By Robert Nichols, Sam Van Kopp, and Logan Kemp
Since the Civilian Board of Contract Appeal’s first arbitration under its modern statutory authority, 42 U.S.C. § 5189a(d), the Board’s interpretation of the Stafford Act, FEMA regulation, and FEMA policy have diverged in subtle but important ways from FEMA’s internal appellate precedent. In 2020, Nichols Liu LLP published a Briefing Paper describing the first year of these critical arbitration decisions. In this update, Nichols Liu LLP examines the most important decisions from 2022, 2023 and the beginning of 2024. Each decision relates to one of six issues that are most commonly disputed before the Board: (1) the adequacy of an Applicant’s documentation of eligible work or costs; (2) the proof needed to demonstrate that damage was the ‘direct’ result of a disaster; (3) the extent of the Board’s deference to FEMA’s interpretations of policy and regulation; (4) the extent of an Applicant’s eligibility for Covid-19 costs; (5) the correct interpretation of FEMA’s 50% rule; and (6) the reasonableness and allowability of costs.
