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Second Appeal Brief
PA ID# 125-U00B3-00; Clarksville Gas and Water
PW ID# (PW) 5459 ; Support Documentation – Legal Responsibility – Scope of Work
Conclusion: Clarksville Gas and Water (Applicant) did not demonstrate legal responsibility for service labor. Additionally, revising the scope of work (SOW) is not supported due to the overlap of appealed items of work performed by the same contractors on other project worksheets (PW). Accordingly, the appeal is denied with respect to those issues. However, per the regulatory requirements for a large project, the amount of final funding for eligible work and costs as clarified in this decision must be determined upon reconciliation of the project’s actual costs at closeout. The Applicant’s appeal rights are preserved with respect to the Agency’s determination of eligible costs.
Beginning in April 2010, severe storms impacted the City of Clarksville. Flooding from the event inundated the Applicant’s Facility. FEMA prepared multiple PWs for the Applicant’s emergency protective measures. FEMA documented the Applicant’s claim for actual and estimated contract costs for equipment rental and security to support the Facility’s temporary operations in PW 5459. FEMA also included estimated direct administrative and construction management costs. FEMA deducted costs for service labor charged by equipment suppliers because the Applicant did not explain the charges; and deducted equipment costs from invoices included on other PWs. During PW review, FEMA determined that none of the work was eligible because the Facility was located within the boundaries of a United States Army Corps of Engineers (USACE) flood easement, which held harmless the United States Government from all losses resulting from flood. The Applicant appealed the USACE ineligibility determination; the disallowed service labor; requested outstanding costs for equipment invoices; and additional emergency protective measures performed by two contractors, contending none of the work was included on other PWs. The Regional Administrator (RA) partially granted the appeal, finding that the easement did not prohibit FEMA from providing assistance and a costs for the equipment invoices, and estimates for equipment rental and security, construction management, and direct administrative costs. The RA denied: service labor because the Applicant did not provide rental equipment contracts or detail the work performed; the additional emergency protective measures because items or work were addressed on other PWs, and documentation was deemed insufficient to support changing the scope of work (SOW). On second appeal, the Applicant: provides service labor documentation which does
not correspond to invoiced dates, but reasserts the work was too specialized for City staff; and reiterates that its contractors performed site wide emergency protective measures that should be funded on PW 5459.
Authorities and Second Appeals
Stafford Act § 403.
44 C.F.R. §§ 206.202(d)(1)(i), 206.203(c)(1), 206.205(b), 206.223(a)(3), 206.225.
OMB Circular A-87, att. (C)(1)(a) and (j).
Public Assistance Guide, at 40, 109.
Stafford Act § 403, as implemented by 44 C.F.R. § 206.223(a)(3), requires work to be the legal responsibility of the Applicant.
44 C.F.R. § 206.225(a) authorizes emergency protective measures necessary to eliminate or lessen immediate threats to life, public health, and safety, as well as threats of significant additional damage to improved property.
44 C.F.R. § 206.202(d)(i) provides that the PW identifies the eligible SOW. Generally, costs that can be tied to the performance of eligible work are eligible. Costs must also be found reasonable per OMB cost principles.
44 C.F.R. § 206.203(c)(1), large project funding shall equal the Federal share of the actual eligible costs documented by the grantee.
44 C.F.R. § 206.205(b) explains the project closeout process for grant applicants to reconcile the difference between a project’s estimated and actual costs.
FEMA is not permitted to award funding for large projects based on estimates.
As such, final funding will be determined by actual costs incurred for eligible work and reconciled at closeout.