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Second Appeal Brief
PA ID# 000-UXHWC-00; University System of Georgia Board of Regents
PW ID# Project Worksheets 502 and 508; Debris Removal, Procurement
From October 4–15, 2016, Hurricane Matthew deposited large amounts of vegetative debris on six facilities governed and managed by the University System of Georgia Board of Regents (Applicant). FEMA documented the Applicant’s claim of: (1) $449,914.70 for its first 30 days of debris removal work in PW 508, and (2) $302,326.70 for debris removal work performed in the following 60 days in PW 502. However, FEMA disallowed all costs because the Applicant did not: (1) monitor its contracted debris removal operations; (2) substantiate its costs with the required documentation—e.g., load tickets and monitoring logs; (3) comply with Federal procurement and contracting requirements—e.g., by not considering price as a factor in selecting the primary contractor and improper use of time and materials (T&M) and cost-plus-percentage-of-costs contracting methods; and (4) demonstrate its costs were reasonable compared to the disaster’s average and median debris removal costs. The Applicant appealed arguing that: (1) it properly monitored the debris removal work because its personnel remained on site to monitor the quality of work; (2) it provided adequate documentation to substantiate its costs—e.g., a summary of the work performed at each site, invoices, and the contractors’ records of their own work; (3) its unscheduled rates and the subcontractor’s $110.00 hourly labor rate were reasonable because they saved costs; (4) it procured the primary contractor in compliance with its procurement requirements through its pre-qualification process for disaster recovery vendors; and (5) cost savings justified the use of T&M contracts and an informal, verbal contract with the subcontractor. FEMA denied the appeal because the Applicant did not: (1) pursue all available insurance proceeds; (2) monitor its contracted debris removal work; (3) provide documentation substantiating its claimed debris amounts and costs for force account labor and equipment; (4) justify its use of T&M contracts, a verbal contract, its unscheduled rates, or the subcontractor’s hourly labor rate; or (5) establish that its costs were reasonable. The Applicant filed a second appeal requesting a reduced award based on the disaster’s median cost for debris removal work of $20.39/CY—i.e., reducing its claim to $254,711.88 for PW 508 and $90,083.02 for PW 502.
- Stafford Act § 428.
- 2 C.F.R. §§ 200.317, 200.318(j) 200.404, 200.338.
- PAPPG, at 21–22, 30, 56–57.
Pursuant to 2 C.F.R. § 200.338, FEMA has discretionary authority that it may exercise on a case-by-case basis to remedy an applicant’s non-compliance with Federal statutes, regulations or the terms, and conditions of a Federal award, including Public Assistance (PA) program eligibility requirements found in the Stafford Act, the PAPPG, and all other applicable federal laws and regulations such as the Federal procurement and contracting standards at 2 C.F.R. Part 200.
FEMA acted within its discretionary authority to disallow all costs in PWs 502 and 508 as a remedy for the Applicant’s non-compliance with PA program eligibility requirements and Federal procurement and contracting standards because the Applicant did not: (1) monitor its contracted debris removal work; (2) provide documentation substantiating its claimed debris amounts and costs for force account labor and equipment; (3) justify its use of T&M contracts, its verbal contract with the subcontractor, its unscheduled rates, and the subcontractor’s hourly labor rate; (4) demonstrate it complied with its own procurement procedures; nor did it (5) establish that its costs were reasonable.
FEMA appropriately exercised its discretionary authority to disallow all costs claimed in PWs 502 and 508 as a remedy for the Applicant’s noncompliance with PA program eligibility requirements and Federal procurement and contracting standards. Thus, the second appeal is denied.