Scope of Work
|PW ID#||GMP 83688/PW 6928|
Brazoria County (Applicant) requested reimbursement under the Public Assistance (PA) program for the costs to repair multiple bridges that were spread throughout the county and damaged by flooding from the declared incident, Hurricane Harvey. The Applicant submitted a three-part October 2017 estimate with its request. After conducting its cost review processes, including informal requests for additional detailed information and receipt of another estimate from the Applicant, FEMA revised the scope of work (SOW), increased the costs for equipment mobilization. On July 1, 2021, FEMA obligated the amount of $121,200.00 to fund the approved SOW and costs as a small project. The Applicant appealed, contending that FEMA did not accept the repair cost-estimate and that the amount awarded was inadequate to complete the approved SOW, and supplemented its appeal with a bid sheet and memorandum. The FEMA, Region VI, Regional Administrator denied the appeal because the Applicant did not demonstrate that FEMA should have used the Applicant’s cost estimates and did not meet any of the requirements for FEMA to adjust the approved funding on an individual small project. FEMA also advised the Applicant of the procedure to appeal for additional funds related to a small net project overrun, should one occur. On second appeal, the Applicant reiterates its first appeal argument, and, in support, it provides bid results, cash disbursements, purchase orders, vendor invoices, and reports.
Authorities and Second Appeals
- Stafford Act § 422.
- 44 C.F.R. § 206.203(c).
- PAPPG, at 143, 145.
- FEMA may adjust the approved amount on individual small projects once it is obligated only if one of the following conditions applies: the applicant did not complete the approved SOW; the applicant requests additional funds related to an eligible change in the SOW; the PW contains inadvertent errors or omissions; or actual insurance proceeds differ from the amount deducted in the PW.
- Although the Applicant’s bid exceeded the approved costs for PW 6928, the Applicant’s documentation shows none of the conditions applies for adjusting the approved amount for specific costs of individual small projects that FEMA obligated.
The Applicant did not demonstrate that the approved small project amount should be adjusted. Therefore, this appeal is denied
W. Nim Kidd, MPA,CEM
Texas Division of Emergency Management
Vice Chancellor, The Texas A&M University System
2883 Highway 71 E.
P.O. Box 285
Del Valle, Texas 78617-9998
Re: Second Appeal – Brazoria County, PA ID: 039-99039-00, FEMA-4332-DR-TX,
Grants Manager Project 83688/Project Worksheet 6928, Scope of Work
Dear Mr. Kidd:
This is in response to your letter dated October 5, 2022, which transmitted the referenced second appeal on behalf of Brazoria County (Applicant). The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of its request for funding to adjust an award of $121,200 for a small project to $277,908.55.
As explained in the enclosed analysis, I have determined that the Applicant did not demonstrate that the approved small project amount should be adjusted. 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.
Public Assistance Division
cc: George A. Robinson
FEMA Region VI
From August 23-September 15, 2017, Hurricane Harvey impacted the state of Texas, including Brazoria County (Applicant), with high winds, severe storms, and flooding. The Applicant requested reimbursement under the Public Assistance (PA) program for costs to repair damaged bridges throughout the county. The Applicant submitted a three-part October 2017 estimate from Costello Engineering and Survey. After FEMA requested additional information, the Applicant provided an explanation of the mobilization needs for each site, and submitted another estimate totaling $135,244.00 (November 2020 estimate). FEMA revised the scope of work (SOW) and accepted the Applicant’s explanation and increased the costs for equipment mobilization but rejected the 15 percent contingency amount sought in the estimate. On July 1, 2021, FEMA obligated the project in the amount of $121,200.00 to fund the approved SOW and costs as a small project. On July 14, 2021, the Texas Division of Emergency Management (Recipient) transmitted its award notification letter with attachments to the Applicant.
On September 9, 2021, the Applicant submitted its first appeal, contending that FEMA did not accept a repair cost-estimate prepared by a professional registered engineer and that the amount of the award was inadequate to complete the approved SOW. On October 27, 2021, the Applicant supplemented its appeal with a bid sheet and memorandum and noted the estimated project completion cost was $319,995.35, including project management and engineering costs. On October 28, 2021, the Recipient transmitted the appeal to FEMA with its concurring letter.
On June 27, 2022, the FEMA Region VI Regional Administrator denied the appeal. FEMA found that the Applicant: (1) did not demonstrate that FEMA should have used the cost estimates prepared from the Applicant’s engineer, as it did not contain the methodology used nor was it certified; and (2) did not meet any of the conditions allowing FEMA to adjust the approved funding on an individual small project. FEMA also notified the Applicant of the procedure to appeal for additional funds related to a small net project overrun, should one occur.
On second appeal, the Applicant reiterates its first appeal argument and further contends that FEMA acknowledged and accepted the November 2020 estimate, with the exception of the 15 percent contingency. The Applicant also states: (1) there is no prohibition in FEMA’s policies against contingencies in an estimate; and (2) the procurement and cost documentation demonstrate FEMA’s estimate and award is inadequate to enable the Applicant to complete the approved SOW. On October 5, 2022, the Recipient transmitted the appeal to FEMA with its support for approval.
FEMA establishes a dollar threshold each federal fiscal year which defines a project as large or small based on the final approved amount of the eligible costs after any cost adjustments. A small project is a project with a cost below the threshold which applies to incidents declared during that fiscal year. FEMA does not adjust the approved amount of an individual small project once it is obligated even when FEMA obligates the project based on an estimate and actual costs for completing the eligible SOW differ from the estimated amount. FEMA only adjusts the approved amount on individual small projects if one of the following conditions applies: the applicant did not complete the approved SOW; the applicant requests additional funds related to an eligible change in SOW; the project worksheet contains inadvertent errors or omissions; or actual insurance proceeds differ from the amount deducted in the project worksheet. In these cases, FEMA only adjusts the specific cost items involved.
Here, the record establishes that FEMA, prior to approving the SOW, determined that the Applicant’s project was a small project with a cost below the applicable 2017 threshold of $123,100.00. FEMA obligated the funding after considering the Applicant’s November 2020 Estimate for each of the damaged bridges. Specifically, the record shows not only that FEMA used the November 2020 Estimate to revise the SOW and approve all requested costs for each site (with the exception of intentionally excluding the 15 percent contingency costs), but also demonstrates that the Applicant did not dispute the final revised SOW and costs until after obligation even though FEMA provided the Applicant an opportunity to review the project prior to obligation. Although the lowest bid received for this project’s SOW exceeded the approved costs, the Applicant’s documentation shows none of the conditions for adjusting the approved amount for a specific individual project cost applies: the invoices and purchase orders show the Applicant’s low bid contractor completed the approved SOW; the Applicant requested no eligible changes to the SOW approved; the Applicant does not substantiate that the approved project worksheet contains inadvertent errors or omissions; and there is no difference in the amount deducted for insurance proceeds. Accordingly, none of the conditions for adjusting an individual small project have been met.
The Applicant did not demonstrate that the approved small project amount should be adjusted. Therefore, this appeal is denied.
 On August 25, 2017, the President declared Hurricane Harvey a major disaster.
 Letter from Representative, Prof’l Eng’r, Costello, Inc. Eng’g & Survey, et al., to Representative, Prof’l Eng’r, Brazoria Cty. Eng’rs Office (Oct. 16, 19, and 25, 2017). The estimated costs for repairs and mobilization for each site included $6,000.00 [County Road (CR) 128]; $18,800.00 (CR 179); $4,500.00 (CR 81); $3,200.00 (CR 210); $9,600.00 (CR 171); $4,200.00 (CR 46); $8,450.00 (CR 609); $3,000.00 (CR 30); $4,400.00 (CR 772); $2,900.00 (CR 359); and $8,350.00 and $11,700.00 (CR 522).
 The estimate, dated November 12, 2020, included: $93,400 for construction costs for eight bridge sites (DI #255506 for $9,150.00, DI#255507 for $6,800.00, DI#255512 for $8,650.00, DI#255593 for $7,700.00, DI#255594 for $15,700,00, DI#255596 for $20,200.00, DI#266148 for $9,350.00, and DI#266150 for $15,850); $14,010.00 for a 15 percent contingency for all locations; and $27,834.00 for all consulting services. The estimate was consistent with FEMA’s prepared estimate using Texas Department of Transportation Standards and RS Means Standards, with the exception being the contingency costs.
 For disasters declared in fiscal year 2017, the maximum project cost for small projects was $123,100.00. FEMA, Per Capita Impact Indicator and Project Thresholds, https://www.fema.gov/assistance/public/tools-resources/per-capita-impact-indicator (last visited Dec. 6, 2022).
 See generally, Public Assistance Program and Policy Guide, FP 104-009-2, at 145 (Apr. 2018) [hereinafter PAPPG] (stating that once FEMA obligates a small project, it does not adjust the approved amount on an individual small project unless one of four conditions applies. The conditions include: the applicant fails to complete the approved scope of work (SOW); the applicant requests additional funds related to an eligible change in the SOW; the PW contains inadvertent errors or omissions; or actual insurance proceeds differ fom the amount deducted in the PW.).
 To support its second appeal, the Applicant provided its Cash Disbursement Summary for October 1, 2020-September 19, 2022 along with copies of corresponding Purchase Orders for its vendors; the March-April 2022 invoices and density testing reports from Geotech Engineering & Testing; the March-April 2022 invoices and timesheets for oversight from INC Garza; and the March-April 2022 Contractor’s Application Summaries and Details from WB Western Industrial Contracting.
 Robert T. Stafford Disaster Relief and Emergency Assistance Act § 422, Title 42, United States Code § 5189 (Supp. I 2013); Title 44 Code of the Federal Regulations § 206.203(c) (2016); PAPPG, at 143.
 PAPPG, at 143.
 PAPPG, at 145.
 See Email from Representative, FEMA, to Representative, Brazoria Cty. and Representative, Tex. Div. of Emergency Mgmt., et al. (June 23, 2021, 0811 CDT), transmitting Letter from Dir., Tex. Recovery Office, FEMA, to Chief, Tex. Div. of Emergency Mgmt. and Emergency Mgmt. Coordinator, Brazoria Cty., at 1 (June 17, 2021) (notifying the Applicant that: (1) the project had passed the 15-day mark in “Applicant Review”; (2) the Applicant should provide a detailed justification for withholding the progression of the project to FEMA and the Recipient; (3) project review and advancement by the Applicant should occur within five business days of receipt of the letter; and (4) after the five-day period, FEMA would advance the project to the post award phase to ensure timely project completion.). The letter confirmed that moving the project to the post award phase would not affect SOW change requests, which is not the basis for the Applicant’s current request to adjust the funding of this individual small project.