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Repair of 102 damaged road sites
Appeal Brief
Appeal Letter
Appeal Analysis
Citation: Appeal Analysis; Second Appeal; New Orleans Department of Streets; Louisiana; FEMA-1049-DR-LA, PA 071-91045
Cross-Reference: May 1995 flood; DSRs; LOEP; DPW; 102 Sites; Methodology; Inspection; Unit Costs; Pavement Thickness; Aggregate Base; City-Wide Emergency Repair; TAC Report; Concurrence; City
Facts: Following the May 8, 1995 flood, FEMA prepared 11 DSRs for New Orleans Department of Streets. On August 1, 1995, the State submitted to FEMA the applicant's first appeal of the DSRs and forwarded a list of additional damaged sites on August 16, 1995, to FEMA. The Regional Director denied the first appeal on September 8, 1995, because the damages described in the DSRs pre-existed the flood. FEMA reinspected the 11 sites in October 1995, and concluded that its initial determination should not be reversed.
On November 16, 1995, the State transmitted the applicant's second appeal to the Associate Director and forwarded another complete list of damaged sites to FEMA on January 9, 1996. On March 19 and 20, 1996, FEMA visited the City on a fact-finding mission and requested additional information from the applicant. The applicant submitted various reports to FEMA dated March 18, 1996, April 8, 1996, June 11, 1996, none of which included the same number of sites and same funding amount requested. A meeting took place on June 13, 1996, at FEMA HQ. among FEMA, the applicant and the State. On June 21, 1996, FEMA forwarded a list of questions about all previous reports submitted. In a conference call on July 1, 1996, the applicant and FEMA agreed only to consider 102 damaged sites. Another report was submitted by the applicant on August 14, 1996, requesting $8,954,701 for 102 sites. From September 23, 1996 to October 10, 1996, FEMA visited New Orleans, inspected the 102 damaged sites and prepared DSRs.
Issue: Is the City's repair cost estimate for the 102 sites based on quantities, measurements and unit prices that are higher than those agreed upon for DSR preparation by FEMA, the State and the City?
Findings: Yes
Rationale: The total eligible DSR cost estimate of $2,972,952 for repairing the 102 damaged sites and for the City-wide emergency repair is based on scopes of work and unit prices agreed upon for DSR preparation during the field inspections by FEMA, the State of Louisiana and the City of New Orleans.
On May 9, 1995, a major disaster was declared in certain areas of the State of Louisiana due to the severity of damages caused by rainstorms and subsequent flooding from May 8 and 9, 1995. Water depths of up to six feet were reported in some areas of New Orleans and portions of the City remained inundated for up to 36 hours. The City reported damage to numerous streets and drainage facilities resulting from the flood.
From May 23 to May 31, 1995, FEMA, accompanied by City and State representatives, inspected some of the reported street damage. As a result, 11 damage survey reports (DSRs) 74106, 74107, 74108, 74110, 74111, 74112, 74115, 74116, 74117, 74119 and 74120 were prepared. However, DSRs 74115, 74116, 74117, 74119 and 74120 were found ineligible and the other six DSRs were found eligible. On July 21, 1995, the applicant (New Orleans Department of Streets) forwarded a report of non-concurrence with FEMA's decision on the five ineligible DSRs to the Louisiana Office of Emergency Preparedness (LOEP). The State informed FEMA of the applicant's non-concurrence on August 1, 1995. A FEMA inspector reviewed the applicant's report on August 1, 1995, and concluded that he fully agreed with the FEMA's initial findings and recommendations on the five ineligible DSRs.
By letter dated August 2, 1995, the FEMA Region VI Public Assistance Officer notified the LOEP that the applicant's non-concurrence report is treated as an appeal due to the elapsed time since the initial inspection on May 23, 1995. On August 4, 1995, Rust Environment & Infrastructure, Inc., contracted by the applicant, issued a report to substantiate the City's claim for additional funds and provide support for the appeal. From August 2 to August 7, 1995, the FEMA's most experienced in-house inspector, accompanied by the applicant, reinspected the sites identified in the five ineligible DSRs. A FEMA internal memo dated August 8, 1995, from the inspector to the Public Assistance Officer indicated that most of the damages were pre-existing and that routine maintenance would restore the sites in as good of shape as the surrounding streets and the five DSRs should remain ineligible.
On August 16, 1995, the subgrantee forwarded a memo to the LOEP appealing the other six eligible DSRs (74106, 74107, 74108, 74110, 74111 and 74112). The applicant also submitted a complete list of other damaged locations which need inspections. Such list consisted of a total of 102 damaged sites, including some of the 11 DSRs (5 ineligible and 6 eligible) being appealed, for a total amount of $11,390,576; $5,695,288 of which was listed as nonvisible damage. On September 6, 1995, the State forwarded a memo to FEMA transmitting the applicant's request on additional damages to streets and appeal of the other six DSRs.
By letter dated September 8, 1995, to the LOEP, the Regional Director denied the first appeal because the damages described in the five ineligible DSRs (74115, 74116, 74117, 74119 and 74120) pre-existed the flood. This memo did not consider the information submitted by the State on September 6, 1995, because FEMA was not yet in receipt of such information at that time. The State informed the subgrantee of FEMA's determination on September 25, 1995.
In October 1995, another FEMA inspector, accompanied by LOEP and City representatives, reinspected the six additional sites identified in the State's September 6, 1995 letter. The other five initially claimed sites were also reinspected by FEMA. The FEMA inspector concluded, with the State's concurrence, that FEMA's initial determination should not be reversed because the damages pre-existed the flood.
On November 7, 1995, the applicant submitted its second appeal to LOEP and requested that the case be reviewed by an independent scientific person with expertise in areas with soil conditions similar to the New Orleans area. On November 16, 1995, the State transmitted the second appeal to the Associate Director on behalf of the New Orleans Department of Streets.
By letter dated December 13, 1995, to LOEP, the Regional Director reaffirmed the first appeal denial of the initial five sites and notified the State that the additional six sites identified in the State's September 6, 1995 letter were revisited by a FEMA/State/City inspection team which determined that the damages pre-existed the flood. This action constituted additional determination on the first appeal's denial. FEMA also provided the findings of the reinspection.
On January 5, 1996, the applicant forwarded to the State a complete list of sites some of which were not included with the second appeal submitted on November 7, 1995. The list included 136 sites with no repair costs. The State submitted the applicant's information to FEMA on January 9, 1996.
On January 25, 1996, Director Witt and Mr. Craig Wingo (Infrastructure Support Division Director at the time) met with Mr. Marc Morial (Mayor of New Orleans) in Washington DC about the disaster recovery from the May 8, 1995, flood and the resolution of the second appeal. Director Witt agreed that the City and its consultants would have an opportunity to present its case on the second appeal for streets in a meeting at FEMA Headquarters.
By letter dated February 1, 1996, to Mr. Craig Wingo, Ms. Angela Vallot (Arent Fox Kintner Plotkin & Kahn, Counsel for the City) requested that no action be taken by FEMA on the City's second appeal until the applicant has an opportunity to present evidence in support of the appeal.
FEMA informed the LOEP, via facsimile, on February 15, 1996, that FEMA would like to visit New Orleans on a fact-finding mission, and requested information that would be useful for the second appeal meeting in New Orleans. FEMA, accompanied by the technical assistance contractor (TAC, Partnership for Response and Recovery) who is considered the independent consultant, met with the applicant at the New Orleans Department of Public Works (DPW) on March 19, 1996. The applicant submitted a report dated March 18, 1996, to FEMA, consisting of another list of streets needing repair due to the flood. Such list consisted of 3,412 sites with no repair cost information. FEMA asked for additional information that would help it to judge the condition of the roads before and after the disaster, and visited several damaged sites, accompanied by State and City representatives, on March 20, 1996.
A FEMA internal memo dated April 9, 1996, indicated that the City's standard for road repairs does not appear to have been consistently enforced prior to the flood. The City has also approved a $200 million bond issue for road repair and reconstruction, which led to a reasonable assumption that, in the future, the City would be able to enforce new construction standards. However, the main issue is the extent to which the needed repairs can be attributed to the flood.
On April 11, 1996, the TAC submitted its technical report to FEMA which included an overview of the March 19, 1996 site visit. The report concluded that the City has had a subsidence problem caused by piping of sand base course for more than 10 years. However, this problem was magnified substantially by the duration and intensity of the flood. It was not possible to quantify how much of the street subsidence was due to the flood and how much was pre-existing with the information available at the time.
On April 12, 1996, the LOEP submitted a report dated April 8, 1996, to FEMA including the additional information requested by FEMA and another list of damaged sites. This time, the list contained 140 damaged areas with a requested amount of $8,229,400. However, the report did not address all of the questions and concerns previously raised by FEMA. On May 15, 1996, FEMA forwarded three copies of the TAC t.FEMA and LOEP on June 3, 1996, LOEP agreed to fax a letter to FEMA with a list of the City's major concerns that were to be discussed at the June 13, 1995 meeting at FEMA Headquarters. The applicant's major concern was that only a very small portion of the disaster sites (11 sites) claimed by the applicant had been inspected by FEMA.
On June 13, 1996, a meeting took place at FEMA Headquarters among officials from New Orleans, LOEP, FEMA and the TAC. The applicant submitted a report dated June 11, 1996, to FEMA including a new list of 281 damaged sites with a requested amount of $12,015,006. FEMA presented an informal list of deficiencies/questions relating to the March 18 and April 12, 1996, reports and resubmitted a list of information which would be useful in evaluating the appeal. FEMA also agreed to review all reports submitted by the City and provide to the LOEP and the applicant , by June 21, 1996, a comprehensive list of questions, comments, and additional information needed to evaluate the appeal. All parties agreed that a cut-off date would be chosen after which no additional sites would be considered.
By letter dated June 21, 1996, to the LOEP, FEMA forwarded a list of comments representing questions about all previous reports submitted by the applicant. Responses to these comments were requested to assist FEMA in evaluating the appeal.
A conference call was held on July 1, 1996, to address the issues and concerns raised by FEMA. During the call, the City proposed to use the August 16, 1995 letter, which contained 102 damaged sites, as the base document for the identification of damage locations. FEMA concurred and it was established that August 16, 1995, would be the cut-off date for identification of new sites. FEMA also agreed to meet at a later date with City officials in New Orleans.
On August 15, 1996, the applicant submitted another report to FEMA dated August 14, 1996. The report included responses to issues/concerns previously raised by FEMA, a list of 102 sites with visible damage for a requested amount of $8,954,701, and a list of 86 sites with non-visible damage for an additional requested amount of $5,188,766.
Another conference call took place on September 9, 1996, between FEMA and the subgrantee. FEMA reaffirmed that only the 102 sites with visible damage would be considered, as agreed upon at the July 1, 1996, conference call, and the 86 sites with non-visible damage would not be considered. During the course of that conversation, all parties agreed that FEMA representatives will visit New Orleans on September 23, 1996, to discuss the appeal and obtain additional information (financial records) to assist in evaluating the appeal. FEMA suggested that DSRs be written for all 102 sites and the City concurred.
By letter dated September 13, 1996, to LOEP, FEMA reaffirmed the agreement reached by all parties on July 1, 1996, that only the 102 sites identified in the applicant's August 16, 1995 list, would be considered, and noted some discrepancies in the applicant's August 14, 1996, report. FEMA also notified the State of the visit to New Orleans scheduled for September 23, 1996, and listed the information requested by FEMA from the applicant to assist in evaluating the appeal.
On September 23, 1996, FEMA arrived in New Orleans accompanied by the TAC inspectors. The purpose of the visit was to inspect the 102 damaged sites, research financial records from the City's files, and prepare DSRs for the 102 sites. In a meeting held at the DPW on the same date, City officials presented their case. On September 24, 1996, another meeting was held among FEMA, LOEP and City representatives to identify the chain of command, outline the DSR process and identify the respective FEMA/TAC, State and City inspectors for each team. Four inspection teams were established to inspect and prepare DSRs for 102 sites located within the City's five election districts (A, B, C, D and E). At that meeting, FEMA offered to prepare a DSR for emergency repair effected by the City on damaged streets immediately after the disaster. FEMA also reaffirmed that DSRs will only be prepared for the 102 sites with visible damage. The City and the State concurred. After the meeting, all members of the four inspection teams and supervisors from each organization went on a site inspection tour to evaluate a methodology and procedures for conducting street damage surveys. The group inspected two sites with unrepaired pavements and one site with repaired pavement. FEMA, State and City officials agreed that the DSR teams will have the authority to judge what street damage is related to the storm and to determine the method of repair. Site inspection and DSR preparation began for the 102 sites on September 24, 1996. Site inspection ended approximately on October 10, 1996. However, DSR preparation was still was not completed, pending receipt of additional documentation from the subgrantee.
DISCUSSION
The subgrantee requested $8,954,701 in public assistance from FEMA for the 102 damaged sites. The total amount of all DSRs for the 102 sites (some sites have more than one DSR if the damage is not contiguous) and the DSR for City-wide emergency repairs will constitute FEMA's assistance to the City.
By letter dated September 25, 1996, the New Orleans Director of DPW informed FEMA of the methodology established during the tour for preparing DSRs that addresses the nature and extent of street damage caused or significantly aggravated by the flood. The DPW Director also requested FEMA's concurrence. The agreed upon methodology suggests that at each of the 102 claimed sites, the City inspector was to identify the storm related damage, and recommend a scheme for repairing the damage. This information was to be discussed by all three inspectors, and any appropriate modifications to the scope of work were to be agreed to on site and documented on the DSR data sheets.
The type of damage noted during the inspection process (see attached TAC Report; pg. 2-5, sec. 2.4 "Field Inspection Process") was associated with subsurface erosion of the sand base below the pavements which caused tilted and cracked concrete panels, subsidence in asphalt surfaces, protruding manholes, and depressed curbs, sidewalk intersections and stormwater inlets (TAC Report; pg. 1-4, sec. 1.3 "Damage Description").
On October 10, 1996, as the four teams completed inspection of the 102 sites, the TAC conducted a debriefing to the State and City officials. FEMA representatives participated at the meeting by conference call. However, at that point, DSRs were not completed, pending resolution of several issues such as unit costs, base material and thickness of the pavement and bases. During the meeting, the applicant committed to furnish additional documentation to FEMA at a later date to resolve those issues in order to complete the DSR preparation.
By letter dated October 22, 1996, to the New Orleans DPW Director, FEMA concurred with the agreed upon methodology (TAC Report; pg. 2-2, sec. 2.2.1 "Methodology") that the DSR teams have the authority to judge what street damage is related to the storm and to determine the method of repair. Also, on October 22, 1996, FEMA received documentation from the applicant on mandatory standards of construction as promulgated by City ordinance regarding the question of using aggregate versus sand for road base.
On October 22, 1996, FEMA forwarded another letter to the City's DPW Director to provide justification for the unit prices used in the DSRs (TAC Report; pg. 2-6, sec. 2.5.1 "Unit Construction Costs"). In order to determine the unit cost for each item, FEMA received input from a senior engineer with the City's DPW, and other sources of unit prices came from FEMA Region VI cost codes, Boh Brothe to ted January 16, 1996, to Barriere Construction Co. (former contractor for the City), and a bid document dated January 4, 1996, prepared by T.L. James & Co. for street repair in Jefferson Parish. The unit price comparisons were discussed with the City's senior engineer and an agreement was reached between FEMA and the City's senior engineer to use Boh Brothers Co.'s unit prices for 16 applicable items out of 20. The other four items were priced based on the other sources. Please, note that mobilization/demobilization costs of $3,000 are allowed by FEMA and added to each DSR, unless the damaged areas are contiguous (TAC Report; pg. 2-6 & 2-7, sec. 2.5.1 "Unit Construction Costs").
On October 25, 1996, FEMA forwarded a letter to the New Orleans DPW Director relating to the thickness of the pavement and bases (TAC Report; pg. 2-8, sec. 2.5.2 "Pavement, Base, and Subbase Thickness"). The letter included a table, constructed by FEMA with the assistance of the City's senior engineer, indicating what was originally believed to be the repair specifications versus FEMA's current understanding of the City's actual practice for street repairs.
On October 30, 1996, FEMA received oral concurrence from the City's senior engineer on the unit prices, in FEMA's October 22, 1996 letter, and the thickness of pavement and bases, in FEMA's October 25, 1996 letter, which are to be used in the DSRs.
By letter dated November 8, 1996, FEMA informed the City's DPW Director that the documentation presented by the City sufficiently demonstrates the existence of City Council ordinances requiring the use of aggregate for the base course in lieu of sand. Therefore, aggregate material will be used as base material in applicable DSRs (TAC Report, pg. 2-8, sec. 2.5.3 "Use of Aggregate Base"). FEMA also notified the DPW Director that it is not necessary for the City and State inspectors to complete the recommendation/concurrence blocks (18 & 19) on the DSR data sheets because prior concurrence was obtained from the subgrantee on the methodology for determining the scope of work in the field, on the thicknesses of each pavement course and the use of aggregate base, and on unit costs for DSR preparation (TAC Report; pg. 2-10, sec. 2.7 "City and State Concurrence").
A total of 133 DSRs totaling $2,949,978 were prepared and approved for the 102 damaged sites. Please, note that some sites have more than one DSR. In addition to the 133 DSRs, a City-wide DSR for $22,974 was prepared for emergency street repairs (asphalt patching) done by the City immediately after the disaster. Therefore, the grand total eligible amount for the City of New Orleans Department of Streets is $2,972,952.
The City's total cost estimate for the 102 sites is $8,954,701. The difference of $5,981,749 is due to two primary reasons: 1) the City's estimated quantities/measurements, in its August 14, 1996 report, of damaged areas (specifically asphalt and base) were higher than those on the DSRs, as agreed upon in the field by the inspection teams, and 2) the unit prices used by the City, in its August 14, 1996 report, for all categories of work (concrete, asphalt, base, and curb and gutter) were higher than those on the DSRs, as agreed upon by FEMA in its October 22, 1996 letter to the DPW Director. Please note that the unit costs used on the DSRs were listed in FEMA's October 22, 1996 letter, which were provided by the applicant and discussed with the City's senior engineer who verbally concurred with FEMA on those costs on October 30, 1996. Refer to the enclosed TAC Report; pg. 3-3, sec. 3.2 "Analysis of Results" and Table 3-1, Parts I & II for more details on quantities/measurements and unit costs.
Table 3-2 of the TAC Report lists all 102 sites, broken down by City district, with their corresponding DSR numbers and amounts. It also identifies the inspection team and the City's estimate, from its August 14, 1996 report, for each location. A few DSR amounts are higher than the corresponding City's estimate. However, the City's estimate is higher than the corresponding DSR amount for the vast majority of sites for the reasons stated in the above paragraph. The City-wide DSR for emergency repair is also included in Table 3-2.
CONCLUSION
At each site inspection the team members jointly agreed to the scope of the disaster related damage. The City's estimate of $8,954,701 for the 102 damaged sites was based on quantities/measurements and unit prices that are higher than those agreed upon, by FEMA and the subgrantee, for DSR preparation. The total DSR cost estimate for repairing the 102 sites damaged by the May 1995 flood and the DSR for City-wide emergency repair is $2,972,952. This eligible amount is based on scopes of work and unit prices agreed upon by FEMA, the State of Louisiana, and the City of New Orleans.
Appeal Brief
| Desastre | FEMA-1049-DR |
| Applicant | New Orleans Department of Streets |
| Appeal Type | Second |
| PA ID# | 071-91045 |
| PW ID# | Multiple |
| Date Signed | 1996-12-17T05:00:00 |
Cross-Reference: May 1995 flood; DSRs; LOEP; DPW; 102 Sites; Methodology; Inspection; Unit Costs; Pavement Thickness; Aggregate Base; City-Wide Emergency Repair; TAC Report; Concurrence; City
Facts: Following the May 8, 1995 flood, FEMA prepared 11 DSRs for New Orleans Department of Streets. On August 1, 1995, the State submitted to FEMA the applicant's first appeal of the DSRs and forwarded a list of additional damaged sites on August 16, 1995, to FEMA. The Regional Director denied the first appeal on September 8, 1995, because the damages described in the DSRs pre-existed the flood. FEMA reinspected the 11 sites in October 1995, and concluded that its initial determination should not be reversed.
On November 16, 1995, the State transmitted the applicant's second appeal to the Associate Director and forwarded another complete list of damaged sites to FEMA on January 9, 1996. On March 19 and 20, 1996, FEMA visited the City on a fact-finding mission and requested additional information from the applicant. The applicant submitted various reports to FEMA dated March 18, 1996, April 8, 1996, June 11, 1996, none of which included the same number of sites and same funding amount requested. A meeting took place on June 13, 1996, at FEMA HQ. among FEMA, the applicant and the State. On June 21, 1996, FEMA forwarded a list of questions about all previous reports submitted. In a conference call on July 1, 1996, the applicant and FEMA agreed only to consider 102 damaged sites. Another report was submitted by the applicant on August 14, 1996, requesting $8,954,701 for 102 sites. From September 23, 1996 to October 10, 1996, FEMA visited New Orleans, inspected the 102 damaged sites and prepared DSRs.
Issue: Is the City's repair cost estimate for the 102 sites based on quantities, measurements and unit prices that are higher than those agreed upon for DSR preparation by FEMA, the State and the City?
Findings: Yes
Rationale: The total eligible DSR cost estimate of $2,972,952 for repairing the 102 damaged sites and for the City-wide emergency repair is based on scopes of work and unit prices agreed upon for DSR preparation during the field inspections by FEMA, the State of Louisiana and the City of New Orleans.
Appeal Letter
December 17, 1996
Colonel William J. Croft
State of Louisiana
Military Department
Office of Emergency Preparedness
P.O. Box 44217
Baton Rouge, LA 70804
Dear Colonel Croft:
This is in response to your letter dated November 16, 1995, to the Federal Emergency Management Agency. With your letter, you forwarded a second appeal on behalf of the New Orleans Department of Streets, to our office for determination of eligibility for disaster assistance.
Based on our analysis of the information submitted, we have determined that the total damage survey report (DSR) cost estimate for repairing the 102 sites damaged by the May 1995 flood and the DSR for City-wide emergency repair is $2,972,952. Therefore, the subgrantee's request for $8,954,701 is denied. The eligible amount of $2,972,952 is based on scopes of work and unit prices agreed upon for DSR preparation by FEMA, the State of Louisiana and the City of New Orleans. Subsequently, FEMA Region VI has been instructed to process the enclosed DSRs for payment to the subgrantee. The basis for my determination is contained in the enclosed appeal analysis.
Please inform the applicant of my determination and thank you for your staff's assistance in responding to this appeal. The applicant may submit a third appeal to the Director of FEMA, through your office and the Regional Director, in accordance with 44 CFR 206.206. A third appeal must be submitted within 60 days after receipt of this determination.
Sincerely yours,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
Colonel William J. Croft
State of Louisiana
Military Department
Office of Emergency Preparedness
P.O. Box 44217
Baton Rouge, LA 70804
Dear Colonel Croft:
This is in response to your letter dated November 16, 1995, to the Federal Emergency Management Agency. With your letter, you forwarded a second appeal on behalf of the New Orleans Department of Streets, to our office for determination of eligibility for disaster assistance.
Based on our analysis of the information submitted, we have determined that the total damage survey report (DSR) cost estimate for repairing the 102 sites damaged by the May 1995 flood and the DSR for City-wide emergency repair is $2,972,952. Therefore, the subgrantee's request for $8,954,701 is denied. The eligible amount of $2,972,952 is based on scopes of work and unit prices agreed upon for DSR preparation by FEMA, the State of Louisiana and the City of New Orleans. Subsequently, FEMA Region VI has been instructed to process the enclosed DSRs for payment to the subgrantee. The basis for my determination is contained in the enclosed appeal analysis.
Please inform the applicant of my determination and thank you for your staff's assistance in responding to this appeal. The applicant may submit a third appeal to the Director of FEMA, through your office and the Regional Director, in accordance with 44 CFR 206.206. A third appeal must be submitted within 60 days after receipt of this determination.
Sincerely yours,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
Appeal Analysis
BACKGROUNDOn May 9, 1995, a major disaster was declared in certain areas of the State of Louisiana due to the severity of damages caused by rainstorms and subsequent flooding from May 8 and 9, 1995. Water depths of up to six feet were reported in some areas of New Orleans and portions of the City remained inundated for up to 36 hours. The City reported damage to numerous streets and drainage facilities resulting from the flood.
From May 23 to May 31, 1995, FEMA, accompanied by City and State representatives, inspected some of the reported street damage. As a result, 11 damage survey reports (DSRs) 74106, 74107, 74108, 74110, 74111, 74112, 74115, 74116, 74117, 74119 and 74120 were prepared. However, DSRs 74115, 74116, 74117, 74119 and 74120 were found ineligible and the other six DSRs were found eligible. On July 21, 1995, the applicant (New Orleans Department of Streets) forwarded a report of non-concurrence with FEMA's decision on the five ineligible DSRs to the Louisiana Office of Emergency Preparedness (LOEP). The State informed FEMA of the applicant's non-concurrence on August 1, 1995. A FEMA inspector reviewed the applicant's report on August 1, 1995, and concluded that he fully agreed with the FEMA's initial findings and recommendations on the five ineligible DSRs.
By letter dated August 2, 1995, the FEMA Region VI Public Assistance Officer notified the LOEP that the applicant's non-concurrence report is treated as an appeal due to the elapsed time since the initial inspection on May 23, 1995. On August 4, 1995, Rust Environment & Infrastructure, Inc., contracted by the applicant, issued a report to substantiate the City's claim for additional funds and provide support for the appeal. From August 2 to August 7, 1995, the FEMA's most experienced in-house inspector, accompanied by the applicant, reinspected the sites identified in the five ineligible DSRs. A FEMA internal memo dated August 8, 1995, from the inspector to the Public Assistance Officer indicated that most of the damages were pre-existing and that routine maintenance would restore the sites in as good of shape as the surrounding streets and the five DSRs should remain ineligible.
On August 16, 1995, the subgrantee forwarded a memo to the LOEP appealing the other six eligible DSRs (74106, 74107, 74108, 74110, 74111 and 74112). The applicant also submitted a complete list of other damaged locations which need inspections. Such list consisted of a total of 102 damaged sites, including some of the 11 DSRs (5 ineligible and 6 eligible) being appealed, for a total amount of $11,390,576; $5,695,288 of which was listed as nonvisible damage. On September 6, 1995, the State forwarded a memo to FEMA transmitting the applicant's request on additional damages to streets and appeal of the other six DSRs.
By letter dated September 8, 1995, to the LOEP, the Regional Director denied the first appeal because the damages described in the five ineligible DSRs (74115, 74116, 74117, 74119 and 74120) pre-existed the flood. This memo did not consider the information submitted by the State on September 6, 1995, because FEMA was not yet in receipt of such information at that time. The State informed the subgrantee of FEMA's determination on September 25, 1995.
In October 1995, another FEMA inspector, accompanied by LOEP and City representatives, reinspected the six additional sites identified in the State's September 6, 1995 letter. The other five initially claimed sites were also reinspected by FEMA. The FEMA inspector concluded, with the State's concurrence, that FEMA's initial determination should not be reversed because the damages pre-existed the flood.
On November 7, 1995, the applicant submitted its second appeal to LOEP and requested that the case be reviewed by an independent scientific person with expertise in areas with soil conditions similar to the New Orleans area. On November 16, 1995, the State transmitted the second appeal to the Associate Director on behalf of the New Orleans Department of Streets.
By letter dated December 13, 1995, to LOEP, the Regional Director reaffirmed the first appeal denial of the initial five sites and notified the State that the additional six sites identified in the State's September 6, 1995 letter were revisited by a FEMA/State/City inspection team which determined that the damages pre-existed the flood. This action constituted additional determination on the first appeal's denial. FEMA also provided the findings of the reinspection.
On January 5, 1996, the applicant forwarded to the State a complete list of sites some of which were not included with the second appeal submitted on November 7, 1995. The list included 136 sites with no repair costs. The State submitted the applicant's information to FEMA on January 9, 1996.
On January 25, 1996, Director Witt and Mr. Craig Wingo (Infrastructure Support Division Director at the time) met with Mr. Marc Morial (Mayor of New Orleans) in Washington DC about the disaster recovery from the May 8, 1995, flood and the resolution of the second appeal. Director Witt agreed that the City and its consultants would have an opportunity to present its case on the second appeal for streets in a meeting at FEMA Headquarters.
By letter dated February 1, 1996, to Mr. Craig Wingo, Ms. Angela Vallot (Arent Fox Kintner Plotkin & Kahn, Counsel for the City) requested that no action be taken by FEMA on the City's second appeal until the applicant has an opportunity to present evidence in support of the appeal.
FEMA informed the LOEP, via facsimile, on February 15, 1996, that FEMA would like to visit New Orleans on a fact-finding mission, and requested information that would be useful for the second appeal meeting in New Orleans. FEMA, accompanied by the technical assistance contractor (TAC, Partnership for Response and Recovery) who is considered the independent consultant, met with the applicant at the New Orleans Department of Public Works (DPW) on March 19, 1996. The applicant submitted a report dated March 18, 1996, to FEMA, consisting of another list of streets needing repair due to the flood. Such list consisted of 3,412 sites with no repair cost information. FEMA asked for additional information that would help it to judge the condition of the roads before and after the disaster, and visited several damaged sites, accompanied by State and City representatives, on March 20, 1996.
A FEMA internal memo dated April 9, 1996, indicated that the City's standard for road repairs does not appear to have been consistently enforced prior to the flood. The City has also approved a $200 million bond issue for road repair and reconstruction, which led to a reasonable assumption that, in the future, the City would be able to enforce new construction standards. However, the main issue is the extent to which the needed repairs can be attributed to the flood.
On April 11, 1996, the TAC submitted its technical report to FEMA which included an overview of the March 19, 1996 site visit. The report concluded that the City has had a subsidence problem caused by piping of sand base course for more than 10 years. However, this problem was magnified substantially by the duration and intensity of the flood. It was not possible to quantify how much of the street subsidence was due to the flood and how much was pre-existing with the information available at the time.
On April 12, 1996, the LOEP submitted a report dated April 8, 1996, to FEMA including the additional information requested by FEMA and another list of damaged sites. This time, the list contained 140 damaged areas with a requested amount of $8,229,400. However, the report did not address all of the questions and concerns previously raised by FEMA. On May 15, 1996, FEMA forwarded three copies of the TAC t.FEMA and LOEP on June 3, 1996, LOEP agreed to fax a letter to FEMA with a list of the City's major concerns that were to be discussed at the June 13, 1995 meeting at FEMA Headquarters. The applicant's major concern was that only a very small portion of the disaster sites (11 sites) claimed by the applicant had been inspected by FEMA.
On June 13, 1996, a meeting took place at FEMA Headquarters among officials from New Orleans, LOEP, FEMA and the TAC. The applicant submitted a report dated June 11, 1996, to FEMA including a new list of 281 damaged sites with a requested amount of $12,015,006. FEMA presented an informal list of deficiencies/questions relating to the March 18 and April 12, 1996, reports and resubmitted a list of information which would be useful in evaluating the appeal. FEMA also agreed to review all reports submitted by the City and provide to the LOEP and the applicant , by June 21, 1996, a comprehensive list of questions, comments, and additional information needed to evaluate the appeal. All parties agreed that a cut-off date would be chosen after which no additional sites would be considered.
By letter dated June 21, 1996, to the LOEP, FEMA forwarded a list of comments representing questions about all previous reports submitted by the applicant. Responses to these comments were requested to assist FEMA in evaluating the appeal.
A conference call was held on July 1, 1996, to address the issues and concerns raised by FEMA. During the call, the City proposed to use the August 16, 1995 letter, which contained 102 damaged sites, as the base document for the identification of damage locations. FEMA concurred and it was established that August 16, 1995, would be the cut-off date for identification of new sites. FEMA also agreed to meet at a later date with City officials in New Orleans.
On August 15, 1996, the applicant submitted another report to FEMA dated August 14, 1996. The report included responses to issues/concerns previously raised by FEMA, a list of 102 sites with visible damage for a requested amount of $8,954,701, and a list of 86 sites with non-visible damage for an additional requested amount of $5,188,766.
Another conference call took place on September 9, 1996, between FEMA and the subgrantee. FEMA reaffirmed that only the 102 sites with visible damage would be considered, as agreed upon at the July 1, 1996, conference call, and the 86 sites with non-visible damage would not be considered. During the course of that conversation, all parties agreed that FEMA representatives will visit New Orleans on September 23, 1996, to discuss the appeal and obtain additional information (financial records) to assist in evaluating the appeal. FEMA suggested that DSRs be written for all 102 sites and the City concurred.
By letter dated September 13, 1996, to LOEP, FEMA reaffirmed the agreement reached by all parties on July 1, 1996, that only the 102 sites identified in the applicant's August 16, 1995 list, would be considered, and noted some discrepancies in the applicant's August 14, 1996, report. FEMA also notified the State of the visit to New Orleans scheduled for September 23, 1996, and listed the information requested by FEMA from the applicant to assist in evaluating the appeal.
On September 23, 1996, FEMA arrived in New Orleans accompanied by the TAC inspectors. The purpose of the visit was to inspect the 102 damaged sites, research financial records from the City's files, and prepare DSRs for the 102 sites. In a meeting held at the DPW on the same date, City officials presented their case. On September 24, 1996, another meeting was held among FEMA, LOEP and City representatives to identify the chain of command, outline the DSR process and identify the respective FEMA/TAC, State and City inspectors for each team. Four inspection teams were established to inspect and prepare DSRs for 102 sites located within the City's five election districts (A, B, C, D and E). At that meeting, FEMA offered to prepare a DSR for emergency repair effected by the City on damaged streets immediately after the disaster. FEMA also reaffirmed that DSRs will only be prepared for the 102 sites with visible damage. The City and the State concurred. After the meeting, all members of the four inspection teams and supervisors from each organization went on a site inspection tour to evaluate a methodology and procedures for conducting street damage surveys. The group inspected two sites with unrepaired pavements and one site with repaired pavement. FEMA, State and City officials agreed that the DSR teams will have the authority to judge what street damage is related to the storm and to determine the method of repair. Site inspection and DSR preparation began for the 102 sites on September 24, 1996. Site inspection ended approximately on October 10, 1996. However, DSR preparation was still was not completed, pending receipt of additional documentation from the subgrantee.
DISCUSSION
The subgrantee requested $8,954,701 in public assistance from FEMA for the 102 damaged sites. The total amount of all DSRs for the 102 sites (some sites have more than one DSR if the damage is not contiguous) and the DSR for City-wide emergency repairs will constitute FEMA's assistance to the City.
By letter dated September 25, 1996, the New Orleans Director of DPW informed FEMA of the methodology established during the tour for preparing DSRs that addresses the nature and extent of street damage caused or significantly aggravated by the flood. The DPW Director also requested FEMA's concurrence. The agreed upon methodology suggests that at each of the 102 claimed sites, the City inspector was to identify the storm related damage, and recommend a scheme for repairing the damage. This information was to be discussed by all three inspectors, and any appropriate modifications to the scope of work were to be agreed to on site and documented on the DSR data sheets.
The type of damage noted during the inspection process (see attached TAC Report; pg. 2-5, sec. 2.4 "Field Inspection Process") was associated with subsurface erosion of the sand base below the pavements which caused tilted and cracked concrete panels, subsidence in asphalt surfaces, protruding manholes, and depressed curbs, sidewalk intersections and stormwater inlets (TAC Report; pg. 1-4, sec. 1.3 "Damage Description").
On October 10, 1996, as the four teams completed inspection of the 102 sites, the TAC conducted a debriefing to the State and City officials. FEMA representatives participated at the meeting by conference call. However, at that point, DSRs were not completed, pending resolution of several issues such as unit costs, base material and thickness of the pavement and bases. During the meeting, the applicant committed to furnish additional documentation to FEMA at a later date to resolve those issues in order to complete the DSR preparation.
By letter dated October 22, 1996, to the New Orleans DPW Director, FEMA concurred with the agreed upon methodology (TAC Report; pg. 2-2, sec. 2.2.1 "Methodology") that the DSR teams have the authority to judge what street damage is related to the storm and to determine the method of repair. Also, on October 22, 1996, FEMA received documentation from the applicant on mandatory standards of construction as promulgated by City ordinance regarding the question of using aggregate versus sand for road base.
On October 22, 1996, FEMA forwarded another letter to the City's DPW Director to provide justification for the unit prices used in the DSRs (TAC Report; pg. 2-6, sec. 2.5.1 "Unit Construction Costs"). In order to determine the unit cost for each item, FEMA received input from a senior engineer with the City's DPW, and other sources of unit prices came from FEMA Region VI cost codes, Boh Brothe to ted January 16, 1996, to Barriere Construction Co. (former contractor for the City), and a bid document dated January 4, 1996, prepared by T.L. James & Co. for street repair in Jefferson Parish. The unit price comparisons were discussed with the City's senior engineer and an agreement was reached between FEMA and the City's senior engineer to use Boh Brothers Co.'s unit prices for 16 applicable items out of 20. The other four items were priced based on the other sources. Please, note that mobilization/demobilization costs of $3,000 are allowed by FEMA and added to each DSR, unless the damaged areas are contiguous (TAC Report; pg. 2-6 & 2-7, sec. 2.5.1 "Unit Construction Costs").
On October 25, 1996, FEMA forwarded a letter to the New Orleans DPW Director relating to the thickness of the pavement and bases (TAC Report; pg. 2-8, sec. 2.5.2 "Pavement, Base, and Subbase Thickness"). The letter included a table, constructed by FEMA with the assistance of the City's senior engineer, indicating what was originally believed to be the repair specifications versus FEMA's current understanding of the City's actual practice for street repairs.
On October 30, 1996, FEMA received oral concurrence from the City's senior engineer on the unit prices, in FEMA's October 22, 1996 letter, and the thickness of pavement and bases, in FEMA's October 25, 1996 letter, which are to be used in the DSRs.
By letter dated November 8, 1996, FEMA informed the City's DPW Director that the documentation presented by the City sufficiently demonstrates the existence of City Council ordinances requiring the use of aggregate for the base course in lieu of sand. Therefore, aggregate material will be used as base material in applicable DSRs (TAC Report, pg. 2-8, sec. 2.5.3 "Use of Aggregate Base"). FEMA also notified the DPW Director that it is not necessary for the City and State inspectors to complete the recommendation/concurrence blocks (18 & 19) on the DSR data sheets because prior concurrence was obtained from the subgrantee on the methodology for determining the scope of work in the field, on the thicknesses of each pavement course and the use of aggregate base, and on unit costs for DSR preparation (TAC Report; pg. 2-10, sec. 2.7 "City and State Concurrence").
A total of 133 DSRs totaling $2,949,978 were prepared and approved for the 102 damaged sites. Please, note that some sites have more than one DSR. In addition to the 133 DSRs, a City-wide DSR for $22,974 was prepared for emergency street repairs (asphalt patching) done by the City immediately after the disaster. Therefore, the grand total eligible amount for the City of New Orleans Department of Streets is $2,972,952.
The City's total cost estimate for the 102 sites is $8,954,701. The difference of $5,981,749 is due to two primary reasons: 1) the City's estimated quantities/measurements, in its August 14, 1996 report, of damaged areas (specifically asphalt and base) were higher than those on the DSRs, as agreed upon in the field by the inspection teams, and 2) the unit prices used by the City, in its August 14, 1996 report, for all categories of work (concrete, asphalt, base, and curb and gutter) were higher than those on the DSRs, as agreed upon by FEMA in its October 22, 1996 letter to the DPW Director. Please note that the unit costs used on the DSRs were listed in FEMA's October 22, 1996 letter, which were provided by the applicant and discussed with the City's senior engineer who verbally concurred with FEMA on those costs on October 30, 1996. Refer to the enclosed TAC Report; pg. 3-3, sec. 3.2 "Analysis of Results" and Table 3-1, Parts I & II for more details on quantities/measurements and unit costs.
Table 3-2 of the TAC Report lists all 102 sites, broken down by City district, with their corresponding DSR numbers and amounts. It also identifies the inspection team and the City's estimate, from its August 14, 1996 report, for each location. A few DSR amounts are higher than the corresponding City's estimate. However, the City's estimate is higher than the corresponding DSR amount for the vast majority of sites for the reasons stated in the above paragraph. The City-wide DSR for emergency repair is also included in Table 3-2.
CONCLUSION
At each site inspection the team members jointly agreed to the scope of the disaster related damage. The City's estimate of $8,954,701 for the 102 damaged sites was based on quantities/measurements and unit prices that are higher than those agreed upon, by FEMA and the subgrantee, for DSR preparation. The total DSR cost estimate for repairing the 102 sites damaged by the May 1995 flood and the DSR for City-wide emergency repair is $2,972,952. This eligible amount is based on scopes of work and unit prices agreed upon by FEMA, the State of Louisiana, and the City of New Orleans.