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Debris Removal
Appeal Brief
Appeal Letter
Citation: FEMA-1539-DR-FL, City of Cape Coral, Debris Removal
Cross-reference: Debris Removal
Summary: The City of Cape Coral (Applicant) appealed the disallowance of some of the costs incurred by the Applicant under a time-and-materials contract for debris removal.
The Applicant used an existing time-and-materials contract to clear and mulch debris generated by Hurricane Charley in 2004. The contract was competitively bid prior to the storm, and the Applicant modified that contract to allow for storm-related debris removal. FEMA disallowed a portion of the costs due to the Applicants having used a time-and-materials contract well beyond the 70-hour limitation (3 months), the Applicants failure to re-bid the contract after the 70-hour limit, the Applicants failure to monitor the work performed under the contract, and the lack of verification of the reasonableness of the costs. FEMA also disallowed costs for ineligible facilities. In addition, FEMA used its estimated number of damaged trees (a smaller number than the Applicants) and debris collected and chipped at a golf course to derive eligible reasonable costs.
The major issue in these appeals is the Applicants use of an unmonitored time-and-materials contract for a prolonged period and the Applicants failure to produce documentation establishing the quantities of collected debris and eligible costs. The Applicant did provide additional documentation and invoices but did not establish quantities and eligibility of debris. Having established legal responsibility for three rental properties, the Applicant was entitled to $3,050 in additional eligible costs. And the Applicant is eligible for $24,143 in additional costs for remaining debris from the water reclamation plant. Additional documentation was not provided and as such the other properties remain ineligible. The prolonged and unmonitored use of the time-and-materials contract in unacceptable. While noncompliance with contracting requirements could have led to ineligibility of all the costs, the field decision to allow some funding for debris removal from the hurricane was not unreasonable.
Issues: Do unmonitored, undocumented, and long-term (in excess of 3 months) time-and-materials contracts meet Federal requirements?
Findings: No.
Rationale: 44 CFR Par 13; 44 CFR §206.223; 44 CFR §206.201 (c) Public Assistance Debris Management Guide, FEMA 325, dated April 1999; Public Assistance Guide, FEMA 322, dated October 1999
Appeal Brief
| Disaster | FEMA-1539-DR |
| Applicant | City of Cape Coral |
| Appeal Type | Second |
| PA ID# | 071-10275-00 |
| PW ID# | 5961, 6180, 6183 |
| Date Signed | 2009-07-14T04:00:00 |
The Applicant used an existing time-and-materials contract to clear and mulch debris generated by Hurricane Charley in 2004. The contract was competitively bid prior to the storm, and the Applicant modified that contract to allow for storm-related debris removal. FEMA disallowed a portion of the costs due to the Applicants having used a time-and-materials contract well beyond the 70-hour limitation (3 months), the Applicants failure to re-bid the contract after the 70-hour limit, the Applicants failure to monitor the work performed under the contract, and the lack of verification of the reasonableness of the costs. FEMA also disallowed costs for ineligible facilities. In addition, FEMA used its estimated number of damaged trees (a smaller number than the Applicants) and debris collected and chipped at a golf course to derive eligible reasonable costs.
The major issue in these appeals is the Applicants use of an unmonitored time-and-materials contract for a prolonged period and the Applicants failure to produce documentation establishing the quantities of collected debris and eligible costs. The Applicant did provide additional documentation and invoices but did not establish quantities and eligibility of debris. Having established legal responsibility for three rental properties, the Applicant was entitled to $3,050 in additional eligible costs. And the Applicant is eligible for $24,143 in additional costs for remaining debris from the water reclamation plant. Additional documentation was not provided and as such the other properties remain ineligible. The prolonged and unmonitored use of the time-and-materials contract in unacceptable. While noncompliance with contracting requirements could have led to ineligibility of all the costs, the field decision to allow some funding for debris removal from the hurricane was not unreasonable.
Appeal Letter
July 14, 2009
Ruben Almaguer
Interim Director
Division of Emergency Management
2555 Shumard Boulevard
Tallahassee, FL 32399-2100
Re: Second AppealCity of Cape Coral PA ID 071-10275-00, Debris Removal,
FEMA-1539-DR-FL, Project Worksheets (PW) 5961, 6180 and 6183
Dear Mr. Almaguer:
This letter is in response to two letters from your office dated April 8, 2008, which transmitted the referenced second appeals on behalf of the City of Cape Coral (Applicant). The Applicant is appealing the Department of Homeland Securitys Federal Emergency Management Agencys (FEMA) decision to disallow some of the costs the Applicant incurred under a time-and-materials contract for debris removal and for removing debris from six ineligible locations. The amount in dispute is $856,786.
BACKGROUND
The Applicant used an existing time-and-materials contract to clear and mulch disaster-related debris on City-owned property following Hurricane Charley in 2004. The Applicant competitively bid the contract prior to the hurricane, and subsequently modified the contract to include disaster-related debris. The Applicant received reimbursement for its debris removal costs from FEMA via three project worksheets.
PW 5961 $862,490 for the Cape Coral Golf Course
PW 6180 $144,190 for city and other city-operated facilities; and,
PW 6183 $671,604 for 32 sites throughout the city.
FEMA disallowed a portion of the requested costs because the Applicant (1) used a time-and-materials contract beyond the 70-hour limitation (August 14, 2004 to November 23, 2004); (2) did not monitor the work performed under the contract; and (3) did not demonstrate that the costs were unreasonable. Specifically, FEMA denied $487,490 for PW 5691 because the Applicant could not document the number of trees and the volume of debris that the contractor removed. FEMA denied $60,190 for PW 6180 and $314,106 for PW 6183 because it determined that the Applicant removed debris from ineligible locations and the costs to remove debris from the eligible properties were unreasonable.
In first appeal letters dated December 14, 2005, the Applicant maintained that it was entitled to the disallowed funding because the work was required as a result of a declared event, was performed within the designated area, and was its legal responsibility. The Regional Administrator denied the first appeals (PW 5961 and October 29, 2007, and PWs 6180 and 6183 on November 7, 2007) because the Applicant did not provide documentation to substantiate the eligibility of the debris removal costs that FEMA had disallowed. In addition to the deficiencies in the contracting process, the Regional Administrator concluded that the Applicant had not provided new or additional information to establish both eligibility and reasonable costs of locations, times, or quantities of debris, as required by Federal regulations.
Second Appeal
In its second appeal letter dated February 8, 2008, the Applicant states that it competitively bid the debris contract prior to the disaster and that the exigencies of the situation made retention of its current contractor the best option for removing debris. The Applicant notes that it amended the contract to allow disaster-related debris removal debris. The Applicant notes that it amended the contract to allow reasonable. The Applicant acknowledges that it did not formally monitor the debris removal operations and record the quantities of debris that the contractor removed. The Applicant also states that it had legal responsibility for removing debris from the six ineligible locations (four rental properties, a water reclamation plant, and an un-maintained parcel of land).
Discussion
Federal procurement regulation (44 CFR §13.36, Procurement) and FEMA guidance documents require grant recipients to use competitive bid procedures to contract for goods and services. Noncompetitive procurements may be used only when it is infeasible to procure the goods or services under competitive procedures. The Applicant negotiated prices for debris removal activities with its existing maintenance contractor for the parks and recreation departments. FEMA considers this procedure to be a noncompetitive procurement. The Applicant did not provide any information that it used to determine that the negotiated prices were reasonable. In addition, the Applicant used a time-and-materials contract to accomplish the work. Federal regulations allow the use of time-and-material contracts only when no other contract is suitable and the contract includes a ceiling price that the contractor exceeds at its own risk. FEMA guidance further limits the use of time-and-material contracts to 70 hours for debris removal operations. Because the Applicant did not comply with Federal procurement requirements, FEMA must determine if the costs the Applicant requests for reimbursement are reasonable.
The Applicant did not provide FEMA any information to demonstrate that the requested costs reflected a reasonable level of effort for work the contractor performed. The Applicant did not adequately monitor the contract or quantify the amount of debris the contractor removed and mulched. Accordingly, there is no basis to change the Regional Administrators determination regarding the reasonableness of cost.
The Applicant provided information to support its claim that it had legal responsibility to remove disaster-related debris from three rental properties. The cost associated with this activity is $3,050. Debris removal from the other rental property and the unimproved and unmaintained parcel that was not listed as a city park at the time of the disaster remains ineligible.
CONCLUSION
I partially approve the Applicants appeal for $3,050. By copy of this letter, I am requesting the Regional Administrator take appropriate action to implement this determination.
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/
Elizabeth A. Zimmerman
Assistant Administrator
Disaster Assistance Directorate
cc: Major P. May
Regional Administrator
FEMA Region IV
Ruben Almaguer
Interim Director
Division of Emergency Management
2555 Shumard Boulevard
Tallahassee, FL 32399-2100
Re: Second AppealCity of Cape Coral PA ID 071-10275-00, Debris Removal,
FEMA-1539-DR-FL, Project Worksheets (PW) 5961, 6180 and 6183
Dear Mr. Almaguer:
This letter is in response to two letters from your office dated April 8, 2008, which transmitted the referenced second appeals on behalf of the City of Cape Coral (Applicant). The Applicant is appealing the Department of Homeland Securitys Federal Emergency Management Agencys (FEMA) decision to disallow some of the costs the Applicant incurred under a time-and-materials contract for debris removal and for removing debris from six ineligible locations. The amount in dispute is $856,786.
BACKGROUND
The Applicant used an existing time-and-materials contract to clear and mulch disaster-related debris on City-owned property following Hurricane Charley in 2004. The Applicant competitively bid the contract prior to the hurricane, and subsequently modified the contract to include disaster-related debris. The Applicant received reimbursement for its debris removal costs from FEMA via three project worksheets.
PW 5961 $862,490 for the Cape Coral Golf Course
PW 6180 $144,190 for city and other city-operated facilities; and,
PW 6183 $671,604 for 32 sites throughout the city.
FEMA disallowed a portion of the requested costs because the Applicant (1) used a time-and-materials contract beyond the 70-hour limitation (August 14, 2004 to November 23, 2004); (2) did not monitor the work performed under the contract; and (3) did not demonstrate that the costs were unreasonable. Specifically, FEMA denied $487,490 for PW 5691 because the Applicant could not document the number of trees and the volume of debris that the contractor removed. FEMA denied $60,190 for PW 6180 and $314,106 for PW 6183 because it determined that the Applicant removed debris from ineligible locations and the costs to remove debris from the eligible properties were unreasonable.
In first appeal letters dated December 14, 2005, the Applicant maintained that it was entitled to the disallowed funding because the work was required as a result of a declared event, was performed within the designated area, and was its legal responsibility. The Regional Administrator denied the first appeals (PW 5961 and October 29, 2007, and PWs 6180 and 6183 on November 7, 2007) because the Applicant did not provide documentation to substantiate the eligibility of the debris removal costs that FEMA had disallowed. In addition to the deficiencies in the contracting process, the Regional Administrator concluded that the Applicant had not provided new or additional information to establish both eligibility and reasonable costs of locations, times, or quantities of debris, as required by Federal regulations.
Second Appeal
In its second appeal letter dated February 8, 2008, the Applicant states that it competitively bid the debris contract prior to the disaster and that the exigencies of the situation made retention of its current contractor the best option for removing debris. The Applicant notes that it amended the contract to allow disaster-related debris removal debris. The Applicant notes that it amended the contract to allow reasonable. The Applicant acknowledges that it did not formally monitor the debris removal operations and record the quantities of debris that the contractor removed. The Applicant also states that it had legal responsibility for removing debris from the six ineligible locations (four rental properties, a water reclamation plant, and an un-maintained parcel of land).
Discussion
Federal procurement regulation (44 CFR §13.36, Procurement) and FEMA guidance documents require grant recipients to use competitive bid procedures to contract for goods and services. Noncompetitive procurements may be used only when it is infeasible to procure the goods or services under competitive procedures. The Applicant negotiated prices for debris removal activities with its existing maintenance contractor for the parks and recreation departments. FEMA considers this procedure to be a noncompetitive procurement. The Applicant did not provide any information that it used to determine that the negotiated prices were reasonable. In addition, the Applicant used a time-and-materials contract to accomplish the work. Federal regulations allow the use of time-and-material contracts only when no other contract is suitable and the contract includes a ceiling price that the contractor exceeds at its own risk. FEMA guidance further limits the use of time-and-material contracts to 70 hours for debris removal operations. Because the Applicant did not comply with Federal procurement requirements, FEMA must determine if the costs the Applicant requests for reimbursement are reasonable.
The Applicant did not provide FEMA any information to demonstrate that the requested costs reflected a reasonable level of effort for work the contractor performed. The Applicant did not adequately monitor the contract or quantify the amount of debris the contractor removed and mulched. Accordingly, there is no basis to change the Regional Administrators determination regarding the reasonableness of cost.
The Applicant provided information to support its claim that it had legal responsibility to remove disaster-related debris from three rental properties. The cost associated with this activity is $3,050. Debris removal from the other rental property and the unimproved and unmaintained parcel that was not listed as a city park at the time of the disaster remains ineligible.
CONCLUSION
I partially approve the Applicants appeal for $3,050. By copy of this letter, I am requesting the Regional Administrator take appropriate action to implement this determination.
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/
Elizabeth A. Zimmerman
Assistant Administrator
Disaster Assistance Directorate
cc: Major P. May
Regional Administrator
FEMA Region IV