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Second Appeal Brief
PA ID# 009-57880-00; Town of Rockport
PW ID# 465; Reasonable Costs
Conclusion: The Applicant’s repair of its pier was an improved project, as defined by FEMA policy. In addition, the Applicant failed to demonstrate that the Region I Acting Regional Administrator’s method for calculating eligible cost is not reasonable or contrary to FEMA regulations and policy.
In April 2007, the Applicant experienced severe storms and inland and coastal flooding resulting in damage to multiple sections of it granite stone pier. The original scope of work under Project Worksheet (PW) 465, included the removal, resetting, and/or replacing 180 feet x 30 feet x 10 feet (2,000 CY) of damaged pier, and the PW was obligated for $525,648. In July 2010, the Applicant hired Vine
Associates as consulting engineers to prepare design repair plans. Vine Associates divided the pier into six distinct zones and identified 2040 CY as the volume of stone and base material that needed to be replaced. A contractor completed the repair work in September 2011. During the close out process, FEMA determined that the Applicant repaired a greater linear distance of the pier. Accordingly, FEMA classified the repair work as an improved project and reduced the eligible cost of the project to $143,864.09. In the first appeal, the Applicant asserted that the work completed was not an improved project and that FEMA’s original estimate of the replacement stone was incorrect. The Acting Regional Administrator (RA) determined that 853 CY was the total volume of the areas of the pier that were damaged by Disaster 1701 and that the total eligible cost for repair to the pier was $121,487.70. The RA also raised issues with the procurement process that the Applicant used in the administration of the repairs. However, notwithstanding its improper procurement methods, the RA reimbursed the Applicant for the federal cost share. In its second appeal, the Applicant, again, asserts that the repairs to its pier do not constitute an improved project. In addition, the Applicant provides five alternative methods for calculating reasonable cost associate with the repair of its pier.
• Pursuant to 44 C.F.R. § 206.203(d)(1), an improved project occurs when an applicant makes additional improvements to a damaged facility while still restoring it to its pre-disaster function and capacity.
o In the original PW, FEMA estimated the total area of damage to be 180 feet (length) x 30 feet (width) x 10 feet (depth). However, a subsequent engineering report determined that the depth was between 4 and 5 feet, not 10 feet.
o The Applicant repaired 340 feet (length) of the pier. This constitutes an improved project because the repair work is outside of the original scope of PW 465.
• Stafford Act § 406(e) limits permanent work reimbursement to the restoration of a damaged facility to its pre-disaster design, function, and capacity. The costs must be reasonable and necessary to accomplish the eligible work.
o In the first appeal, the Region I Regional Administrator calculated eligible cost by dividing the total construction costs incurred by the Applicant by the total volume of the pier repaired. This provided a unit cost. The RA multiplied the unit cost by the eligible volume of the pier repair work.
o The Applicant provided five alternatives for calculating eligible construction cost for repair of the pier. However, the Applicant provided no documentation demonstrating that the RA’s calculation for eligible cost is unreasonable.
• Stafford Act § 406(e), Eligible Cost.
• 44 C.F.R. § 206.201(g) Definitions- Permanent Work.
• 44 C.F.R. § 206.203(d)(1) Improved Projects.
• 44 C.F.R. § 206.223 General Work Eligibility.
• 44 C.F.R. § 206.226 Restoration of damaged facilities.