Appeal Timeliness
Appeal Brief
Appeal Letter
Appeal Analysis
Appeal Brief
| Disaster | FEMA-4182 |
| Applicant | Mankato |
| Appeal Type | Second |
| PA ID# | : 013-39878-00 |
| PW ID# | PW 227 |
| Date Signed | 2017-12-21T00:00:00 |
Conclusion: Mankato’s (Applicant) second appeal is time-barred by Stafford Act § 423(a) and 44 C.F.R. § 206.206(c), and is consequently denied. In addition, the Applicant did not comply with appeal filing procedure pursuant to regulation.
Summary Paragraph
From June 11 through July 11, 2014, heavy rainfall and flood waters damaged Mankato’s (Applicant) Viking Ravine Water Line (Facility). Using the Applicant’s estimates, FEMA prepared Project Worksheet 227 to restore the Facility in accordance with codes and standards, awarding $135,529.00. After soliciting bids from local contractors, the Applicant awarded the contract based on the sole bid received, and at closeout, requested an overrun of $155,890.11. Upon review, FEMA determined the Applicant failed to comply with procurement requirements and ordered the deobligation of all funding. In a first appeal the Applicant argued it followed contracting requirements under state law and FEMA should allow full funding. FEMA requested evidence demonstrating the Applicant complied with federal procurement requirements and the Applicant reiterated the contract award was legally permissible. The Region V Regional Administrator (RA) denied the appeal on June 6, 2017, upholding FEMA’s determination that the Applicant failed to comply with applicable procurement requirements. In the notification of FEMA’s decision, the RA advised the Applicant of appeal rights, specifically stating a second appeal must be submitted to the Minnesota Department of Public Safety Division of Homeland Security and Emergency Management (Grantee) within 60 days of the Applicant’s receipt of the first appeal decision. The Applicant received notice of the RA’s decision on June 9 and subsequently sent its second appeal to FEMA on October 4, 2017, reiterating that FEMA should reimburse $291,419.00 in claimed contract costs.
Authorities and Second Appeals
- Stafford Act § 423(a).
- 44 C.F.R. §§ 206.206(c)(1), 206.206(a).
- Broward Cty. Sch. Bd. of Fla., FEMA-1609-DR-FL, at 2.
Headnotes
- Stafford Act § 423(a), implemented by 44 C.F.R. § 206.206(c)(1), allows an applicant to appeal within 60 days of receiving notice of the action that is being appealed.
- The Applicant submitted its appeal 117 days after receiving notice of the RA’s decision. Thus, the appeal is untimely by 57 days.
- 44 C.F.R. § 206.206(a) establishes that applicants will file appeals through the grantee to the Regional Administrator.
- The Applicant circumvented the Grantee, sending the second appeal directly to FEMA. The Grantee later formally resubmitted the second appeal to the RA.
Appeal Letter
Joe Kelly
Director
Division of Homeland Security and Emergency Management
Minnesota Department of Public Safety
445 Minnesota Street, Suite 223
Saint Paul, MN 55101-6223
Re: Second Appeal – Mankato, PA ID: 013-39878-00, FEMA-4182-DR-MN Project Worksheet (PW) 227 – Appeal Timeliness
Dear Mr. Kelly:
This is in response to your letter dated October 9, 2017, which transmitted the referenced second appeal on behalf of Mankato (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s denial of $291,419.00 for the restoration of the Viking Ravine Water Line.
As explained in the enclosed analysis, I have determined that the Applicant’s second appeal was not submitted within the 60-day timeframe required by Stafford Act § 423(a) and Title 44 Code of Federal Regulations (44 C.F.R.) § 206.206(c)(1). Accordingly, I am denying this appeal.
Please inform the Applicant of my decision. This determination is the final decision on this matter pursuant to 44 C.F.R. § 206.206, Appeals.
Sincerely,
/s/
Alex Amparo
Assistant Administrator
Recovery Directorate
Enclosure
cc: James K. Joseph
Regional Administrator
FEMA Region V
Appeal Analysis
Background
From June 11 through July 11, 2014, heavy rainfall and flood waters damaged Mankato’s (Applicant) Viking Ravine Water Line (Facility). Using the Applicant’s estimates, FEMA prepared Project Worksheet 227 to restore the Facility in accordance with codes and standards, awarding $135,529.00. After soliciting bids from local contractors, the Applicant awarded the contract based on the sole bid received, and at closeout, requested an overrun of $155,890.11. Upon reviewing additional information supplied by the Applicant, on August 29, 2016, FEMA determined the Applicant failed to comply with procurement requirements and ordered the deobligation of all funding.[1]
First Appeal
The Applicant appealed FEMA’s determination on October 24, 2016, arguing it followed contracting requirements under state law and FEMA should reinstate full funding. The Minnesota Department of Public Safety Division of Homeland Security and Emergency Management (Grantee) concurred and forwarded the appeal in a letter dated December 14, 2016. Initially, the Grantee identified $307,359.20 as the appealed amount but subsequently revised it to $291,419.00.[2] On February 21, 2017, through a Final Request for Information, FEMA solicited evidence demonstrating the Applicant complied with federal procurement requirements. In response, the Applicant provided a legal opinion prepared by the City’s attorney, reiterating the Applicant’s argument that the contract award was legally permissible under state law.[3] The Region V Regional Administrator (RA) denied the appeal on June 6, 2017, upholding FEMA’s determination that the Applicant failed to comply with applicable procurement requirements. In the notification of FEMA’s decision, the RA advised the Applicant of its appeal rights, specifically stating a second appeal must be submitted to the Grantee within 60 days of receiving the first appeal decision.[4] Records confirm the Applicant received notice of the RA’s decision on June 9, 2017.[5]
Second Appeal
The Applicant transmitted its second appeal dated October 4, 2017, directly to the Region, which prompted FEMA to inform the Grantee. Thereafter, on October 9, the Grantee formally resubmitted the appeal on behalf of the Applicant together with a statement of concurrence. The Applicant summarizes its previous arguments, reiterating it followed state law and believed that it had complied with federal requirements during the procurement process. The Applicant again seeks reimbursement of contract costs totaling $291,419.00.
Discussion
The Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) section 423(a) provides that “[a]ny decision regarding eligibility for, from, or amount of assistance under this title may be appealed within 60 days after the date on which the applicant for such assistance is notified of the award or denial of award of such assistance.”[6] Title 44 Code of Federal Regulations § 206.206(c)(1) implements that provision and requires that applicants submit appeals within 60 days of receiving notice of the action that is being appealed.[7] The regulation also establishes that applicants will make the appeal in writing through the Grantee.[8] Neither the Stafford Act nor the regulations provides FEMA with authority to grant time extensions for filing appeals.[9]
In this instance, the Applicant received notice of the RA’s first appeal decision on June 9, 2017. The decision directed the Applicant to submit its second appeal to the Grantee within 60 days of receipt. Using the June 9th receipt date, the Applicant had until August 8, 2017 to submit its second appeal to the Grantee. However, the Applicant sent the appeal directly to FEMA on October 4, 2017, circumventing the Grantee and the filing process established by regulation.[10] In an email dated October 9, 2017, the Region notified the Grantee of the second appeal submission and requested confirmation of when it received the appeal from the Applicant.[11] The Grantee responded it was “unsure” of the date, it “did not write the supporting letter … and the [A]pplicant must have misunderstood the process.” Thereafter, on October 9, the Grantee formally transmitted the appeal with its recommendation of support to FEMA.[12] Nevertheless, using the October 4, 2017 date, the Applicant submitted the appeal 117 days after receiving notice of the appealable action. Consequently, the second appeal is untimely.
Conclusion
The Applicant did not submit its second appeal within the required timeframe established by section 423(a) of the Stafford Act and 44 C.F.R. § 206.206(c)(1). Additionally, the Applicant failed to file its second appeal with the Grantee, as required by FEMA regulations. Therefore, the second appeal is denied.
[1] Because this second appeal deals exclusively with procedural issues, this analysis will not discuss the underlying substantive issues.
[2] Email from Minn. Div. of Homeland Sec. and Emergency Mgmt., to Appeals Analyst, FEMA Region V (Jan. 23, 2017, 1154 CST). The Applicant appealed the amount deobligated ($135,529.00) plus the overrun ($155,890.11) or a total of $291,419.11. FEMA accepts the revised appeal amount of $291,419.00 because it adjusts for an accounting error discovered in PW 227 Version 1. FEMA used a rounded value instead of the CEF’s total when calculating the Version 1 cost adjustment (i.e., $135,529.00 instead of $135,528.89).
[3] Memorandum from City Attorney, Mankato, to Pub. Assistance Branch Chief, FEMA Region V, and Dir., Minn. Div. of Homeland Sec. and Emergency Mgmt., at 1-2 (Mar. 16, 2017).
[4] Letter from Acting Reg’l Adm’r, FEMA Region V, to Dir., Minn. Div. of Homeland Sec. and Emergency Mgmt. and Senior Civil Eng’r, Mankato (June 6, 2017).
[5] USPS Certified Mail Tracking No. 70142120000340757809 (June 9, 2017).
[6] The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. No. 93-288, § 423(a), 42 U.S.C. 5189a(a) (2014).
[7] 44 C.F.R. § 206.206(c)(1) (2013).
[8] Id. § 206.206(a) (“The applicant or subgrantee will make the appeal in writing through the grantee to the Regional Administrator. The grantee shall review and evaluate all subgrantee appeals before submission to the Regional Administrator.”).
[9] FEMA Second Appeal Analysis, Broward Cty. Sch. Bd. of Fla., FEMA-1609-DR-FL, at 2 (Sep. 4, 2014) (determining that the applicant’s second appeal was untimely and that neither the Stafford Act nor regulations provide FEMA with the authority to extend appeal filing timeframes).
[10] 44 C.F.R. § 206.206(a).
[11] Email from Senior Specialist, Pub. Assistance Appeals and Audits, FEMA Region V Recovery Div., to Pub. Assistance Eng’g Specialist, Minn. Div. of Homeland Sec. and Emergency Mgmt. (Oct. 9, 2017, 0952 CST).
[12] Email from Pub. Assistance Eng’g Specialist, Minn. Div. of Homeland Sec. and Emergency Mgmt., to Senior Specialist, Pub. Assistance Appeals and Audits, FEMA Region V Recovery Div. (Oct. 11, 2017, 1343 CST).
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