Time Extension - Work

Appeal Brief

Severe storms and flooding from DR-1763 damaged building contents at the University of Iowa Mayflower dormitory on May 25 to August 13, 2008.  FEMA prepared PW 10546 to replace the contents of the building.  The Applicant submitted a time extension request to complete the replacement of building contents.   FEMA denied the time extension citing that the hazard mitigation proposal should not impact the replacement of the contents.  In a first appeal letter, the Applicant appealed FEMA’s denial and requested a time extension through February 28, 2015.  The Applicant cited PW 1102 for the Mayflower dormitory building repairs, which received a time extension through January 31, 2015 and stated that it wanted to wait until the repairs were complete to replace the contents.  The Regional Administrator (RA) denied the first appeal based upon the fact that PW 1102 states that the building repairs were completed prior to January 2009.  The RA states that a time extension for PW 1102 was approved because a Hazard Mitigation Proposal was recently approved, not because the repair work was ongoing.  The RA maintained that the convenience store (C-Store) was permanently restored to the pre-disaster function, noting that the Applicant made repairs to the C-Store and “has continued to operate the facility for more than five years.”  The Applicant submitted a second appeal stating that a temporary C-Store was built for the immediate school year and that permanent repairs are still needed to restore it to the pre-disaster condition.

Authorities and Second Appeals

• 44 C.F.R. § 206.204(d).
• 44 C.F.R. § 206.226.
• PA Guide, at 29, 139.

Headnotes

• 44 C.F.R. § 206.204(d) and the Public Assistance Guide provide the RA the authority to grant time extensions appropriate to the situation.
• 44 C.F.R. § 206.226 and the Public Assistance Guide state that work to restore eligible facilities to the pre-disaster design, function, and capacity as they existed immediately prior to the disaster is eligible.
  • The Applicant demonstrated through a design report that the C-Store has not yet been restored to the pre-disaster design, function, and capacity.

Appeal Letter

Appeal Analysis

On July 16, 2013, the Grantee forwarded the first appeal to FEMA, supporting the appeal.  The Grantee points out that while FEMA states that the permanent repairs to the building were completed in January 2010, an April 15, 2013 letter from the Applicant requested a time extension until May 31, 2014 for the permanent repairs to the Mayflower dormitory on PW 1102.

On August 5, 2013, FEMA submitted an RFI requesting the permanent work completed to date, the date the approved mitigation was started, and the work remaining to complete the mitigation.  FEMA also asked for the contents purchased as of May 27, 2012, which was the current work deadline.  The Applicant responded on September 5, 2013 with a timeline, a list of contents purchased, and a list of contents to be purchased.  The list of contents purchased includes “items that were not identified/obligated on PW 10546 [version 0], as noted in writing by the University when the Project Worksheet was signed on June 24, 2010.”[5]  The timeline provided by the Applicant is reflected below.

• “August 2008 – Completed immediate recovery sufficient to reoccupy student dorm rooms.  Included building mechanical and control systems, fire protection system, IT service, building electrical supply, security system, electrical distribution to the southern [third] of the lobby, four elevators, two staff apartments, replaced  first floor doors and hardware, repaired broken exterior windows and repaired student mailbox/post office.”[6]
• “January 2009 – Completed recovery of the north half of the lobby including front desk, staff offices and remaining 14 student/staff apartments located on the first floor and created temporary C-[S]tore.  No other construction work has been done since January 2009.”[7]
• “July 2013 – All remaining permanent recovery and flood mitigation work approved and obligated by FEMA.  This includes the construction of a permanent and portable flood wall system, de-watering wells, storm sewer and storm water pumping station, back-up electrical generators for the mitigation systems, permanent recovery of the C-Store, removal of the temporary C-Store and restoration of the remaining lobby where the C-Store is currently located.  This project was publicly bid on July 30, 2013 and … construction activities will begin the first two weeks of September.”[8]
• “[Work] is scheduled to be completed on or before January 31, 2015.”[9]

On December 16, 2013, Region VII issued a first appeal response denying the appeal based upon the fact that PW 1102, written for the Mayflower dormitory, states that the building repairs were completed prior to January 2009.  The Regional Administrator (RA) reasoned that since the repairs to the building were complete, there is no reason to delay purchasing the contents.  The RA stated that time extensions for the Mayflower dormitory in PW 1102 were approved because the Hazard Mitigation Proposal was recently approved, not because the repair work was ongoing.  The RA maintained that the initial repairs to the C-Store restored it to the pre-disaster function and were therefore permanent repairs.  This is supported by the assertion that the Applicant made repairs to the C-Store and “has continued to operate the facility for more than five years.”[10]

Second Appeal

On February 13, 2014, the Applicant submitted a second appeal for a time extension for PW 10546.  To prove that the repairs to the Mayflower dormitory were not completed prior to January 2009, the Applicant cites a February 8, 2010 consultant report that states “[t]he remaining component to recover is the Convenience Store.”[11]  The Applicant goes on to explain that a September 9, 2011 letter to the Grantee addresses the discrepancies found in version four of PW 1102.  “In the letter, the [Applicant] notes that the initial work performed to re-open the Mayflower dormitory … was not the permanent repairs to recover the building to its condition prior to the flood and that this work was also not captured in the project worksheet.”  The Grantee responded to the Applicant, “suggesting that when the project worksheet was obligated, [it] could be appealed.”  During this period, there were many discussions between FEMA, the Grantee, and the Applicant.  The Applicant was told that discrepancies could be resolved at closeout, and, therefore, it did not appeal version four of the PW.  While most of the contents listed in PW 10546 have already been ordered, the remaining contents to be ordered are associated with the C-Store.  “The final work to reconfigure the C-[S]tore back to the format that existed prior to the flood, and install the contents … [is] to be completed with the construction project for the building.”

On April 10, 2014, the Grantee forwarded the second appeal to FEMA and supported the Applicant’s position.  The Grantee states that FEMA “denied the [Applicant’s] … [first] appeal due to the apparent misunderstanding that permanent repairs to the facility were completed.”  “As explained by the [Applicant] in an email dated April 4, 2014 … a temporary Convenience Store was erected within the lobby as the permanent repairs could not be completed until the design of the permanent repairs to the facility as well as the HMP were finalized. … The permanent repairs to the Convenience Store and lobby are ongoing to date.”  Although PW 1102 does not mention the construction of a temporary Convenience Store, the Applicant pointed this out to the Grantee and was under the impression this discrepancy could be resolved at closeout.  The Grantee noted that page three of the Schematic Design Report, Mayflower Hall – Permanent Flood Recovery and Mitigation report dated July 3, 2012, also indicates that permanent repairs to the Convenience Store are still needed:

“Recovery of the majority of the damaged interior to the Mayflower was completed immediately after the flood to allow the building to reopen for the 2008 Fall School Semester.  The only spaces remaining to be recovered are the Convenience Store, Vending and Lounge areas.  Recovery for this project will include restoring these spaces to pre-flood conditions.”

On April 17, 2014, Region VII forwarded the second appeal to FEMA HQ.

Discussion

44 C.F.R. § 206.204(d) states that “[r]equests for time extensions beyond the Grantee’s authority shall be submitted by the Grantee to the Regional Administrator” with a “detailed justification for the delay and a projected completion date.”[12]  The Applicant requested a time extension through February 28, 2015 and explained that the delay was so that building contents can be purchased in conjunction with permanent repairs to the C-Store since the RA granted a time extension until January 31, 2015 for PW 1102 to complete the permanent repairs.  The RA has authority to grant extensions appropriate to the situation.[13]  The RA claims that the Applicant has completed all permanent repairs to the facility and the time extension to complete the permanent repairs was granted solely due to the Applicant’s Hazard Mitigation Proposal. 

44 C.F.R. § 206.226 states that “[w]ork to restore eligible facilities on the basis of the design of such facilities as they existed immediately prior to the disaster … is eligible.”[14]  Permanent work includes restoring the facility back to its pre-disaster design, function, and capacity.[15]  In the second appeal, the Applicant provides a Schematic Design Report that shows the current location of the interim C-Store and the pre-disaster location of the store.[16]  The interim C-Store is smaller, located in a different section of the lobby of the Mayflower Dormitory, and is displacing a space that served as a lounge prior to the disaster.[17]  Therefore, permanent repairs are still needed to restore the Mayflower Dormitory lobby and the C-Store to the pre-disaster design, function, and capacity.  It is not reasonable to require the Applicant to purchase building contents before the building is restored.  Even though the first appeal decision states that the time extension for permanent repairs for PW 1102 was solely due to an HMP and permanent repairs to the C-Store were completed, this limitation was the result of a factual misunderstanding.  The Schematic Design Report delineates the temporary nature of the C-Store and consequently justifies granting an extension for all building repairs.  Since the RA granted a time extension for the building repairs, a time extension should have also been granted for the building contents.

Conclusion

The RA has granted a time extension for the Applicant to complete repairs to the Mayflower Dormitory.  The Applicant has shown that the convenience store has not yet been restored to the pre-disaster design, function, and capacity.  Therefore, it is appropriate to the situation for FEMA to have granted a time extension until February 28, 2015 to restore the convenience store contents.  Due to the timeframe in which FEMA responded to this appeal, if a further time extension is required, the Applicant should submit one and the RA should consider it.  Such an extension is warranted.