Appeal Summary | Appeal Letter | Appeal Analysis | Back
Second Appeal Analysis
PA ID# 081-54806; City of Pacifica
DSR ID# 22238, 95836, 95934; Fairmont Recreation Area Maintenance Road
As a result of the 1998 El Nino storms, the City of Pacifica (City) suffered damage to its sewer line maintenance road behind Fairmont Recreation Park from a landslide. The City prepared the original Damage Survey Report (DSR) in the amount of $31,572, but FEMA later reduced the amount to $13,173 with DSR 22238. FEMA based the reduction on a site visit by a combined FEMA/Governors Office of Emergency Services (OES) team of geotechnical specialists who concurred that the stabilization of the site was the responsibility of the City. The approved scope of work included excavating and hauling 375 cubic yards of debris and backfilling the eroded section in front of the sewer manhole with 560 cubic yards of crushed rock fill.
Subsequent to the start of work, the City submitted a request for a supplemental DSR in the amount of $109,502 on October 7, 1999. The City claimed that the damage was more extensive than first estimated. OES transmitted the Citys supplement request to FEMA in letter dated January 6, 2000, after requesting and receiving additional information to document its supplemental request. A team of FEMA/OES inspectors revisited the site in February 2000 to determine the eligibility of the actual work completed. The inspectors again concurred that the work was hillside stabilization and, therefore, ineligible for FEMA funding. FEMA informed the City that it had denied its supplemental request in a letter dated April 27, 2000, because the road repairs included stabilization of a hillside, which did not qualify for funding.
The City submitted its first appeal in a June 30, 2000, letter to OES claiming that additional repairs to the site were necessary to return the maintenance road to its pre-disaster condition and to comply with sound engineering practices and local requirements. OES forwarded this appeal along with support documentation it requested from the City to FEMA Region IX on September 5, 2000. The additional information requested by OES was a signed copy of the contract for repairs to the maintenance road, a copy of the Citys procurement procedures including bids for the repairs to the maintenance road, and a geotechnical report or documentation to substantiate the Citys contention that the instability of the site was caused exclusively by the El Nino 1998 Storms, FEMA-1203-DR-CA.
OES did not support the Citys appeal because the City failed to supply all of the requested documentation to the State. After reviewing all of the documentation and meeting with the Citys staff, the Acting Regional Director determined the scope of work and category for the original DSR were incorrect. The scope of work should have been emergency protective measures required to protect the Citys sewer line and access road from the immediate threat of a landslide. Accordingly, the Regional Director approved additional funding for the project. DSR 22238 was de-obligated and replaced with DSR 95934 in the amount of $84,191. OES transmitted the Acting Regional Directors determination to the City in a letter dated August 20, 2001.
OESs January 10, 2002, letter transmitted the Citys November 9, 2001, second appeal to FEMA. The City requested an additional $38,484 in funding. The City contended that the maintenance road was damaged by the 1203-DR disaster and that the repairs to the road should be classified as a Category C road repair and not Category B emergency protective measures. Also, the City disagreed with the approved amount of funding for the following reasons:
· The total contractors costs were not used.
· FEMA used the estimated costs for construction inspection when the City submitted actual costs for this item.
· Force Account labor costs should be included because the DSR should be Category C, not Category B.
· Hydro seeding should be eligible for funding because the City submitted a copy of the paid invoice to OES.
In the January 10, 2002, letter, OES did not support the Citys second appeal and did not recommend any further funding because the documentation submitted with the second appeal did not contain sufficient information or detail.
The primary issue in this appeal is whether the eligible scope of work is to repair a road that was damaged by a landslide, or to undertake measures to protect an eligible facility from further damage. A FEMA/OES team of geo-technical experts inspected the site on several occasions and determined the damage to the maintenance road resulted from a pre-existing landslide. Therefore, the eligible work included repair to the surface of the road and the integral ground that was part of the road. The City was first required to stabilize the slide area in accordance with Response and Recovery policy No. 4511.300A. Because the landslide exposed a sewer line and manhole to potential damage, the Acting Regional Director determined on first appeal that emergency protective measures to protect the sewer line and manhole were eligible. Accordingly, the Acting Regional Director approved additional funding for the project.
Another issue in this appeal relates to procedures the city followed in contracting for the work. Federal regulations require all contracts to be competitively bid. The City modified an existing contract to include work on the maintenance road. OES requested the City to provide information about its emergency contracting procedures to determine if proper procedures were followed in contracting for the work. However, the City has not provided such information to OES. When applicants do not follow appropriate contracting procedures, FEMA may fund otherwise eligible work based on its estimate of the cost to perform the eligible work.
We conducted a conference call on May 30, 2002, with representatives of FEMA Region IX, OES and the City to discuss the appeal. The City reiterated that the total cost of the project should be eligible because the work was required to restore the road to pre-disaster condition and protect the sewer line and manhole. The OES stated that it had concerns about the contracting method the City used for the work. The FEMA Region IX representative explained that the completed project went beyond what was required to protect the facilities from the threat of additional damage. The staff subsequently estimated the cost of the project that would have been required to protect the facilities and approved $84,191 for that effort.
The applicant has not provided any additional information to support its request for additional funding. The Acting Regional Directors decision on the first appeal is consistent with program statute and regulations. Therefore, the appeal is denied.