Appeal Brief

Summary Paragraph

Appeal Letter

Appeal Analysis

Background

On May 22, 2011, a catastrophic EF-5 tornado struck Joplin, Missouri.  The accompanying high winds and flying debris damaged Old South Middle School and the grounds outside the school, which were owned and operated by Joplin Schools (Applicant).  FEMA determined that the school and its grounds were more than 50 percent damaged and warranted replacement.  FEMA prepared Project Worksheet (PW) 1684 to address the replacement of the school,[1] and PW 488 to address the school grounds, specifically: chain-link fencing and gates, a concrete masonry unit and retaining wall, steel railing, a concrete ramp, gravel playground and parking areas, exterior school signage, a flagpole, benches, picnic tables, bike stands, basketball hoops and one pole, asphalt paving and base, parking wheel-stops, bollards, and parking signs. 

On July 5, 2012, the Applicant requested an improved project, seeking to rebuild Old South Middle School on a new site, and asked that PW 488 be written to fund exterior ground development at the new location.[2]  On August 6, 2012, FEMA approved the request and subsequently obligated PW 488 Version 1.[3]  It obligated Version 2 on October 11, 2012, to adjust some of the soft costs in the cost estimating format (CEF) project estimates.  After these adjustments, the funding for the improved project was capped at $195,322.00 before insurance deductions.  Missouri’s State Emergency Management Agency (Grantee) notified the Applicant of the obligation of the amended PW.[4]  It advised the Applicant that, if it wished to appeal the obligation, it had 60 days to do so.  It also advised the Applicant that any damage that was not previously identified needed to be reported to the Grantee in writing within 60 days after the initial visit.[5]

On June 30, 2014, the Applicant submitted a request to the Grantee seeking additional funding for what it called errors and omissions.[6]  It stated that it hired an architectural firm to compare drawings of Old South Middle School to the FEMA CEF estimate.  First, it stated that, in the CEF estimate for a retaining wall, its architectural firm had come up with a higher estimate “using consistent RSMeans costing with approved CEF add-on factors.”[7]  It attached a spreadsheet showing that its estimate was based on a different square footage for the wall, as well as different cost codes, unit prices, and CEF adjustments.  However, neither the request, nor the spreadsheet explained why these changes had been made. 

In addition to the changes in the retaining wall, it requested that the CEF use a different city adjustment factor drawn from 2011 Quarter 4, rather than the 2011 Quarters 2 factors that FEMA had used, which resulted in an increase of estimated costs for each CEF item.  Next, it stated that its construction management firm had recently completed two Kansas City area school projects that cost 24 percent lower[8] than comparable Joplin schools, and requested a funding increase of 17 percent to account for adverse economic conditions and a shortage of sub-contractors and labor.  Finally, it requested funding to cover a pro-rated share of its architectural firm’s review of the CEF.  In total, it requested an additional $232,974.68.

On August 7, 2014, FEMA denied the Applicant’s request as untimely, stating that the Applicant had 60 days from October 11, 2012, the date on which PW 488 Version 2 was obligated, to appeal the amount of the grant.[9]  Rather than appeal FEMA’s determination, the Applicant renewed its request for additional funding above the approved improved project cap at closeout.  Its request came in two letters dated April 6, 2016, and was nearly identical to the 2014 request.[10]  The Applicant’s arguments were the same, but used a smaller factor for CEF soft costs, bringing its total request down to $206,442.90.[11]

In response to these requests, FEMA prepared a determination memorandum on February 22, 2017.  It stated that the Applicant had 60 days from the obligation of PW 488 Version 2 to appeal the amount obligated.  It also noted that the improved project was capped at the amount associated with restoring the grounds to their predisaster design, but that the Applicant was requesting an amount which equaled the entire cost of the new school grounds.  Finally, it stated that the Applicant had not separated the actual cost of completing the original scope of work (SOW) from the cost to complete the improved project, and that these costs could not be tracked separately because of the alterations to the facility’s predisaster design.  Accordingly, these costs were determined to be ineligible.

In accordance with the determination memorandum, FEMA prepared PW 488 Version 3 with a final approved amount of $198,927.49.

First Appeal[12]

First Appeal Letter

The Applicant appealed FEMA’s determination in a letter dated April 20, 2017.  First, the Applicant stated that, when PW 488 was being formulated, FEMA would prepare a draft PW with a SOW and estimated costs, and then give the Applicant five business days to propose revisions.  FEMA would then take the Applicant’s revisions and create a new draft, which the Applicant would again have five business days to review.  It asserted that this was an unattainable and unfair timeline for analysis, and that it found it difficult to participate in the formulation of the PWs when completion of the replacement school facility was its priority.  It stated that it believed at the time that the SOW was not correct, but believed that FEMA would continually amend the PW through closeout.  The Applicant also clarified that the requested increase in funding related only to the original replacement project, and not the improved school that it ultimately built. 

The Applicant argued that it was not required to appeal the obligated PW if it disagreed with the obligated amount, but rather, all it needed to do was request a new PW version at some later point.  It pointed to provisions in FEMA’s Public Assistance Guide (PA Guide) that instructed applicants to request changes at the point in the grant process where the change is identified, or when the need for additional funding is discovered.  It argued that it could not have made the request until its architectural firm had completed its review.  It argued that FEMA had informed it that it could continue to request revisions to the PW, and attached an email exchange in which it asked a FEMA employee the following:

I understood you to say a project could be declared an Improved Project and a subsequent Request for Version Change could be approved for any error or omissions or single line item within that PW, including approval of this scenario: a version change to the PW line item estimate of cost/sq ft, if competitive bid costs come in higher than the estimate listed in the PW.  Is this correct?[13] 

The FEMA employee responded, “If the cost per square foot is related to approved FEMA scope and in line with appropriate codes and standards, your statement is correct.”[14]  On May 2, 2017, the Grantee forwarded the Applicant’s appeal to FEMA without a recommendation.

Final Request for Information

On August 8, 2016, FEMA sent the Applicant and Grantee, a final request for information (Final RFI), first noting that the Applicant had submitted over 3,000 pages of documents that were unindexed and unnumbered, with multiple duplicates.  The Final RFI stated that it was unclear which, if any, of the documents supported the Applicant’s claims.  Accordingly, it stated that FEMA was returning the exhibits so that they could be identified and their relevance could be explained.  It noted that this first appeal involved issues similar to the appeals of PWs 575, 1438, 1980, 1336, 1684, and 1799, and stated that the administrative records of those various PWs had also been examined and were incorporated by reference.

Next, with respect to the claimed errors and omissions, the Final RFI requested that the Applicant provide the total actual costs of the improved project, and the separately tracked expenses associated only with the eligible original project.  It requested that the Applicant give specific reasons why 2011 Quarter 4 data and increased CEF cost adjustment factors should have been used, other than the desire for the same factors to be used in this project as were used in another project.  It requested specific reasons why any part of the CEF that FEMA used was erroneous, and asked for documentation supporting its claim for increased cost escalation factors.  It requested documentation demonstrating that the Applicant filed an appeal after any one of a list of events that took place regarding PW 488. 

The Applicant responded to the Final RFI in a letter dated September 5, 2017.  With respect to the higher costs for the retaining wall, it stated that the explanations, justifications, and calculations it relied upon were included in its prior letters.  Regarding specific CEF factors alleged to be erroneous, the Applicant contended that the building’s location in a residential neighborhood meant that there would not have been a place to stage equipment and materials, and that the CEF factors needed to be increased to account for those issues.  It argued that its cost escalation request was supported because contractors and sub-contractors that would have been used for the project were from out of town or state, and therefore additional expenses would have been incurred.  Additionally, the construction boom following the tornado damage drove costs up, justifying higher CEF factors.  It argued that it was not claiming costs for any additional damages, but only changes to the original SOW, but it also stated it was claiming costs for errors and omissions not previously included in the SOW.[15]  It acknowledged that it had not previously filed any appeals regarding this PW.

First Appeal Decision

On November 30, 2017, FEMA’s Region VII Regional Administrator (RA) denied the first appeal.  The first appeal decision first noted that the Applicant has the responsibility to identify all eligible work and submit costs for funding within 60 days from the first substantive meeting.  The RA determined that the Applicant should not have assumed that it could continue to seek additional money through closeout, particularly given that the school was demolished before it made its request, eliminating any opportunity for FEMA or the Grantee to conduct an inspection.  Regarding the Applicant’s allegation that it did not have time to review the SOW in the PW properly, the RA noted that the Applicant had spent considerable time identifying and validating costs for the school prior to PW obligation, and had expressed during its weekly meetings with FEMA that the PW formulation process was going well.  Moreover, the RA found that the Applicant was sufficiently confident in its damage assessment to reach a settlement with its insurer before the obligation of the PW.

The RA explained that the items of work and costs in question were not “newly discovered” during the course of performing eligible work.  The Applicant was aware of the need to report the extent of damage for which it was seeking funding, and it failed to identify all eligible work and submit all costs.  Contrary to the Applicant’s assertion, the RA determined that the Applicant was required to obtain approval whenever a change in the SOW or the need for additional funds was anticipated.  Moreover, if the Applicant did not agree with the approved cap, it was required to appeal within 60 days, and could not intentionally delay informing FEMA that it intended to seek additional funding.[16]  Regarding the email exchange that the Applicant attached to its first appeal, the RA stated that FEMA did not give wrong advice because, at no time during the grant process, did the Applicant make a request for a budget revision based on a bid that came in higher than estimates.  The Applicant’s inquiry to FEMA did not address requests for SOW increases late in the process.[17]

The RA found that it was incumbent upon the Applicant to make its request during the grant process before the grant was awarded, rather than wait until 2014 to seek a budget revision.  The RA also noted that an increase to the funding cap was not available as a cost overrun, as the work described in the PW was not actually done and improved projects are not closed out based on actual costs.  The Applicant’s additional costs were based on a CEF review by an architectural firm using a “virtual build” of the school, but the Applicant failed to provide documentation showing that the original estimates were incorrect.  It noted that the time for adjusting the SOW was when the improved project was written, not much later during closeout. 

Regarding the CEF estimate, the RA noted that it had addressed this issue at length in prior similar appeals.[18]  Those appeal decisions found that because nationwide, rather than local, data was used, an adjustment factor was applied.  RSMeans releases the adjustment factors quarterly.  Following its standard practice, FEMA applied the adjustment factor that was published at the time that the estimate was created.  There was no reason to go back and change this factor simply because a different number was used in a separate CEF for an unrelated PW that was prepared at a later date.  The RA also rejected the Applicant’s argument that Kansas City should have been used in determining the city adjustment factor, given that there was an adjustment factor published for the City of Joplin.   Regarding CEF cost escalation factors, the Applicant had failed to establish why FEMA’s estimate was incorrect or explain how it came up with different numbers.  Regarding the requested 17 percent cost increase, the RA determined that the Applicant had failed to provide any documentation to support such an increase.

Regarding the specific claim that the CEF factors failed to consider the residential location of the school, the RA found that this was a matter clearly determinable at the time the original project was written, as well as when the improved project was approved and obligated.  The RA noted the Applicant’s consistent attempt to shift the burden to FEMA for identifying, documenting, and reporting damage, and explained that it is the Applicant’s responsibility to ensure that all damages, work, and costs are reflected in the PW.  Accordingly, the RA denied the first appeal.

Second Appeal

The Applicant filed a second appeal in a letter dated January 18, 2018.  It argues that its procedure of having its architectural firm review drawings was appropriate to evaluate the estimates for the project.  It reiterates is prior assertion that it was not given enough time to review the PWs, and found it difficult to participate in the PW formulation while trying to restore school operations.  It argues that PWs may be continually amended up until final closeout. It acknowledges that FEMA’s PA Guide states that if an applicant believes eligible costs exceed the original estimate, the amount of the grant can be appealed, but argues that this does not require a formal appeal, only a request for an amendment to the PW.  It clarifies that the additional funding it requests relates only to the eligible repair project, not the improvements.

The Applicant argues that it could not have made the request earlier because the information was not available until its architectural firm completed its analysis of the CEF.  It also argues that it believed it could continue to request revisions to the PW based on advice it received from a FEMA employee, and again references the email exchange it included with its first appeal.

The Grantee forwarded the Applicant’s second appeal in a letter dated January 24, 2018.

Discussion[19]

Errors, Omissions, and Architectural Review

FEMA provides Public Assistance (PA) funding for work to restore damaged eligible facilities to their predisaster design, function, and capacity in accordance with applicable codes and standards.[20]  It is the applicant’s responsibility to identify and report all damage and submit all costs for disaster-related funding.[21]  The applicant has 60 days from the first substantive meeting, usually the kickoff meeting, to provide this information.[22]  Failure to report damage within the required timeframe can jeopardize funding.[23]  If an applicant discovers hidden damage, additional work that is necessary to complete a project, or costs that are higher than estimated, the applicant should notify the state as soon as possible.[24]  It should not be assumed that such costs can be reported at the end of the project and that additional funds will be approved.[25]  The timing must be such that the newly claimed damage can be inspected before it is covered up or repaired.[26]  Federal regulations require that an applicant must obtain FEMA’s prior approval whenever it is anticipated that additional funding or any revision of the scope of the project will be required.[27] 

When performing permanent restoration work, if an applicant decides to make improvements to the facility while still restoring its predisaster function, it may request an improved project.[28]  It must obtain this approval prior to the start of construction.[29]  PA funding for improved projects is limited to the costs that would be associated with repairing or replacing the damaged facility to its predisaster design.[30]  This limit represents a funding cap, and the balance of the funds required to complete the project is the applicant’s responsibility.[31]  If an applicant believes that eligible costs exceed the estimate, and those costs can be tracked and documented separately from the improvements, then the applicant may appeal the amount of the grant.[32] 

There are certain instances where FEMA may adjust the funding cap of an improved project for errors and omissions, for example, where additional costs are necessary to complete the original SOW,[33] when the applicant demonstrated that the PW underestimated the costs required to complete the original SOW,[34] or where it was later discovered that the PW’s CEF contained a calculation error.[35]  However, FEMA has denied requests to adjust funding caps in situations where the additional funding requested was associated with work FEMA did not approve,[36] the costs were inappropriate to the original SOW,[37] the work was not required as a direct result of the disaster,[38] or when the applicant should have been aware of damage but did not report it until it was too late for FEMA to perform an inspection.[39]

While the Applicant has characterized its request as a correction of “errors and omissions,” it actually seeks funding for an architectural firm’s review of the CEF and a higher cost for a retaining wall.  This is not a situation where the Applicant discovered hidden damage during the performance of eligible work.  The additional architectural review was never determined to be eligible work.  While the Applicant has maintained that it did not need to inform FEMA that it was commissioning an architectural review of the CEF, FEMA’s regulations required the Applicant to obtain prior approval for additional work.[40]

This was also not a situation where the Applicant demonstrated through bids or some other documentation that the CEF underestimated costs associated with an eligible item of work.  The higher funding requested for the retaining wall was based on different cost codes, different square footages, and different unit costs.  Any challenge to the retaining wall described in the CEF needed to be raised when detailed measurements could be taken, but instead, the Applicant accepted the CEF’s description until 2014.  Moreover, it did not provide any documentation showing that the CEF underestimated unit prices, used incorrect cost codes, or underestimated the required amount of materials.  The Final RFI requested that the Applicant provide any source documentation or data for how it arrived at its revised figures, but the Applicant only provided the letter that it previously submitted, which simply stated that its architectural firm had arrived at different numbers.  Without additional justification, the Applicant did not provide any basis for the RA to increase funding.

It was incumbent upon the Applicant to identify all of the additional work and costs before it agreed to a funding cap, which it knew represented the limit of available federal funding for the project.  All of the facts upon which its request was based were available to the Applicant at the time that it agreed to the funding cap.  While the Applicant argues that it could not have made the request for additional funding until it received a report from its retained architectural firm, this argument is unpersuasive.  The Applicant states that, during the process of formulating PW 488, it believed that there were additional damage and costs not identified in the CEF, and it knew that it intended to seek additional money.  However, it did not previously inform FEMA that it needed additional time for an architectural firm to review the project, nor did it justify its decision not to involve its architects earlier in the process.  It argues that FEMA did not give it enough time to review the formulated SOW, but the administrative record does not demonstrate that it sought additional time or informed FEMA that it believed additional work or costs needed to be identified.  On the contrary, it acknowledges in its second appeal that it did not request revisions to the PW because it was eager to begin construction and FEMA had made it clear that the improved project needed to be approved prior to construction commencing.  The Applicant could not avoid the timeframe for reporting the need for additional funding by delaying taking the measures required to identify the additional work or costs.

The Applicant argues that it relied upon the email from a FEMA employee discussed above for its belief that it could continue to expand the SOW even after the funding had been capped.  A review of this email exchange, however, shows that such reliance was unreasonable.  The Applicant asked a very specific question: whether FEMA would approve additional funding if competitive bids for an item of work came in higher than estimated in the PW.  FEMA responded that additional funding could be approved if the higher cost was related to an approved SOW.  This was a correct statement of FEMA’s practice, and as noted above, FEMA has previously approved cap increases in such circumstances.  In this email exchange, FEMA did not tell the Applicant that it would later fund new work that was not previously approved, nor that it would approve additional costs that were not based on documentation such as higher bids.

In light of the foregoing, it was unreasonable for the Applicant to expect that FEMA would approve a substantial increase in funding in 2014 when it first made the request, much less at closeout in 2016.  When FEMA obligated the PW, the Applicant knew that the funding was capped and if it believed additional funding was eligible, it needed to inform the Grantee and FEMA as soon as practicable.  Here, it failed to do so.  Moreover, the requests for increased costs associated with the approved SOW were not substantiated by documentation.  Therefore, the RA properly denied the first appeal with respect to the claimed errors and omissions.  

CEF Factors

The CEF provides a uniform method of estimating costs for large projects.[41]  The first part of the CEF is Part A, and it is designed to capture the detailed construction costs required to complete the eligible SOW.[42]  These base costs can be derived from cost estimating resources, such as RSMeans.[43]  When using national industry standard cost data, city cost indices are used to adjust national unit prices to the nearest city.[44]  Then, a series of factors (Parts B through H) are applied that represent potential additional eligible project costs that can reasonably be expected to be incurred because they are usually encountered during the course of a construction project.[45]  It is the applicant’s burden to substantiate its appeal.[46]

In its second appeal, the Applicant does not directly address FEMA’s first appeal analysis regarding the CEF factors, although it attaches copies of the arguments it raised previously.  Specifically, the Applicant claimed that RSMeans data should have been drawn from 2011 Quarter 4 data, rather than from Quarter 2, and the Part A cost estimate should have been increased by an additional 17 percent because of cost escalations. 

These requests were without merit.  First, the RA properly found that the Applicant had not demonstrated that 2011 Quarter 4 data should have been used.  Those numbers were unavailable when the estimate was originally created, and the Applicant has not provided any documentation showing that the estimate was inaccurate.  The Applicant argued that FEMA used the 2011 Quarter 4 data in the CEF for another project, but the RA correctly rejected this argument because that other CEF was created after the 2011 Quarter 4 data became available, and thus has no bearing on whether the CEF for PW 488 was properly created.

Second, the RA correctly determined that the Applicant had not substantiated its request for a 17 percent increase in funding.  The Applicant provided no basis for this increase other than to say that its construction company had recently completed a different project in a different city at a lower cost.  This was not a sufficient reason to adjust the CEF.  Accordingly, the Applicant did not demonstrate that any changes in the CEF factors were justified.

Conclusion

The RA properly determined the Applicant’s request for additional funding for work outside the approved SOW, as well as higher costs associated with items in the approved SOW, was ineligible because the Applicant failed to identify new work and request additional funding in a timely manner.  Moreover, the Applicant did not substantiate its claim that the project’s CEF was incorrect or the estimate was improper.  Accordingly, this second appeal is denied.