Time Limitations/Extensions

Appeal Brief

Summary Paragraph

As a result of severe storms and flooding, FEMA awarded Project Worksheet (PW) 364 on August 26, 2010, approving $1,351.31 in costs associated with investigating the extent of damages to the Village of Warwick’s (Applicant) underground drainage system (conducted in May 2010), and $29,366.84 in costs associated with work to be completed, installing a new concrete box culvert and completing road and sidewalk repairs.  The 18-month permanent work period of performance (POP) deadline was October 16, 2011.  In July 2016, the Applicant requested a time extension to the project’s POP deadline to December 31, 2016.  It contemporaneously requested a change in the scope of work (SOW), replacing 300 additional linear feet of the concrete box culvert and installing nine drainage structures, based on newly discovered additional damages.  FEMA denied the time extension request on the basis the Applicant had not justified why it had neither commenced nor completed the approved SOW within the original POP deadline or within the six years since the disaster.  FEMA denied the request to change the SOW on two grounds: (1) both the incomplete original approved permanent repair work, as well as the new requested work, were outside the POP deadline; and, (2) the Applicant did not demonstrate the newly claimed damages were the direct result of the disaster.  Thereafter, FEMA deobligated all previously awarded funding.  On first appeal, the Applicant noted the repair of the drainage system covered by the original approved SOW had been completed in November 2016, with grant funds applied to reimburse the costs.  It requested reinstatement of the deobligated funding pursuant to section 705(c) of the Stafford Act.  In the first appeal decision, FEMA reinstated $1,351.31 in costs related to investigating the disaster-related damages as that work was completed before the POP deadline.  But $29,366.84 in costs associated with permanent repair work that was both started and completed outside the POP deadline, were ineligible for funding.  Regarding section 705(c) of the Stafford Act, FEMA determined it was not barred from recovering the previously awarded funding as the purpose of the grant was not accomplished.  On second appeal, the Applicant states the New York State Division of Homeland Security and Emergency Services granted a 30-month retroactive time extension to April 16, 2014.  The Applicant requests FEMA waive the administrative condition that a project must be completed within POP deadline under section 301 of the Stafford Act.  It lists multiple reasons for the delay in completing permanent repairs, including subsequent disasters, newly discovered additional damages, and a lost PW.

Authorities and Second Appeals

• Stafford Act §§ 301, 406(a)(1)(A), 705(c).
• 44 C.F.R. §§ 13.30(d)(1), 13.43(a)(2), 206.204(c)-(d).
• PA Guide, at 110, 138-140.
• Nashville-Davidson Cnty., FEMA-1909-DR-TN, at 4.

Headnotes

• 44 C.F.R. § 206.204(d)(2) provides that if FEMA denies a time extension request, the applicant may still be reimbursed for eligible project costs, but only those incurred up to the latest approved completion date.
  • The Applicant completed the original approved $29,366.84 in repair work after the latest approved project completion date, and so those costs are not eligible for reimbursement.
• Stafford Act § 301 provides that FEMA may also, if so requested by an applicant, modify or waive, for a major disaster, such administrative conditions for assistance as would otherwise prevent the giving of assistance under such programs if the inability to meet such conditions is a result of the major disaster.
  • The Applicant has not demonstrated the failure to complete the permanent repair work within the POP was a result of this disaster.

Appeal Letter

Appeal Analysis

Background

On April 16, 2010, the President declared a major disaster for severe storms and flooding that impacted the Village of Warwick (Applicant).  As a result of the disaster, on August 26, 2010, FEMA awarded Project Worksheet (PW) 364 as a permanent work project.  It approved: (1) $1,351.31 in costs associated with an exploratory investigation conducted in May 2010 to determine the full extent of damages to the Applicant’s underground drainage system; and, (2) $29,366.84 in costs associated with work to be completed, installing a new concrete box culvert totaling 101 linear feet (LF) and completing road and sidewalk repairs in the vicinity.

Six years later, in July 2016, the Applicant submitted a time extension request to extend the period of performance (POP) deadline for PW 364 to December 31, 2016.  The Applicant based the request on the assertion it discovered additional damages when it was preparing to complete the previously approved repairs.  In conjunction with the time extension request, the Applicant also contemporaneously requested a change to the scope of work (SOW) to include work associated with extensive deterioration not initially recorded.  As documented in FEMA’s Public Assistance (PA) grants management database, the Applicant sought approval to construct a new concrete box culvert totaling 420 LF (an increase of 319 LF from the originally approved culvert) and install nine drainage structures.  The New York State Division of Homeland Security and Emergency Services (Grantee) concurred with both requests in a supporting memorandum and letter, dated September 7, 2016 and September 30, 2016, respectively.

FEMA denied both the time extension and change in SOW requests, on August 17 and September 23, 2017, on the basis the Applicant had not sufficiently justified why it had neither completed nor commenced the approved SOW within the original POP deadline.  FEMA also found the Applicant did not demonstrate the newly claimed damages were a result of the disaster. 

In response to the denials, the Applicant transmitted a January 3, 2018 email to the Grantee, in which the Applicant confirmed that it would be closing its file.  It included an email from its engineer indicating a belief the Applicant would not be successful in an appeal since it did not have any documentation to show the new work was needed due to damage from the disaster.  FEMA thereafter amended the project on March 19, 2018, withdrawing the PW and deobligating all previously awarded funding. 

On July 20, 2018, the Applicant submitted a letter requesting FEMA reopen the PW on the basis that it was withdrawn by mistake.  The Grantee concurred with the request in a July 24, 2018 letter and recommended FEMA reinstate the PW.  FEMA denied the request on March 1, 2019.  The Applicant received notice of the appealable action on March 6, 2019.

First Appeal

Through a first appeal dated May 2, 2019, the Applicant requested FEMA reopen PW 364 and reinstate the $30,718.15 in deobligated PA funding.  It stated that although it decided not to pursue additional funding through an appeal on the denied SOW change, the Applicant did not intend to forfeit funds it stated were already properly received and used.  The Applicant noted the repair of the drainage system covered by the original approved SOW had been completed, with PA funds applied to reimburse the costs.  The Applicant requested reinstatement of the deobligated funding pursuant to section 705(c) of the Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act, stating it completed the restoration work in November 2016, and accomplished the purpose of the grant.  The Grantee recommended FEMA approve the appeal in a letter dated June 19, 2019.

In an August 27, 2019 first appeal decision, the FEMA Region II Regional Administrator (RA) partially granted the appeal, reinstating $1,351.31 of the previously deobligated funding.  FEMA found the work related to investigating the disaster-related damages was eligible, as it was completed in May 2010, prior to the 18-month permanent work deadline of October 16, 2011.  FEMA noted the Applicant only retained a contractor to complete permanent repairs for the project (also including work outside the approved SOW) in July 2016, with the work being completed in November 2016.  Therefore, $29,366.84 in costs associated with permanent repair work were incurred outside the POP and consequently ineligible for PA funding.

FEMA also determined Stafford Act section 705(c) did not bar the Agency from recovering previously awarded funding because the Applicant violated two post-award requirements delineated in the FEMA-State Agreement for this disaster: (1) the Applicant did not complete all the approved work within the October 16, 2011 POP deadline; and (2) the Applicant completed work outside the approved SOW without FEMA’s prior approval, thereby not allowing FEMA to conduct certain environmental reviews.[1]  FEMA implemented the decision on September 16, 2019, amending PW 364 to reinstate $1,351.31 in previously approved project costs.

Second Appeal

The Applicant filed its second appeal on October 15, 2019, requesting full reinstatement of funds under Stafford Act section 301 (Waiver of Administrative Conditions).  It states there were circumstances that surrounded this project that created significant delays in completing the SOW within the POP.  The Grantee forwarded the appeal on December 3, 2019, supporting the Applicant’s request that FEMA waive administrative conditions that would otherwise prevent PA funding and stating that because the original repair work has been accomplished, it is reasonable for FEMA to grant the time extension to December 31, 2016, and reinstate funding as an improved project.

Discussion

FEMA may reimburse applicants for the repair, restoration, reconstruction, or replacement of a public facility damaged or destroyed by a major disaster.[2]  Generally, applicants must complete permanent work projects within 18 months of the disaster declaration date.[3]  However, grantees may extend this deadline by an additional 30 months based on extenuating circumstances beyond the applicant’s control.[4]  Thereafter, requests for time extensions must be submitted to the RA, and include a detailed justification for the delay.[5]  If the RA denies the request, the applicant may still be reimbursed for eligible project costs, but only those incurred up to the latest approved completion date.[6] 

When an applicant materially fails to comply with any term of an award, FEMA may disallow all or part of the grant award.[7]  FEMA, however, is barred from recovering any payment to a State or local government if: (1) the payment was authorized by an approved agreement specifying the costs, (2) the costs were reasonable, and (3) the purpose of the grant was accomplished.[8]  FEMA policy clarifies that the purpose of the grant was accomplished if the applicant completes the SOW as described in the obligated PW; and demonstrates compliance with post-award terms and conditions of the federal award, as described in the obligated PW and the FEMA-State Agreement.[9]

Under Stafford Act section 301, FEMA may also, if so requested by the applicant, modify or waive, for a major disaster, such administrative conditions for assistance as would otherwise prevent the giving of assistance under such programs if the inability to meet such conditions is a result of the major disaster.[10]

Here, the Applicant acknowledges that it commenced restoration work for PW 364 in the spring/summer of 2016, after the Grantee’s retroactive extension to April 16, 2014.  Therefore, because $29,366.84 in costs associated with permanent repair work were incurred after the latest approved project completion date, they are not eligible for reimbursement.[11]  Further, since the Applicant did not accomplish the purpose of the grant (i.e., completing the approved SOW within the regulatory project completion timeframe), section 705(c) of the Stafford Act does not bar FEMA from recovering that previously awarded funding.[12]

However, the Applicant requests FEMA waive the administrative condition that a project must be completed within the POP deadline.  It lists multiple reasons for the delay in completing permanent repairs to support its request.  The Applicant first states this project was put on hold when the Applicant was forced to repair more pressing infrastructure damages caused by subsequent disasters.  Therefore, it’s clear that any delay in work for this reason was not due to this disaster.  Furthermore, even after the Applicant repaired damages unrelated to this disaster,[13] it still did not commence permanent repair work for this project until six years after the disaster. 

Next, the Applicant states another reason for the delay in project completion was that the PW was lost within a retired Department of Public Works Supervisor’s files after the Applicant transitioned to a new administration and consultant engineer.  While that is unfortunate, staffing changes and human error not related to the disaster are not a basis to waive an administrative condition for assistance under section 301 of the Stafford Act.[14]

Lastly, the Applicant states it needed additional time to complete the project because it discovered additional damages when it was preparing to complete the previously approved repairs.  Yet, the Applicant notes in its second appeal letter that it made this discovery when it commenced permanent repair work for the project in 2016—two years after the latest project completion deadline had expired.  Furthermore, FEMA has previously determined the Applicant did not demonstrate the newly discovered damages were a result of the disaster; the Applicant did not appeal this finding.  Therefore, FEMA rejects the assertion the discovery of additional damages caused the delay in completing the work within the POP, or, alternatively, that the delay was caused by the disaster.

Based on the above, the Applicant has not demonstrated the failure to complete the permanent repair work for PW 364 within the POP was a result of this disaster.  Consequently, the request for a waiver under section 301 is denied.  FEMA will not reinstate the previously deobligated funding in the amount of $29,366.84.[15]

Conclusion

The Applicant did not demonstrate that its failure to complete permanent repair work prior to the POP deadline was the result of the disaster.  Therefore, the request for the administrative waiver under Stafford Act section 301 is not warranted.  Accordingly, this appeal is denied.