Alternate Project – Time Limitations/Extensions

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	1603
Applicant	Orleans Parish Criminal Sheriff’s Office
Appeal Type	Second
PA ID#	071-UPP9W-00
PW ID#	PW 11494
Date Signed	2020-12-01T17:00:00

Summary Paragraph

In 2005, Hurricane Katrina destroyed personal belongings of inmates stored by the Orleans Parish Criminal Sheriff’s Office (Applicant) at its intake processing building (Facility).  FEMA prepared Project Worksheet 11494 to capture costs associated with replacing the Facility’s contents, including the destroyed inmate belongings, at an estimated value of $313.00 per inmate.  In a May 1, 2012 letter, FEMA informed the Applicant that the inmate belongings would not be considered for an improved project request and granted an extension until July 31, 2012 to complete the work.  On October 26, 2018, FEMA notified the Applicant of its intent to deobligate all funding, as the Applicant had not claimed or substantiated any eligible costs.  The Applicant responded on January 26, 2019 with an alternate project request to apply the funding to items for the general inmate population.  FEMA issued an April 25, 2019 determination letter reducing the project to zero dollars and denying the alternate project request as untimely and ineligible as operating expenses below $5,000.00.  The Applicant appealed, contending that all permanent work is eligible for alternate project requests and there is no deadline for requesting alternate projects related to Hurricane Katrina.  The FEMA Region VI Regional Administrator denied the appeal, citing the request as untimely and ineligible.  In its second appeal, the Applicant reiterates its first appeal arguments, and contends that the project should remain eligible for funding.

Authorities and Second Appeals

• 44 C.F.R. § 206.203(d)(2), 206.204(a), (c)-(d).
• PA Guide, FEMA 322, at 84, 115.
• RRP 9525.13, Alternate Projects, at 2-3.
• City of Roseau, at 2
• St. Bernard Parish, at 5.

Headnotes

• Under 44 C.F.R. § 206.204(d), applicants must complete projects within applicable time limits.  FEMA has discretion to grant time extensions, but work must be completed to receive funding.
  • The Applicant failed to complete any work by the approved project completion date and did not provided justification necessitating an extension of the project completion date.
• RRP 9525.13 provides that alternate project requests must be submitted within 12 months of the applicant’s Kickoff Meeting.
  • Despite the Applicant stating it has no record of a Kickoff Meeting, the request comes over six years after the project completion date and thirteen years after the project start date.
• Pursuant to 44 C.F.R. § 206.203(d)(2), funds for alternate projects cannot be used for any operating expense.  RRP 9525.13 considers the purchase of supplies, furniture, and equipment costing less than $5,000.00 per unit to be an operating expense.
  • The requested costs are less than $5,000.00 per unit and, therefore, ineligible for an alternate project.

Conclusion

The Applicant’s request for an alternate project exceeds the timeframe to request an alternate project, and the Applicant has not provided justification for granting an extension to the expired project completion date.  Further, the requested costs for inmate personal items are less than $5,000.00 per unit, making them operating expenses, which are ineligible for an alternate project.

 

Appeal Letter

Appeal Analysis

Background

Hurricane Katrina damaged the Orleans Parish Criminal Sheriff’s Office’s (Applicant) intake processing building (Facility) and destroyed personal belongings of approximately 6,000 inmates stored by the Applicant at its Facility.  The President issued a major disaster declaration on August 29, 2005, with an incident period extending from August 29 to November 1, 2005.  FEMA prepared Project Worksheet (PW) 11494 to capture costs associated with replacing the Facility’s contents, including $1,878,00.00 for destroyed inmate belongings at an estimated value of $313.00 per inmate.

In its May 1, 2012 response to the Applicant’s request to amend a previously approved improved project for the consolidation and categorization of additional contents destroyed by Hurricane Katrina, FEMA informed the Applicant that the inmate belongings would not be considered for an improved project request and granted an extension until July 31, 2012 to complete the work.  FEMA prepared Version 3 of PW 11494, which retained $1,878,000.00 for inmate possessions and noted that the funds could not be used to fund other content items as the contents were in the custody of the Applicant but did not actually belong to the Applicant.

On October 26, 2018, FEMA notified the Applicant of its intent to deobligate all funding for the project.  FEMA stated that the Applicant had not claimed any actual costs or provided documentation to validate any incurred costs for the project and provided the Applicant with an opportunity to provide documentation fully supporting the claimed costs by January 26, 2019.  The Applicant responded on January 26, 2019 with an alternate project request, affirming that it did not intend to replace the Facility’s contents and instead requested to apply the funding to items for the general inmate population.[1]

FEMA issued an April 25, 2019 determination letter, denying the alternate project request and reducing the project to zero dollars.  FEMA maintained that the scope of work and remaining costs in PW 11494 were specific to restoring inmate personal belongings in the Applicant’s custody at the time of the disaster and not for the purchase of other contents items.  FEMA noted that neither the Applicant nor the Louisiana Governor’s Office of Homeland Security and Emergency Preparedness (Grantee) appealed or arbitrated FEMA’s May 1, 2012 determination.  Furthermore, FEMA concluded that the Applicant’s request to purchase clothing and other apparel items for the general inmate population was an operating expense well below the $5,000.00 per unit threshold for eligible use of alternate project funding.[2]  FEMA reduced project costs to zero dollars, stating that the Applicant did not intend to complete the scope of work under PW 11494, did not incur costs related to replacing inmate belongings, and the time extension to complete the eligible scope of work had expired.

 

First Appeal

The Applicant filed its first appeal on July 2, 2019, requesting reimbursement of $1,878,000.00 and approval of its submitted alternate project request.  The Applicant contended that all permanent work is eligible for alternate project requests under Title 44 Code of Federal Regulations, section 206.203(d)(2).  Although FEMA policy outlines alternate project eligibility limitations, the Applicant argued that FEMA should not deny funding based on the assumption that the requested contents fall below $5,000.00 per unit.  The Applicant also asserted that there is no deadline for requesting alternate projects related to Hurricane Katrina, as FEMA consistently approved alternate project requests with expired periods of performance throughout Katrina recovery efforts.  The Grantee supported and forwarded the Applicant’s first appeal by letter dated August 27, 2019.  The Grantee emphasized that FEMA’s May 1, 2012 letter did not convey it was a final determination or inform the Applicant of its right to appeal.  The Grantee also noted that it previously advised the Applicant through a June 26, 2017 letter that the deadline for filing new alternate project requests expired November 30, 2016.

The FEMA Region VI Regional Administrator (RA) denied the appeal in a letter dated

January 3, 2020.  FEMA found the Applicant’s alternate project request to be untimely, coming over 10 years after the Kickoff Meeting instead of within the 12-month deadline to submit such a request.  In addition, FEMA maintained that the requested costs failed to meet the $5,000.00 per unit threshold for alternate project eligibility.

 

Second Appeal

The Applicant’s second appeal, dated March 14, 2020, reiterates arguments made in its first appeal.  Because it pursued improved and alternate project requests, the Applicant also contends that the project should remain eligible for funding despite not completing the work within the period of performance.  The Applicant explains that it has no record of the Kickoff Meeting taking place and FEMA did not state the date of the Kickoff Meeting in its first appeal decision.  Additionally, the Applicant references FEMA letters issued on February 15 and August 3, 2012 extending the deadline for filing alternate project requests until December 31, 2012, and, thereafter, a letter dated January 29, 2013 permitting consideration of subsequent alternate project requests on a case-by-case basis.  The Grantee supported and forwarded the Applicant’s appeal by letter dated May 6, 2020.

 

Discussion

In any case where an applicant determines that the public welfare would not be best served by restoring a damaged facility or its function to the predisaster design, the grantee may request approval of an alternate project.[3]  A proposal for an alternate project must be submitted within 12 months of the applicant’s Kickoff Meeting.[4]  An applicant may only request an alternate project for permanent restoration projects.[5]  Funds for alternate projects cannot be used for any operating expense.[6]  The purchase of supplies, furniture, and equipment costing less than $5,000.00 per unit (considered an operating expense) is an ineligible use of alternate project funds.[7]  Prior to the start of construction of any alternate project, the grantee shall submit a description of the proposed alternate project, a schedule of work, and the projected cost of the project.[8]

In addition, there are time limitations for the completion of eligible work that may be extended by FEMA in certain circumstances.[9]  The RA has discretion to grant time extensions appropriate to the situation.[10]  The burden is on an applicant or grantee to provide a detailed justification establishing extenuating circumstances or unusual project requirements beyond its control necessitating such an extension.[11]  Applicants will be reimbursed for costs incurred up to the latest approved completion date for a particular project, but even when an extension is approved, the project must still be completed for any funding to be eligible for that project.[12]  If the project is not completed, no Public Assistance funding will be provided for that project.[13]

The Applicant concluded that reassigning the funding under PW 11494 to an alternate project in lieu of completing the approved scope of work would best serve the public welfare.  The Applicant submitted its alternate project request in a letter dated January 26, 2019.  FEMA previously notified the Applicant in a May 1, 2012 letter that the inmate contents in PW 11494 would not be considered for an improved project.  Version 3 of PW 11494 memorializes that these funds designated for inmate possessions may only be used to replace inmate possessions and cannot be used to fund other content items.  While the Applicant claims it has no record of a Kickoff Meeting taking place,[14] its alternate project request nevertheless comes over six years after: (1) FEMA’s May 1, 2012 notice that the contents in PW 11494 would not be considered for an improved project; (2) the July 31, 2012 project completion date; and (3) the expired December 31, 2012 deadline for filing alternate project requests cited by the Applicant.  The Grantee also previously informed the Applicant that the deadline had expired for filing alternate project requests.[15]  The Applicant provides no evidence of extenuating circumstances that justified the delayed request.[16] 

Because the Applicant did not complete any work by the latest approved completion date for the project, the Applicant would have needed to obtain a time extension before any funding could have been applied toward an approved project.[17]  The Applicant did not request a time extension for PW 11494 and has not provided any reason or documentation justifying such an extension.[18]  In addition to the Applicant exceeding the timeframe to submit an alternate project request,[19] the Applicant has not demonstrated that either the requested costs for inmate personal items or the proposed costs for the alternate project exceed $5,000.00 per unit.

 

Conclusion

The Applicant’s request for an alternate project exceeds the timeframe to request an alternate project, and the Applicant has not provided justification for granting an extension to the expired project completion date.  Further, the requested costs for inmate personal items are less than $5,000.00 per unit, making them operating expenses, which are ineligible for an alter

 

[1] In its alternate project request, the Applicant identified clothing for inmates, apparel for inmates, uniform shirts, jumpsuits, women’s prison dresses, women’s prison skirts, inmate uniforms, sleepwear, shoes, socks, underwear, towels, inmate outerwear, jeans, disposable clothing, court clothing, and youth clothing as items it requested to apply funding towards.

[2] Response and Recovery Policy (RRP) 9525.13, Alternate Projects, at 2 (July 31, 2001).

[3] Title 44 Code of Federal Regulations (44 C.F.R.) § 206.203(d)(2) (2004); Public Assistance Guide, FEMA 322, at 84 (July 2001) [hereinafter PA Guide].

[4] RRP 9525.13, at 2.

[5] 44 C.F.R. §206.203(d)(2)(i); PA Guide, at 84.

[6] 44 C.F.R. §206.203(d)(2)(iv).

[7] RRP 9525.13, at 3.

[8] 44 C.F.R. § 206.203(d)(2)(v).

[9] 44 C.F.R. § 206.204(a), (c)-(d).

[10] PA Guide, at 115.

[11] Id.

[12] Id.

[13] 44 C.F.R. § 206.204(d)(2).

[14] Letter from Law Office of Gaffney & Gaffney, to Ass’t Deputy Dir., La. Governor’s Office of Homeland Sec. & Emergency Prep., at 4 (Mar. 14, 2020).

[15] Letter from Ass’t Deputy Dir., La. Governor’s Office of Homeland Sec. & Emergency Prep., to Reg’l Administrator, FEMA Region VI, Attachment 2, at 2 (Aug. 27, 2019).

[16] Cf. FEMA Second Appeal Analysis, City of Roseau, FEMA-1419-DR-MN, at 2 (Sept. 6, 2006) (waiving the requirement to request an alternate project within 12 months of the applicant’s Kickoff Meeting due to the extensive amount of time the applicant spent unsuccessfully pursuing an improved project designation).

[17] PA Guide, at 115; FEMA Second Appeal Analysis, St. Bernard Parish, FEMA-1603-DR-LA, PW 14610, at 5 (Nov. 26, 2018).

[18] FEMA Second Appeal Analysis, Village of Waterford, FEMA-4020-DR-NY, at 4 (Sept. 4, 2014) (stating the “Applicant has the burden of substantiating its claims…”).

[19] RRP 9525.13, at 2.