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Request for Time Extension

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster1604-DR-MS
ApplicantHancock County Water & Sewer District
Appeal TypeSecond
PA ID#045-030A8-00
PW ID#4605
Date Signed2014-05-28T00:00:00

Conclusion:  After being granted multiple time extensions to complete alternate projects using funding from a Project Worksheet, the Applicant successfully completed the projects as contemplated in their scopes of work; therefore, the Applicant’s subsequent time extension request, which came more than seven months after the final approved project completion date, was properly denied by the Regional Administrator.

Summary Paragraph

FEMA prepared Project Worksheet (PW) 4605 to document the estimated costs of repairing a Hancock County Water & Sewer District (Applicant) well and associated equipment damaged by Hurricane Katrina in 2005.  Having obtained an alternate potable water source for those affected by the loss of the well, the Applicant decided to apply the funds toward alternate projects and requested and received multiple time extensions in order to complete the projects.  Nearly seven months after the last project completion date approved by FEMA, the Applicant submitted another time extension request, stating that a clerical error caused it to delay seeking a further time extension request on time and that it had not been informed until a month before the final project completion date that additional funds were available.  The Applicant intended to apply the newly discovered funding toward an expansion of one of the completed alternate projects.  The Regional Administrator denied the request, and the Applicant filed a first appeal asserting that its time extension request should be accepted.  The FEMA Region IV Regional Administrator denied the appeals, noting that the Applicant had completed its alternate projects and that the request was not submitted on time. 

Authorities and Second Appeals

  • 44 C.F.R. § 206.204(c)
  • 44 C.F.R. § 206.204(d)(2)
  • FEMA-1604-DR-MS, Hancock County Board of Supervisors, Time Extension (June 21, 2012)
  • FEMA-1008-DR-CA, Los Angeles Brotherhood Crusade, African American Unity Center (Aug. 13, 2009)

Headnotes

  • Under 44 C.F.R. § 206.204(c)(2)(ii), a permanent work project must be completed within 18 months of the applicable major disaster or emergency declaration.  A Grantee may extend this deadline for 30 months if warranted by extenuating circumstances or unusual project requirements beyond the subgrantee’s control. 
  • Under 44 C.F.R. § 206.204(d)(2), any time extension requests beyond the Grantee’s authorized extension must be submitted to the Regional Administrator and include a detailed justification for the delay and a projected completion date.  If the Regional Administrator approves a request, the approval letter will reflect the approved completion date and any other requirements necessary to ensure that the new completion date is met.  If the Regional Administrator denies the time extension request, reimbursement for eligible project costs is available for costs incurred only up to the latest approved completion date.


 

Appeal Letter

May 28, 2014

Mr. Robert Latham, Jr.
Executive Director
Mississippi Emergency Management Agency
220 Popps Ferry Road
Biloxi, Mississippi  39531

Re: Second Appeals—Hancock County Water & Sewer District, Request for Time Extension, FEMA-1604-DR-MS, Project Worksheet 4605

Dear Mr. Latham:

This is in response to a letter from your office dated December 9, 2013, which transmitted the referenced second appeal on behalf of the Hancock County Water & Sewer District (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency (FEMA) denial of its request for an additional time extension on an alternate project.

As explained in the enclosed analysis, the Applicant requested and was granted multiple time extensions to complete alternate projects using funding from a Project Worksheet (PW) written to document the costs of replacing a well and associated equipment.  The Applicant successfully completed these projects as contemplated in their scopes of work.  Nevertheless, the Applicant submitted another time extension request, more than seven months after the final approved project completion date, after learning that funding remained available in the PW.  In light of the delay and the Applicant’s successful application of funds as originally planned, the Regional Administrator properly exercised his discretion in denying the additional time extension request.  Accordingly, I am denying this appeal.

Please inform the Applicant of my decision.  This determination constitutes the final decision on this matter pursuant to 44 C.F.R. § 206.206, Appeals.

Sincerely,

/s/

William W. Roche
Director
Public Assistance Division

Enclosure

cc: Major P. May
     Regional Administrator
     FEMA Region IV

Appeal Analysis

Background

In August 2005, tidal surge from Hurricane Katrina (FEMA-DR-1604-MS) damaged a well and related equipment operated by the Hancock County Water & Sewer District (Applicant) that served a residential development near Bay St. Louis, Mississippi.  FEMA prepared Project Worksheet (PW) 4605 to document the costs of replacing the well and associated equipment.  The Applicant obtained another potable water source and, therefore, decided to apply the funds toward an alternate project.  After a federal cost share adjustment to account for PW 4605 to be applied toward an alternate project, the PW was obligated for $621,656.25.

In a letter dated October 9, 2007, the Mississippi Emergency Management Agency (Grantee) granted a time extension for work under PW 4605, based on the Applicant’s assertion that higher-priority projects required more immediate attention.  The deadline for completion was extended by the Grantee until December 31, 2007.  Later, the Grantee granted another time extension request, extending the deadline for completion until August 28, 2009.

In a letter dated May 29, 2008, FEMA approved a request to combine the alternate project funding from PW 4605 with improved project funding from PW 943 and PW 1514, to be applied toward the improved portion of a project for a new administration and maintenance building, with any remaining funds applied toward other infrastructure improvements within the Applicant’s district.  Version 3 of PW 4605 documents this alternate project and application of funding.

The Applicant requested an additional extension until August 31, 2010 in a letter dated June 29, 2009, stating that construction had not started but that contracts would be awarded on July 10, 2009.  In a letter dated December 1, 2009, the FEMA Region IV Regional Administrator granted a time extension on 270 projects under FEMA-1604-DR-MS, including PW 4605, that encountered delays relating to obtaining approvals for improved, alternate, or permanent relocation projects. 

In early 2010, FEMA revised PW 4605 to account for insurance proceeds, reducing the PW’s total obligated amount to $595,406.25.  PW 4605’s alternative project scope of work also was revised (in Version 5 of the PW) to apply remaining funds toward a force main extension project that would provide sewer service to additional residents.

The Applicant requested an additional extension in a letter dated August 4, 2010, seeking a new project deadline of August 31, 2011.  The Applicant explained that the new alternate project for which PW 4605 funds were to be applied, the sewer extension project, was delayed while other municipalities completed water projects.  With the municipalities’ projects completed, the Applicant stated, it needed time to complete the sewer extension.  The Regional Administrator granted the Applicant’s request in a letter dated September 14, 2010.

In a letter dated March 13, 2012, nearly seven months after expiration of the last approved time extension, the Applicant requested an additional extension until December 31, 2012.  The Applicant asserted that a clerical oversight caused the delay in requesting a further extension prior to the August 31, 2011 project completion deadline.  The Applicant also asserted that it was “not informed that funds were available until July 25, 2011 to complete this project,” citing an email from a Grantee representative forwarding a Grantee PA-9 Summary of Documentation form indicating that $105,746.75 remained available under PW 4605.  The Applicant stated that construction plans had been completed and that “the final step before advertising to bid is for this time extension request to be granted.” 

The Regional Administrator denied the request in a letter dated June 22, 2012, noting that the Applicant’s assertion that a clerical oversight caused it to delay requesting an extension until well beyond the expiration of the last extension was not compelling.  The Regional Administrator also recounted that the Applicant’s alternate project had been approved in 2008 and was thereafter amended for costs and a scope of work change in subsequent years.  The Regional Administrator also explained that, in the Applicant’s previous time extension request, it had stated that work associated with the alternate project would be completed by August 31, 2011.

First Appeal

The Applicant submitted a first appeal in a letter dated July 26, 2012.  The Applicant reiterated its contention that it was not aware funds remained under PW 4605 until approximately 30 days before the projects’ deadline and, therefore, the funds could not have been used before the deadline.  The Applicant again asserted that a clerical oversight caused it to not file a timely request for a further time extension.  It again cited the email from the Grantee and the PA-9 Summary of Documentation form indicating a $105,746.75 balance in available funds under PW 4605.  The Applicant stated that construction plans were complete and that it was prepared to advertise to bid on the expanded project but stopped after the deadline had passed.

The Regional Administrator issued a decision denying the appeal dated August 16, 2013.  According to the decision, the Applicant had completed the work on the administration and maintenance building as well as the sewer extension (as described in the approved scope of work under PW 4605) prior to expiration of the second time extension granted by FEMA.  The decision explained that only after the Summary of Documentation was completed for approved work, showing that additional funds were available, did the Applicant start developing plans to utilize the additional funds to further extend the sewer line.  The Regional Administrator concluded that the Applicant’s final request for a time extension was based simply on a desire to identify new projects for which the funding could be applied.

Second Appeal

The Applicant submitted a second appeal to the Grantee in a letter dated October 16, 2013.  Through it, the Applicant reiterates the assertion that it was not informed that $105,746.75 remained available under PW 4605 “until 35 days before the project deadline.”  The Applicant states that, had it been informed earlier, it would have used the funds to complete the expanded sewer extension project.  The Applicant asserts that it requested, numerous times, to know the balance of funds available under PW 4605, and that it was told incorrect amounts that were below the actual available amount.  The Applicant again requests an extension of six months to complete work that it states is in progress.

The Grantee transmitted the second appeal to the FEMA Region IV Regional Administrator in a letter dated December 9, 2013.  The Grantee supports the appeal, stating that “the Applicant, in good faith, believed that the cost associated with the work it had completed would equal or exceed the funding approved,” and that is why the Applicant failed to make a timely time extension request.  According to the Grantee, when the Applicant “learned its cost[s] incurred were less than the funding approved, it initiated efforts to further the [sewer] expansion project.”  The Grantee asserts that the work the Applicant seeks additional time to complete “is within the stated intent of the alternate project’s previously approved scope of work.”

Discussion

Under Public Assistance Program project performance regulations, a permanent work project must be completed within 18 months of the applicable major disaster or emergency declaration.[1]  A Grantee may extend this deadline for an additional 30 months if warranted by extenuating circumstances or unusual project requirements beyond the control of the subgrantee.[2]  Any time extension requests beyond that point must be submitted to the Regional Administrator and include (1) the dates and provisions of all previous time extensions on the project, and (2) a detailed justification for the delay and a projected completion date.[3]  The Regional Administrator responds in writing.  If the Regional Administrator approves the request, the approval letter will reflect the approved completion date and any other requirements the Regional Administrator determines is necessary to ensure that the new completion date is met.[4]  If the Regional Administrator denies the time extension request, reimbursement for eligible project costs is available for “costs incurred only up to the latest approved completion date.”[5]  Furthermore, “[i]f the project is not completed, no Federal funding will be provided for that project.”[6]

In this case, the Regional Administrator correctly exercised his discretion in denying the Applicant’s request for an additional time extension.  The Applicant has failed to provide adequate justification for its request or an explanation of why it submitted the request nearly seven months beyond the expiration of the last approved project completion date.

The Applicant requested a total of four time extensions for PW 4605, three of which were granted.  In 2009, the Applicant submitted a time extension request just before construction contracts on the administration and maintenance building project were to be bid.  A year later, the Applicant submitted another time extension request related to the sewer extension project, which had been delayed while related projects from other municipalities were being completed.  FEMA granted both of these extensions, and the Applicant was able to complete work on both the administration and maintenance building and the sewer extension as described in the projects’ approved scope of work.  The Applicant, therefore, succeeded in applying alternate project funds from PW 4605 as intended.

The last approved project completion date was August 31, 2011.  The Applicant requested an additional time extension nearly seven months later, seeking to apply $105,746.75 in unexpectedly remaining PW 4605 funds toward further expansion of the sewer beyond what was contemplated in the approved scope of work.  The Regional Administrator properly exercised his discretion in denying this request, given that the Applicant had been granted multiple extensions years after the disaster event,[7] had accomplished its original project goals, and had submitted its request well beyond the final approved project completion date.  Moreover, the Applicant’s assertion that a clerical oversight caused the nearly seven-month delay in submitting the request is not compelling.  The Applicant states that it was informed about additional funds being available on July 25, 2011, more than a month before the final August 31, 2011 deadline.  The Applicant, therefore, had time to submit a time extension request or inquire about the use of those funds before the final deadline.

Conclusion

The Applicant requested and was granted multiple time extensions to complete alternate projects using funding under PW 4605.  The Applicant’s final time extension request came more than seven months after the final approved project completion date and was sought in order to apply additional PW 4605 funding toward an extension of one of the completed alternate projects.  In light of the delay and the Applicant’s successful application of funds as originally planned, the Regional Administrator properly exercised his discretion in denying the additional time extension request.

[1]  See 44 C.F.R. § 206.204(c)(1).

[2]  See 44 C.F.R. § 206.204(c)(2)(ii).

[3]  See 44 C.F.R. § 206.204(d).

[4]  See 44 C.F.R. § 206.204(d)(2).

[5]  Id.

[6]  Id.

[7]  See, e.g., FEMA-1604-DR-MS, Hancock County Board of Supervisors, Time Extension (June 21, 2012) (denying additional request for time extension on three project worksheets, where FEMA had previously granted an extension request); FEMA-1008-DR-CA, Los Angeles Brotherhood Crusade, African American Unity Center (Aug. 13, 2009) (denying additional request for time extension on project, where more than fifteen years had elapsed since disaster event and more than five years had elapsed since last approved extension).