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Second Appeal Brief
PA ID# 097-U4T46-00; Joplin Schools
PW ID# (PW) 1799 ; 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 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 concession stand building on the grounds of Joplin High School, which qualified for replacement. FEMA prepared Project Worksheet (PW) 1799, and, in 2013, approved an improved project to rebuild the concession stand at the new Joplin High School being rebuilt at a different location. In 2014, the Applicant requested an increase to the funding cap for 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. 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 Regional Administrator denied the appeal, finding that the Applicant’s request was untimely and the requested cost increases were unsupported. Regarding DAC, it determined that the $155 hourly cap was reasonable absent justification warranting a higher rate, so 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, 206.226.
- DAP 9529.9, at 2-5.
- PA Guide, at 51-52, 79, 96, 110, 139-140.
- Martinsville CUSD, FEMA-1771-DR-IL, at 4.
- 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.
- 44 C.F.R. 13.30 requires applicants to notify FEMA when the need for additional funding is anticipated.
- The Applicant did not identify the additional costs until more than a year after the PW was obligated despite knowing that it intended to seek additional funding.
- Under 44 C.F.R. § 206.206, the burden is on the Applicant to substantiate its appeal with documented justification.
- The Applicant failed to justify its request for increased costs and CEF factors.
- 44 C.F.R. § 13.36 requires full and open competition unless public exigency or emergency makes competition infeasible.
- The Applicant did not demonstrate that any public exigency or emergency made noncompetitive procurement necessary.
- 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.