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Second Appeal Letter
PA ID# 045-78200-00; City of Waveland
PW ID# 213 and10806; Debris Removal
June 5, 2009
Thomas M. Womack
Governor’s Authorized Representative
Mississippi Emergency Management Agency
Post Office Box 5644
Pearl, MS 39208-5644
Re: Second Appeal–City of Waveland, PA ID 045-78200-00, Debris Removal,
FEMA-1604-DR-MS, Project Worksheets (PW) 213 and 10806
Dear Mr. Womack:
This letter is in response to your letter dated September 17, 2008, which transmitted the referenced second appeal on behalf of the City of Waveland (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) deduction of debris removal contract costs determined to be unreasonable and constitute a duplication of benefits.
FEMA prepared PW 213 for $9,685,194 for debris removal and disposal costs associated with work performed under contract from September 11, 2005, through June 30, 2006. FEMA also prepared PW 10806 for $4,591,700 for costs associated with work performed from July 1, 2006, through June 1, 2007, pursuant to a contract extension. FEMA de-obligated funds from both PWs at final inspection, including $891,513 in costs associated with work determined to be under the authority of the Federal Highway Administration’s (FHWA’s) Emergency Relief (ER) Program, and $1,643,891 associated with contract costs FEMA determined to be unreasonable. FEMA determined that the $18.25 per cubic yard (CY) price for non-hazardous debris removal and disposal established by the Applicant’s noncompetitively procured contract was excessively high. FEMA substituted a $15.00 per CY price it determined to be reasonable based on average contract prices in a neighboring county.
The Mississippi Emergency Management Agency (MEMA) transmitted the Applicant’s first appeal of PW 213 to FEMA on December 13, 2007. The Applicant asserted that it was eligible for costs associated with “first pass” work performed on FHWA roads because it had not received ER funding at the time of appeal. The Applicant also argued that exigent circumstances allowed for sole-source procurement and the $18.25 per CY price was reasonable. MEMA transmitted the Applicant’s appeal of PW 10806 on February 20, 2008, which also requested reinstatement of the $18.25 per CY price. In a letter dated May 5, 2008, the Regional Administrator denied both appeals stating that FEMA cannot reimburse work performed under
the jurisdiction of another Federal agency. The Regional Administrator also stated that the Applicant did not provide sufficient justification establishing the $18.25 per CY as reasonable.
The Applicant submitted a second appeal to MEMA on July 21, 2008, and transmitted supplemental information on December 10, 2008. The Applicant asserts that it is eligible for costs associated with work performed on FHWA roads after the first pass. MEMA also argues that the Stafford Act allows FEMA to provide assistance if it is not received by another source by the time assistance is requested. The Applicant also asserts that the $18.25 per CY price is reasonable in comparison to prices for similar work performed in nearby areas. The appeal cites five competitively procured debris removal contracts in other jurisdictions ranging from $17.95 to $19.80 per CY. It also argues that prices for similar work performed under the U.S. Army Corps of Engineers (USACE) mission assignment in its jurisdiction exceeded $18.25 per CY.
In accordance with Federal appropriations law, FEMA will not provide disaster assistance for an item of work when another Federal agency has specific authority to perform the work. Under the FHWA ER Program, FHWA pays for debris removal for the first pass on FHWA roads. Accordingly, the Applicant is not eligible for reimbursement of debris removal costs incurred during the first pass on FHWA roads and funded by FHWA. However, the Applicant is eligible for reimbursement of costs associated with eligible debris removal work performed after the first pass on FHWA roads. This includes de-obligated costs associated with the removal of 1,192.35 CYs of eligible debris. Also, the Applicant has demonstrated that the $18.25 per CY price for non-hazardous debris removal and disposal is reasonable and comparable to similar work performed in nearby jurisdictions and under mission assignment from FEMA to USACE.
Based on the review of all information submitted with the appeal, I am partially approving the Applicant’s appeal. I am approving $1,665,651.72 based on the $18.25 per CY price and eligible debris removed from FHWA roads after the first pass. By copy of this letter, I request that the Regional Administrator take appropriate action to implement this decision.
Please inform the Applicant of my decision. This determination is the final decision on this matter pursuant to 44 CFR §206.206, Appeals.
James A. Walke
Acting Assistant Administrator
Disaster Assistance Directorate
cc: Major P. May
FEMA Region IV