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Second Appeal Brief
PA ID# 193-71625-00; City of Sergeant Bluff
PW ID# 617; Direct Result of Disaster
Conclusion: The Applicant did not provide sufficient documentation to show the extent of the damages to a sewer pipe that it claimed were a result of a disaster and that those same damages necessitated sewer pipe replacement rather than repair.
From May 25, 2011 through September 30, 2011, Iowa experienced heavy rainfall and flooding which resulted in pavement failures and damages to an underground sewer pipe. The Applicant could not determine the total damage until after the deadline for reporting damages to FEMA. The Applicant requested that it be able to submit a project worksheet beyond the deadline. FEMA denied the request because the Applicant made the request after the deadline. In its first appeal, the Applicant asserted that it had difficulty in determining if the damages were related to the disaster and again requested to submit a project worksheet for emergency and permanent work. The FEMA Region VII Regional Administrator partially approved the appeal, funding costs associated with emergency work but not permanent work. The Applicant did not verify that an entire section of a sewer pipe was damaged as a result of the disaster or that the damage was so severe that the pipe had to be replaced instead of repaired at a lesser cost. In addition, the RA was unsure as to whether the Applicant followed proper procurement procedures when hiring a contractor. In its second appeal, the Applicant indicates that it is not able to determine the extent of the damage to the sewer pipe and that it followed proper bidding procedures for hiring a contractor.
Authorities and Second Appeals
- Stafford Act § 406, 42 U.S.C. § 5172.
- 44 C.F.R. § 206.223(a)(1).
- 44 C.F.R. § 13.36(a)(3), (c) & (b).
- PA Guide, at 85.
- Stafford Act § 406 authorizes FEMA to make contributions to a “local government for the repair, restoration, reconstruction, or replacement of a public facility damaged or destroyed by a major disaster.”
- Under 44 C.F.R. § 206.223(a)(1), to be eligible, an item of work must be required as the result of the emergency or major disaster event. The applicant is responsible for determining the extent of the damage to a facility in order to make a determination about the measures that need to be taken to either repair or replace the facility. (PA Guide, at 85)
- The Applicant could not verify the extent of damage to the sewer pipe, whether the damage was so severe that replacement rather than repairs was necessary, nor if the damage was a result of the disaster.
- Because the Applicant is responsible for determining the extent of the damage, FEMA will de-obligate $7,873.20 for ineligible costs associated with video inspection the Applicant used to determine sewer line damage.
- According to 44 C.F.R. § 13.36(c), all procurement transactions have to be conducted in a way that provides “full and open competition.” However, when procurement procedures are not followed, FEMA can analyze the costs to determine if the costs are reasonable.
- The Applicant did not properly procure the contract for the sewer pipe replacement or the emergency repairs. FEMA found the actual cost of the emergency repairs reasonable.