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Second Appeal Brief
PA ID# 011-UIZNS-00; Sunshine Water Control District
PW ID# 3806; Removal of Vegetative Debris from Canal
Citation: FEMA-1545-DR-FL, Sunshine Water Control District, Removal of Vegetative Debris from Canal, Project Worksheet (PW) 3806
Reference:Debris Removal, Other Federal Agencies (OFAs)
Summary: Hurricane Frances uprooted and swept trees into the canal system maintained by Sunshine Water Control District (Applicant). The Applicant initiated three time and materials (T&M) contracts to remove 707 trees, which the contractors reduced to 1,966 cubic yards of debris. The Natural Resources Conservation Service (NRCS) denied the Applicant’s request for reimbursement under the Emergency Watershed Protection (EWP) program because the Applicant did not sign a project agreement before starting the debris removal work. FEMA prepared PW 3806 in the amount of $295,985 for the contracted services; however, during final inspection, FEMA denied all claimed costs citing insufficient documentation and the specific authority of NRCS’s EWP. The Applicant’s first appeal letter asserted that T&M contracts were necessary to expeditiously remove debris that posed an immediate threat of flooding in advance of the approaching hurricanes. The Regional Administrator denied the first appeal, stating that the submitted documentation did not justify the time and materials contracts nor establish that the contractors’ costs were reasonable. Further, the requested costs were ineligible as they fall under the authority of the NRCS’s EWP. The Applicant submitted a second appeal, reiterating its argument from the first appeal and included an affidavit from its Field Supervisor, which gave assurances that the T&M contracts were appropriate and reasonable. The Applicant also submitted excerpts from two PW reports where FEMA funded the debris removal of other applicants despite the absence of complete source documentation including truck certifications. Pursuant to Part 13 of Title 44 of the Code of Federal Regulations (44 CFR), applicants can initiate a T&M contract only when no other contract is suitable, and if the contract includes a ceiling that the contractor exceeds at its own risk. Additionally, applicants must perform cost and price analyses in connection with every procurement action. The documentation does not demonstrate that T&M were the only suitable contracts nor that the contracts had cost ceilings. The Applicant provided no evidence to support the claim that a cost and price analysis was performed prior to receiving bids or proposals. Finally, the Applicant’s request for FEMA funding came only after the denial of eligibility by the responsible agency, the NRCS.
Issue: Does the submitted documentation demonstrate that the contracted debris removal costs are eligible for reimbursement under the Public Assistance Program?
Rationale: 44 CFR §13.36(b)(10), Procurement, Procurement standards; 44 CFR §13.36(f)(1), Procurement, Contract cost and price