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Royal Street Embankment Stabilization

Appeal Brief Appeal Letter

Appeal Brief

Disaster4011-DR-UT
ApplicantPark City
Appeal TypeSecond
PA ID#043-58070-00
PW ID# 285
Date Signed2012-12-28T00:00:00

Citation:  FEMA-4011-DR-UT, Park City, Royal Street Embankment Stabilization, Project Worksheet (PW) 285

Cross-
Reference:
  Landslides; Contracting; Other Federal Agency Authority

Summary:  The record breaking cold and wet 2011 spring coupled with the higher than normal mountain snowpack resulted in extensive ravine and overland flooding in Park City.  FEMA prepared PW 285 for $186,357 to stabilize a 350-foot damaged section of Royal Street.  FEMA determined that the work was ineligible because the site was found unstable prior to the event and the Applicant used a sole source time and materials (T&M) contract to perform the work.  In the first appeal, the Applicant asserted that the slope stabilization failure was a direct result of the disaster and eligible for reimbursement.  The Regional Administrator (RA) denied the appeal in accordance with Recovery Policy RP9524.2, Landslides and Slope Stability Related to Public Facilities, dated October 8, 2010, stating that the site has experienced ongoing movement over the years and was unstable prior to the disaster event.  The RA also explained that the Applicant’s use of a sole source T&M contract was not acceptable.  Also of note, the initial PW scope of work and cost estimate for stabilization of the damaged area was developed from information provided by the Applicant’s contractor, Jones Excavation.  The Applicant subsequently awarded the sole source, T&M contract to Granite Construction that performed the work.  However, the scope of work was substantially different from what was approved in the original PW scope of work.  When the changes were discovered the Applicant failed to notify the State or FEMA for their determination of eligibility and approval of additional work or funding as required in FEMA 322, Public Assistance Guide, dated June 2007.  In the second appeal, the Applicant reiterates that the slope failure was a direct result of the disaster event and the embankment stabilization work should be reimbursed.  The Applicant also explains its decision to award the T&M contract. 

Issue:  Is Royal Street eligible for Public Assistance Funding?

Finding:     No.  Royal Street is a Federal-Aid road. 

Rationale:  Paragraph 9 of Section 102 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act; 44 CFR §206.226(a)

Appeal Letter

December 28, 2012

Colonel Keith D. Squires
Director of Emergency Management
Utah Department of Public Safety
1110 State Office Building
Salt Lake City, Utah 84114-1710

Re:  Second Appeal – Park City, PA ID 043-58070-00, Royal Street Embankment Stabilization, FEMA-4011-DR-UT, Project Worksheet (PW) 285

Dear Colonel Squires:

This letter is in response to a letter from your office dated May 29, 2012, which transmitted the referenced second appeal on behalf of Park City (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of $186,357 to stabilize the embankment on a damaged section of Royal Street.  

Background

Following flooding that occurred in Utah from April 18 to July 16, 2011, the Applicant identified extensive embankment damage and longitudinal cracking and displacement along a 350 linear foot section of Royal Street.  The Applicant contracted with a geotechnical firm, Applied Geotechnical Engineering Consultants to determine the cause of the damage and the appropriate method of repair.  FEMA prepared PW 285 in the amount of $186,357 for the Applicant’s estimated costs to stabilize the damaged road embankment and PW 284 in the amount of $186,769 for the estimated cost to repair the damaged road. 

The geotechnical report concluded that movement of the road embankment had occurred over a long period of time prior to the disaster and would continue to occur.  In accordance with Recovery Policy RP9524.2, Landslides and Slope Stability Related to Public Facilities, dated October 8, 2010, FEMA determined it was the Applicant’s responsibility to stabilize the embankment before FEMA would fund the road repair described in PW 284.  In addition, the Applicant awarded a sole source time and material (T&M) contract to perform the stabilization work which was not in compliance with federal procurement requirements described in Title 44 of the Code of Federal Regulations (44 CFR) Part 13.  Based on these conclusions, FEMA denied funding for the road embankment stabilization measures. 

First Appeal

The Applicant submitted a first appeal to the Utah Division of Emergency Management (Grantee) on December 10, 2011.  The Applicant disagreed with the findings of its geotechnical consultant and asserted that the site was damaged from the significant water run-off experienced in 2011, and was stable prior to the event.  The Grantee forwarded the Applicant’s first appeal to FEMA by a letter dated December 19, 2011.  On March 28, 2012, FEMA’s Regional Administrator denied the first appeal explaining that the Applicant’s geotechnical consultant concluded that based upon testing results of soil samples, and the variance in the thickness of the asphalt in different sections of the 350 linear foot road section, that movement had occurred over a long period of time, demonstrating site instability prior to the disaster event.  Due to the evidence of historical instability, the Regional Administrator determined the cost to stabilize the site was the responsibility of the Applicant and not eligible for Public Assistance funding. 

The Regional Administrator also explained that the Applicant’s award of a sole source T&M contract for the slope stabilization work was not acceptable.  Further, the PW scope of work and cost estimate for stabilization of the damaged embankment was based on information provided by one of the Applicant’s contractors, Jones Excavation.  The Applicant subsequently awarded the sole source, T&M contract to Granite Construction.  However, the scope of work performed was substantially different from what was approved in the original PW.  The Applicant failed to notify the State or FEMA and request approval of the revised scope of work per FEMA’s project management requirements described in FEMA 322, Public Assistance Guide, dated June 2007.

Second Appeal

The Applicant submitted a second appeal on May 24, 2012, which the Grantee transmitted to FEMA on May 29, 2012.  In the second appeal, the Applicant reiterates its position that the road embankment failure was a direct result of the disaster event and not a pre-existing condition.  The Applicant also reiterated its disagreement with the findings of its geotechnical consultant.  In support of the second appeal the Applicant submitted data describing the heavy snowmelt and ground saturation resulting from the disaster, which it asserts was responsible for the road damage.  The Applicant also explained that its sole source contract with Granite Construction was necessary due to the limited amount of construction time remaining before winter and the contractor’s solid history of road construction in the area. 

Discussion

Following submittal of the second appeal, FEMA contacted the Federal Highway Administration (FHWA) to determine the classification of Royal Street.  Based on a review by FHWA, Utah Division, Royal Street is classified as an “Urban-Minor Arterial” and is a Federal-Aid route, RN-2581. Therefore, in  accordance with Paragraph 9 in Section 102 of the Stafford Act and 44 CFR §206.226 (a), Restoration of damaged facilities, Assistance under other Federal agency programs, FEMA is prohibited from providing Public Assistance funding for the permanent repair of Federal-Aid roads. 

Although the issues related to the pre-disaster stability of the site and procurement of the contract are moot due to the fact Royal Street is a Federal-aid road, FEMA reviewed the relevant information provided by the Applicant.  The information did not sufficiently establish that the site was stable prior to the disaster or justify the utilization of a sole source contract.

Conclusion

Royal Street is a Federal-aid road and is not eligible for Public Assistance permanent work funding.  Accordingly, I am denying the appeal.  Please inform the Applicant of my decision.  This determination is the final decision on this matter pursuant to 44 CFR §206.206, Appeals.  

Sincerely,

/s/
Deborah Ingram
Assistant Administrator
Recovery Directorate

cc: Robin Finegan
Regional Administrator
FEMA Region VIII

 

Last updated May 28, 2020