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Second Appeal Analysis
PA ID# ID 225-99225-00; Webster County
PW ID# (PW) 357 ; Codes and Standards, Scope of Work, Improved Project, Support Documentation
From August 2 through August 14, 2013, severe storms caused flooding throughout Webster County (Applicant). Floodwaters exceeded the water flow capacity under the Applicant’s West Fork Lane Bridge (Facility) and washed out both the west and east side gravel roadway approaches and embankments. This caused the east abutment wall to lean, resulting in loss of structural integrity for the span. The Facility was originally constructed in 1950 and provides access to farmland and a private residence.
In March 2014, FEMA prepared Project Worksheet (PW) 357 to document damages and address the Applicant’s request for assistance. FEMA quantified the dimensions of the preexisting bridge’s structural components, noting that the bridge deck consisted of a single travel lane that was 33 feet long and 12 feet wide. The Scope of Work (SOW) included work completed by the Applicant to construct a temporary bypass since the bridge was destroyed. The SOW section for permanent work yet to be performed included a hydrologic and hydraulic study, and noted the Applicant would replace the preexisting bridge with a bridge meeting American Association of State Highway and Transportation Officials (AASHTO) and Missouri Standard Specifications, based on the corresponding Cost Estimating Format (CEF) attached to the PW. During the PW review process, FEMA discovered that the cost estimate used was mistakenly based on a different bridge of a larger size on another road. FEMA noted the error in the SOW and referenced a revised cost estimate (CEFv2) for a lesser amount. PW 357 Version 0 was subsequently obligated for a total of $140,262.84 on June 12, 2014.
In May 2015, the Applicant solicited sealed bids for the construction of a two-span bridge, 80 feet long by 22 feet wide. The Applicant subsequently accepted the low bid and upon completion of the work, requested additional funding at closeout. Through a letter dated June 8, 2016, the Missouri State Emergency Management Agency (Grantee) submitted the project for closeout, supporting the Applicant’s request for costs totaling $255,956.62, reflecting an increase of $115,693.78.
FEMA denied the request in a November 1, 2016 letter addressed to the Applicant and Grantee. The letter advised the Applicant of its appeal rights and enclosed FEMA’s determination memorandum explaining why the project was no longer eligible. In it, FEMA found that the Applicant’s construction of a two-span bridge, measuring 80 feet long by 22 feet wide, exceeded the approved SOW. FEMA further determined the Applicant constructed an improved project without notifying the Grantee or FEMA prior to construction against regulation. In doing so, the Applicant prevented FEMA from reviewing the modifications for environmental and historical preservation compliance. Consequently, FEMA denied the request for additional funding and deobligated all PW funding.
The Applicant appealed FEMA’s ineligibility determination in a letter dated December 22, 2016, requesting $255,956.62 in funding. The Applicant explained that constructing the larger two-span bridge followed specifications recommended by AASHTO Guidelines for Geometric Design of Very Low-Volume Local Roads (Guidelines), the 2002 AASHTO Standard Specifications for Highway Bridges, and Missouri Standard Specifications (Specifications). The Applicant explained that because it found FEMA’s replacement SOW to be ambiguously worded, it followed AASHTO’s recommendation. In support thereof, the Applicant referenced a two-page excerpt of the Guidelines, which discusses key elements to be considered in selecting bridge width on existing roads, such as the width of the adjacent roadway and the existing bridge’s safety performance. For the width of a roadway, the Applicant noted the Guidelines recommend a range of 18 to 26 feet.
In addition, the Applicant indicated it lacked awareness that the SOW approved construction of a single-travel lane bridge based on the dimensions discussed in FEMA’s determination memorandum, contending this specific language differed from its own documentation on file. Therefore, the Applicant posited FEMA must have changed the SOW without providing notification. Nevertheless, the Applicant contended that it complied with the PW’s overall SOW since the bridge it constructed was code-compliant (referring to the PW and CEF). Accordingly, the Applicant argued there was no reason to request a SOW change or an improved project. The Grantee recommended approving the appeal in a forwarding letter of January 6, 2017.
FEMA issued a Final Request for Information (Final RFI) on March 31, 2017, requesting documentation and/or additional explanation to support the Applicant’s claims. In addressing the Applicant’s claim that the PW authorized replacement of a bridge with a larger bridge to comply with specific codes and standards, FEMA underscored that the PW and CEF, forwarded with the Applicant’s appeal, approved replacement funding for a specified design which did not include code and standard upgrades. FEMA also stated its understanding that the Grantee notified the Applicant of the PW’s reduction in funding (soon after obligation), inquiring why the Applicant failed to appeal the determination at that time. In order to further evaluate the Facility’s site and location, FEMA requested: (1) the Average Daily Traffic (ADT) for the road, since the ADT is one factor used to determine the appropriate size and type when constructing a new bridge; (2) explanation of why a two-lane bridge was necessary; (3) information providing the existing road’s length and width; and (4) records such as engineering studies, inspection reports, and photos, demonstrating the need to significantly increase the bridge’s length (from 33 to 80 feet).
FEMA requested complete copies of the cited Guidelines and Specifications, and asked the Applicant to provide documentation demonstrating its compliance with all five of FEMA’s code and standard eligibility criteria. Specific to the Guidelines, FEMA asked the Applicant to: (1) explain how they apply to the bridge and not the roadway; (2) identify the section triggering the requirement to increase the size of the bridge; and (3) provide documentation of any preexisting safety issues that may have necessitated modifying the existing road and increasing the bridge’s size at the current location. Additionally, the Final RFI asked the Applicant to identify and reference the section of the Specifications requiring increasing the width of the bridge.
In a response dated April 25, 2017, the Applicant asserted it was not aware the estimate associated with the approved SOW excluded code and standard upgrades. The Applicant cited a letter dated June 12, 2014 that it received from the Grantee, stating “[FEMA reduced] the [PW’s] previous cost of $237,868.84 … to $140,262.84.” Since the Applicant intended to advertise and bid the work, and planned on notifying the Grantee of significant changes in costs following the bid process, it saw no reason to appeal the reduction. The Applicant provided email correspondence from June 2015 documenting exchanges with the Grantee, substantiating it notified the Grantee that the bids received were over budget. The Grantee stated that additional funding is not guaranteed and advised the Applicant to make sure the solicitation and bids align to the PW’s SOW.
Due to copyright restrictions, the Applicant stated it could not provide FEMA with a copy of the Guidelines, but identified a website through which FEMA could purchase one. The Applicant argued the Guidelines were applicable to low-volume local roads and in effect for several years, but were not formally adopted. It followed the section of the Guidelines for a new road instead of an existing one because the bridge was destroyed. It explained the bridge’s width followed the Guidelines, which was the Applicant’s standard practice for constructing all new bridges/crossings with at least two lanes, and complied with the approved SOW. It also stated that hydraulic calculations and site characteristics necessitated increasing the bridge length due to the amount of scour caused by the disaster. The Applicant referred FEMA to a web site in lieu of providing a copy of the Specifications, but noted they do not specify bridge width. Instead, the Applicant referred to Section 231.8 of the Missouri Department of Transportation Engineering Policy Guide (Policy Guide), noting none of the suggested widths for bridges are less than 18 feet (or two lanes).
The Regional Administrator (RA) denied the appeal on June 26, 2017. Contrary to the Applicant’s contention, the RA determined the eligible SOW was limited to work necessary to restore the predisaster design of the Facility. The RA cited to regulations and relevant policy requiring an applicant to receive approval prior to beginning construction for any changes to the approved SOW. This included any improvements beyond the approved SOW that would be handled as an improved project. The Applicant’s assertion that it was not informed of FEMA’s cost reduction lacked credibility since the Applicant’s own appeal documentation included a copy of the approved PW and revised CEF, which reduced the amount of funding. Moreover, the approved CEF not only quantified materials, which corresponds to the damaged Facility’s dimensions as described in the PW, but also makes clear that the estimate is based on the eligible SOW and that any changes to the work, to include materials necessary to accomplish the work and associated costs, must first be authorized by FEMA. According to the emails submitted with the Applicant’s response, when seeking confirmation that the cost overrun would be approved, the Grantee advised the Applicant to follow the SOW and that requests for funding increases claimed at closeout were not guaranteed. Yet, the Applicant chose not to notify FEMA of SOW changes and the need for additional funding until after it completed all of the work.
Since the PW approved replacement in accordance with the Guidelines and Specifications, and in so doing, the Applicant argues FEMA approved increasing the bridge’s size, the RA evaluated the SOW for compliance with requirements based on the support documentation presented. According to the Guidelines excerpt, unless safety was at issue, there was no requirement to widen an existing road and the Applicant offered no evidence demonstrating it widened the existing road to rectify site-specific safety issues. Similarly, the Applicant did not provide adequate documentation demonstrating the Guidelines required increasing the bridge’s width. The Applicant conceded the Specifications do not specify bridge widths, and instead referenced but declined to submit a copy of, Section 231.8 of the Policy Guide. After reviewing the section online, though it contains charts of bridge widths where an 18 foot lane is the minimum shown, the RA noted the section also states that roadway width of a bridge should be determined by an engineer and could be narrower depending upon circumstances. Lastly, no documentation was provided to substantiate that any of the cited sources required a minimum of two traffic lanes.
The RA also considered whether any of the cited standards met eligibility criteria required for FEMA to fund the upgraded bridge. Although the RA agreed both the Guidelines and Specifications likely applied to the type of restoration required and were appropriate to the Facility’s predisaster use, the information provided was inadequate to demonstrate that the standards were found reasonable, formally adopted and implemented, applied uniformly to all similar types of facilities within the Applicant’s jurisdiction, and were enforced.
In addition, the RA found that increasing the bridge’s length also exceeded the approved SOW. Apart from attributing this modification to hydraulic calculations and characteristics of the site, the Applicant declined to provide documentation substantiating this claim.
In a second appeal dated August 18, 2017 for the same amount, the Applicant reiterates that FEMA approved funding for a two-span bridge but later changed the PW and reduced funding without notifying the Applicant. The Applicant asserts the first appeal decision did not respond to its request for proof that it was notified and acknowledged the change in funding. The Grantee concurred in a forwarding letter dated August 24, 2017.
Change in SOW / Improved Projects
The Stafford Act authorizes FEMA to provide funding for the restoration of a damaged eligible facility on the basis of the design of the facility as it existed immediately prior to the disaster and in conformity with current applicable codes and standards. The predisaster design of a facility includes its size and capacity as originally designed and constructed or subsequently modified. FEMA may reimburse costs when an applicant makes improvements, but still restores the predisaster function of a damaged facility. Such work is commonly referred to as an improved project. Federal funding for improved projects is limited to the federal share of the estimated costs of repairing or replacing the damaged facility to its predisaster design. An applicant must obtain grantee approval for an improved project prior to construction. FEMA must approve any project that significantly changes the facility’s predisaster configuration (e.g., different location, footprint, or size), prior to construction to ensure compliance with environmental and historical review.
The PW is the basis for Public Assistance funding and is used by FEMA to document the design of the damaged facility in addition to the eligible damage, SOW, and costs. When developing a SOW for a PW, it must describe any work that will restore the facility beyond its predisaster design, including codes and standards upgrades and indicate whether the work constitutes an improved project. Applicants are required to obtain prior approval from FEMA whenever any revision of the scope or objectives of the project is anticipated. It should not assume that those costs can be reported at the end of the project and that it will receive the funds automatically. When an applicant materially fails to comply with any term of an award, including the SOW, FEMA may take appropriate enforcement actions, such as disallowing all or part of the grant award.
Initially, the Applicant argued that the SOW did not change and the work performed was not an improved project, and as such, it was not required to receive approval from the Grantee or FEMA prior to construction. It subsequently claimed funding for a two-lane bridge was approved in a prior iteration of the PW and CEF. As discussed herein, this claim is not supported by the documentation.
In PW 357, when documenting the eligible damage, FEMA described the preexisting design of the Facility as a bridge with one travel lane and quantified the dimensions of the bridge deck. FEMA also stated the “preexisting bridge” would be replaced in the SOW and referred to the corrected CEF, which estimated the materials, quantities and costs that FEMA approved for the project. A grant condition in PW 357 states, “[t]he Applicant must notify the grantee in writing prior to initiating any variance to the approved scope of work or conditions of the grant, failure to do so may jeopardize the federal funding of this sub-grant award.” The corrected CEF includes similar language and clearly refers back to the SOW, stating: “… [i]f actual quantities exceed the estimates … the applicant should notify the State and FEMA prior to proceeding. The estimated costs … are based on the approved scope of work … the estimated costs may be supplemented based on actual eligible costs for work completed; if consistent with the approved SOW.”
However, without prior authorization, the work completed by the Applicant modified the preexisting bridge’s design and exceeded the corrected CEF’s estimated quantities and costs that FEMA approved. In addition to increasing the width, the Applicant installed a second travel lane, thereby increasing the original Facility’s predisaster capacity. Likewise, the Applicant increased the length of the bridge, contending this was necessary due to scour behind the structure caused by the disaster. Though the Applicant may have evaluated hydraulic calculations and conditions at the site to reach this decision, it provides neither support documentation nor explanation necessary to substantiate that the increase was required to restore the Facility on the basis of its design as it existed immediately prior to the disaster. As such, the completed work is an unapproved, improved project.
The Applicant did not comply with the SOW which did not state the work was to be an improved project, or was subject to any codes or standards upgrades. Although the Applicant had the opportunity to seek clarification about the approved PW and related estimate upon first receiving notice of the obligated PW on June 12, 2014, the Applicant proceeded with soliciting bids to build a wider and larger bridge, in May 2015. The Grantee subsequently reminded the Applicant to check the solicitation and the bids against the PW’s SOW, in June 2015, noting the Applicant may have been able to rebid the project at that time. Nonetheless, according to the documentation on record, the Applicant delayed requesting additional funding from FEMA until closeout in June 2016, and failed to seek or obtain FEMA’s approval for any of the changes. In failing to obtain FEMA’s prior approval, the Applicant risked not only the denial of costs for work in excess of what FEMA approved but the disallowance of previously awarded costs. As a result, FEMA appropriately exercised its enforcement authority to deobligate all funding associated with the project.
Codes and Standards / Support Documentation
FEMA considers whether eligible restoration work should include funding for upgrades that are necessary to meet specific requirements of reasonable current codes and standards. Pursuant to FEMA regulations, in order to be eligible, the code or standard requiring the upgrade must meet all of the following criteria: (1) apply to the type of repair or restoration required; (2) be appropriate to the predisaster use of the facility; (3) be found reasonable, in writing, and formally adopted and implemented by the state or local government on or before the disaster declaration date or be a legal federal requirement applicable to the restoration; (4) apply uniformly to all similar types of facilities within the jurisdiction of the owner of the facility; and (5) be enforced during the time the standards were in effect. An eligible code or standard must contain objective, specific design criteria, and may not offer only general guidance or recommendations.
In considering the second appeal with respect to whether the Guidelines and Specifications posited by the Applicant satisfy eligibility criteria, FEMA must rely upon the information comprising the administrative record. The burden to substantiate appeals with documented justification falls exclusively to the applicant, and hinges upon the applicant’s ability to produce not only its own records but to clearly explain how those records should be interpreted as relevant to support the appeal. In the Final RFI, FEMA requested the Applicant to elaborate on how the Guidelines and Specifications triggered requirements that would justify the changes made to the original bridge’s predisaster design. The information offered in response did not support that the Applicant’s modifications – increasing the bridge’s predisaster length and width and adding another travel lane – were mandated by the Guidelines and Specifications. And, importantly, even if the Applicant had demonstrated such work was required, in order for it to be incorporated as part of the eligible restoration project and funded by FEMA, the Applicant must demonstrate that the Guidelines and Specifications (in addition to any other cited source) meet all five criteria pursuant to 44. C.F.R. § 206.226(d). As summarized below, based on the Applicant’s statements and a lack of support documentation, this has not been established.
The Applicant states that the Guidelines have not been formally adopted. Since the Applicant did not submit a copy of the Specifications as requested, FEMA is unable to analyze them in order to determine whether they meet any of the regulatory criteria for an eligible code or standard. However, the Applicant acknowledged the Specifications do not specify bridge widths. Regarding the Applicant’s reference to the Policy Guide Section 231.8 offered in part to support why it constructed a two-lane bridge, the Applicant declined to submit support documentation necessary for review. Yet, the Applicant states Section 231.8 provides for “desirable bridge widths for varying roadway classifications and ADT’s, none of which are less than 18-ft or two lanes.” FEMA’s review of the section coupled with the Applicant’s explanation, illustrate it offers technical guidance (providing for desired width) subject to the discretion of an engineer in lieu of imposing requirements. Similarly, the Applicant claims it typically installs only two-lane bridges based on standard practice and has done so for several years, but did not provide documentation supporting this assertion. Regardless, any upgrades recommended by a non-mandatory provision such as design standards, guidelines, policies, industry or standard practices are not eligible if the provisions fail to satisfy all criteria pursuant to § 206.226(d). As such, the Applicant has not demonstrated that the Guidelines, Specifications, or Section 231.8 of the Policy Guide are eligible codes and standards pursuant to regulation.
FEMA approved funding to replace the damaged Facility, a bridge with a single travel lane, based on the estimated quantities and costs included in the corrected CEF. The Applicant constructed a two-lane bridge, increasing the width and length of the damaged Facility, in excess of what FEMA approved and without FEMA’s prior authorization for any of the changes. The Applicant did not demonstrate that any of the changes were required by an eligible code or standard. As the Applicant constructed an unapproved, improved project and did not comply with the terms and conditions of the grant, the second appeal is denied.
 Project Worksheet 357, Webster Cty., Version 0 (June 12, 2014).
 The corrected CEF approved a total of $125,242.00, instead of $227,842.00, which was estimated for replacement of a larger bridge on Osage Road.
 Invitation to Bid, Webster Cty. FEMA W. Fork Ln. Bridge Replacement, at 1-2 (advertised on May 13, 2015).
 Letter from Presiding Comm’r, Webster Comm’n, Webster Cty. Courthouse, to Mo. State Emergency Mgmt. Agency, & FEMA Region VII, at 2 (Dec. 22, 2016) [hereinafter Applicant’s First Appeal]. The excerpt of the Guidelines is provided as Exhibit 3.
 Letter from Dir., FEMA Region VII Recovery Div., to Dir., Mo. State Emergency Mgmt. Agency, & Presiding Comm’r, Webster Cty., at 1 (Mar. 31, 2017).
 Letter from Webster Cty. Road & Bridge Dep’t, to Mo. Emergency Mgmt. Agency, & FEMA Region VII, at 1 (Apr. 25, 2017) [hereinafter Applicant’s RFI Response].
 Email from Assistant Dir., Webster Cty., to Mo. State Emergency Mgmt. Agency (June 10, 2015, 15:37 CST); Applicant’s RFI Response, Exhibit 1, at 3.
 Email from Mo. State Emergency Mgmt. Agency, to Assistant Dir., Webster Cty. (June 16, 2015, 14:37 CST) [hereinafter Email from Grantee]; Applicant’s RFI Response, Exhibit 1, at 1-2.
 FEMA First Appeal Analysis, Webster Cty., FEMA-4144-DR-MO, at 6 (June 26, 2017).
 The RA also discussed environmental permitting considerations, noting that FEMA was able to verify that the U. S. Army Corps of Engineers approved the Applicant’s permit based on the SOW to construct the larger bridge. The RA found this sufficient to conclude that compliance with environmental permitting was not in question.
 The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. No. 93-288, § 406, 42 U.S.C. § 5172 (2007).
 Title 44 Code of Federal Regulations (44 C.F.R.) § 206.201(k) (2012).
 44 C.F.R. § 206.203(d)(1).
 Id. at 96 (explaining the applicant is responsible for requesting changes to the PW at any point during the grant process when changes in the project or its costs are identified).
 Public Assistance Applicant Handbook, FEMA P-323, at 40-41 (Mar. 2010); PA Guide, at 101 (noting information pertinent to the scope of work should be documented such as an eligible code or standard, “especially if proposed repairs or replacements exceed the pre-disaster design...” and indicate “that the project is an Improved Project, if applicable. A description of the overall project must be included…”).
 44 C.F.R. § 13.30(d)(1); see also PA Guide, at 96.
 PA Guide, at 139-140.
 44 C.F.R. § 13.43(a)(2).
 Applicant’s First Appeal, at 2.
 Applicant’s Final RFI Response, at 2.
 Though the original CEF was developed for a larger bridge by mistake, FEMA approved funding using the corrected CEF, which estimated costs for work to restore the damaged Facility, a single-lane bridge.
 PW 357, Webster Cty. (Version 0) (Damage Description and Dimensions section).
 Id. at Scope of Work (Work to Be Completed section).
 Id. at Cost Estimating Format (CEF) for Webster County West Fork Lane Bridge Replacement (dated Apr. 7, 2014) [hereinafter West Fork Lane Bridge CEF].
 Id. (Project Notes section).
 West Fork Lane Bridge CEF, at 1. The cited language appears under the preparer’s notes section on the Fact Sheet.
 Applicant’s Final RFI Response, at 2.
 Email from Grantee, at 2.
 See e.g., FEMA Second Appeal Analysis, Roseau Cty. Hwy. Dep’t, FEMA-1288-DR-MN, at 7 (Jan. 6, 2017).
 PA Guide, at 33; see also Disaster Assistance Policy DAP 9527.4, Construction Codes and Standards, at 2 (Feb. 5, 2008) (explaining, when FEMA determines that a code meets all five criteria, the work and costs to include eligible upgrades triggered by the code, will be eligible for funding under Stafford Act § 406(e)).
 44 C.F.R. § 206.226(d); PA Guide, at 33-35.
 FEMA Second Appeal Analysis, Pulaski Cty., FEMA 4144-DR-MO, at 6 (Aug. 7, 2017) (citing FEMA Second Appeal Analysis, City of Petaluma, FEMA 1628-DR-CA, at 4 (Aug. 13, 2012)).
 44 C.F.R. § 206.206(a); FEMA Second Appeal Analysis, Dep’t of Transp., FEMA-4068-DR-Fl, at 4-5 (Aug. 5, 2016).
 Applicant’s Final RFI Response, at 3.
 DAP 9527.4, at 6; FEMA Second Appeal Analysis, Essex Cty., FEMA-4020-DR-NY, at 4-5 (May 19, 2017).