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Alternate Project, Scope of Work, Time Extensions/Limitations

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster4180
ApplicantParks, Recreation, Historic Preservation,
Appeal TypeSecond
PA ID#000-U0066-00
PW ID#PW 159
Date Signed2021-02-02T17:00:00

Summary Paragraph

From May 13 to May 22, 2014, severe storms and flooding in Livingston County, New York caused a catastrophic embankment failure of a section of the New York Office of Parks, Recreation, and Historic Preservation’s (Applicant) Genesee Valley Greenway Trail and embankment (Facility).  FEMA prepared Project Worksheet (PW) 159 to document damage to the Facility and obligated $360,806.58 to fund professional engineering services (to evaluate and recommend several options to repair the Facility).  The Applicant submitted a scope of work (SOW) change request to the New York State Division of Homeland Security and Emergency Services (Grantee) to relocate the trail rather than restore the trail to predisaster condition in its current location.  The Applicant also requested a time extension, which FEMA Region II approved.  The Applicant then determined restoration of the trail was not in the best interest of the public and notified the Grantee it would seek an Alternate Project.  The Grantee later informed the Applicant that it never sent the SOW change request to FEMA.  The Grantee subsequently sent the Applicant's SOW change request, Alternate Project request, and a new time extension request to FEMA.  FEMA found the Alternate Project ineligible because the Applicant did not request the change within 12 months of the Kickoff Meeting.  The Applicant appealed, asserting that FEMA based its denial on an outdated policy.  The FEMA Region II Regional Administrator denied the first appeal, finding the engineering services associated with PW 159 were no longer eligible because the Applicant indicated it no longer intended to restore the Facility.  Therefore, FEMA deobligated funding for PW 159 and, consequently, did not approve an Alternate Project.  On second appeal, the Applicant states FEMA inconsistently applied its own policies in denying the Alternate Project and contends that FEMA policy supports reimbursing the engineering services.

Authorities and Second Appeals

  • Stafford Act § 406.
  • 44 C.F.R. §§ 206.204(d)(2), 206.203(d)(2).
  • PA Guide, at 56-57.
  • DAP 9525.13, Alternate Projects (Aug. 22, 2008).

Headnotes

  • FEMA may approve Alternate Projects based on an eligible project SOW.  Engineering services to determine the type and extent of repairs necessary to return a facility to its predisaster condition are generally eligible, but only as part of the overall restoration project.  FEMA may reimburse project expenses incurred before the project deadline but only if the project is completed.
  • At the time the Applicant submitted its Alternate Project request, the approved SOW only included A&E services.  However, the Applicant did not submit a SOW to repair the Facility and therefore, there is no approved SOW for restoration of the Facility or an approved cost estimate upon which to base an Alternate Project.  Accordingly, FEMA cannot approve the Applicant’s Alternate Project request.

Conclusion

The Applicant had no eligible SOW upon which FEMA could base approval of an Alternate Project. In addition, because the Applicant did not restore the Facility, the engineering costs are ineligible.  Therefore, FEMA denies the appeal.

 

Appeal Letter

 

Anne Bink

Deputy Commissioner

New York State Division of Homeland Security and Emergency Services

1220 Washington Avenue

Building 7A, 4th Floor

Albany, New York 12242

 

Re:  Second Appeal – Parks, Recreation, Historic Preservation,

       PA ID: 000-U0066-00, FEMA-4180-DR-NY, Project Worksheet (PW) 159 –

       Alternate Project, Scope of Work, Time Extensions/Limitations

 

Dear Ms. Bink:

This is in response to a letter from your office dated August 28, 2020, which transmitted the referenced second appeal on behalf of the New York State Office of Parks, Recreation, and Historic Preservation (Applicant).  The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of its Alternate Project request and deobligation of $360,806.58 for engineering services related to the proposed repair of its Genesee Valley Greenway Trail and embankment (Facility).

As explained in the enclosed analysis, there is no approved scope of work for restoration of the Facility or an approved cost estimate upon which to base an Alternate Project.  Accordingly, FEMA cannot approve the Applicant’s Alternate Project request. Therefore,  this appeal is denied.

Please inform the Applicant of my decision.  This determination is the final decision on this matter pursuant to 44 C.F.R. § 206.206, Appeals.

 

                                                      Sincerely,

                                                          /S/

                                                        Ana Montero

                                                       Division Director

                                                       Public Assistance Division                                                                     

cc: David Maurstad

      Acting Regional Administrator

      FEMA Region II

Appeal Analysis

Background

From May 13 through 22, 2014, severe storms and flooding caused damage in the central and western portions of the State of New York, including in Livingston County, where the New York State Office of Parks, Recreation, and Historic Preservation (Applicant) owns, operates, and maintains the Genesee Valley Greenway Trail (Facility).  The disaster caused an embankment failure of a section of the Facility, rendering the Facility unusable, and requiring the closure of portions of the trail.  On October 20, 2014, FEMA obligated Project Worksheet (PW) 159 for $360,806.58 to fund costs associated with securing professional architectural and engineering (A&E) services to evaluate and repair the Facility.  The engineering study evaluated three options for repair as well as one option to not make any repairs.

On May 23, 2018, the Applicant submitted a scope of work (SOW) change request to the New York State Division of Homeland Security and Emergency Services (Grantee) to relocate the trail uphill and away from the slope failure, rather than restore the trail to predisaster condition in its current location.  The trail relocation required obtaining an easement from the adjacent landowner, a lengthy process not finalized until mid-2017.  Because of the length of time required to obtain the easement, the Applicant, in a May 25, 2018 letter,[1] requested a time extension to December 31, 2018, which FEMA approved.

In June 2018, while the Applicant was working with the Grantee to finalize the SOW change request, the Applicant determined that restoration of the trail was not in the best interest of the public because the preferred SOW, relocation of the trail, was projected to cost an estimated $1,376,000.00.  The Applicant notified the Grantee it intended to request an Alternate Project. However, on November 1, 2018, the Grantee informed the Applicant that it never sent the May 23, 2018 SOW change request to FEMA.[2]  The Applicant then submitted an Alternate Project request to the Grantee on December 5, 2018 to purchase equipment at a cost of $1,091,000.00, based on the Applicant’s engineer’s estimate to restore the Facility to predisaster condition in its current location.[3]  In a December 26, 2018 letter, the Grantee sent the Applicant’s SOW change request and Alternate Project request to FEMA along with a new time extension request extending the period of performance through December 31, 2019.

In an August 6, 2019 letter, FEMA denied the Applicant’s SOW change and time extension request.  FEMA also found the Alternate Project ineligible because the Applicant did not request the change within 12 months of the FEMA Kickoff Meeting and the project completion deadline for the PW was December 31, 2018. 

 

First Appeal

The Applicant submitted its first appeal on October 2, 2019, seeking reconsideration of FEMA’s denial of its Alternate Project request.[4]  The Applicant contended that FEMA based its rejection of the Applicant’s request on a superseded policy.  On November 20, 2019, the Grantee transmitted the Applicant’s appeal and recommended FEMA approve the Applicant’s Alternate Project request and provide a nine-month time extension to allow the Applicant sufficient time to request equipment bids and provide for the build out/delivery of the specialized equipment.

On February 5, 2020, the FEMA Region II Regional Administrator (RA) denied the first appeal on the basis that the costs for engineering services are no longer eligible because the Applicant no longer intended to complete the project with which the services were associated.  Although engineering services to determine the type and extent of repairs necessary to return a facility to its predisaster condition are generally eligible, FEMA determined they are only eligible as part of the overall restoration project.  Therefore, FEMA deobligated funding for PW 159 and, consequently, did not approve an Alternate Project.

Second Appeal

In an April 7, 2020 letter, the Applicant appealed the first appeal determination, reiterating its position and arguments from the first appeal.  The Applicant requests reobligation of $360,806.58 for engineering services, and $1,091,000.00 for the Alternate Project, asserting that FEMA incorrectly and inconsistently applied its own policies.  The Applicant states that Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.204(d)(2) only applies when FEMA approves or denies a time extension request.  The Applicant also contends FEMA’s denial of the Alternate Project request[5] was inappropriate because 44 C.F.R. § 206.203(d)(2) authorizes funding for Alternate Projects when applicants determine they will not undertake eligible repairs.  The Grantee transmitted the second appeal to FEMA on August 28, 2020, along with a supporting memorandum.

 

Discussion

FEMA may reimburse eligible applicants for the repair, restoration, reconstruction, or replacement of a public facility damaged or destroyed by a major disaster based on the design of such facility as it existed immediately prior to the disaster and in conformity with current applicable codes, specifications and standards.[6]  If an applicant determines the public welfare would not be best served by restoring a damaged public facility or the function of that facility, the grantee may request an Alternate Project under 44 C.F.R. § 206.203(d)(2).[7]  Eligible costs for public facilities are 90 percent of the approved Federal share of the project estimate of eligible repair/replacement costs of the damaged facility or the actual fixed cost of completing the Alternate Project, whichever is less.[8]

At the time the Applicant submitted its Alternate Project request, the approved SOW only included A&E services, which provided that after the Applicant approved the engineering report, the engineering firm would prepare a SOW for repairs to the Facility.  However, the Applicant did not submit a SOW to repair the Facility to predisaster condition in its current location. Therefore, there is no approved SOW for restoration of the Facility or an approved cost estimate upon which to base an Alternate Project.  Accordingly, FEMA cannot approve the Applicant’s Alternate Project request.

With regard to engineering services, the costs of basic engineering and design services normally performed by an architectural-engineering firm on complex construction projects are eligible for reimbursement.[9]  However, A&E costs are only eligible when associated with an eligible permanent work restoration project.[10]  Because the Applicant did not complete the restoration project, the engineering costs are ineligible.

Conclusion

The Applicant had no eligible SOW upon which FEMA could base approval of an Alternate Project. In addition, because the Applicant did not restore the Facility, the engineering costs are ineligible.  Therefore, FEMA denies the appeal.

 

[1] Letter from Director of Emergency Management, New York State Office of Parks, Recreation and Historic Preservation (hereinafter OPRHP) to Disaster Assistance Manager, New York State Division of Homeland Security and Emergency Services (hereinafter DHSES) at 1(May 25, 2018).

[2] Letter from Director of Emergency Management, OPRHP, to Disaster Assistance Manager, DHSES at 1 (Dec. 5, 2018) (“Unfortunately, on 1 November we were informed that DHSES did not forward the scope change to FEMA and was, in fact, just starting their review of the engineer's report.”).

[3] Id. at 2 (The Applicant is seeking a capped amount of $736,425.00 for purchasing equipment, based on a 75 percent federal share of the engineer’s estimate of $1,091,000 to restore the trail to predisaster condition.).

[4] Letter from Director of Emergency Management, OPRHP, to Alternate Governor’s Authorized Representative, DHSES (Oct. 20, 2019) (Applicant’s first appeal).

[5] Letter from Director of Emergency Management, OPRHP, to Alternate Governor’s Authorized Representative, DHSES (April 7, 2020) (Applicant’s second appeal).

[6] The Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act § 406, 42 U.S.C. § 5172 (2012).

[7] Title 44 of the Code of Federal Regulations (44 C.F.R) § 206.203(d)(2) (2013).

[8] Id.

[9] Public Assistance Guide, FEMA 322 at 56.

[10] Id. at 56-57.

Last updated February 3, 2021