Net Small Project Overrun

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4301
Applicant	El Dorado (County)
Appeal Type	Second
PA ID#	017-99017-00
PW ID#	PW 6, 605, 676, 799
Date Signed	2023-02-28T17:00:00

Summary Paragraph

From January 3-12, 2017, severe winter storms, flooding, and mudslides caused damage in California. FEMA initially awarded small Project Worksheets (PWs) 6, 360, 605, 676, and 799 for El Dorado County’s (Applicant) emergency and permanent work. On June 11, 2020, FEMA partially approved a request from the Applicant to prepare a new version of PW 360, which resulted in an increase of the project cost estimate and PW 360 becoming a large project. Consequently, since PW 360 had been the Applicant’s last incomplete small project, the date that the Applicant completed its last small project ended up being December 17, 2018, which was the date that it completed the work on PW 6. On July 2, 2021, the Applicant submitted a NSPO appeal. The Applicant stated that after discussions with the California Governor’s Office of Emergency Services (Recipient), the beginning of the 60-day regulatory submittal deadline should be based on the date it received the obligation letter from FEMA authorizing conversion of PW 360 from a small project to a large project. The Applicant stated that it received that letter on June 2, 2021, hence its request was timely. On April 5, 2022, the FEMA Region IX Regional Administrator denied the first appeal as untimely. On June 10, 2022, the Applicant submitted a second appeal. The Recipient notes in its transmittal to FEMA that current FEMA policy does not account for a circumstance in which an applicant’s last incomplete small project is versioned into a large project.

Authorities and Second Appeals

• Stafford Act §§ 406(a)(1)(A), 422.
• 44 C.F.R. §§ 206.203(c)(2), 206.204(e)(2), 206.206.
• PAPPG, at 139.

Headnotes

• When an applicant discovers a significant overrun related to the total final cost for all small projects, it may submit an appeal for additional funding within 60 days following the completion of its last small project.
  • The Applicant could not have submitted the NSPO appeal within 60 days following the completion of its last small project because at that time it still had a incomplete small project, which was later converted to a large project. Instead, the Applicant submitted the NSPO appeal within 60 days of receiving notification that FEMA had authorized conversion of its last incomplete small project to a large project.

Conclusion

FEMA finds that the Applicant submitted a timely NSPO request/first appeal. Therefore, this appeal is granted.

 

Appeal Letter

Appeal Analysis

Background

From January 3-12, 2017, severe winter storms, flooding, and mudslides caused damage in California. El Dorado County (Applicant) requested Public Assistance (PA) funding for emergency protective measures and repairs to damaged facilities. FEMA initially awarded small Project Worksheets (PWs) 6, 360, 605, 676, and 799 for the Applicant’s emergency and permanent work.

On June 11, 2020, FEMA partially approved a request from the Applicant to prepare a new version of PW 360, which corrected for errors and omissions in the project’s scope of work, resulted in an increase of the project cost estimate, and PW 360 became a large project. The Applicant stated that it completed the work for PW 360 on July 22, 2020. FEMA later obligated an amended version of PW 360 as a large project on April 6, 2021. Since PW 360 had been the Applicant’s last incomplete small project when it was versioned to a large project, the date that the Applicant completed its last small project ended up being December 17, 2018, which was the date that it completed the work on PW 6.

First Appeal

On August 21, 2020, the Applicant submitted a net small project overrun (NSPO) request/first appeal, requesting an aggregate overrun of $22,624.41 for PWs 6, 605, 676, and 799. On

July 2, 2021, the Applicant resubmitted the NSPO appeal. The Applicant stated that after discussions with the California Governor’s Office of Emergency Services (Recipient), the beginning of the 60-day regulatory submittal deadline should be based on the date that the Applicant received the obligation letter from FEMA authorizing conversion of PW 360 from a small project to a large project. The Applicant stated that it received the letter on June 2, 2021, thereby making its request was timely. The Recipient transmitted the appeal to FEMA, recommending its approval.

On April 5, 2022, the FEMA Region IX Regional Administrator denied the appeal as untimely, finding that the Applicant completed work on its last small project on December 17, 2018. However, the Applicant did not submit its NSPO request/appeal to the Recipient until August 21, 2020, making the Applicant’s appeal untimely.

Second Appeal

On June 10, 2022, the Applicant submitted a second appeal, reiterating prior arguments. The Applicant requests an aggregate overrun amount of $22,670.62 for PWs 6, 605, 676, and 799. The Recipient transmitted the appeal to FEMA, recommending its approval. The Recipient notes that current FEMA policy does not account for a circumstance in which an applicant’s last remaining incomplete small project is versioned into a large project. The Recipient adds that it could not submit the Applicant’s NSPO appeal when it was initially received on August 21, 2020, because PW 360 was still an incomplete small project, pending version obligation by FEMA. The Recipient states that if it had submitted the NSPO appeal after the completion of PW 6, it would have been denied by FEMA, as PW 360 was still a small project at that time and was not yet completed. Alternatively, if it had submitted the request and excluded PW 360, the request still would have been denied by FEMA, as it would not have included all of the Applicant’s small projects.

 

Discussion

FEMA may provide PA funding for small projects to a local government for the repair of a public facility damaged by a major disaster on the basis of the Federal estimate.[1] When an applicant discovers a significant overrun related to the total final cost for all small projects, it may submit an appeal for additional funding in accordance with Title 44 of the Code of Federal Regulations § 206.206, within 60 days following the completion of its last small project.[2]

When the Applicant completed work on PW 6 on December 17, 2018, the work on PW 360 was not completed, so the Applicant could not submit the NSPO appeal at that time. In a letter received by the Applicant on June 2, 2021, FEMA authorized conversion of PW 360 from a small project to a large project. Subsequently, on July 2, 2021, the Applicant submitted an NSPO appeal. Since the Applicant submitted the NSPO appeal within 60 days of notification from FEMA authorizing conversion of PW 360 to a large project, then the Applicant’s NSPO request was timely.

 

Conclusion

FEMA finds that the Applicant submitted a timely NSPO request/first appeal. Therefore, this appeal is granted. FEMA Region IX will review the overrun request on its merits, to determine the eligibility of any additional funding.

 

[1] Robert T. Stafford Disaster Relief and Emergency Assistance Act §§ 406(a)(1)(A), 422, Title 42, United States Code §§ 5172(a)(1)(A), 5189 (2012); Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.203(c)(2) (2016).

[2] 44 C.F.R. § 206.204(e)(2); Public Assistance Program and Policy Guide, FP 104-009-2, at 139 (Jan. 1, 2016).