Result of Declared Incident, Allowable Costs and Reasonable Costs

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4337
Applicant	Seminole County
Appeal Type	Second
PA ID#	117-99117-00
PW ID#	GMP 27317
Date Signed	2021-09-28T16:00:00

Summary Paragraph

Hurricane Irma caused damage throughout Florida from September 4 – October 18, 2017, and Seminole County (Applicant) suffered damage to its roads, shoulders, ditches, and signage along roadways (Facilities).  The Applicant requested $697,180.18 in Public Assistance (PA) funding for its force account labor, equipment, and other costs to repair the Facilities.  FEMA denied the request in a Determination Memorandum (DM), stating that it could only verify costs in the amount of $3,059.41.  FEMA explained that because this amount fell below the minimum project threshold of $3,100.00, the entirety of the project was denied.  The Applicant appealed on March 27, 2020, explaining that it had provided a great deal of information, but acknowledged it may have been organized in a confusing manner.  The FEMA Region IV Regional Administrator denied the appeal, finding the Applicant had not provided documentation or clarifying information to verify the eligibility of claimed damages, work, and costs.  On April 30, 2021, the Applicant filed its second appeal for a revised claim of $547,067.66.  It provides various clarifying documents and spreadsheets not previously submitted, explaining the work and cost eligibility.

Authorities and Second Appeals

• Stafford Act § 406(a)(1)(A).
• 2 C.F.R. § 200.403.
• 44 C.F.R. § 206.223(a)(1).
• PAPPG, at 19, 21-22, 116, 133.
• Grand Strand Water & Sewer, FEMA-4286-DR-SC, at 3.

Headnotes

• To be eligible, work must be required as a result of the declared incident.  The applicant is responsible for providing documentation to support its claim as eligible and show that work is required to address damage directly caused by the disaster. 
  • The Applicant has demonstrated that the requested work was a result of the disaster.
• Generally, costs must be directly tied to the performance of eligible work to be eligible for funding.  The Applicant is responsible for providing documentation to demonstrate its claimed costs are reasonable. 
  • The Applicant has demonstrated that $546,471.14 in costs are reasonable and adequately documented.  

Conclusion

The Applicant has demonstrated that the work and costs in the amount of $546,471.14 to repair the Facilities are eligible.  Accordingly, this appeal is partially granted.

Appeal Letter

Appeal Analysis

Background

Florida experienced flooding and damage as a result of Hurricane Irma from September 4 - October 18, 2017.  Seminole County (Applicant) requested $697,180.18 in Public Assistance (PA) to repair damage to its culverts, roads, fencing along roads, shoulders, ditches, and signage along roadways (Facilities), which were repaired using Force Account Labor (FAL) and Force Account Equipment (FAE).  On January 23, 2020, FEMA denied this request in a Determination Memorandum (DM), stating that it could only verify costs in the amount of $3,059.41, which were below the FEMA minimum project threshold, and therefore, the entire project was denied.[1]  FEMA noted the Applicant had not responded to two Requests for Information (RFIs) the Agency had issued to obtain missing information and documentation.  Therefore, FEMA found that because the Applicant had not provided documentation that supported the claimed damages or the performance of eligible work, it was unable to validate all claimed disaster-related damages, work, and costs for this project.

 

First Appeal

The Applicant submitted its first appeal to the Florida Division of Emergency Management (Grantee) on March 27, 2020, contending that the requested repairs should be eligible for PA funding.  The Applicant requested $697,180.18 in costs and argued that due to confusion at the project development stage, FEMA may not have properly reviewed the documents submitted by the Applicant.  It asserted that it had provided the requested damage information to FEMA and the documentation showed that the damages listed in the DM were fully documented as required by law and FEMA policy.  In a transmittal letter to FEMA dated May 26, 2020, the Grantee expressed support for the appeal. 

The FEMA Region IV Regional Administrator denied the first appeal in a March 3, 2021 decision.  FEMA noted it is an applicant’s responsibility to demonstrate costs are directly tied to the performance of eligible work, and reasonable and necessary to accomplish eligible disaster-related work.  FEMA determined, however, the Applicant had not provided documentation or clarifying information to verify the eligibility of claimed damages, work, and costs. 

 

Second Appeal

On April 30, 2021, the Applicant submitted its second appeal and revised the amount in dispute to $547,067.66.[2]  The Applicant states that it presented a damage inventory (Damage Inventory) to FEMA on December 22, 2017, which outlined 253 potential projects.  In support of its appeal, the Applicant provides the Damage Inventory, various spreadsheets and charts including a “Damages and Scope of Work” chart (to document what work was performed at each site, what materials/labor and equipment were used, and what supporting documents correspond to each site), as well as a “Cost Summary” chart, which further explain previously provided documents, and tables clarifying which documents supported which projects.  The Grantee concurred and forwarded the Applicant’s appeal to FEMA on June 30, 2021.

 

Discussion

Result of Declared Incident

FEMA may provide PA funding to a local government for the repair of a public facility damaged by a major disaster.[3]  To be eligible, work must be required as a result of the declared incident.[4]  The applicant is responsible for providing documentation to support its claim as eligible and show that work is required to address damage directly caused by the disaster.[5]  The burden to substantiate appeals with documented justification falls exclusively to the applicant and hinges upon the applicant’s ability to produce not only its own records, but to clearly explain how those records support the appeal.[6]

In its second appeal submission, the Applicant provides the Damage Inventory that lists each claimed site associated with this appeal, with locations and damage descriptions.[7]  It also submits the Damages and Scope of Work chart, which includes an itemized list of disaster-related damage locations, damage descriptions (consistent with information previously provided), the scope of work performed, as well as a catalogue of documentation provided to support disaster-related work.  The list detailing the supporting documentation for each site, which the Applicant included in the chart, helps explain how the voluminous documentation provided relates to each site in order to allow FEMA to verify the eligibility of disaster-related damages and work. 

The Briar Cliff Drive site serves as an example of how the documentation supports the Applicant’s claim.  The Damage Inventory specifies that at 214 Briar Cliff Drive, the hurricane caused damage that required emergency repair of the roadway for about 1 mile through repaving, placing 6 inches of asphalt base material and 1.5 inches of asphalt pavement.  The Damages and Scope of Work chart details that the road at that site was inundated with flood water, causing potholes that needed to be filled and repaired, which resulted in the repair of said potholes with asphalt.  The chart goes on to specify the force account labor, equipment, and materials used for the work, as well as the documentation that supports the eligibility of the work performed at the site (i.e., a site inspection form, Google Earth images, and work orders).  The predisaster Google Earth image of the site does not show damage, but the post-disaster image shows multiple areas of roadway damage and subsequent repairs consistent with the disaster-related work detailed in the Applicant’s supporting documentation. 

Accordingly, the Applicant has provided documentation supporting its claimed damages and demonstrating the eligibility of the work, including that the work was required as a direct result of the disaster.  

 

Allowable Costs and Reasonable Costs

To be eligible, costs must be directly tied to the performance of eligible work, adequately documented, and reasonable and necessary to accomplish the work.[8] 

The Applicant provided documentation clarifying its costs showing that they are tied to the performance of eligible work.  The Applicant included a “Damages and Completed Scope of Work” chart, which shows how many force account equipment and force account labor hours are tied to each project, as well as what materials were used and in what quantities, and a list of documentation provided to support the costs.  The Applicant provided work orders, which document in detail what employees performed what tasks, where, when, for how long, at what rate, and using what equipment.  In order to establish a basis of costs for equipment and materials utilized, the Applicant provided historic invoices detailing material unit rates, work orders detailing equipment used, and associated each piece of equipment with the appropriate rate from FEMA’s 2017 Schedule of Equipment Rates.  The Applicant’s claimed expenses are in line with the historic cost data and equipment rates provided on appeal.  FEMA determines that the Applicant adequately documented reasonable and necessary costs for the eligible disaster-related work.[9]

 

Conclusion

The Applicant has demonstrated that the work and associated costs to repair the Facilities, are eligible.  Accordingly, this appeal is partially granted in the amount of $546,471.40.[10]

 

[1] Per FEMA’s grants management system, the Applicant received notice of FEMA’s determination on January 27, 2020.

[2] In its second appeal letter, the Applicant states that it removed certain costs previously claimed as a result of a thorough analysis of costs and supporting documentation.

[3] Robert T. Stafford Disaster Relief and Emergency Assistance Act § 406(a)(1)(A), Title 42, United States Code § 5172(a)(1)(A) (2012).

[4] Title 44 Code of Federal Regulations (44 C.F.R.) § 206.223(a)(1) (2016); Public Assistance Program and Policy Guide, FP 104-009-2, at 19 (Apr. 1, 2018) [hereinafter PAPPG].

[5] PAPPG, at 19, 116, 133.

[6] FEMA Second Appeal Analysis, Grand Strand Water & Sewer, FEMA-4286-DR-SC, at 3 (Oct. 19, 2020).

[7] It does not appear that FEMA had possession of this Damage Inventory at the first appeal level as it is not included in the administrative record.  However, FEMA has verified that the Applicant initially identified and reported this damage to the Agency via the Applicant’s Agency-point of contact within 60 days of its Recovery Scoping Meeting, satisfying 44 CFR 206.202(d)(1)(ii).

[8] Title 2 Code of Federal Regulations § 200.403 (2017); PAPPG, at 21-22.

[9] The Applicant requested funding for 27 line items.  FEMA conducted a validation review using a 20 percent sampling, in accordance with the Public Assistance Div., Recovery Directorate, Office of Response and Recovery, PA Grant Program New Delivery Model Position Assist Stage 2, Document Validation Specialist, at 7

(Oct. 11, 2016).

[10] During the reconciliation of costs, FEMA found work performed on Apr. 19, 2018, was duplicated on the Work Order spreadsheet the Applicant provided for Crossover Lane.  This was reconciled by removing the duplicative costs, reducing the total funding by $596.26.