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Second Appeal Brief
PA ID# 095-99095-00; County of Hyde
PW ID# 1296; Debris Removal Costs
Citation: FEMA-4019-DR-NC, County of Hyde, Debris Removal Costs, Project Worksheet (PW) 1296
Cross-Reference: Debris Removal, Reasonable Cost
Summary: Strong winds from Hurricane Irene downed tree limbs and generated vegetative debris throughout Hyde County. FEMA prepared PW 1296 for $1,833,070 to fund the County of Hyde’s (Applicant) debris removal activities countywide. Upon review, FEMA determined that the Applicant’s procurement process for its original debris removal contract did not comply with the requirements of 44 Code of Federal Regulations (44 CFR) § 13.36, Procurement. FEMA deemed $1,425,627 as reasonable and eligible for reimbursement based on the fee schedule submitted by the lowest bidder that responded to the Applicant’s request for proposals. In the first appeal, the Applicant asserted that its actual costs incurred were eligible for reimbursement because they resulted from a competitive procurement process and an eligible pre-positioned contract for debris removal. The Regional Administrator denied the appeal, stating that the Applicant’s procurement process did not meet the full requirements of a competitive procurement under 44 CFR Part 13. Further, the Regional Administrator noted that the Applicant extended a contract related to a storm that occurred approximately one year prior to Hurricane Irene, rather than enter into a procurement process specific to the requirements of this event. In the second appeal, the Applicant asserts that the factors FEMA used to deny its first appeal were inaccurate. The Applicant maintains that it completed a full and competitive procurement process that satisfied 44 CFR Part 13 and was also consistent with FEMA’s guidance on pre-positioned contracts. The Applicant provided documentation of its RFP and Board of Commissioners’ meeting minutes to demonstrate that the contract was a pre-positioned contract. It also provided the four proposals that it received in response to the RFPs. Additionally, the Applicant explained how its unique geographical setting, where part of the Applicant is on an island and would require contractors to use a ferry system and a possible toll route to remove debris, played a role in its decision to accept the highest bid, the only bid that it deemed to be responsive to the RFP.
Issue: Did the Applicant complete a procurement process that complies with the requirements of 44 CFR §13.36 and North Carolina General Statute §143-129?
Rationale: 44 CFR §13.36, Procurement; North Carolina General Statute §143-129, Procedure for letting of public contracts