Work Completion Deadlines

Appeal Brief

Summary Paragraph

Severe storms and flooding occurred May 13-22, 2014 in New York, resulting in a major disaster declaration on July 8, 2014. The Applicant requested Public Assistance (PA) to repair the Jefferson Street culvert. FEMA obligated Project Worksheet (PW) 552 for $227,131.67. In March 2017, the Applicant submitted a scope of work (SOW) change request based on its engineer’s report which projected increased costs of $958,832.75. FEMA denied this SOW change in 2019. On April 8, 2022, the Applicant filed a Time Extension Request (TER), arguing that the collapse of the Facility’s retaining wall in 2018 made the approved repairs unsafe, and it intended to request an improved project or mitigation measures. The Applicant requested more time to seek bids and implement new designs. On December 30, 2022, FEMA denied the TER and stated that an intent to reclassify the project is not an extenuating circumstance. On March 3, 2023, the Applicant appealed and argued that the wall collapse caused confusion and it relied on the Recipient to communicate with FEMA. The FEMA Region 2 Regional Administrator denied the appeal on September 8, 2023, finding the work on which the TER was based was outside the scope of the PW and ineligible for a time extension. On November 10, 2023, the Applicant filed its second appeal, reiterating previously raised arguments.

Authorities

• 44 C.F.R. § 206.204(c)-(d).
• PA Guide, at 139.
• Labette County, FEMA-1849-DR-KS, at 5.
• Warren County Secondary Roads, FEMA-1930-DR-IA.

Headnotes

• To justify the grant of a TER, applicants must demonstrate extenuating circumstances or unusual project requirements beyond their control. A time extension for delays in furtherance of an unapproved SOW is not warranted, absent an approved change in SOW from FEMA.
  • The Applicant’s intent to pursue an improved project or new mitigation measures, based on a new unapproved SOW, does not justify a time extension. Additionally, administrative processing errors, changes in administration, and issues related to a prior SOW change request denial that the Applicant never appealed are not extenuating circumstances beyond the Applicant’s control.

Conclusion

The Applicant’s TER is for a scope of work that FEMA has not approved. Furthermore, the Applicant has not demonstrated extenuating circumstances or unusual project requirements out of its control that justify granting a TER. Therefore, the appeal is denied

Appeal Letter

Appeal Analysis

Background

Severe storms and flooding occurred from May 13 through 22, 2014 in New York, resulting in a major disaster declaration for the state on July 8, 2014. On September 23, 2015, FEMA obligated Project Worksheet (PW) 552, awarding $227,131.67 for repairs associated with repairing the Jefferson Street concrete culvert to its predisaster condition, including replacement of a concrete retaining wall. In September 2015, the New York State Division of Homeland Security and Emergency Services (Recipient) granted a time extension for all incomplete permanent work projects based on extenuating circumstances, extending the deadline for the period of performance to July 8, 2018.[1] In March 2017, the Applicant requested a scope of work (SOW) change after its engineer submitted a new construction design based on practical considerations and claimed codes/standards-required upgrades, increasing the total claimed costs to $958,832.75. The Applicant also requested FEMA grant a time extension beyond that approved by the Recipient. In April 2019, FEMA denied the requested SOW change and associated time extension request (TER), stating the Applicant did not demonstrate that its proposed changes were required based on codes and standards or as the result of the disaster, rather than pre-existing deterioration. 

In April 2022, the Applicant filed a new TER, noting it intended to request a scope of work change for hazard mitigation or an improved project and that it needed time for new engineering and construction designs. The Applicant explained that its retaining wall collapsed in 2018, jeopardizing the integrity of the culvert system and rendering planned repairs unsafe. It stated that a time extension would allow sufficient time to solicit bids for new engineering and construction designs and implement them. It also claimed that it had appealed FEMA’s earlier SOW change request denial in May 2019 and had communicated its intent to pursue the improved project or mitigation measures in that appeal, but it had not yet received a response. On December 30, 2022, FEMA denied the TER, stating the intent to request an improved project or mitigation measures did not constitute extenuating circumstances beyond the Applicant’s control to justify a time extension. FEMA also noted that it never received an appeal of the 2019 SOW change request denial.                                                                                                

First Appeal 

On March 3, 2023, the Applicant appealed the denial of the TER and reiterated prior arguments. The Applicant also proposed a project completion date of December 31, 2025. The Applicant further explained that when the retaining wall collapsed in February 2018, it immediately contacted the Recipient to address the issue, and that the Recipient planned to discuss the matter with FEMA shortly thereafter, but that the Applicant did not hear anything further from FEMA at that time.

On May 2, 2023, the Recipient transmitted the appeal and in support, explained that the wall collapsing while the 2017 SOW change request was pending led to the Applicant’s confusion about how to proceed next and its filing of another TER. The Recipient also noted that it had no record of receiving an appeal letter from the Applicant in May 2019 responding to FEMA’s April 2019 denial of its SOW change request. However, it now included that appeal letter, dated May 16, 2019, as an attachment.

On September 8, 2023, the FEMA Region 2 Regional Administrator denied the appeal. FEMA stated it could not approve a time extension for work that is outside of the PW’s approved SOW, and an improved project or hazard mitigation proposal is outside of PW 552’s SOW. It also noted the Applicant had not taken any action to pursue an improved project or hazard mitigation proposal since 2019. FEMA stated that while the Applicant claimed it requested those changes in a May 16, 2019 appeal letter, neither the Recipient nor FEMA received that letter at the time.

Second Appeal

In a letter dated November 10, 2023, the Applicant submitted its second appeal, reiterating its previously raised arguments. The Applicant argues that there were circumstances outside its control, including the loss of its contract with its consultant due to the consultant’s health issues occurring in January 2018, which left the Applicant without guidance or representation in PW 552’s administration shortly before its retaining wall collapsed. The Applicant also attributes its delays to FEMA’s own delays and lack of guidance in dealing with the Applicant’s requests, after it notified FEMA of its intentions and problems with the SOW. The Applicant further explains that it submitted another TER on April 8, 2022 because it believed FEMA did not respond to its appeal from May 16, 2019. The Applicant claims it submitted that appeal to a new consultant at the time, but admits that it does not know or have control over what subsequently happened to the appeal letter.

On January 4, 2024, the Recipient transmitted the appeal with a letter of support, clarifying that the Applicant faced complications including a new Department of Public Works (DPW) supervisor with limited FEMA experience, as well as working with a new consultant and engineering firm. Furthermore, the Recipient advised that the coronavirus (COVID-19) pandemic caused delays outside of the Applicant’s control. 

Discussion

FEMA may reimburse eligible applicants for the repair, restoration, reconstruction, or replacement of public facilities damaged or destroyed by a major disaster.[2] The regulatory deadline for completing permanent work is 18 months from the declaration date; recipients may extend this deadline for an additional 30 months.[3]FEMA has authority to grant extensions beyond the limit of the recipient’s authority based on extenuating circumstances or unusual project requirements beyond their control of the applicant.[4] A time extension for delays in furtherance of an unapproved SOW is not warranted, absent an approved change in SOW from FEMA.[5]

The Applicant requests a time extension based on its intent to have the project re-evaluated for a new SOW. However, the Applicant has not submitted a SOW change request to FEMA since FEMA denied its earlier SOW change request in April 2019. In this case, the Applicant’s intent to pursue an improved project or hazard mitigation measures, based on a new SOW that FEMA has not approved, does not justify a time extension. Although the Applicant and the Recipient cite a number of factors that they argue excuse the Applicant’s delay in pursuing a new SOW following the 2019 denials, these factors do not constitute extenuating circumstances justifying a TER because the delays were not encountered in furtherance of the approved SOW, for which the period of performance expired in 2018.[6] 

The Applicant claims that its prior 2017 SOW change request and TER made FEMA aware of its intentions and the problems with the approved SOW before the period of performance expired, and that FEMA’s delay and lack of guidance in dealing with these requests contributed to the Applicant’s delay. However, FEMA denied these requests in 2019, with letters notifying the Applicant of its right to appeal, and neither FEMA nor the Recipient ever received an appeal of those denials at that time. Therefore, any issues related to the 2017 SOW change request do not justify a time extension because the Applicant could have resolved the dispute through the appeals process, but failed to do so.[7] Although the Applicant claims that the delay in the filing of its 2022 TER is due to awaiting FEMA’s response to its 2019 appeal letter filed with its consultant, administrative processing errors from a consultant retained by the Applicant do not constitute extenuating circumstances beyond the Applicant’s control.[8] Similarly, the Applicant’s loss of its consulting contract in January 2018, and its appointment of a new DPW supervisor who was unfamiliar with FEMA do not justify a TER, as changes in administration do not constitute extenuating circumstances beyond an applicant’s control. 

Conclusion

The Applicant’s time extension request is for a scope of work that FEMA has not approved. Furthermore, the Applicant has not demonstrated extenuating circumstances or unusual project requirements out of its control that justify granting a time extension request. Therefore, the appeal is denied.