Site 4-Black Road
Appeal Brief
Appeal Letter
Appeal Analysis
Citation: FEMA-1046-DR-CA; Santa Clara County, Site 4-Black Road, DSRs 17803, 58670
Cross Reference: Eligible Scope of Work, Reasonable Costs
Summary: As a result of the 1995 late winter storms, high flood flows caused an embankment along Black Road to slip out. The FEMA inspector prepared DSR17803 in the amount of $8,486 to clean and reshape a drainage ditch, install a catch basin, and to restore the downslope embankment by excavation and replacement with structural backfill. During eligibility review, the FEMA reviewer noted that the DSR did not identify a damaged catch basin, such that its replacement would not be eligible. Additionally, it was concluded that the line item for excavation was not necessary to restore the slope, and that unclassified fill would be sufficient in lieu of structural fill. Eligible funding was limited to $1,233. In a letter dated April 21, 1997, the subgrantee requested that the ineligible items be funded, and that funding be increased to reflect its actual force account costs to complete the work ($45,805). FEMA denied this request on the basis that the documentation provided identified work items in excess of the approved scope of work, such that the work was considered an improved project. The subgrantee's first appeal again requested funding of the additional scope items and funding to the amount of its actual costs. In review of the first appeal, FEMA prepared DSR 58670 to fund the replacement of the catch basin and the excavation efforts ($974). Other work, including asphalt placement and use of structural fill, was found to be an improvement or not necessary. The subgrantee's second appeal again requests funding of the ineligible items for the total actual costs for the project. The subgrantee provided a drawing of the project repair to support its appeal.
Issues:
As a result of the 1995 late winter storms (FEMA-1046-DR), high flood flows caused an embankment along Black Road to slip out. On October 4, 1995, an inspection team consisting of representatives from the Federal Emergency Management Agency (FEMA), the California Governor's Office of Emergency Services (OES), and Santa Clara County (subgrantee) visited the site to observe the disaster-related damages.
The FEMA inspector prepared Damage Survey Report (DSR) 17803 in the amount of $8,486 to clean and reshape a drainage ditch on the upslope side of Black Road, install a catch basin, and to restore the downslope embankment by excavation and replacement with structural backfill. The DSR narrative indicated that no damage to the roadway itself was observed. During eligibility review, the FEMA reviewer noted that the DSR did not identify a damaged catch basin, such that its replacement would not be eligible. Additionally, it was concluded that the line item for excavation was not necessary to restore the slope, and that unclassified fill would be sufficient in lieu of structural fill. The quantity for fill placement was also reduced from 200 cubic yards (cy) to 140 cy. DSR 17803 was obligated on February 5, 1996, in the amount of $1,233.
In a letter dated April 21, 1997, the subgrantee indicated that the actual costs incurred to complete the Black Road site repair totaled $45,805, and therefore, requested supplemental funding to DSR 17803 in the amount of $44,572. The work was completed with force account labor and equipment, with some equipment rental and purchase of materials. Specific costs were identified as follows:
Project Engineering (force account)*yyyy$ 39,016
Inspection (force account)yyyyyyyyyyyyyyyyyyyy$ 1,640
Equipment (force account)yyyyyyyyyyyyyyyyyyyy$ 3,266
Equipment Rentalyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyy$ 451
Materials (gravel, asphalt, concrete)yyyyyy$ 1,432
Total Project Cost yyyyyyyyyyyyyy$45,805
Less DSR 17803y yyyyyyyyyyyyyyy-$1,233
Requested Funding yyyyyyyyyyyyyy$44,572
* Project Engineering costs assumed to include field labor.
The Regional Director responded to this request in a letter dated December 30, 1997. Review of the cost documentation provided by the subgrantee identified work items, such as the purchase of asphalt, not originally identified on the DSR. It was, therefore, concluded that the subgrantee had exceeded the approved scope of work resulting in an improved project, such that the eligible funding would be limited to that approved on DSR 17803. The request for additional funding was denied.
First Appeal
The subgrantee submitted a first appeal of FEMA's determination of eligible work in a letter dated March 16, 1998, again requesting a supplemental DSR in the amount of $44,572. Regarding the specific line items of the DSR, the subgrantee indicated that excavation into the embankment was necessary to perform the repair, and that the catch basin was pre-existing and damaged by the disaster. The subgrantee stated that they proceeded with the reconstruction of the embankment with structural fill rather than unclassified fill as it had originally been identified on the field DSR.
The Regional Director responded to the first appeal in a letter dated October 21, 1998. The letter indicated that the intended use for backfill for this project did not support the need for material meeting the unique specifications of structural backfill. Unclassified fill was again found suitable for this project. Because the original DSR did not document any damage to the roadway surface, it was concluded that the placement of asphalt was not eligible. However, it was found that the catch basin was pre-existing and that some excavation would be necessary to complete the repair of the embankment. FEMA prepared supplemental DSR 58670 in the amount of $974 to fund the cost of the excavation and the catch basin as originally included in DSR 17803.
Second Appeal
The subgrantee's second appeal, transmitted by OES in a letter dated February 9, 1999, again requests funding of the total actual costs for the project. The subgrantee asserts that all work was performed to restore the site to its pre-disaster condition, and in conformance with the approved scope of work. The subgrantee provided an engineered drawing of the project repair (project drawing) to support their position that excavation into the roadway surface was necessary to repair the embankment, such that replacement of the pavement should be eligible. The subgrantee asserts that FEMA did not notify them of the change in eligible scope until after the work was completed. It is noted that in OES's transmittal letter, they state that "Based on the information provided, OES is unable to support the County's appeal for additional funds." However, no further explanation for this statement is provided.
DISCUSSION
The primary issue of this appeal is regarding the determination of the eligible scope of work necessary to repair the damage site to its pre-disaster condition, and the estimate of the costs to perform this work. Further, the subgrantee asserts that FEMA did not notify them of the change in eligible scope until after the work was completed, therefore, it is their position that they are justified in performing the work as identified on the field version of the DSR.
Date of Notification of Eligible Work
The subgrantee asserts that they were not notified of the change in the eligible scope of work until December 1997, 14 months after the work was completed. However, our records indicate that DSR 17803 was approved and obligated on February 5, 1996, prior to commencement of work and prior to preparation of the project drawings dated April 1996. Further, the subgrantee's April 1997 supplemental request letter refers to the reduced eligible funding provided on the obligated DSR, indicating that they had received this notification prior to their referenced December 1997 date. It appears that the December 1997 date may refer to the date of the Regional Director's December 30, 1997, letter denying the subgrantee's request for a supplement, rather than the initial notification that the eligible scope of work had been reduced.
Independent of this issue, our review of the eligible scope of work and associated costs follows.
Eligible Scope of Work
The subgrantee has provided the as-built project drawing of the work performed at Black Road to support its position regarding the scope of work necessary to restore the site. Based on a review of this drawing, it is agreed that in order to facilitate the reconstruction of the embankment, it would be necessary to excavate into the failed surface of the slope. This excavation would then extend some distance into the roadway shoulder, identified as 2 ft. on the drawing. Accordingly, excavation into the slope, replacement of embankment fill, and repaving of the roadway shoulder are found to be eligible scope items. Further discussion of the quantities and material types for these items is provided below:
Excavation: DSR 58670 provides for 60 cy of excavation. Although the subgrantee does not specifically dispute this quantity, it is reasonable to expect that some additional excavation would be necessary to remove both the cut material from the face of the slope, as well as the remaining sloughed material from the slip out. It is found thatro200 cy of backfill material was estimated for this project. Based on the geometry of the excavation and replacement, this quantity of backfill is found to be reasonable, and, therefore, eligible. Regarding the specific material type, it is noted that backfill for placement on a slope must have the ability to be placed and well compacted to maintain a stable slope and suitable subgrade for the roadway. As there is little control over the gradation of unclassified fill material, it is agreed that the use of such material would not be acceptable in this application. Although it is also agreed that the specifications of structural fill material may have been excessive for a project of this type, it is believed that the cost allowance provided for in the FEMA Cost Codes may be more representative of the effort for placing fill under these site conditions. Accordingly, it is concluded that use of the FEMA Cost Code for structural fill to reconstruct the embankment would be reasonable.
Asphalt: Based on the drawing provided by the subgrantee, it is agreed that placement of pavement surface within the 2-ft. width of shoulder replacement should be eligible. The drawing indicates that 5 tons of asphalt concrete was estimated for the project. Our estimate of material, based on the 2 ft. width and 90 ft. length, is somewhat less than 5 tons, however, it is concluded that the 5 ton estimate is reasonable. It is also expected that an aggregate base course material (6-in. thick) would be placed beneath the pavement (2-ft. x 90-ft.), estimated at approximately 4 cy.
Engineering and Inspection: It is expected that some efforts would be required for engineering design and site inspection for this project. Accordingly, using the FEMA Engineering Curves, an allowance of 9% of the total eligible project cost for the items listed above will be funded for these efforts.
Asphalt Berm: The subgrantee indicates that the asphalt berm was not present prior to the disaster but that it was constructed as a measure to keep future water runoff from the damage area. The subgrantee has not indicated that such a berm is required by any code or standard. As has been stated by the Regional Director, such work would generally represent an improvement over the pre-existing condition of the site, and therefore, would not be an eligible scope item. However, our review has considered the eligibility of the construction of the asphalt berm as a hazard mitigation effort. Based on the information provided on the project drawing, the asphalt berm was constructed for 60 lf along the roadway. Utilizing the FEMA cost code for construction of a bituminous concrete berm, the total eligible cost for this work is estimated at $390. It is agreed that such an effort would be a cost-effective measure to reduce future similar damages, and therefore, is found to be eligible as hazard mitigation.
Eligible Costs
The subgrantee has indicated that the total actual cost to complete this work is $45,805. Based on a review of the documentation provided by the subgrantee, and the general breakdown of labor ($40,656) versus materials and equipment ($5,149) as identified above, it is concluded that the reported costs are excessive and not reasonable for the work performed. Accordingly, the eligible cost for the scope of work described above will be funded based on an estimate using FEMA Cost Codes. A summary of all eligible costs for this project is provided below.
CONCLUSION
Based on a review of the documentation provided by the subgrantee, it is concluded that the eligible scope of work should be expanded to include additional quantities and scope items as described above. The asphalt berm is found to be a cost-effective hazard mitigation measure, and is, therefore, eligible for funding. Costs for this work reported by the subgrantee are found to be excessive for the scope of work completed, and, therefore, not eligible as a basis for funding. Accordingly, the Regional Director will prepare a supplemental DSR to fund the eligible scope items using FEMA Cost Codes to estimate costs, as described herein. The subgrantee's appeal is partially granted.
Appeal Brief
| Disaster | FEMA-1046-DR |
| Applicant | Santa Clara County |
| Appeal Type | Second |
| PA ID# | 085-00000 |
| PW ID# | 17803,58670 |
| Date Signed | 1999-06-24T04:00:00 |
Cross Reference: Eligible Scope of Work, Reasonable Costs
Summary: As a result of the 1995 late winter storms, high flood flows caused an embankment along Black Road to slip out. The FEMA inspector prepared DSR17803 in the amount of $8,486 to clean and reshape a drainage ditch, install a catch basin, and to restore the downslope embankment by excavation and replacement with structural backfill. During eligibility review, the FEMA reviewer noted that the DSR did not identify a damaged catch basin, such that its replacement would not be eligible. Additionally, it was concluded that the line item for excavation was not necessary to restore the slope, and that unclassified fill would be sufficient in lieu of structural fill. Eligible funding was limited to $1,233. In a letter dated April 21, 1997, the subgrantee requested that the ineligible items be funded, and that funding be increased to reflect its actual force account costs to complete the work ($45,805). FEMA denied this request on the basis that the documentation provided identified work items in excess of the approved scope of work, such that the work was considered an improved project. The subgrantee's first appeal again requested funding of the additional scope items and funding to the amount of its actual costs. In review of the first appeal, FEMA prepared DSR 58670 to fund the replacement of the catch basin and the excavation efforts ($974). Other work, including asphalt placement and use of structural fill, was found to be an improvement or not necessary. The subgrantee's second appeal again requests funding of the ineligible items for the total actual costs for the project. The subgrantee provided a drawing of the project repair to support its appeal.
Issues:
- Are the additional scope items eligible for disaster assistance?
- Should funding be provided based on the subgrantee's reported actual costs?
- The eligible scope of work should be expanded to include additional quantities and scope items as described in the analysis. The asphalt berm is found to be a cost-effective hazard mitigation measure, and is, therefore, eligible for funding.
- Costs for this work reported by the subgrantee are excessive for the scope of work completed, and, therefore, not eligible as a basis for funding. FEMA cost codes will be used to estimate the eligible project costs.
Appeal Letter
June 24, 1999
D. A. Christian
Governor's Authorized Representative
Governor's Office of Emergency Services
P.O. Box 419023
Rancho Cordova, California 95741
RE: Second Appeal - Santa Clara County, Black Road, FEMA-1046-DR-CA, DSRs 17803, 58670
Dear Mr. Christian:
This letter is in response to the referenced second appeal transmitted by your letter dated January 20, 1999. The subgrantee is requesting funding for additional scope items performed in the Black Road embankment repair, and for its actual cost for this work.
As explained in the enclosed analysis, it is concluded that the eligible scope of work should be expanded to include certain additional quantities and scope items. Additionally, the asphalt berm is found to be a cost-effective hazard mitigation measure, and is, therefore, eligible for funding. However, the cost reported by the subgrantee are found to be excessive. We estimate the cost to perform the eligible scope of work to be $10,674, using FEMA cost codes. By copy of this letter, I am requesting the Regional Director to prepare a supplemental DSR for $8,467. The subgrantee's appeal is partially granted.
Please inform the applicant of my determination. In accordance with the appeal procedure governing appeal decisions made on or after May 8, 1998, my decision constitutes the final decision on this matter. The current appeal procedure was published as a final rule in the Federal Register on April 8, 1998. It amends 44 CFR 206.206.
Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
Enclosure
cc: Richard A. Buck
Disaster Recovery Manager
FEMA Region IX
D. A. Christian
Governor's Authorized Representative
Governor's Office of Emergency Services
P.O. Box 419023
Rancho Cordova, California 95741
RE: Second Appeal - Santa Clara County, Black Road, FEMA-1046-DR-CA, DSRs 17803, 58670
Dear Mr. Christian:
This letter is in response to the referenced second appeal transmitted by your letter dated January 20, 1999. The subgrantee is requesting funding for additional scope items performed in the Black Road embankment repair, and for its actual cost for this work.
As explained in the enclosed analysis, it is concluded that the eligible scope of work should be expanded to include certain additional quantities and scope items. Additionally, the asphalt berm is found to be a cost-effective hazard mitigation measure, and is, therefore, eligible for funding. However, the cost reported by the subgrantee are found to be excessive. We estimate the cost to perform the eligible scope of work to be $10,674, using FEMA cost codes. By copy of this letter, I am requesting the Regional Director to prepare a supplemental DSR for $8,467. The subgrantee's appeal is partially granted.
Please inform the applicant of my determination. In accordance with the appeal procedure governing appeal decisions made on or after May 8, 1998, my decision constitutes the final decision on this matter. The current appeal procedure was published as a final rule in the Federal Register on April 8, 1998. It amends 44 CFR 206.206.
Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
Enclosure
cc: Richard A. Buck
Disaster Recovery Manager
FEMA Region IX
Appeal Analysis
BACKGROUNDAs a result of the 1995 late winter storms (FEMA-1046-DR), high flood flows caused an embankment along Black Road to slip out. On October 4, 1995, an inspection team consisting of representatives from the Federal Emergency Management Agency (FEMA), the California Governor's Office of Emergency Services (OES), and Santa Clara County (subgrantee) visited the site to observe the disaster-related damages.
The FEMA inspector prepared Damage Survey Report (DSR) 17803 in the amount of $8,486 to clean and reshape a drainage ditch on the upslope side of Black Road, install a catch basin, and to restore the downslope embankment by excavation and replacement with structural backfill. The DSR narrative indicated that no damage to the roadway itself was observed. During eligibility review, the FEMA reviewer noted that the DSR did not identify a damaged catch basin, such that its replacement would not be eligible. Additionally, it was concluded that the line item for excavation was not necessary to restore the slope, and that unclassified fill would be sufficient in lieu of structural fill. The quantity for fill placement was also reduced from 200 cubic yards (cy) to 140 cy. DSR 17803 was obligated on February 5, 1996, in the amount of $1,233.
In a letter dated April 21, 1997, the subgrantee indicated that the actual costs incurred to complete the Black Road site repair totaled $45,805, and therefore, requested supplemental funding to DSR 17803 in the amount of $44,572. The work was completed with force account labor and equipment, with some equipment rental and purchase of materials. Specific costs were identified as follows:
Project Engineering (force account)*yyyy$ 39,016
Inspection (force account)yyyyyyyyyyyyyyyyyyyy$ 1,640
Equipment (force account)yyyyyyyyyyyyyyyyyyyy$ 3,266
Equipment Rentalyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyy$ 451
Materials (gravel, asphalt, concrete)yyyyyy$ 1,432
Total Project Cost yyyyyyyyyyyyyy$45,805
Less DSR 17803y yyyyyyyyyyyyyyy-$1,233
Requested Funding yyyyyyyyyyyyyy$44,572
* Project Engineering costs assumed to include field labor.
The Regional Director responded to this request in a letter dated December 30, 1997. Review of the cost documentation provided by the subgrantee identified work items, such as the purchase of asphalt, not originally identified on the DSR. It was, therefore, concluded that the subgrantee had exceeded the approved scope of work resulting in an improved project, such that the eligible funding would be limited to that approved on DSR 17803. The request for additional funding was denied.
First Appeal
The subgrantee submitted a first appeal of FEMA's determination of eligible work in a letter dated March 16, 1998, again requesting a supplemental DSR in the amount of $44,572. Regarding the specific line items of the DSR, the subgrantee indicated that excavation into the embankment was necessary to perform the repair, and that the catch basin was pre-existing and damaged by the disaster. The subgrantee stated that they proceeded with the reconstruction of the embankment with structural fill rather than unclassified fill as it had originally been identified on the field DSR.
The Regional Director responded to the first appeal in a letter dated October 21, 1998. The letter indicated that the intended use for backfill for this project did not support the need for material meeting the unique specifications of structural backfill. Unclassified fill was again found suitable for this project. Because the original DSR did not document any damage to the roadway surface, it was concluded that the placement of asphalt was not eligible. However, it was found that the catch basin was pre-existing and that some excavation would be necessary to complete the repair of the embankment. FEMA prepared supplemental DSR 58670 in the amount of $974 to fund the cost of the excavation and the catch basin as originally included in DSR 17803.
Second Appeal
The subgrantee's second appeal, transmitted by OES in a letter dated February 9, 1999, again requests funding of the total actual costs for the project. The subgrantee asserts that all work was performed to restore the site to its pre-disaster condition, and in conformance with the approved scope of work. The subgrantee provided an engineered drawing of the project repair (project drawing) to support their position that excavation into the roadway surface was necessary to repair the embankment, such that replacement of the pavement should be eligible. The subgrantee asserts that FEMA did not notify them of the change in eligible scope until after the work was completed. It is noted that in OES's transmittal letter, they state that "Based on the information provided, OES is unable to support the County's appeal for additional funds." However, no further explanation for this statement is provided.
DISCUSSION
The primary issue of this appeal is regarding the determination of the eligible scope of work necessary to repair the damage site to its pre-disaster condition, and the estimate of the costs to perform this work. Further, the subgrantee asserts that FEMA did not notify them of the change in eligible scope until after the work was completed, therefore, it is their position that they are justified in performing the work as identified on the field version of the DSR.
Date of Notification of Eligible Work
The subgrantee asserts that they were not notified of the change in the eligible scope of work until December 1997, 14 months after the work was completed. However, our records indicate that DSR 17803 was approved and obligated on February 5, 1996, prior to commencement of work and prior to preparation of the project drawings dated April 1996. Further, the subgrantee's April 1997 supplemental request letter refers to the reduced eligible funding provided on the obligated DSR, indicating that they had received this notification prior to their referenced December 1997 date. It appears that the December 1997 date may refer to the date of the Regional Director's December 30, 1997, letter denying the subgrantee's request for a supplement, rather than the initial notification that the eligible scope of work had been reduced.
Independent of this issue, our review of the eligible scope of work and associated costs follows.
Eligible Scope of Work
The subgrantee has provided the as-built project drawing of the work performed at Black Road to support its position regarding the scope of work necessary to restore the site. Based on a review of this drawing, it is agreed that in order to facilitate the reconstruction of the embankment, it would be necessary to excavate into the failed surface of the slope. This excavation would then extend some distance into the roadway shoulder, identified as 2 ft. on the drawing. Accordingly, excavation into the slope, replacement of embankment fill, and repaving of the roadway shoulder are found to be eligible scope items. Further discussion of the quantities and material types for these items is provided below:
Asphalt: Based on the drawing provided by the subgrantee, it is agreed that placement of pavement surface within the 2-ft. width of shoulder replacement should be eligible. The drawing indicates that 5 tons of asphalt concrete was estimated for the project. Our estimate of material, based on the 2 ft. width and 90 ft. length, is somewhat less than 5 tons, however, it is concluded that the 5 ton estimate is reasonable. It is also expected that an aggregate base course material (6-in. thick) would be placed beneath the pavement (2-ft. x 90-ft.), estimated at approximately 4 cy.
Engineering and Inspection: It is expected that some efforts would be required for engineering design and site inspection for this project. Accordingly, using the FEMA Engineering Curves, an allowance of 9% of the total eligible project cost for the items listed above will be funded for these efforts.
Asphalt Berm: The subgrantee indicates that the asphalt berm was not present prior to the disaster but that it was constructed as a measure to keep future water runoff from the damage area. The subgrantee has not indicated that such a berm is required by any code or standard. As has been stated by the Regional Director, such work would generally represent an improvement over the pre-existing condition of the site, and therefore, would not be an eligible scope item. However, our review has considered the eligibility of the construction of the asphalt berm as a hazard mitigation effort. Based on the information provided on the project drawing, the asphalt berm was constructed for 60 lf along the roadway. Utilizing the FEMA cost code for construction of a bituminous concrete berm, the total eligible cost for this work is estimated at $390. It is agreed that such an effort would be a cost-effective measure to reduce future similar damages, and therefore, is found to be eligible as hazard mitigation.
Eligible Costs
The subgrantee has indicated that the total actual cost to complete this work is $45,805. Based on a review of the documentation provided by the subgrantee, and the general breakdown of labor ($40,656) versus materials and equipment ($5,149) as identified above, it is concluded that the reported costs are excessive and not reasonable for the work performed. Accordingly, the eligible cost for the scope of work described above will be funded based on an estimate using FEMA Cost Codes. A summary of all eligible costs for this project is provided below.
Cost Code | Item | Quantity | Unit Price | Cost |
3070 | Ditch Cleaning and Shaping | 150 lf | $0.75/lf | $112.50 |
9999 | Drop-in Catch Basin | 1 | $600 | $600.00 |
3031 | Excavation and Short-Haul | 150 cy | $6.23/cy | $934.50 |
3310 | Backfill, Structural | 200 cy | $37/cy | $7,400.00 |
3090 | Aggregate Base Course | 4 cy | $38/cy | $152.00 |
3131 | Bituminous Concrete | 5 tons | $47/ton | $235.00 |
9999 | Engineering and Inspection (9%) | LS | $850 | $850.00 |
3112 | Bituminous Concrete Berm (HMP) | 60 lf | $6.50/lf | $390.00 |
Total Eligible Cost: | $10,674 | |||
Less DSRs 17803, 58670 | $2,207 | |||
Additional Funding: | $8,467 | |||
CONCLUSION
Based on a review of the documentation provided by the subgrantee, it is concluded that the eligible scope of work should be expanded to include additional quantities and scope items as described above. The asphalt berm is found to be a cost-effective hazard mitigation measure, and is, therefore, eligible for funding. Costs for this work reported by the subgrantee are found to be excessive for the scope of work completed, and, therefore, not eligible as a basis for funding. Accordingly, the Regional Director will prepare a supplemental DSR to fund the eligible scope items using FEMA Cost Codes to estimate costs, as described herein. The subgrantee's appeal is partially granted.
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