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Repair of Weirs 2 and 5

Appeal Brief Appeal Letter

Appeal Brief

DisasterFEMA-1655-DR
ApplicantCity of Alexandria
Appeal TypeSecond
PA ID#510-01000-00
PW ID#218
Date Signed2012-05-11T04:00:00

Citation:          FEMA-1655-DR-VA, City of Alexandria, Repair of Weirs 2 and 5, Project Worksheet (PW) 218

Cross -

Reference:     Reasonable Cost

Summary:       Heavy rains and flooding caused severe scouring under weirs 2, 3, and 5 in Cameron Run resulting in damage to concrete and loss of riprap material.  FEMA prepared PW 218 in the amount of $36,623 for the replacement of a 25-foot section of the concrete energy dissipator at weirs 2 and 3 and the placement of riprap protection along a 140-foot section of weir 5.  On November 12, 2008, the Applicant submitted a letter to the Grantee requesting an increase in funding to accommodate difficult site access and a change in scope of work to include placement of riprap at weir 2 in lieu of repair of the damaged dissipator.  The letter also requested removal of repair work on weir 3 from the PW, as work was completed at no cost to the Applicant. The Applicant noted that the work would be accomplished under an existing time and materials contract.  While awaiting response, the Applicant proceeded to complete the modified scope of work.  FEMA considered the Applicant’s request to be the first appeal because it involved a cost overrun and significant change in scope of work.  The Regional Administrator partially approved the first appeal and increased the approved funding to $60,967 to allow for site access, to correct a computation error and to remove weir 3 from the PW.  However, the Regional Administrator denied the total requested cost of $195,891 because the scope of completed work exceeded the approved scope of work outlined in PW 218.  44 CFR §13.30 (c)(2) requires prior written approval for any for any budget revision which results in need for additional funds.  In addition, due to the lack of adequate documentation pertaining to the work accomplished under the time and materials contract, there was no means to determine if the overall project costs were reasonable, as per the requirements of OMB Circular A-87 and 44 CFR §206.204(e)(2).  In its second appeal, the Applicant asserts that by avoiding the additional costs and environmental concerns of rerouting the stream, the claimed costs for the completed work were less than the actual costs would have been if it had repaired the concrete dissipator as approved in the original scope of work.

Issues:            1.  Is the Applicant’s requested change in scope of work eligible for funding under FEMA’s Public Assistance program?

                        2.  Are the Applicant’s claimed costs to repair the weirs reasonable?

Findings:         1.  Yes.

                        2.  No.

Rationale:       44 CFR Part 13.30; Office of Management and Budget Circular A-87;
44 CFR §206.204(e)(2) Project Performance. Cost Overruns

Appeal Letter

May 11, 2012

Michael M. Cline

State Coordinator

Virginia Department of Emergency Management

10501 Trade Court

Richmond, Virginia 23236

Re:  Second Appeal–City of Alexandria, PA ID 510-01000-00,

        Repair of Weirs 2 and 5, FEMA-1655-DR-VA, Project Worksheet (PW) 218

Dear Mr. Cline:

This letter is in response to a letter from your office dated August 19, 2010, which transmitted the referenced second appeal on behalf of the City of Alexandria (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of funding in the amount of $195,891 for the repair of weirs on Cameron Run.

Background

Heavy rains and flooding from June 23 through July 6, 2006, damaged three of the Applicant’s seven weirs on Cameron Run.  There was severe scouring under weirs 2, 3, and 5 resulting in damage to concrete and a loss of rip rap material.  FEMA prepared PW 218 to replace a 25-foot section of the concrete energy dissipator at weirs 2 and 3 and to place a 140-foot section of rip rap protection along weir 5.  Based on historic costs of similar projects accomplished by the Applicant and the Virginia Department of Transportation, FEMA obligated the $36,623 estimated cost of this small project on January 8, 2007.

First Appeal

On November 12, 2008, the Applicant submitted a letter to the Virginia Department of Emergency Management (Grantee) requesting removal of repair work on weir 3 from PW 218, a change in scope of work for weir 2, and an increase in funding to address difficult site access.  The Applicant requested the reduction in approved costs for weir 3, because the repair work was completed at no cost to the Applicant.  The scope change involved placement of riprap along weir 2 in lieu of replacement of the 25-foot section of concrete.  The Applicant asserted that the proposed scope of work not only avoided the additional cost of diverting the stream, but also substantially reduced the potential for environmental impacts.  The increase in requested costs stemmed from an oversight in the original site inspection and project formulation, namely that the site is bordered by the Capital Beltway to the south and an urban minor arterial to the north, which complicate the mobilization of heavy equipment.

In the letter, the Applicant noted that Flippo Construction Company would accomplish the work under a pre-existing time and materials contract.  The Applicant included an estimate from Flippo Construction Company of $155,782 for labor, equipment, and materials associated with weirs 2 and 5, but did not associate specific items of work for a particular weir.  The Grantee forwarded the request to FEMA with a letter dated March 20, 2009.  FEMA decided to consider the request as the Applicant’s first appeal because it involved a cost overrun and significant change in scope of work.  The Applicant had no other variance associated with its small projects.

On September 21, 2009, the Regional Administrator partially approved the first appeal to allow additional funding for site access, to correct a computation error and to remove weir 3 from the PW, thereby increasing the funding to $60,968.  The Regional Administrator denied the remaining requested costs because the Applicant completed the work prior to receiving approval for the change in scope of work and because the documentation of the time and materials contract did not allow for the validation of reasonable costs or eligible work.

Second Appeal

In a second appeal, submitted to VDEM on July 15, 2010, the Applicant states that it requested the change in scope of work, well in advance of completing the work in February 2009, with the November 12, 2008, letter; but, maintains that it never received a response to the request.  Furthermore, the Applicant contends that the total actual cost of $195,890.70, for which it requests reimbursement, is significantly less than the cost would have been to complete the approved scope of work on PW 218.  The Applicant reiterated that because the requested changes to the scope of work avoided the cost of diverting the stream and the potential for environmental impacts, they should, therefore, be eligible for funding.  No new information was submitted with the second appeal.

Discussion

Under 44 CFR §13.30 (a), a change in scope of work is allowable.  However, under 44 CFR §206.204 (e)(2) the Applicant must provide sufficient documentation to support the eligibility of all claimed work and cost.  In this case, as part of the change in scope of work, the Applicant’s engineers decided to place rip rap along the entire length of the weir 2, which addressed not only the 25-foot damaged section but also the remaining 175-feet of concrete.  FEMA acknowledges that the Applicant’s construction method avoided a diversion of the stream and other potential environmental impacts and costs.  Additionally, we have reviewed the unit costs used to develop the Applicant’s estimate and determined that these were reasonable.  However, the contractor’s time and materials quantities could not be substantiated.  Therefore, FEMA did a final estimate using the contractor’s unit costs, RS Means estimated time factors, and calculated quantities from drawings, resulting in a total project cost of $118,669 for PW218.

Conclusion

Based on the documentation provided in the second appeal, I have determined that the Applicant incurred additional reasonable costs to perform the eligible scope of work detailed on PW 218.  However, the applicant did not sufficiently document the claimed amount of $195,891.  Therefore, I partially approve the appeal for a total amount of $118,669 based on the enclosed FEMA project cost estimate.  By copy of this letter, I request that the Regional Administrator take the appropriate action to implement this determination.

Please inform the Applicant of my decision.  This determination is the final decision on this matter pursuant to 44 CFR §206.206, Appeals.

Sincerely,

/s/

Deborah Ingram

Assistant Administrator

Recovery Directorate

Enclosure

cc:  MaryAnn Tierney

Regional Administrator

FEMA Region III