Change in Scope of Work – Codes and Standards

Appeal Brief

Appeal Letter

Appeal Analysis

Background

From August 23 – September 15, 2017, Hurricane Harvey impacted the state of Texas, including Refugio Independent School District (Applicant), with high winds, severe storms, and flooding.[1] The Applicant requested Public Assistance (PA) reimbursement for repairs to the roof of its School Band Hall (Facility). The roof, a riveted coating over ribbed steel panel roofing system, was damaged by debris penetrating certain exterior seams. FEMA conducted site inspections on March 19, 2018, and May 30, 2019, to record damages and take photographs.[2] FEMA developed Grants Manager Project (GMP) 35584 to document temporary repairs to the roof conducted by the Applicant along with intended permanent repairs to the roof structure totaling $49,876.19. 

In a letter dated June 7, 2021, the Applicant submitted a Scope of Work (SOW) change for the project, requesting replacement of the entire roof, for a total estimated cost of $176,300.00. The Applicant noted it intended to complete the replacement of the roof by August 25, 2021. The Applicant stated that the current roof was not in compliance with Texas Windstorm Insurance Association (TWIA) requirements in 27 Tex. Admin. Code (TAC) § 5.4008.[3] The Applicant also cited International Building Code (IBC) Chapter 15, Section 1501 as justification for its assertion that a roof repair (recover) was prohibited and therefore required replacement. The Applicant subsequently provided an email from its architect, dated November 22, 2021, which stated that the roof system was damaged by the disaster, and replacement was required to comply with the above rules and regulations. The Texas Division of Emergency Management (Recipient) forwarded the Applicant’s SOW change request and its follow-up email, supporting the Applicant’s position. 

On February 15, 2022, FEMA issued a Request for Information (RFI) requesting documentation to substantiate that additional roof damage claimed was caused as a direct result of the disaster and specific codes and standards that prohibited in-kind material repair of the roof. The Applicant responded in an email dated March 9, 2022, with documentation including the TWIA’s Building Code for Windstorm Resistant Construction and an insurance estimate for roof replacement.

FEMA developed a Technical Resource Team (TRT) Report of the roof replacement request. Citing the 2015 International Existing Building Code (IEBC) allowance for elements with less than substantial structural damage to be restored to their pre-damage condition, FEMA’s TRT report concluded that the roof did not possess substantial damage warranting a replacement requested by the Applicant.[4] Furthermore, FEMA stated that the TWIA is an insurance requirement and not an applicable code and standard.

In a Determination Memorandum issued April 14, 2022, FEMA partially granted funding for the project, approving $49,876.19 in repair work. However, FEMA found the Applicant had neither substantiated that disaster-related damage necessitated a full replacement of the roof, nor that the work was required due to code-mandated upgrades. Because the Applicant had completed the roof replacement work, FEMA noted it would cap project funding at the repair estimate of $49,876.19. 

First Appeal 

The Applicant filed a first appeal dated April 27, 2022, and requested FEMA approve the SOW change for a roof replacement in the total amount of $176,300.00, reiterating its assertion that the roof repair was not sufficient to meet the requirements of TWIA, 27 § TAC 5.4008, and IBC Chapter 15, Section 1501. The Recipient, in a letter dated June 24, 2022, forwarded the appeal to FEMA in support of the Applicant’s position.

FEMA issued an RFI dated August 25, 2022 and requested documentation to: 1) substantiate how the disaster caused damage to the roof rendering it noncompliant with codes/standards; 2) confirm the specific code that will not permit approved roof repairs, its formal adoption, the specific noncompliant part(s) of the roof, and the roof’s predisaster compliance with that code; and 3) explain alleged wind speed limitations on the roof.[5]

The Applicant provided a response in a letter dated October 7, 2022, from BWA Architects (Contractor). The Contractor stated that the existing roof was a retrofit that was placed over the original roof which was on a gypsum deck, which did not pass the required pull strength requirements for the TWIA and the IBC. The Contractor also provided the Town of Refugio Ordinance which adopted the latest edition of the IBC by reference, applicable to Hurricane Harvey. The Contractor provided photographs taken after the Applicant completed the temporary repairs and stated that the roof was not repairable, other than by applying patches as temporary repairs, which it stated were ineffective in preventing water intrusion to the gypsum deck and ceiling of the building. The Contractor further clarified the wind speed load minimum specified by code for Refugio County buildings.

The FEMA Region 6 Regional Administrator, in a letter transmitted January 27, 2023, denied the Applicant’s first appeal. FEMA found that the Applicant had not substantiated through documentation the disaster-caused damage necessitated roof replacement, nor cited to specific codes and standards triggering a roof replacement. FEMA also noted that the IBC applies if the level of damage is substantial or warrants replacement, and that those situations did not apply here.

Second Appeal

The Applicant filed a second appeal, stating that the replacement of the roof is necessary and that it has met all five criteria to be eligible for replacement under codes and standards requirements,  specifically referencing the TWIA, TAC 27 § 5.4008 and the IBC Chapter 15 Section 1501. The Applicant provides a letter from the Mayor of the Town of Refugio confirming that in accordance with predisaster Town of Refugio Code of Ordinances, the town has also adopted the IBC 2015 editions.[6] While the Applicant agrees that no code or standard prohibits repairs with in-kind material if the level of damage does not warrant replacement, it claims that the roof at issue required replacement to prevent continued damage to the interior spaces and protect student safety, and that FEMA did not adequately investigate the actual damage to the retrofit roof and underlying roof deck. The Applicant points to photographs provided on appeal, which show the roof and interior spaces after temporary restoration was attempted using in-kind material, but before the replacement work on appeal began. The Applicant states the photographs demonstrate that the repair work did not successfully restore the roof to predisaster condition, given the continued deterioration to the roofing system and consequent damage to the interior.The Recipient forwarded the second appeal in a letter dated April 11, 2023, in support of the Applicant.

Discussion

Change in Scope of Work

FEMA may provide PA funding to eligible applicants for the repair, restoration, reconstruction, or replacement of facilities damaged or destroyed by disasters.[7] A change to the approved scope of eligible work requires a written request, including detailed justification and documentation to support the eligibility of the requested revision.[8] Changes to the SOW are generally eligible if: (1) the alternative repair method is more cost-effective than the original repair method; (2) the original repair method is not feasible; (3) there is an increase in previously approved quantities due to errors and omissions; or (4) hidden disaster-related damage is discovered.[9] If the request involves previously unreported damage, the Applicant must also provide documentation demonstrating how the incident caused the damage.[10] FEMA may also approve a SOW change request if professional recommendations for repair differ from the repair documented in the project, provided the recommendations are limited to the least costly method of repairing only the agreed upon disaster-related damage.[11]An appeal must contain documented justification supporting the appellant’s position.[12]

Here, FEMA verified and awarded funding to repair the identified damages sustained by wind-driven debris. The Applicant later requested a SOW change, stating that the roof suffered more extensive damage, not previously discovered, which necessitated roof replacement. The Applicant’s Contractor also suggested that the original repair method was not feasible because the roof was not repairable. However, the documentation provided by the Applicant does not demonstrate that there was additional disaster-caused damage beyond that identified in the SIR, that the claimed additional damage was hidden, that the original approved SOW was insufficient or not feasible to address the damages verified in the SIR, or that the increase in requested quantities is a result of FEMA errors or omissions. The Applicant’s undated photographs provided in the first appeal RFI, which it states demonstrate damage from water intrusion, show water-stained tiles with no additional context or indication of active intrusion. The Applicant’s Contractor, in response to the RFI, indicates that the roof material attached to the gypsum deck does not meet necessary load bearings required; however, the Applicant has not provided any documentation to substantiate this, nor has it demonstrated that the disaster caused this structural integrity issue. Furthermore, the Applicant provided the initial proposed contract cost for replacement of the roof. However, the documentation available neither substantiates that the replacement is more cost effective than the original repair method, nor that the recommendations are limited to the least costly method of repairing the agreed upon disaster-related damage. In sum, the Applicant has not substantiated that the requested change in SOW satisfies any of the reasons outlined in FEMA policy for eligible revisions. 

Codes and Standards

FEMA provides PA funding to restore facilities based on predisaster design and function in conformity with current applicable codes, specifications, and standards.[13] FEMA may reimburse the costs of upgrades required by codes or standards that change the predisaster construction of a facility only if the codes or standards: (1) apply to the type of repair or restoration required; (2) are appropriate to the predisaster use of the facility; (3) are found reasonable, in writing, and formally adopted and implemented by the state or local government on or before the disaster declaration date; (4) apply uniformly to all similar types of facilities within the jurisdiction of the owner of the facility; and (5) for any standards in effect at the time of the disaster, were enforced during the time they were in effect.[14]

Here the Applicant cites to IBC § 1511.3.1.1 in which a roof re-cover is prohibited where the existing roof or roof covering is water soaked or has deteriorated to the point that the existing roof or roof covering is not adequate as a base for additional roofing, or where the existing roof has two or more applications of any roof covering.[15] The Applicant states that both conditions are met here, triggering additional requirements in IBC §§ 1609.3 and 1609.5 for the roof to be able to withstand high wind pressure. The Applicant has provided documentation substantiating that the jurisdiction which the facility falls under adopted the cited codes in writing prior to the incident via the letter provided by the Mayor of Refugio along with the city ordinances from 1978 which were continuously updated. In addition, the Applicant’s citation to the IBC sections related to roof re-covers and potential replacement were appropriate to the predisaster use of the facility. However, the Applicant has not demonstrated through documentation that the roof has had two or more applications of roof covering, applied over the original roof, prior to the declared incident. For the reasons noted above, the Applicant also has not demonstrated that the existing roof or roof covering has deteriorated to the point that it is inadequate as a base for additional roofing. Nor has the Applicant provided documentation demonstrating, beyond its own statements, that this code applied uniformly to all facilities. Additionally, the Applicant has not substantiated that the code was enforced during the time it was in effect. The Applicant has not demonstrated that IBC § 1511.3.1.1 is applicable to the type of restoration required, was uniformly applied, and enforced during the time it was in effect prior to the disaster. Therefore, the Applicant has not substantiated the roof replacement is required by codes and standards.[16]

Conclusion

The Applicant has not substantiated that the requested change in SOW satisfies any of the reasons outlined in FEMA policy for eligible revisions nor is mandated by any code or standard. Therefore, this appeal is denied.