In the Matter of TUNICA COUNTY BOARD OF SUPERVISORS

March 18, 2024

CBCA 7907-FEMA

In the Matter of TUNICA COUNTY BOARD OF SUPERVISORS

John Keith Perry, Jr., and Garret T. Estes of Perry Griffin, PC, Southaven, MS,

counsel for Applicant.

Morgan A. Middleton, General Counsel, Mississippi Emergency Management

Agency, Pearl, MS, counsel for Grantee; and Stephen C. McCraney, Executive Director,

Clayton C. French, Jr., Chief Recovery Officer, and John M. Siler, Director, Office of Public

Assistance, Mississippi Emergency Management Agency, Pearl, MS, appearing for Grantee.

Christiana C. Cooley, Office of Chief Counsel, Federal Emergency Management

Agency, Department of Homeland Security, Washington, DC, counsel for Federal

Emergency Management Agency.

Before the Arbitration Panel consisting of Board Judges KULLBERG, O’ROURKE, and

CHADWICK.

KULLBERG, Board Judge, writing for the Panel.

The applicant, Tunica County Board of Supervisors (Tunica), requests public

assistance (PA) funding in the amount of $386,519.11 for costs related to sanitizing and

cleaning various county buildings and facilities in response to the COVID-19 pandemic. The

Federal Emergency Management Agency (FEMA) contends that costs for spraying and

fogging, which was one of the initial sanitizing services, are Tunica’s only eligible costs and

Tunica is not entitled to any additional PA. For the reasons stated below, the panel denies

Tunica’s request.

CBCA 7907-FEMA

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Background

On June 29, 2020, Tunica awarded a contract to H&S Commercial and Industrial

Supplies and Services (H&S) for initial disinfecting and nightly maintenance services,

personal protection equipment (PPE), and temperature scanners in response to the COVID-19

pandemic. H&S submitted quotations to Tunica for initial disinfecting and nightly

maintenance services of various buildings and facilities. Those services included the

following:

Initial Disinfecting Services

Nightly Maintenance Services

Spray/Fog all surfaces

Wipe high touch areas

Deep clean walls

Deep clean base boards

Vacuum with HEPA filtered vacuum

Wipe Waste Cans

Clean sinks and faucets

Sweep and Mop floors

Wipe Furniture and Fixtures

Clean & Disinfect floor coverings

Empty waste baskets and waste containers

Replace trash bags

Clean sinks and faucets

Fill soap dispensers

Fill towel dispensers

Sweep and Mop floors

Vacuum Carpet

Dust surfaces

Wipe High touch surfaces (doorknobs and

light switches)

The above-listed services were to be performed at the following buildings and facilities:

(1) courthouse, (2) aquatic center, (3) county administrators office, (4) GW Henderson

Recreation Center, (5) workforce and development, (6) fire department, (7) public works,

(8) sheriff department, (9) planning and development, (10) Tunica Battle Arena, (11) Tunica

River Park, and (12) wellness center.

H&S then contracted with OST Global, Inc. (OST) to perform the contract work,

which included initial disinfecting services and nightly maintenance services from July to

October 2020. Although Tunica had previously employed a janitorial staff, the majority of

those employees were laid off and did not perform maintenance work after March 2020.

Tunica acknowledges that several of the twelve buildings and facilities, including Tunica

River Park, Tunica Battle Arena, and the aquatic center, were not in regular use between July

and October 2020. FEMA contends that Tunica’s invoice records for this period of time only

show maintenance for seven locations: (1) courthouse, (2) county administrators office,

(3) workforce and development, (4) fire department, (5) public works, (6) sheriff department,

and (7) planning and development.

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Tunica sought PA funding from FEMA for the cost of cleaning and disinfecting that

OST had performed during the period from July 7 to October 31, 2020. Although H&S had

quoted costs for temperature scanners and PPE, those items were either returned or not

ordered, and H&S did not invoice for those costs. FEMA’s May 27, 2022, eligibility

determination memorandum denied Tunica’s request in full because it lacked any showing

of which measures had been taken “to address immediate threat to life, public health, or

safety.”

Tunica then submitted its first appeal of FEMA’s May 27, 2022, determination and

subsequently provided additional information to FEMA. On August 15, 2023, FEMA

determined that Tunica was entitled to recover PA funding in the amount of $176,165.34 for

spraying and fogging of surfaces, which was one of the initial disinfecting services. Tunica

then requested arbitration before the Board for additional PA of $386,519.11. The panel

conducted a hearing, and the parties submitted briefs.

Discussion

The issue in this matter is whether Tunica is entitled to any additional PA funding,

beyond spraying and fogging, for the costs of its initial disinfecting and nightly maintenance

services contract. The Robert T. Stafford Disaster Relief and Emergency Assistance Act

(Stafford Act), 42 U.S.C. §§ 5121–5207 (2018), provides our authority to conduct

arbitrations. Id. § 5189a(d). FEMA is statutorily authorized to provide PA “essential to

meeting immediate threats to life and property resulting from a major disaster.” Id.

§ 5170b(a). Eligibility for PA funding requires a showing that such work was “required as

the result of the emergency or major disaster event.” 44 CFR 206.223(a)(1) (2019).

FEMA’s Public Assistance Program and Policy Guide (PAPPG) (Apr. 2018) provides that

an applicant is entitled to PA for “emergency protective measures and debris removal” and

“restoration of damaged facilities.” Id. at 19. Accordingly, in this matter, Tunica’s burden

of proof requires it to establish that the work performed by OST amounted to emergency

protective measures.

In response to the pandemic, FEMA issued Coronavirus (COVID-19) Pandemic: Safe

Opening and Operation Work Eligible for Public Assistance, FEMA Policy 104-21-0003

(Sept. 8, 2021) (O&O). The O&O provided the following:

FEMA may provide assistance to all eligible PA Applicants, including [state,

local, tribal, and territorial governments (SLTTs)] and eligible [private

nonprofit organizations (PNPs)], for the following measures implemented to

facilitate the safe opening and operation of all eligible facilities in response to

COVID-19 declared events:

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i.

Purchase and distribution of face masks, including cloth face coverings,

and Personal Protective Equipment (PPE).

ii.

Cleaning and disinfection, including the purchase and provision of

necessary supplies and equipment in excess of the Applicant’s regularly

budgeted costs.

iii.

COVID-19 diagnostic testing.

iv.

Screening and temperature scanning, including, but not limited to, the

purchase and distribution of hand-held temperature measuring devices or

temperature screening equipment.

v.

Acquisition and installation of temporary physical barriers, such as

plexiglass barriers and screens/dividers, and signage to support social

distancing, such as floor decals.

vi.

Purchase and storage of PPE and other supplies listed in this section

should be based on projected needs for the safe operating and operation of the

facility.

Id. at 5. In general, the O&O also provided that “[a]ll work must be required as a direct

result of the emergency or major disaster in accordance with 44 CFR § 206.223(a)(1).” Id.

at 4.

The panel finds that Tunica has not met its burden of proof in establishing entitlement

to any additional PA because its request is for work related to its regular operations – the

maintenance and cleaning of various buildings and facilities – as opposed to emergency

protective measures. An increase in the cost of operation is not an eligible cost for receipt

of PA. See Tri-County Electric Cooperative, Inc., CBCA 7719-FEMA, 23-1 BCA ¶ 38,385,

at 186,514. FEMA determined, under the guidance of the O&O, that Tunica was entitled to

only the cost of spraying and fogging, which was part of the initial sanitizing of buildings

and facilities, in response to the COVID-19 pandemic.1

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FEMA, citing 2 CFR 459(a), also raised the issue as to whether Tunica had

contracted for the work performed by OST by conditioning payment upon receipt of funding

from FEMA and the Mississippi Emergency Management Agency. Having already

determined that Tunica has not met its burden of proof, the panel does not deem it necessary

to address that issue.

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Tunica has not shown how the work performed by OST, with the exception of

spraying and fogging, amounted to anything other than routine maintenance and

cleaning. The record does not show how the other tasks performed by OST were emergency

protective measures. Although Tunica contends that it faced a number of challenges because

of the pandemic, those challenges do not establish an entitlement to PA.

Decision

Tunica’s request for additional PA is denied.

H. Chuck Kullberg

H. CHUCK KULLBERG

Board Judge

Kathleen J. O’Rourke

KATHLEEN J. O’ROURKE

Board Judge

Kyle Chadwick

KYLE CHADWICK

Board Judge