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Second Appeal Brief
PA ID# ID 225-99225-00; Webster County
PW ID# (PW) 357 ; Codes and Standards, Scope of Work, Improved Project, Support Documentation
Conclusion: When restoring the West Fork Lane Bridge (Facility), Webster County (Applicant) exceeded the eligible scope of work (SOW) by constructing a new bridge that did not conform to the predisaster design of the destroyed bridge. The Applicant did not demonstrate that the improvements were required by an eligible standard nor did it receive authorization for the changes prior to beginning work as required. Consequently, FEMA appropriately deobligated all funding.
In August 2013, floodwaters from severe storms destroyed the Facility, a single-lane bridge, 33 feet long by 12 feet wide, which provides access to a single residence and farmland. In Project Worksheet (PW) 357 FEMA authorized funding to replace the bridge based on its preexisting dimensions and in accordance with American Association of State Highway and Transportation Officials (AASHTO) Guidelines (Guidelines) and Missouri Standard Specifications (Specifications). Upon review, FEMA realized the estimated cost for replacement was based on the wrong bridge and reduced costs. FEMA explained the error and referred to the revised estimate in the SOW, obligating the PW in June 2014. The Applicant accepted a bid to construct a two-span bridge, 80 feet long by 22 feet wide, and requested additional funding at closeout. FEMA determined the Applicant deviated from the approved SOW and incorporated improvements without notifying the State of Missouri Emergency Management Agency (Grantee) or FEMA prior to construction. As such, FEMA deobligated all PW funding. In a first appeal dated December 22, 2016, the Applicant contended: it was unaware that replacement funding was based on a single-lane bridge (of smaller dimensions) and because it found the SOW ambiguous, it followed the Guidelines and Specifications; and that FEMA must have changed the SOW without providing notice. FEMA requested additional information from the Applicant, such as: documentation supporting the need to increase the bridge’s length and why a two-lane bridge was necessary; proof documenting preexisting safety issues; complete copies of the cited standards and any related documentation and/or explanation demonstrating they met FEMA’s eligibility criteria. In response, the Applicant asserted: it received notice from the Grantee in June 2014 that the PW was obligated for the lesser amount; copyright restrictions prevented it from providing the cited standards; the Guidelines, although not formally adopted, have been in effect for several years; the width of the constructed bridge followed the previous PW, the Guidelines, and the Applicant’s standard practice; the Specifications do not specify bridge widths, but the Missouri Dept. of Transp. Engineering Policy Guide suggests bridges should be at least 18 feet wide (two lanes); and scour from the disaster necessitated increasing the length of the bridge. On June 26, 2017, the Regional Administrator denied the appeal, determining the Applicant: exceeded the approved SOW and did not notify FEMA until after it was completed; did not demonstrate increasing the bridge’s size was required by the cited standards or that the cited standards met all five FEMA criteria; and was notified of the approved PW (with corrected costs), which specified that any SOW changes must be approved by FEMA prior to construction. In a second appeal letter of August 18, 2017, the Applicant reasserts previous statements and argues that FEMA previously approved funding a two-span bridge but later changed the PW and reduced funding without informing the Applicant.
Authorities and Second Appeals
- Stafford Act § 406.
- 44 C.F.R. §§ 13.30(d)(1), 13.43(a)(2), 206.201(k), 206.203(d)(1), 206.206(a), 206.226.
- PA Guide, at 33-35, 79, 96, 101, 111, 139-140.
- DAP 9527.4, at 2, 6.
- Pulaski Cty., FEMA 4144-DR-MO, at 6; Dep’t of Transp., FEMA-4068-DR-FL, at 4-5; Essex Cty., FEMA-4020-DR-NY, at 4-5, Roseau Cty. Hwy. Dep’t, FEMA-1288-DR-MN, at 7.
- Stafford Act § 406 and implementing regulations authorize funding to restore a damaged facility based on its design as it existed immediately prior to the disaster. Per FEMA policy, eligible permanent work is work that is required to restore a damaged facility to its predisaster design, function, and capacity. The PW is the basis for funding and documents the design of the damaged facility in addition to the eligible damage, SOW, and costs. The SOW must include a description of any work that will restore the facility beyond its predisaster design, including improvements and code-driven upgrades. Per 44 C.F.R. § 13.30(d)(1), an applicant must also obtain the awarding agency’s approval whenever any revision to the scope or objectives of the project is anticipated.
- The Applicant exceeded the approved SOW and costs by constructing an unapproved, improved project.
- Funding for necessary code-driven upgrades may also be eligible to restore a facility, provided the codes or standards meet 44 C.F.R. § 206.226(d)’s five criteria. The burden is on the applicant to provide documented justification to substantiate claims made on appeal.
- The Applicant did not demonstrate that the upgrades were required by an eligible standard.
- 44 C.F.R. § 206.203(d)(1) states when an applicant chooses to make improvements while restoring the predisaster function of a facility, the grantee’s approval must be obtained prior to construction. Per FEMA policy, prior approval is also required for any improved project that significantly changes the facility’s predisaster configuration (e.g., location, footprint, or size). Further, the Applicant is responsible for requesting changes to the PW at any point during the grant process, and should not assume costs reported at the end of a project will be funded automatically.
Without Grantee or FEMA approval, the Applicant increased the number of travel lanes thereby increasing the original Facility’s capacity. Likewise, it increased the length and width of the original Facility, expanding the footprint.