Appeal Brief | Appeal Letter | Back
Second Appeal Letter
PA ID# 071-U76DM-00; Audubon Commission
PW ID# 14265; Debris Removal
July 23, 2009
Colonel Thomas Kirkpatrick (Ret.)
State Coordinating Officer
Governors Office of Homeland Security and Emergency Preparedness
7667 Independence Boulevard
Baton Rouge, Louisiana 70806
Re: Second AppealAudubon Commission, PA ID 071-U76DM-00, Debris Removal
FEMA-1603-DR-LA, Project Worksheet 14265
Dear Colonel Kirkpatrick:
This letter is in response to your letter dated October 16, 2008, which transmitted the referenced second appeal on behalf of the Audubon Commission (Applicant). The Applicant is appealing the Department of Homeland Securitys Federal Emergency Management Agencys (FEMA) denial of $45,257 for debris removal at the Audubon Nature Center.
Hurricane Katrina damaged the Audubon Nature Center on August 29, 2005. On May 31, 2006, the Applicant solicited a proposal from Hamps Construction Company to remove damaged contents and building materials from the facility and deposit them at curbside for $94,000. FEMA determined that the incurred cost was not reasonable for the scope of work and prepared Project Worksheet (PW) 14265 for the eligible cost of $48,743.
The Applicant submitted its first appeal to the Governors Office of Homeland Security and Emergency Preparedness (GOHSEP) on December 7, 2007. In its appeal, the Applicant argued that it could not competitively bid its contract and meet the June 16, 2006 deadline for debris removal from rights-of-way by the U.S. Army Corps of Engineers (USACE). The Applicant stated that it did not learn of the USACE deadline until May 29, 2006. In its transmittal of the Applicants appeal, GOHSEP added that the Applicant requested the opportunity to submit a cost analysis to demonstrate that the costs were reasonable. FEMA allowed the Applicant 60 days to submit additional cost information. However, the Applicant did not provide any additional supporting documentation. The Regional Administrator denied the appeal on May 30, 2008.
The Applicant submitted its second appeal to GOHSEP on July 16, 2008. In its appeal, the Applicant asserted that it is unable to provide an alternate cost analysis. GOHSEP supported the Applicants appeal position and argued that logistics involved in performing the work accounts for the increased cost. GOHSEP stated that a new cost analysis would be provided to FEMA at a later date. Photographs and building inventory lists were provided as supplemental information for the second appeal in a letter from GOHSEP dated October 16, 2008.
The Applicant provided additional information in a conference call with FEMA, held on February 18, 2009. The Applicant explained that the limited number of available contractors following Hurricane Katrina precluded the Applicant from competitively procuring its contract. The Applicant also stated that it has made an unsuccessful, but good faith effort to obtain estimates from other vendors to demonstrate the reasonableness of its contract with Hamps Construction. The Applicant also noted that FEMAs cost analysis was based on a total of 30,130 square feet (SF) for the nine, single-story buildings damaged by the storm. According to the Applicant, its buildings are two stories in height and the total square footage is 60,260 SF. The Applicant also noted that the work took 10 days to complete, rather than the 9 days recorded on the PW.
The Applicant awarded a sole source contract to remove disaster-related debris from its facilities. Pursuant to 44 Code of Federal Regulations (44 CFR) §13.36(d)(4)(ii),
Procurement, Procurement by noncompetitive proposals, FEMA must prepare a price analysis to determine the reasonability of contracts procured by noncompetitive proposals. The Applicant requested reimbursement for 15 workers and equipment for 10 days. FEMA based its price analysis on 15 workers working eight hours per day for nine days and wage and equipment rates from RS Means. The Applicant submitted information confirming that the contractor work up to 10 hours per day for 10 days. FEMA will revise its estimate to reflect that the contractor performed an additional 28 hours of work. The Applicant did not present any compelling information to support changing the wage and equipment rates FEMA used in its price analysis.
I have reviewed the information submitted with the appeal and determined that the Applicant is eligible to receive an additional $15,036. Accordingly, I am partially granting the Applicants second appeal. By copy of this letter, I am requesting that the Acting Director of the Transitional Recovery Office take appropriate action to implement my decision.
Please inform the Applicant of my decision. This determination is the final decision on this matter pursuant to 44 CFR §206.206, Appeals
Elizabeth A. Zimmerman
Disaster Assistance Directorate
cc: Gary Jones
Acting Regional Administrator
FEMA Region VI
Louisiana Transitional Recovery Office