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Second Appeal Brief
PA ID# 043-58070-00; Park City
PW ID# 285; Royal Street Embankment Stabilization
Citation: FEMA-4011-DR-UT, Park City, Royal Street Embankment Stabilization, Project Worksheet (PW) 285
Reference: Landslides; Contracting; Other Federal Agency Authority
Summary: The record breaking cold and wet 2011 spring coupled with the higher than normal mountain snowpack resulted in extensive ravine and overland flooding in Park City. FEMA prepared PW 285 for $186,357 to stabilize a 350-foot damaged section of Royal Street. FEMA determined that the work was ineligible because the site was found unstable prior to the event and the Applicant used a sole source time and materials (T&M) contract to perform the work. In the first appeal, the Applicant asserted that the slope stabilization failure was a direct result of the disaster and eligible for reimbursement. The Regional Administrator (RA) denied the appeal in accordance with Recovery Policy RP9524.2, Landslides and Slope Stability Related to Public Facilities, dated October 8, 2010, stating that the site has experienced ongoing movement over the years and was unstable prior to the disaster event. The RA also explained that the Applicant’s use of a sole source T&M contract was not acceptable. Also of note, the initial PW scope of work and cost estimate for stabilization of the damaged area was developed from information provided by the Applicant’s contractor, Jones Excavation. The Applicant subsequently awarded the sole source, T&M contract to Granite Construction that performed the work. However, the scope of work was substantially different from what was approved in the original PW scope of work. When the changes were discovered the Applicant failed to notify the State or FEMA for their determination of eligibility and approval of additional work or funding as required in FEMA 322, Public Assistance Guide, dated June 2007. In the second appeal, the Applicant reiterates that the slope failure was a direct result of the disaster event and the embankment stabilization work should be reimbursed. The Applicant also explains its decision to award the T&M contract.
Issue: Is Royal Street eligible for Public Assistance Funding?
Finding: No. Royal Street is a Federal-Aid road.
Rationale: Paragraph 9 of Section 102 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act; 44 CFR §206.226(a)