais for oral presentations

B. Separate, smaller rooms for approximately 7-8 people where each party can meet separately. The smaller conference rooms must have teleconference and internet capabilities.

xiii. The dispute will be governed by all applicable statutes, regulations and FEMA policy and guidance. The Panel will only be allowed to consider the administrative record, the written arguments of the parties, any oral testimony or statements presented during the Hearing.

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xiv. The standard of review will be as follows: The panel will only set aside the agency determination if it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. In the case of a FEMA finding of material fact adverse to the applicant on the first appeal, the panel will only set aside or reverse such a finding if the finding was clearly erroneous.

xv. Within 60 days of the close of the hearing, the Contractor shall issue an electronic decision. A vote of the majority of the Contractor’s three-arbitrator Panel shall determine which party prevails. The decisions must be signed by each panel member. The decisions shall be final and binding on the parties, save only for any judicial review permitted by the Alternative Dispute Resolution Act, 9 U.S.C. § 10. The decisions shall include a brief and informal discussion of the factual and legal basis for the decision and the award (if any).

xvi. The information generated during the course of the arbitration is the property of FEMA.

Contractor is responsible for returning all materials to FEMA within 60 days of the issuance of the final decision.

7. DELIVERABLES AND DELIVERY SCHEDULE: For each arbitration, the Contractor shall provide:

a. A Docketing Notice acknowledging receipt of a request for arbitration, delivered within two

(2) business day to the parties, containing deadlines, instructions and identity of the three-arbitrators Panel which shall last for the life of each arbitration;

b. A teleconference within approximately ten (10) business days of receipt of FEMA’s legal brief;

c. A hearing and a hearing room (when requested) as soon as practicable after the teleconference, and lasting from one to three (1-3) business days as agreed to by the Contractor and the parties;

d. A final, binding and written decision within sixty (60) calendar days of the closing of the record;

In addition; the contractor shall:

e. Attend/participate in a post award kick off meeting within 7 calendar days after contract award;

f. Provide a Monthly Contract Status Report to the COR and CO by the 15th day after each month. The report shall reflect a summary of the overall contract status, including the current and cumulative hours worked by labor category. The report shall also provide the total number of personnel working on assignments, the start date(s) for the period; the estimated hours expended for the current month. The Contractor will provide a summary of deliverables submitted (i.e. numbers of cases open, pending, etc), planned activities for the next month and problems and proposed corrective actions.

g. Provide the Quality Control Plan (QCP) to the government within 10 days after the kick off meeting. At a minimum, the QCP shall include the task, performance objective, 7 | P a g e performance standard, primary method of surveillance, the acceptable quality level, and the evaluation method.

8. GOVERNMENT-FURNISHED EQUIPMENT AND INFORMATION:

a. No federal government equipment shall be issued to the Contractor. The information furnished by the federal government and the Applicant shall consist of general training materials related to FEMA’s PA program, an administrative record, legal briefs setting forth the positions of the parties, to include citations to applicable statutes, implementing regulations and policy governing FEMA’s PA program, and any backup documentation to the briefs, in the form of exhibits taken from the administrative record. Supplemental legal documents shall, when deemed necessary by either party or the Contractor, be submitted to the Contractor for their consideration and action.

b. Records developed or submitted as a result of this requirement is the property of FEMA and will not be released without the written prior approval of the Contracting Officer Representative or Contracting Officer.

9. PLACE OF PERFORMANCE:

a. The primary place of performance is the Contractor’s facility.

b. The hearings, when requested by the Applicant, shall be conducted in a hearing room in, or within, twenty (20) miles of Washington, DC.

10. PERIOD OF PERFORMANCE: As set by statute (SRIA § 1105), the program shall run from:

a. BASE PERIOD: 12 Months from Date of Award, (July 31, 2013 through July 30, 2014);

b. OPTION 1: 12 Months (July 31, 2013 through July 30, 2015);

c. OPTION 2: 6 Months (July 31, 2015 through December 30, 2015).

11. SECURITY:

a. This program and all work thereunder, except for the final written decision, will be closed to the public. The program shall be unclassified but shall not be open to public. The requirement of HSPD-12 does not apply to this procurement.

b. The information in the administrative records or presented at arbitration may contain material protected by the Privacy Act. The Contractor is responsible for maintaining all information submitted in compliance with HSAR 3052.204-71 Contractor employee access.