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Second Appeal Analysis
PA ID# 073-99073-00; San Diego County
PW ID# 904; Wynola Road
Severe winter storms and flooding between December 17, 2010 and January 4, 2011, caused erosion, washouts, and road damage at five sites along Wynola Road. Wynola Road is owned and maintained by San Diego County (Applicant) and was constructed approximately 60 years ago based on a cut-and-fill design. FEMA conducted a site visit on March 29, 2011, and prepared PW 904 to repair damage to the downhill slopes and shoulders, portions of the asphalt road, and asphalt berms at four sites. The FEMA inspector noted surface cracks filled with asphalt emulsion, indicating pre-existing damage which limited eligible road surface repairs to the dimensions specified in the PW. Using RS Means Heavy Construction Cost Data, 2010 edition, and quotes for material costs from a San Diego materials company, FEMA estimated $47,441 for the eligible scope of repairs to Sites 1 through 4. PW 904 identified Site 5, a portion of uphill cut slope, as having loose rock and soil that the Applicant stated posed a danger to traffic. FEMA determined that permanent work at Site 5 was not eligible pursuant to Recovery Policy (RP) 9524.2 Landslides and Slope Stability Related to Public Facilities published on October 8, 2010, based on the facts that the slope was not integral to the road’s support and was not integral to an eligible facility uphill. FEMA also stated that any proposed emergency protective measures at Site 5 were not eligible due to the fact that at the time of inspection, no debris was in the roadway, and no warning signs or barricades were in place that would signify a safety hazard. The Applicant submitted a proposed estimate of $1.2 million for repairs, including reinforced slopes for all five sites, as part of the PW; however, FEMA obligated PW 904 for the estimated eligible amount of $47,441 on July 8, 2011.
On October 27, 2011, the Applicant submitted a first appeal requesting $1,564,278 for road and slope repairs. The Applicant included a geotechnical investigation performed by Southern California Soil & Testing, Inc. (SCS&T) dated October 17, 2011, in support of the appeal. The report recommended a method of repair for each of the five damaged sites. The Applicant’s proposed scope of repairs varied in both dimensions and method from the original PW. In particular, the Applicant proposed the construction of geogrid reinforced slopes at Sites 1 through 4, and maintained that Site 5 was eligible for rock slope protection. The Applicant also requested significant estimates for project engineering and project management ($300,000 or 23.7% of the repair estimate). California Emergency Management Agency (Cal EMA) forwarded the appeal to FEMA on December 13, 2011, supporting the Applicant’s request for Sites 1 through 4, but did not recommend funding for the work at Site 5.
The FEMA Region IX Regional Administrator denied the first appeal on February 27, 2012, on the basis that the proposed work at Sites 1 through 4 exceeds that which was necessary to repair the disaster-related damage to the sites’ pre-existing conditions. In addition, FEMA determined that the emergency work proposed for Site 5 was not eligible, citing the requirement in Title 44 of the Code of Federal Regulations (44 CFR) §206.204(c)(1), Project Performance, Deadlines, that emergency protective measures be completed within six months of the disaster declaration date unless the Applicant requests and receives a time extension from the State. No time extension request was made or approved by Cal EMA for the Wynola Road project.
The Applicant submitted a second appeal on June 19, 2012, which requests funding in the amount of $535,042 and reduces the scope of proposed work from the work requested in the first appeal. The second appeal does not include the previously included reinforced geogrid bench and fill method of repair for the slopes, but does maintain the request for two layers of geogrid reinforcement underneath the roadway. The Applicant also claims that additional items of work, increased dimensions, and higher cost estimates are necessary to complete eligible repairs for Sites 1 through 4. Furthermore, the Applicant again requests funding for Site 5, providing documentation from FEMA-1577-DR-CA, a 2005 major disaster, in which FEMA funded similar emergency protective measures at a different site along Wynola Road with PW 2805. The Applicant submitted a Bid History of similar past projects to support the proposed cost estimates and standard drawings to support the asphalt concrete berm repairs. Cal EMA forwarded the second appeal to FEMA on July 20, 2012, again with the recommendation for approval of the work at Sites 1 through 4 only. Subsequent to the second appeal submittal, the Applicant sent a supplemental letter dated August 23, 2012, which stated that the proposed work at Site 5 is for “permanent work” rather than “emergency protective measures.”
In order to address the Applicant’s appeal for a determination of eligibility and additional funding, this discussion focuses on the following three areas for Sites 1 through 4: 1) the eligible scope of repair work, 2) a reasonable cost estimate, and 3) project engineering and project management services. The eligibility of work at Site 5 is addressed separately.
Sites 1 - 4
1) Scope of Work
The Applicant claims that several items of work were omitted from PW 904 and are required to restore the damaged portions of Wynola Road to its pre-disaster condition. Pursuant to 44 CFR §206.226, Restoration of damaged facilities, work to restore a damaged facility to its pre-disaster design, function, and capacity in accordance with applicable codes and standards is eligible for funding. The eligibility of the following items for Sites 1 through 4 as they relate to the above-reference regulation, FEMA policy, and guidance is discussed below.
• Clearing and grubbing – The Applicant requests a line item be added for this work prior to placing jute mesh and hydroseed at Sites 1 through 4. However, PW 904 already includes a line item cost estimate for surface clearing and grubbing at specified dimensions associated with the road shoulder repairs at Sites 1 through 4. There is no need to add this to the scope.
• Geogrid reinforcement – The geotechnical investigation performed by SCS&T recommends incorporating two layers of a reinforcing grid (every 8 inches) below the road pavement at Sites 1, 2, and 4. Along with placement of the grid, the proposed site preparation includes excavation and re-compaction of the upper 2 feet of existing fill. There was no grid reinforcement in place prior to the disaster. There is no applicable code or standard that requires this item be added, nor is this measure necessary to restore the road to pre-disaster condition. Therefore, grid reinforcement, excavation, and compaction are not eligible items of work.
• Water Pollution Control Plan (WPCP) – The development of a WPCP for standard road repairs such as those eligible in PW 904 should be very simple and would apply to the four sites together rather than individually given their close proximity and similarity in damage. Based on estimating guidance from the California Department of Transportation (Caltrans), a reasonable estimate for a WPCP for this project size is $1,000.
• Temporary / Permanent Water Pollution Control Devices – The Applicant has not specified the temporary and permanent WPC devices or measures to be used during the repair project. Given the type and magnitude of these road projects, the placement of temporary fiber rolls (as indicated in the Bid History) during construction would be sufficient to meet the requirements for temporary water pollution control and a reasonable estimate for such is eligible. However, there is no justification for permanent water pollution control measures at these sites, and there are no details on what permanent water pollution control devices are proposed. The PW damage description does not support the installation of any permanent devices over and above eligible road and shoulder repairs. Therefore, permanent water pollution control items are not eligible.
• Traffic control – The Applicant requests the addition of a line item for traffic control and estimates eight working days, two flaggers per day and eight hours per working day to perform the repair work for Sites 1 through 5. PW 904 already includes a line item cost estimate for traffic control, specifically flagmen, at Sites 1 through 4 and is considered appropriate for the scope of eligible repair work.
• Depth of Class 2 Aggregate Base (AB) and Asphalt Concrete (AC) Surface – The Applicant requests modification of the depth of AB based on the recommendations of SCS&T, stating that the proposed dimensions are the usual and customary standards used by San Diego County and were in effect at the time of the disaster. The Applicant’s design recommendation is 8 inches of AB (versus 6 inches per PW) and 3 inches of AC (versus 4 inches per PW) for repairs to Sites 1, 2, and 4. In addition, PW 904 allows an additional 6 inches of AB at Site 1 to raise the road grade for drainage purposes. The Applicant’s Attachment C - Typical Cross Section prepared by Dokken Engineering, shows that the PW dimensions conform to the existing profile for the road, that is, 6 inches of Class 2 AB and 4 inches of AC surface. There is no evidence that supports an increase in the quantity of AB material, nor is such required by any applicable standard. In other words, the PW scope is appropriate to restore the road surface to pre-disaster condition.
• Asphalt Concrete Berm – The Applicant presents Attachment D – San Diego Regional Standard Drawing G-5, Dikes – Asphalt Concrete, to support the use of a Type E dike (berm) at all 4 sites. The Type E dike uses approximately 0.0407 tons of AC per linear foot. When compared to the PW estimate, the material quantities for the AC berm are reasonable and consistent with the documented damages.
• General Supplemental Work – The Applicant is requesting the addition of a line item for field orders, which are defined as “minor changes made to the construction contract and staying within the approved scope of work.” This is a contingency item and not eligible.
• Mobilization – The Applicant did not provide justification for mobilization at 8 percent.
2) Cost Estimate
FEMA grants funds on the basis of actual costs or on estimated costs of eligible work to be completed. If work has yet to be completed, the unit cost method is used to develop a cost estimate. Local data from previously completed projects, when available and applicable, is a preferred source for unit costs. In support of the appeal, the Applicant submitted a Bid History of various road repair projects to justify the proposed unit prices.
Upon review of the documentation, there appear to be a number of variables that could affect unit prices, including date of bid, size of projects, quantity of materials, and number of bid items. Further, it is not clear that there is a significant difference in the Applicant’s proposed cost estimate relative to the proposed scope of work when compared to the PW cost estimate as applied to the eligible scope of work identified in the previous section. Furthermore, the methodology used to develop the original PW cost estimate is considered reasonable and appropriate. Except for the addition of line items for a WPCP and temporary erosion control measures during construction, the PW cost estimate is sufficient to restore sites 1 through 4 to pre-disaster condition.
3) Project Engineering and Project Management
The Applicant requests an estimated $285,000 for project engineering and $15,000 for project management, stating that these costs are directly chargeable to PW 904 and eligible according to FEMA Public Assistance Guide 322/June 2007. However, the Applicant has provided no basis for the estimates, which amount to 53 percent and 3 percent, respectively, of the Applicant’s repair estimate. The project engineering estimate far exceeds that used by FEMA to estimate engineering and design services even for projects of above-average complexity. The road and slope repairs on Wynola Road are not considered complex and do not require design and engineering services. This determination is consistent with the PA Guide 322, page 59, which cites the repairs to “local roads back to the pre-disaster condition, using local construction standards” as an example of a project that requires only basic construction management services, as opposed to engineering and design. In the case of Wynola Road repairs, a project of minimal complexity, limited construction management (work site inspection visits, checking, and approving of material samples, etc.) is allowed and estimated at 3 percent of construction costs.
With regards to the geotechnical investigation, the Applicant did not provide the actual cost for the services performed by SCS&T at the sites; however, a reasonable cost for such specialized services is eligible. An estimate of $4,500 based on 45 hours at a blended rate of $100 for field site visits, testing and analysis, and report preparation is considered appropriate and is allowed.
The Applicant is separately requesting project management costs estimated at $15,000. Again, the Applicant has provided no basis for this estimate. While most small projects do not require project management activities, they may be allowed when reasonable and based on actual costs. Eligible project management activities are those that the Applicant would have performed in the absence of Federal funding, such as direct management of repair projects, procurement activities, management of work by contractors. For the Wynola Road project, an estimate of 3 percent for project management activities directly related to eligible repair work is allowed.
PW 904 describes Site 5 as a cut slope that has loose rock and rocky soil that slipped onto the road during the disaster and was removed under another PW. The Applicant proposes emergency protective measures to include removing boulders and installing a rock fall fence to prevent future rock falls from impacting the roadway. FEMA does not support the Applicant’s subsequent claim that the proposed work be labeled “permanent work,” as the work is not restorative, but preventative. As such, it is appropriately categorized as “emergency work.”
In support of the appeal for eligibility of Site 5, the Applicant submitted documentation from a 2005 winter storm disaster (FEMA-1577-DR-CA). In response to damages that occurred in that disaster, FEMA approved PW 2805 for emergency protective measures on a different section of Wynola Road. The site assessment for PW 2805, performed by the FEMA Landslide Response Task Force, stated there was “an immediate threat posed by the hanging bedrock boulders,” thereby justifying the removal as a cost-effective emergency protective measure pursuant to 44 CFR §206.225, Emergency Work.
In accordance with 44 CFR §206.225, Emergency Work and RP 9524.2 Landslides and Slope Stability Related to Public Facilities (October 8, 2010), emergency protective measures to stabilize slopes may be eligible provided the work is the least costly option and completed within six months of the declaration. Although the Applicant contends the 2005 and 2010 damages are similar, there are noted differences. First, the PW 904 site inspection did not identify an immediate threat to life, public health, and safety, or improved public or private property. The absence of an immediate threat is also validated by the fact that the Applicant has not responded in any way to an immediate threat of rock falls, either by stabilizing the area or posting warning signs to the public (well beyond six months from the declaration date). Furthermore, while the SCS&T geotechnical report recommends removal, the report does not clearly identify the exposed rock outcrops and boulders as an immediate danger, only that they “may be potentially unstable.” The recommendation to reduce the potential for rock falls, while valid from the Applicant’s perspective, does not meet the criteria for emergency protective measures and is not eligible for funding.
In conclusion, this appeal analysis supports the original scope of work and cost estimate identified in PW 904. The only eligible line items omitted from the original scope of work are the Water Pollution Control Plan and temporary erosion control measures during construction for Sites 1 through 4. In addition, a reasonable estimate for the geotechnical investigation is also eligible for funding. Alternatively, the addition of the geogrid reinforcement is not eligible as it is not required or necessary to repair the road to pre-disaster condition. Increased dimensions and additional quantities for road surface repairs are also not justified and, therefore, not eligible. Due to the size and minimal complexity of the project, construction management and project management is limited to 3 percent of the repair estimate. Finally, Site 5 does not meet the criteria for emergency protective measures and is not eligible for funding. Based on the above, a total repair estimate of $56,371 for sites 1 through 4 is approved. This amount provides an additional $8,930 in funding for PW 904 (See Attachment).