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Second Appeal Brief
PA ID# 033-55925-00; City of Pensacola
PW ID# 365; Debris Removal
Citation: FEMA-1551-DR-FL, City of Pensacola, PW 365
Reference: Debris Removal
Summary: As a result of Hurricane Ivan, September 16, 2004, the City of Pensacola (Applicant) incurred costs for the removal of vegetative debris from sixty-four (64) public parks. On October 4, 2004, the Applicant entered into a non-competitively bid contract with Asplundh Environmental Services, Inc. (AES) to remove debris from the parks to the right-of-way (ROW). The contractor completed the work November 13, 2004 and submitted invoices totaling $1,369,436 for time and materials expended on the project. FEMA determined that the Applicant’s costs, $35.53 per cubic yard (CY), were unreasonable and calculated a reasonable unit price based on local market prices during that period. Based on that unit price, $9.26 per CY, FEMA prepared PW 365 for debris removal from 64 public parks in the amount of $357,047.
On June 30, 2005, the Applicant submitted a first appeal requesting that FEMA reimburse the full invoice cost of $1,369,436. The Applicant asserted that FEMA’s methodology for calculating reasonable cost was flawed as the unit price did not reflect the scope of work in the PW. The Regional Administrator denied the appeal on February 26, 2006, stating that the Applicant had not sufficiently documented an immediate threat to public safety from debris in public parks; the procurement was not competitively bid as required by 44 Code of Federal Regulations (CFR) Section 13.36; the Applicant’s use of a Time and Materials (T&M) contract exceeded FEMA guidance for the use of such contracts; and the Applicant could not substantiate its claim that $35.53 per CY represented a reasonable unit cost for this project.
The Applicant submitted its second appeal on March 25, 2010 repeating its assertion that FEMA’s calculation of a reasonable unit price was flawed and that another applicant’s project was approved at $72.00 per CY. The Applicant did not submit any additional information with the appeal. The State supports the Applicant’s position.
Issue: 1. Did the Applicant competitively procure the contract with Asplundh?
2. Did the Applicant exceed the time limit for utilizing T&M contracts?
3. Is FEMA’s calculation of a reasonable unit price flawed?
Finding: 1. No.
Rationale: Stafford Act Section 407 Debris Removal; 44 CFR §13.36(c) Procurement. Competition; and 44 CFR §206.224(a)(1) Debris Removal. Public Interest.