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Second Appeal Brief
PA ID# 013-U9414-00; Roman Catholic Bishop of Springfield
PW ID# (PW) 266 ; Private Nonprofit – Appeal Procedures –Support Documentation
Severe storms and tornados on June 1, 2011 damaged the Applicant’s St. Michael’s Academy Pre-Kindergarten building and Cathedral High School/St. Michael’s Academy Middle School building, located on a campus stretched over 35 acres. The disaster spread debris throughout the entire campus. FEMA prepared Project Worksheet 266 to capture the Applicant’s request for contract services for: (1) make-safe demolition and general cleanup for the two buildings and area adjacent to them; (2) project management services; and (3) administrative services. FEMA subsequently determined that certain costs were ineligible due to noncompliance with federal procurement requirements. The Applicant appealed and argued that its procurement of all contracts associated with this project was properly done. Based on the Applicant’s response to FEMA’s Final Request for Information (RFI), the Agency sent a second Final RFI noting a new issue – that the Applicant claimed to have removed debris, conducted make-safe demolition and general cleanup throughout the 35 acre campus. FEMA requested documentation to distinguish eligible work associated with the two buildings from ineligible work conducted throughout the rest of the campus. The Regional Administrator (RA) subsequently denied the appeal, determining that because the Applicant had not submitted documentation to quantify the actual amount of eligible debris removed or the make-safe demolition and general cleanup, FEMA could not calculate eligible costs for those activities. Therefore, all of the services were ineligible. This, in turn, meant that all project management services and direct administrative services were also ineligible, as they derived eligibility from the underlying work. The Applicant again appeals and reiterates its prior arguments and also claims that the RA made a fundamental new determination that violated FEMA policy.
Authorities and Second Appeals
- Stafford Act § 403(a).
- 44 C.F.R. §§ 206.224, 206.225(a)(3).
- 2 C.F.R. pt. 215.
- PA Policy Digest, FEMA 321, at 100.
- PA Guide, FEMA 322, at 40, 68, 137.
- Appeals Manual, Version 4, at 13-15.
- FEMA Second Appeal Analysis, Miami-Dade County, FEMA-1345-DR-FL, at 2.
- FEMA Second Appeal, Christian & Missionary Alliance Foundation, FEMA-1539-DR-FL, at 1-3.
- FEMA Second Appeal Analysis, Clarksville Gas and Water, FEMA-1909-DR-TN, at FN 21.
- FEMA Second Appeal Analysis, City of Cedar Rapids, FEMA-1763-DR-IA, at 3.
- The Appeals Manual states that on first appeal, if FEMA identifies a new eligibility issue, it must issue a Request for Information (RFI) and in it, must inform the applicant that a new eligibility issue was identified, frame the new issue and inform the applicant that it has 60 days from receipt to respond.
- FEMA issued a RFI, informed the Applicant that new eligibility issues were identified, framed the new issues and provided the Applicant time to respond. It was a harmless error that the RFI only provided the Applicant with 30 days to respond, as the Applicant filed its response within that timeframe, stating it believed the administrative record was complete and had nothing further to add.
- FEMA’s PA Guide provides that only costs that can be directly tied to the performance of eligible work are eligible.
- The Applicant could not distinguish costs for make-safe demolition and general cleanup performed at the two eligible buildings on campus, from the rest of the 35 acre campus. Accordingly, the costs are ineligible.
The RA’s decision regarding the newly identified issue in the second Final RFI was proper. In addition, the Applicant has not demonstrated that the costs associated with the make-safe demolition and general cleanup services were necessary and reasonable for eligible work or adequately documented. As the project management services and direct administrative services derived eligibility from the underlying work, they are also ineligible.