As a result of heavy rainfall during winter storms in January 2005, FEMA prepared PW 3112 in August 2005 for $474,164 to fund stabilization of a shallow slope failure to restore the paved shoulder along a section of Las Flores Canyon Road, 130 feet north of MM (mile marker, also referred to in the appeal documentation as CM for culvert marker) 1.94, located in Los Angeles County.
The Damage Dimensions and Description in the PW identifies damage to a 130-foot section of the road. The damage is described as “… a shoulder slip out which measures approximately 5 feet wide x 130 linear feet of paved shoulder.” The PW notes tension cracks as well as vertical displacement in the immediate area of the damage. The scope of work as set forth in the PW is based on information provided to FEMA by the County of Los Angeles Department of Public Works (LADPW), including recommendations from the Geotechnical Engineering and Materials Division based on a site specific geotechnical field investigation. The PW’s scope of eligible work calls for a 136-foot long soldier pile wall with single tiebacks, piles 8 feet on‑centers, and pre-cast reinforced concrete panels.
The County of Los Angeles (Applicant) subsequently disagreed with the scope of work and funding estimate in the PW and submitted appeals to Region IX and FEMA Headquarters requesting funding of a revised scope of work. FEMA concluded that the revised scope of work exceeded what was necessary to repair the facility to its pre-disaster condition; therefore, both appeals were denied, but the second appeal response included adjustments to the eligible costs. After the second appeal, the Applicant requested an Improved Project in order to enhance the site repair and is now requesting that FEMA reconsider the unit costs for the approved scope of work on the PW as a proration of actual costs incurred by the Applicant.
First Appeal – Scope of Work
In the first appeal, submitted to the California Governor’s Office of Emergency Services (OES) on March 27, 2006, and forwarded by OES to FEMA on May 19, 2006, the Applicant argued that the scope of work needed to be revised to be consistent with the plans it developed for repair of the facility and requested that the project cost be increased accordingly. The Applicant’s proposed repair scheme called for a 156 feet long soldier pile wall with a combination of single, double, and triple tiebacks; piles spaced 6 feet on-centers; and a cast-in-place reinforced concrete wall with timber lagging. The Applicant requested that FEMA revise the PW to allow for an increase of the wall length; additional anchored tiebacks; eight additional soldier piles; a cast-in-place reinforced concrete wall with timber lagging instead of pre-cast reinforced concrete panels; provision for 155 feet of cable railing; an increase in the total quantity of excavation; and substantially more base and asphalt pavement removal and replacement.
As part of the appeal, the Applicant provided a copy of a set of construction plans prepared by the LADPW for the damaged site and a rationale for the use of a cast-in-place concrete for soil retention rather than pre-cast concrete panels. The additional costs of materials and labor associated with the revised scope of work resulted in a total project cost of $1,641,908.
The Region IX’s first appeal analysis noted that construction of a cast-in-place wall instead of the recommended pre-cast panel wall would not constitute a significant change in the approved scope of work, provided the dimensions of the wall remained the same. In the appeal response, the Regional Administrator (RA) denied the appeal because insufficient documentation had been provided to support the Applicant’s request for the additional work items outlined in the appeal. The RA’s response further stated that a change in the scope of work beyond that which was approved in the PW would necessitate a request from the Applicant for an Improved Project with the federal funding limited to the federal share of the approved estimate of eligible costs.
Second Appeal – Scope of Work
In the second appeal, submitted to OES on October 11, 2006, and forwarded by OES to FEMA on December 11, 2006, the Applicant reiterated its request for FEMA to approve the proposed changes to the scope of work in order to be consistent with the design and to increase the total eligible project cost. The Applicant emphasized that the County’s engineer of record is responsible for the correct and appropriate repair scheme for the damaged site.
In addition to copies of the PW, first appeal response, and another set of construction plans prepared by LADPW, the Applicant included a portion of the geotechnical report prepared by the Geotechnical and Materials Engineering Division of LADPW, dated March 10, 2005. Also included was a 42-page accounting summary of LADPW labor, equipment, and materials credited against the project. The estimated total project cost requested in the second appeal was $2,202,601, which the Applicant referred to as a preliminary estimate since not all charges had been processed at that time.
A thorough review of the submitted documentation revealed that the Applicant failed to provide engineering data and analyses sufficient to support the request for a change to the PW’s approved scope of work. Based on the information provided, FEMA concluded that the Applicant’s proposed scope of work exceeded what was necessary to repair the disaster related damage. The second appeal response noted that such improvements are not eligible for FEMA funding and advised that if the Applicant elected to perform the expanded scope of work, the work would be considered an Improved Project. While the second appeal response denied the Applicant’s request for expansion of the scope of work, a review of the PW indicated that an increase in the quantities of excavation, backfill placement, compaction, and pavement restoration was appropriate, although not to the extent requested by the Applicant. Therefore, FEMA revised the quantities with a version of PW 3112 and approved a total eligible cost of $623,918.
First Appeal – Project Costs
In the first appeal on project costs, submitted to OES on December 14, 2010, and forwarded by OES to FEMA on February 4, 2011, the Applicant stated that FEMA should not treat the project as an Improved Project because even though it constructed an enhanced 156-foot soldier pile wall, the Applicant could still provide cost tracking detail for the 136-foot long soldier pile wall approved in the PW’s scope of work. The Applicant indicated that its understanding of what constitutes an Improved Project is based on page 71 of the Public Assistance Digest (FEMA 321), Improved Projects, which states “For the most part, these are projects in which the funding for approved work cannot be tracked within the improved project because of physical changes or contracting arrangements.” The Applicant interprets the inability to track funding for the approved scope of work to be a defining feature rather than a frequent encountered characteristic. Consequently, the Applicant requested an additional $1,310,165 for construction of the 136-foot long wall. The Applicant submitted tabulated cost data with the appeal, which the Applicant applied to the PW scope of work and which the Applicant contends supports their request for the additional funding.
With a letter dated May 27, 2011 from FEMA Region IX to OES, the Regional Administrator denied the Applicant’s appeal citing 44 CFR § 206.206(e)(3), which essentially states that the decision of FEMA Headquarters in response to the second appeal of the PW constitutes the final administrative decision of FEMA. The letter noted that the issue of the eligible scope of work had been addressed in the response to the second appeal of the PW. In the response, Region IX again advised the Applicant that if the County elected to perform the expanded scope of work, the work would be considered an Improved Project with the Federal funding limited to the Federal share of the approved estimate of eligible costs.
Second Appeal – Project Costs
In the second appeal on project costs, submitted to OES on July 15, 2011, and forwarded by OES to FEMA on September 9, 2011, the Applicant states, “The County is not disputing nor appealing the fact that the scope of work, i.e., the construction of a 156 foot wall (FEMA approved a 136 foot wall) at the site, should be classified as an Improved Project.” However, the Applicant reiterated their position that they have been able to track costs for the FEMA approved scope of work, referring to the Public Assistance Guide (page 110) and stating that, “If eligible repair work or replacement costs exceed the original estimate and costs can be separately documented (i.e., if approved costs can be tracked separately from improved costs), the applicant may appeal the amount of the grant.” Consequently, with this closeout appeal, the Applicant is requesting an additional $1,310,165 in funding for the 136-foot wall. Included with the appeal were tabulated cost data, in support of their request for the additional funding.
The Applicant is basically requesting reimbursement for the cost of 136 feet of the 156-foot long soldier pile wall constructed by the Applicant using a presumption that the two soldier pile walls are the same. This is not a correct approach. The original PW was developed using information and recommendations provided by the LADPW for the repair. In a report prepared by the LAPDW’s Geotechnical and Materials Engineering Division, dated March 10, 2005, signed and sealed by two of the County’s Professional Engineers, the project is described as follows: “A shallow slump removed support from the outboard lane of the roadway. The proposed project includes construction of a soldier pile retaining wall approximately 130 feet in total length along the outboard shoulder of Las Flores Canyon Road.” This was based on a field investigation program performed at the site. Copies of the boring logs were included in the report along with a sketch of a soldier pile wall using single H-beams with single tiebacks.
In the second appeal of the PW, the Applicant did not provide any geologic cross sections, stability analyses of the slope, or engineering design calculations to support their request for a 156-foot long enhanced wall, with soldier piles consisting of double H-beams set in concrete and spaced at 6 feet on-centers, along with single, double, and triple tiebacks. Furthermore, the Applicant did not provide any rationale as to why a 156-foot wall, substantially different than the wall originally detailed in their geotechnical report, was required.
The Applicant’s submitted cost data cannot be used to adjust the FEMA approved eligible scope of work and cost estimate for two reasons. First, the wall defined in the PW scope of work and the wall that the Applicant subsequently constructed are fundamentally two different walls. Multiple tiebacks are intended to support loads substantially greater than a single tieback can carry. Similarly, for a given set of section dimensions (i.e., for the same size H-beam), soldier piles consisting of double H-beams will support greater loads than a soldier pile having a single
H-beam. In like manner, the concrete panels between soldier piles used to repair a shallow slump should not be expected to support the same lateral earth pressures that would be exerted against a soldier pile wall designed to support a major (deep seated) slope movement.
In order to compare the two walls, two separate designs would have to have been prepared and submitted to FEMA, both of which would have had to have been based on slope stability analyses and engineering analyses for the two respective walls. It is incorrect to apply the costs for multiple tiebacks to a single tieback. Similarly, it is incorrect to apply the cost for soldier piles constructed using double H-Beams to soldier piles consisting of single H-Beams, particularly since the size of the individual steel sections is likely to vary significantly for the two different walls. Further, no valid basis was provided to compare the concrete panels between soldier piles for the two walls. Again, the data indicates that the Applicant has basically applied a proportional cost (136 feet divided by 156 feet) of the 156-foot long wall as constructed to estimated costs for the eligible wall in PW 3112. This is not appropriate as the walls are fundamentally different.
Second, there are errors in the tabulated data provided by the Applicant in support of the appeal. The Applicant took the cost for multiple tiebacks and applied them directly to the number of single tiebacks in the PW scope of work. The appeal indicates that the cost for the steel soldier piles are based on two H-Beams rather than the single H-Beams allowed for in the PW scope of work. The Applicant included the cost for miscellaneous metals to join the double H-Beams when this would not be required for a single H-Beam, and this cost item is not in the original scope of work. The Applicant claims to have converted the pre‑cast concrete panels identified in the PW scope of work to the equivalent cast-in-place concrete sections used in the actual wall, which was authorized by FEMA Region IX in response to the first appeal of the PW. The volume of 204 pre-cast concrete panels (having dimensions of 8 inches by 18 inches by 8 feet, as stated in the PW) would be approximately 60 cubic yards; however, the value used by the Applicant in their cost analysis is 700 cubic yards. This is more than five and a half times the quantity of 123 cubic yards for structural concrete (retaining wall) identified in the engineer’s estimate for the 156‑foot long wall actually constructed by the Applicant. When computing the quantities for steel reinforcing, concrete surface texturing (not in the original scope of work), and timber lagging, the Applicant appears to have taken the quantities used in the actual construction and multiplied it by the ratio of wall lengths (136 feet divided by 156 feet). Again, there is no basis for using this ratio since the two walls are fundamentally different. The Applicant then added the costs for project management, engineering design, geotechnical analyses, surveying, permits, and fees for the actual wall constructed without any adjustment for the differences in the walls. An appropriate cost adjustment was not provided and could not be calculated from the data provided.
The documentation provided by the Applicant does not provide a true and accurate representation of costs for the FEMA approved scope of work in the PW. The Applicant provided cost data that is inappropriate for the scope of work approved in the PW because the wall defined in the PW scope of work and the wall that the Applicant subsequently constructed are fundamentally two different walls. Consequently, the additional funding is not eligible.