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Second Appeal Brief
PA ID# 097-U4T46-00; Joplin Schools
PW ID# (PW) 1438 ; Improved Project – Procurement – Direct Administrative Costs
Conclusion: Joplin Schools (Applicant) failed to seek additional funding in a timely manner, and did not justify its request for Cost Estimating Format (CEF) adjustments. The Applicant’s procurement of administrative services did not comply with federal standards, and the Acting Regional Administrator exercised appropriate discretion in awarding Direct Administrative Costs (DAC) capped at $155 per hour and denying travel costs or costs incurred when no contract was in place.
On May 22, 2011, a tornado damaged the Applicant’s East Middle and Irving Elementary Schools, which qualified for replacement. In 2012, FEMA approved an improved project to combine the two schools and obligated PW 1438 capped at estimated costs. In 2013, the cap was revised to include previously identified work that was inadvertently omitted. In 2014, the Applicant requested an increase to the funding cap for additional work and higher costs not reflected in the CEF. FEMA denied the request as untimely. The Applicant renewed its request at project closeout in 2016, and FEMA again denied the request as untimely. The Applicant also sought DAC at closeout, and FEMA found that the Applicant’s procurement of its DAC contracts did not meet federal standards, but awarded reasonable costs at a maximum rate of $155 per hour, while denying travel costs and costs incurred while there was no contract in place. The Applicant appealed, reiterating its prior arguments. The Acting Regional Administrator denied the appeal, finding that the Applicant’s request was untimely and the requested cost increases were unsupported. Regarding DAC, the $155 hourly cap was reasonable absent justification warranting a higher rate, and additional DAC funding was ineligible. The Applicant submitted a second appeal, arguing that it could seek a revision in the SOW at any point before closeout. It argues that its procurement of DAC contracts complied with federal regulations, its actual costs were reasonable, and the travel costs were reasonably apportioned.
Authorities and Second Appeals
Stafford Act § 324.
2 C.F.R. pt. 225, app. A § (C)(2).
44 C.F.R. §§ 13.30, 13.36, 13.43, 206.201-206.203, 206.206.
DAP 9529.9, at 2-5.
PA Guide, at 51-52, 79, 96, 110-111, 139-140.
PA Policy Digest, at 71.
Los Angeles Dep’t of Water and Power, FEMA-1577-DR-CA, at 2.
City of Cedar Rapids, FEMA-1763-DR-IA, at 7, 11.
Columbus Reg’l Hosp., FEMA-1766-DR-IN, at 7-8.
City of Nome, FEMA-4050-DR-AK, at 5-6.
Vill. of Waterford, FEMA-4020-DR-NY, at 4.
The PA Guide requires applicants to submit damage within 60 days of the kickoff meeting, submit new damage as soon as possible, and obtain approval when the need for additional funding or a revision in scope is anticipated.
Under 44 C.F.R. § 206.206, the burden is on the Applicant to substantiate its appeal with documented justification.
44 C.F.R. § 13.36 requires full and open competition unless public exigency or emergency makes competition infeasible.
Following a procurement noncompliance, 44 C.F.R. § 13.43 authorizes FEMA to award reasonable costs as an enforcement action.
Awarding hourly costs capped at $155 per hour, but disallowing, travel costs and costs incurred when no contract was in place, was an appropriate exercise of discretion.