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Second Appeal Letter
PA ID# 000-UIR00-00; Mississippi State University
PW ID# 5308; Appeal Time Limits
September 29, 2010
Thomas M. “Mike” Womack
Mississippi Emergency Management Agency
P.O. Box 5644
Pearl, MS 39288-5644
Re: Second Appeal–Mississippi State University, PA ID 000-UIR00-00,
Appeal Time Limits, FEMA-1604-DR-MS, Project Worksheet (PW) 5308
Dear Mr. Womack:
This letter is in response to your letter dated November 3, 2009, which transmitted the referenced second appeal on behalf of Mississippi State University (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of $88,888 in additional funding for PW 5308 for repairs to two buildings on its Starkville, Mississippi campus.
High winds and heavy rainfall from Hurricane Katrina in August 2005 caused damage to two buildings on the Mississippi State University Campus at 46 and 51 Magruder Street. FEMA prepared a draft PW on January 21, 2006, for $132,059 based on a scope of work and estimate that the Applicant provided. During review of the draft PW, FEMA adjusted the scope of work and cost of the project and prepared PW 5308 for $43,171. FEMA obligated PW 5308 Version 0 for $0 due to anticipated insurance proceeds. FEMA subsequently obligated PW 5308 Version 1 because the Applicant did not receive any insurance proceeds for the buildings. The State formally notified the Applicant in a memorandum dated May 2, 2006, that FEMA had obligated PW 5308 and directed it to review the eligible scope of work. The State provided a second notice on June 16, 2006, notifying the Applicant that FEMA had obligated a version of PW 5308 for $43,171. In May 2006, the Applicant demolished the two buildings.
In April 2007, the Applicant submitted a request to the Grantee for an improved project based on the scope of work and cost ($132,059) contained in the draft PW. The Grantee reviewed the Applicant’s request and determined that FEMA had obligated PW 5308 for $43,171 instead of $132,059. The Grantee requested that FEMA increase the cost of PW 5308 to $132,059. FEMA denied the request on June 9, 2008, because the Applicant had demolished the buildings and did not submit documentation to support its request. The Applicant did not timely file its first and second appeals. Further, the Applicant did not timely file the second appeal when it was informed through the Grantee’s May 2, 2006, memorandum of the reduced scope of work for PW 5308 Version 1.
The Applicant submitted its first appeal on August 22, 2008. It presented a timeline of events and a copy of the draft PW and stated that it was not aware that FEMA had obligated PW 5308 until July 10, 2008. In a letter dated July 13, 2009, the Regional Administrator denied the first appeal because the Applicant did not submit the appeal within the regulatory deadlines. In addition, the Grantee had informed the Applicant on two occasions in 2006 that FEMA had obligated PW 5308 Versions 0 and 1.
In a letter dated September 2, 2009, the Applicant submitted its second appeal. The Applicant reiterates its position that it was not given a copy of the PW until July 10, 2008, and stated that it made numerous objections to the Grantee about the reduction of scope and obligated amount beginning in August 2006, via verbal communications. The Applicant states that it deemed all PWs included in the May 2, 2006, memorandum from the Grantee to be incorrect due to a zero obligation. Therefore, it did not go through each PW and compare the approved scope of work with its original requests.
Title 44 Code of Federal Regulations Section §206.206 (c) (1) Appeals, Time Limits, states, “Appellants must file appeals within 60 days after receipt of a notice of the action that is being appealed.” The Applicant requested an improved project, including adjustments to the approved scope of work and cost, eight months after the Grantee notified it that FEMA had obligated PW 5308 Version 1. The Applicant did not meet the regulatory time frame for submitting an appeal.
I have reviewed the information submitted with the appeal and have determined that the Regional Administrator’s decision in the first appeal is consistent with Public Assistance regulations and policy. Accordingly, I am denying the second appeal.
Please inform the Applicant of my decision. My determination constitutes the final decision on this matter as set forth in 44 CFR §206.206, Appeals.
Elizabeth A. Zimmerman
cc: Major P. May
FEMA Region IV