Leirness Drain #34 Repair
Appeal Brief
Appeal Letter
Appeal Analysis
Citation: FEMA-1597-DR-ND, Traill County Water Resource District, PWs 389 and 391, Drain Repair/Restoration
Cross Reference: Pre-Disaster Condition, Eligible Repair
Summary: Severe storms, flooding and ground saturation in the summer of 2005 (1597-DR-ND) caused erosion to the channel bottom and sloughing of the south embankment at various locations along the upper eight miles of Leirness Drain #34. FEMA obligated PWs 389 and 391 for the repair of 49,375 cubic yards (cy) of eroded channel bottom and sloughed and eroded side slopes using costs derived from bid prices received for similar projects within the preceding ten years. The Traill County Water Resource District (Applicant) put the repair work out for bid using a repair methodology that caused the costs to significantly exceed the estimated costs in the PW. The Applicant submitted a first appeal on December 22, 2005, asserting the cost estimate approved in the PW was too low to complete the work; that the PW did not document all disaster-related damage; and that the recently received sealed bid costs should be used as the basis for the cost of repairs. FEMA denied the first appeal reaffirming that the cost estimate in the PW was reasonable, reiterating the damage quantities match the Applicants consultants quantities as published in its report, and concluding the plans and specifications used as the basis for the competitive bid includes work that exceeds the usual practice for eligible work and, therefore, the unit prices contained in the bid are considered to apply to an Improved Project. The Applicant submitted a second appeal on May 15, 2006. In this appeal, the Applicant asserts that not all of the identified damages have been documented, stressing that the damage quantities are not segregated between the channel floor damage versus the embankment slope damage and the total quantity listed in the PWs are much less than required to fix the damage. The Applicant requests an additional 13,286 cy of excavation and 13,350 cy in embankment fill for PW 389, and 26,349 cy of excavation and 25,500 cy of embankment fill for PW 391. The additional costs are $58,278 for PW 389 and $115,805 cy for PW 391.
Issues: (1) Has FEMA adequately documented all eligible damage and repair quantities?
Findings: (1) Yes
Rationale: 44 CFR § 206.226
Severe storms (FEMA-1597-DR-ND) occurred in June and July 2005 and caused flooding and ground saturation in North Dakota. As a result, the channel bottom of the upper eight miles of Leirness Drain #34 eroded, and sloughing occurred on the south embankment at various locations along the eight-mile length of channel. The upper three miles of the same drain was damaged as a result of FEMA-1515-DR-ND in 2004. Repair work for damages identified in PW 148 (1515-DR-ND) had not yet started when the current damages occurred. The Traill County Water Resource District (Applicant) requested funding from the Federal Emergency Management Agency (FEMA) for the repair of the additional damage.
FEMA obligated Project Worksheets (PWs) 389 and 391 on November 28, 2005, for the restoration of the manmade drainage channel. FEMA prepared PW 389 to fund the repair of 14,999 cubic yards (cy) of eroded channel bottom and failed/sloughed south side slope in the upper three miles of the drain. FEMA reduced the total eligible amount of this PW ($60,576.33) by the amount obligated in PW 148 from 1515-DR-ND ($56,089.80) resulting in a net total approved amount of $4,486.53. FEMA prepared PW 391 for $130,854.25 to fund the repair of 34,376 cy of eroded channel bottom and failed/sloughed south side slope in the lower five miles of the damaged portion of the drain. FEMA used damage quantities and unit costs developed by the Applicants engineering consultant for both PWs. The unit price values were estimated from bid tabulations of area projects that were completed in 1998 and 2003 with appropriate escalation factors.
The Applicants consultant developed plans and specifications that were let for a public bid returned on November 2, 2005. Whereas FEMAs estimated unit prices were $3.41 per cy for embankment repair and $0.20 per square yard (sy) for slope grading, the low bid came in at $11.90 per cy for embankment repair and $3.80 per sy for slope grading. This drastic difference in cost caused the Applicant to confer with FEMA prior to taking action to do the work.
Based on a review of the plans and specifications for the project, FEMA determined that the higher unit costs in the bid were related to the repair methodology, which exceeded normal and typical restorations of similar facilities. The specifications included embankment material in horizontal layers not to exceed nine inches in depth and compaction of the material to a minimum of 95% of its maximum density. This repair methodology would involve a significant amount of excavation into undisturbed material.
The typical methodology for repair of sloughing of side slopes of similar drains, which was approved by FEMA in PWs 389 and 391 involves removing the loose material, filling eroded areas, and blading/grading the slopes. Normally, in order to achieve the same embankment density as the surrounding soil, compaction in place is handled by wheel rolling with a dozer or front loader. This is the typical method of repair used by water districts, including the Applicant, for their maintenance program. Compaction of the material to a minimum density of 95% of its maximum density is above and beyond what is necessary to restore the facility to its pre-disaster design, capacity, and function.
On December 8, 2005, the Applicant met with FEMA to discuss the different repair methodologies and associated costs that eventually became the basis for their first appeal. The Applicants concerns were not resolved at this meeting.
First Appeal
In a letter dated December 22, 2005, the Applicant appealed the scopes of work and funding approved under PWs 389 and 391. The Applicant asserted that the cost estimates approved in the PWs were too low to complete the work; that the PWs did not document all disaster-related damage; and that the recently received sealed bid costs should be used as the basis for the cost of repairs.
FEMAs Regional Administrator denied the first appeal reaffirming that the cost estimates in the PWs were reasonable by comparing the unit costs in the PWs with actual costs from eleven similar, closed-out projects from North Dakota in FEMA records. The Regional Administrator also reiterated that the damage quantities in the PWs match the Applicants consultants quantities as published in its report. The Regional Administrator stated that the eligible work outlined in the PWs covers all typical, usual work to restore the drain to its pre-disaster design, condition, shape, and function, and that any additional work is considered above and beyond what is necessary to restore the drain. Finally, the Regional Administrator concluded that the plans and specifications used as the basis for the competitive bid includes work that exceeds the usual practice for similar repair work. As such, FEMA considered the unit prices contained in the bid to apply to an Improved Project and not to the eligible scope of work. Based on the first appeal determination, FEMA obligated Version 1 of PW 389 on March 13, 2006, for $56,089.80, the amount previously deducted, because we believed it was included in PW 148 from 1515-DR-ND.
Second Appeal
On May 15, 2006, the Applicant submitted a second appeal of the PWs. In this appeal, the Applicant asserts that not all of the identified damages were documented in the PWs. The Applicant states that there is no specific segregation of damage quantities of the channel floor versus the embankment slope and that the total quantities listed in the PWs are much less than required to fix the damage. Based on calculations by its consultant, the Applicant requests that FEMA increase the quantity of excavation by 13,286 cy and the quantity of embankment fill by 13,350 cy for PW 389. For PW 391, it requests an increase in the quantity of excavation and embankment fill by 26,439 cy and 26,500 cy, respectively. The Applicant uses the FEMA cost codes of $0.96/cy for excavation and $3.41/cy for fill as the basis of its request for an additional $58,278 under PW 389 and $115,805 under PW 391.
DISCUSSION
Notwithstanding that the specific quantities associated with the side slope damage are not described separately or distinctly from the channel bottom damage in the PWs, the total damage quantities approved in the PWs include both the side slope and the channel bottom damage. FEMA confirmed this through a detailed review of the cross sections included in the construction plans entitled Traill County Drain #34 2005 Flood Damage Repairs and the quantity of fill used to develop the cost estimates approved in the PWs. The total quantity of fill used in the estimates in both PWs is within 1% of the Cumulative Volumes published on drawing 11 of 22 from the construction plans which confirms that the PWs include all identified damage quantities. Accordingly, the Applicants assertion that the quantities for the side slope damage have been omitted from the PWs is not correct. The additional quantities of excavation and fill requested by the Applicant are related to the Applicants proposed repair methodology, which is not approved under the PWs.
It is important to note that the Applicants repair methodology (that was put out for bid) is above and beyond what is necessary to restore the facility to its pre-disaster design, use, and function. The methodology involves placing 9-inch deep by 10-feet wide clay lifts compacted to 95% maximum density tied into the existing soil using a stair step cross section. This method requires a significant amount of over-excavation at the damaged portion of the cross section as well as removal of large volumes of completely undisturbed material to gain access to the repair areas. This repair amounts to a complete reconstruction of the drain facprea, as described above. Should the Applicant continue to pursue its proposed repair methodology, the Applicant must apply to the State of North Dakota for approval for an Improved Project before proceeding with the work in accordance with Title 44 of the Code of Federal Regulations (44 CFR) § 206.203(d)(1).
CONCLUSION
For the reasons discussed above, the Applicants appeal of the documented quantity of disaster- related damages and the funding approved in PWs 389 and 391 is denied.
Appeal Brief
| Disaster | FEMA-1597-DR |
| Applicant | Traill County Water Resource District |
| Appeal Type | Second |
| PA ID# | 097-019BF-00 |
| PW ID# | PWs 389 and 391 |
| Date Signed | 2007-07-13T04:00:00 |
Appeal Letter
July 13, 2007
Mr. Lonnie Hoffer
Disaster Recovery Chief
Office of the Adjutant General, Department of Emergency Services
PO Box 5511
Bismarck, ND 58506-5511
Re: Second Appeal - Traill County Water Resource District, PA ID# 097-019BF-00
Leirness Drain #34 Repair, FEMA-1597-DR-ND, PWs 389 & 391
Dear Mr. Hoffer:
This is in response to your letter dated June 14, 2006, transmitting the second appeal of the Traill County Water Resource District (Applicant) dated May 15, 2006, of Project Worksheets (PWs) 389 and 391. The appeal disputes the quantity of identified disaster-related damage documented in the PWs.
As explained further in the enclosed appeal analysis, we have determined that the approved PWs accounted for all disaster-related damage to the facility. Therefore, I am denying this appeal. In addition, the Applicants proposed repair method constitutes an Improved Project and requires approval from your office in accordance with Title 44 of the Code of Federal Regulations (44 CFR) § 206.203(d)(1).
Please inform the Applicant of my decision. This determination constitutes the final decision on this matter pursuant to 44 CFR § 206.206.
Sincerely,
/s/
Carlos J. Castillo
Assistant Administrator
Disaster Assistance Directorate
Enclosure
Cc: Robert L. Flowers
Regional Administrator
FEMA Region VIII
Mr. Lonnie Hoffer
Disaster Recovery Chief
Office of the Adjutant General, Department of Emergency Services
PO Box 5511
Bismarck, ND 58506-5511
Re: Second Appeal - Traill County Water Resource District, PA ID# 097-019BF-00
Leirness Drain #34 Repair, FEMA-1597-DR-ND, PWs 389 & 391
Dear Mr. Hoffer:
This is in response to your letter dated June 14, 2006, transmitting the second appeal of the Traill County Water Resource District (Applicant) dated May 15, 2006, of Project Worksheets (PWs) 389 and 391. The appeal disputes the quantity of identified disaster-related damage documented in the PWs.
As explained further in the enclosed appeal analysis, we have determined that the approved PWs accounted for all disaster-related damage to the facility. Therefore, I am denying this appeal. In addition, the Applicants proposed repair method constitutes an Improved Project and requires approval from your office in accordance with Title 44 of the Code of Federal Regulations (44 CFR) § 206.203(d)(1).
Please inform the Applicant of my decision. This determination constitutes the final decision on this matter pursuant to 44 CFR § 206.206.
Sincerely,
/s/
Carlos J. Castillo
Assistant Administrator
Disaster Assistance Directorate
Enclosure
Cc: Robert L. Flowers
Regional Administrator
FEMA Region VIII
Appeal Analysis
BACKGROUNDSevere storms (FEMA-1597-DR-ND) occurred in June and July 2005 and caused flooding and ground saturation in North Dakota. As a result, the channel bottom of the upper eight miles of Leirness Drain #34 eroded, and sloughing occurred on the south embankment at various locations along the eight-mile length of channel. The upper three miles of the same drain was damaged as a result of FEMA-1515-DR-ND in 2004. Repair work for damages identified in PW 148 (1515-DR-ND) had not yet started when the current damages occurred. The Traill County Water Resource District (Applicant) requested funding from the Federal Emergency Management Agency (FEMA) for the repair of the additional damage.
FEMA obligated Project Worksheets (PWs) 389 and 391 on November 28, 2005, for the restoration of the manmade drainage channel. FEMA prepared PW 389 to fund the repair of 14,999 cubic yards (cy) of eroded channel bottom and failed/sloughed south side slope in the upper three miles of the drain. FEMA reduced the total eligible amount of this PW ($60,576.33) by the amount obligated in PW 148 from 1515-DR-ND ($56,089.80) resulting in a net total approved amount of $4,486.53. FEMA prepared PW 391 for $130,854.25 to fund the repair of 34,376 cy of eroded channel bottom and failed/sloughed south side slope in the lower five miles of the damaged portion of the drain. FEMA used damage quantities and unit costs developed by the Applicants engineering consultant for both PWs. The unit price values were estimated from bid tabulations of area projects that were completed in 1998 and 2003 with appropriate escalation factors.
The Applicants consultant developed plans and specifications that were let for a public bid returned on November 2, 2005. Whereas FEMAs estimated unit prices were $3.41 per cy for embankment repair and $0.20 per square yard (sy) for slope grading, the low bid came in at $11.90 per cy for embankment repair and $3.80 per sy for slope grading. This drastic difference in cost caused the Applicant to confer with FEMA prior to taking action to do the work.
Based on a review of the plans and specifications for the project, FEMA determined that the higher unit costs in the bid were related to the repair methodology, which exceeded normal and typical restorations of similar facilities. The specifications included embankment material in horizontal layers not to exceed nine inches in depth and compaction of the material to a minimum of 95% of its maximum density. This repair methodology would involve a significant amount of excavation into undisturbed material.
The typical methodology for repair of sloughing of side slopes of similar drains, which was approved by FEMA in PWs 389 and 391 involves removing the loose material, filling eroded areas, and blading/grading the slopes. Normally, in order to achieve the same embankment density as the surrounding soil, compaction in place is handled by wheel rolling with a dozer or front loader. This is the typical method of repair used by water districts, including the Applicant, for their maintenance program. Compaction of the material to a minimum density of 95% of its maximum density is above and beyond what is necessary to restore the facility to its pre-disaster design, capacity, and function.
On December 8, 2005, the Applicant met with FEMA to discuss the different repair methodologies and associated costs that eventually became the basis for their first appeal. The Applicants concerns were not resolved at this meeting.
First Appeal
In a letter dated December 22, 2005, the Applicant appealed the scopes of work and funding approved under PWs 389 and 391. The Applicant asserted that the cost estimates approved in the PWs were too low to complete the work; that the PWs did not document all disaster-related damage; and that the recently received sealed bid costs should be used as the basis for the cost of repairs.
FEMAs Regional Administrator denied the first appeal reaffirming that the cost estimates in the PWs were reasonable by comparing the unit costs in the PWs with actual costs from eleven similar, closed-out projects from North Dakota in FEMA records. The Regional Administrator also reiterated that the damage quantities in the PWs match the Applicants consultants quantities as published in its report. The Regional Administrator stated that the eligible work outlined in the PWs covers all typical, usual work to restore the drain to its pre-disaster design, condition, shape, and function, and that any additional work is considered above and beyond what is necessary to restore the drain. Finally, the Regional Administrator concluded that the plans and specifications used as the basis for the competitive bid includes work that exceeds the usual practice for similar repair work. As such, FEMA considered the unit prices contained in the bid to apply to an Improved Project and not to the eligible scope of work. Based on the first appeal determination, FEMA obligated Version 1 of PW 389 on March 13, 2006, for $56,089.80, the amount previously deducted, because we believed it was included in PW 148 from 1515-DR-ND.
Second Appeal
On May 15, 2006, the Applicant submitted a second appeal of the PWs. In this appeal, the Applicant asserts that not all of the identified damages were documented in the PWs. The Applicant states that there is no specific segregation of damage quantities of the channel floor versus the embankment slope and that the total quantities listed in the PWs are much less than required to fix the damage. Based on calculations by its consultant, the Applicant requests that FEMA increase the quantity of excavation by 13,286 cy and the quantity of embankment fill by 13,350 cy for PW 389. For PW 391, it requests an increase in the quantity of excavation and embankment fill by 26,439 cy and 26,500 cy, respectively. The Applicant uses the FEMA cost codes of $0.96/cy for excavation and $3.41/cy for fill as the basis of its request for an additional $58,278 under PW 389 and $115,805 under PW 391.
DISCUSSION
Notwithstanding that the specific quantities associated with the side slope damage are not described separately or distinctly from the channel bottom damage in the PWs, the total damage quantities approved in the PWs include both the side slope and the channel bottom damage. FEMA confirmed this through a detailed review of the cross sections included in the construction plans entitled Traill County Drain #34 2005 Flood Damage Repairs and the quantity of fill used to develop the cost estimates approved in the PWs. The total quantity of fill used in the estimates in both PWs is within 1% of the Cumulative Volumes published on drawing 11 of 22 from the construction plans which confirms that the PWs include all identified damage quantities. Accordingly, the Applicants assertion that the quantities for the side slope damage have been omitted from the PWs is not correct. The additional quantities of excavation and fill requested by the Applicant are related to the Applicants proposed repair methodology, which is not approved under the PWs.
It is important to note that the Applicants repair methodology (that was put out for bid) is above and beyond what is necessary to restore the facility to its pre-disaster design, use, and function. The methodology involves placing 9-inch deep by 10-feet wide clay lifts compacted to 95% maximum density tied into the existing soil using a stair step cross section. This method requires a significant amount of over-excavation at the damaged portion of the cross section as well as removal of large volumes of completely undisturbed material to gain access to the repair areas. This repair amounts to a complete reconstruction of the drain facprea, as described above. Should the Applicant continue to pursue its proposed repair methodology, the Applicant must apply to the State of North Dakota for approval for an Improved Project before proceeding with the work in accordance with Title 44 of the Code of Federal Regulations (44 CFR) § 206.203(d)(1).
CONCLUSION
For the reasons discussed above, the Applicants appeal of the documented quantity of disaster- related damages and the funding approved in PWs 389 and 391 is denied.
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