It cannot be over-emphasized that Applicants need to complete the approved scope of work as noted on the Project Worksheet (PW) within the required timeframe allotted to the project. Deviations from this without FEMA approval jeopardizes grant funding.
The Project Worksheet (PW) contains all elements of an approved project:
• Scope of Work (SOW): the parameter of actions and cost to be accomplished, including location and any special considerations, such as environmental requirements.
• Period of Performance (POP): the period of time that an approved SOW may be completed for reimbursement of eligible costs.
If either of these items change, or has the potential to change, the Applicant should stop and contact the Public Assistance Liaison immediately to ensure FEMA approval is maintained.
The remainder of this section covers what is required for scope of work changes and time extensions to an approved applicant status.
When restoring a damaged facility, an Applicant may decide to make improvements to the facility. A project that incorporates such improvements is an Improved Project. The improved facility must have the same function and at least the same pre-disaster capacity as the damaged facility. It also requires prior approval from the State and FEMA. The following are examples of Improved Projects:
• Laying asphalt on a gravel road
• Replacing a firehouse that originally had two bays with a firehouse that has three bays
• Incorporating requirements dictated by a standard that does not meet PA eligibility criteria
• Relocating a facility when the relocation is not required by FEMA
Federal funding for an Improved Project is limited to the lesser of the following:
• The Federal share of the approved estimated cost to restore the damaged facility to its pre-disaster design and function; or
• The Federal share of the actual costs of completing the Improved Project.
This form is used when an applicant chooses to withdrawal from being an active recipient of Public Assistance funds.
This form is used when an applicant chooses to withdrawal a specific project from receiving Public Assistance funds. The Applicant needs to understand that if the project is withdrawn, the applicant removes the right to appeal which may not be in the Applicant’s best interest.
FEMA only allows PA funding for work completed and costs incurred within regulatory deadlines. The deadline for Emergency Work is 6 months from the declaration date. The deadline for Permanent Work is 18 months from the declaration date.
The State has authority to extend deadlines for individual projects based on extenuating circumstances. It may extend Emergency Work projects by 6 months and Permanent Work projects by 30 months. FEMA has authority to extend individual project deadlines beyond these timeframes if extenuating circumstances justify additional time.
Extenuating circumstances beyond the Applicant’s control generally include:
• Permitting or environmental compliance related delays due to other agencies involved
• Environmental limitations (such as short construction window)
• Inclement weather (site access prohibited or adverse impact on construction)
FEMA generally considers the following to be circumstances within the control of the Applicant and not justifiable for a time extension:
• Permitting or environmental delays due to Applicant delays in requesting permits
• Lack of funding
• Change in administration or cost accounting system
• Compilation of cost documentation
Only approved costs incurred during the approved performance period are eligible for reimbursement. Any costs incurred outside the performance period are not considered eligible.
If the Applicant determines it needs additional time to complete the project, including direct administrative tasks related to the project, it must submit a Time Extension Request to the State that includes the following information:
• Documentation substantiating delays beyond its control;
• A detailed justification for the delay;
• Status of the work; and
• The project timeline with the projected completion date.
Public Assistance grants must comply with regulatory requirements as stated in 2 Code of Federal Regulations §200.318-327, including Appendix II to Part 200. FEMA has a website dedicated to providing procurement guidance at https://www.fema.gov/grants/procurement. Specific publications we found of immense help follow, but there are many more helpful resources accessible on FEMA’s website.
• Purchasing Resource
• Procurement Field Manual
• Contract Provisions Guide
• Top 10 Procurement Mistakes
• Fact Sheet: Contract Requirements Checklist
• Fact Sheet: Procurement Conducted Under Exigent or Emergency Circumstances
• Key Points Regarding Contracting Practices
Whether working with FEMA following a major disaster declaration or working to gather documentation for closeout of projects, the following is an excellent source for helping understand exactly what questions must be answered to show compliance with the Public Assistance program. An additional resource is also the Public Assistance Program and Policy Guide. This guide has optional checklists that can be used to ensure documentation specific to project types is compiled.
Applicants submit quarterly reports from the time of project approval through notification of completion. Failure to submit quarterly reports will result in a withholding of payments, including small project payments.
Quarterly Reports fall under the Federal Fiscal Year. Refer to the following chart.
|Federal Quarter||Reporting Period||Quarterly Report Due Date|
|1st Quarter||October - December||January 10th|
|2nd Quarter||January - March||April 10th|
|3rd Quarter||April - June||July 10th|
|4th Quarter||July - September||October 10th|
Payments are divided between Small Projects and Large Projects. Both have partial and final payments, but the methodology used for each is different. The Project Worksheet will state whether the project is Small or Large.
Each small project usually has one payment after the projects are complete. Final payments are initiated by the Liaison following the completion of the Small Project Validation.
Automatic (Partial) Payments
Small project payments are normally provided as an automatic final payment when the project was 100% complete prior to project write-up. However, if the payment would bring the contract to a zero balance, only 90% is provided to keep the contract open through applicant closeout. Once applicant closeout has been submitted to FEMA, the remaining 10% can be paid.
Final payments for small projects that were not complete when written are processed depending upon other elements in the applicants grant, but in all cases, it will not occur until all small projects for an applicant are complete and validated. Other considerations are:
• If the applicant only has small projects, or the small projects are the last to be completed, a partial payment of 90% can be provided. The final 10% must wait until the P.4 is sent to FEMA to close the applicant.
• If the applicant has large projects that are still open, the final payment for the small projects can be processed as soon as the Small Projects Validation is complete.
Payments for ongoing Large Projects must be requested by the applicant using the Payment Request form provided in this section. Payments will not be processed for PW’s currently involved in any type of audit. A request for payment can be submitted once per quarter, per PW, unless it is a final payment or there are justified circumstances.
Payments may be processed only when: (1) the applicant is up-to-date with all quarterly reports (see quarterly reports for deadlines and quarterly report form); (2) the funds requested do not exceed the percentage of completion; and (3) sufficient documentation is attached (See Documenting Your Actual Costs in this section) and supports an approved line-item contained in the most current PW. These things can adjust or delay the payment amount.
Confirming the requirements listed in the previous paragraph have been met, the Liaison verifies the total eligible amount. From this amount the payment is divided into the applicable shares assigned to that applicant at the beginning of the disaster.
The calculation for partial payments is the total eligible amount multiplied by the Federal, State, and applicant share percentages. For example, if the total eligible amount is $100,000, and the applicant has a 75 percent Federal share and a 12.5 percent state and local share, then the calculation would be:
Federal Share $100,000 x 75.0% = $75,000
State Share $100,000 x 12.5% = $12,500
Local Share $100,000 x 12.5% = $12,500
All Public Assistance grants must account for the Federal and non-Federal Share. Any share assigned to an applicant as their local share (or contribution) is never reimbursed but must be documented. The actual payment provided to the applicant would equal the Federal and State share ($75,000 + $12,500 = $87,500). However, when the applicant is provided a payment history, it will not only show the amount of Federal and State share paid; it will also include the local share for accountability.
Final payment for a large project is processed depending upon other elements in the applicants grant, but in all cases, it will not occur until FEMA has processed the State Compliance Review (SCR). Other considerations are:
• Did processing the SCR result in an overrun that requires an amendment in the contract? If so, the contract must be amended prior to processing the final payment.
• If the project is the last to be completed, the final payment must wait until the applicant closeout process is completed.
• If the applicant has other projects that are still open, the final payment can be processed immediately.
Small projects are closed as a whole upon notification that all are complete. Small projects do not require reconciling to actual cost, but there must be verification that all small projects were completed as the awarded scope of work was written. We do this through certification of all projects that include a 20% validation. The validation may be pictures of completed sites with identification and location; it may also be comprised of documentation showing the work was completed. If needed, we may validate more than the 20%. When the small project review is completed, we will work with the applicant to provide payment.
Large projects are closed individually and require notification of completion for each one. Each large project undergoes a State Compliance Review where we go over the completed work, documentation and costs. When finished, we provide our results to the applicant for review and concurrence. If there are concerns, we will work further with the Applicant to resolve those so when the closeout is sent to FEMA for final review, we are in concurrence with what is sent. FEMA makes the final decision. When they have completed their review and provided notification to us, we forward their review results to the Applicant. We will then work with the applicant to provide payment.
This is the easiest closeout because all the other reviews for large and small projects have already been done. To close an Applicant, we send the Applicant a Project Certification and Completion Report to fill in data regarding each awarded projects and gain signature from the Applicant Agent. We also sign the report before forwarding to FEMA. This is usually a very quick process and we usually have FEMA’s closing notification within a week or two. At that point we will provide any remaining funds with a final letter of closeout.
When a project appears to be ineligible, FEMA may ask if the Applicant wants to withdraw the project or receive a determination memo. If the Applicant withdraws the project, the Applicant loses the right to appeal. Therefore, if an Applicant feels the project should have been eligible, we encourage Applicants to request a Determination Memo. This is because appeals can only be submitted to counter an official determination, which is what the Determination Memo fulfills.
44 Code of Federal Regulations §206.206 (44 CFR §206.206) provides an Applicant with two opportunities to request FEMA reconsider a determination. The first appeal is at the FEMA Regional level. If the Applicant disagrees with the first appeal determination, the second appeal would go to FEMA Headquarters. In either case, the process is the same for the Applicant. Appeals must include all documentation required to support their position. Applicants may appeal the following types of determinations:
• An application or provision of assistance under the PA Program;
• Insurance or corrective actions resulting from reviews such as an audit (Alternative Procedures Permanent Work Projects); or
• A net small project overrun.
For the first two bullets shown above, the Applicant must submit their appeal to the state within 60 days from the date their determination was made available in the Grants Portal. For a net small project overrun, the Applicant must submit their appeal within 60 days of completion of the last small project. The State submits to FEMA on the Applicant’s behalf within 120 days from the date the determination was made available in the Grants Portal, or the completion date if net small project.
All weekend days and federal holidays count toward the 60-calendar day or 120-calendar day time limit for submitting an appeal. If the deadline for an appeal falls on a Saturday, Sunday or Federal holiday, the appeal will be considered timely if it is received by the first business day after the deadline.
The submissions must be done through FEMA’s Grants Portal. If the Applicant sends the documentation to their PA Liaison, the Liaison will immediately upload it into the Grants Portal, so it shows the date uploaded to be within the 60-day timeframe.
If an Applicant receives an unsatisfactory determination from their first appeal – or – their first appeal determination has not been received after 180 days of FEMA’s receipt, the Applicant could choose Arbitration instead of a second appeal if the following conditions are met:
• Must have submitted a 1st appeal within 60 days of the original determination of the project.
• Disputed amount is greater than $500,000, or $100,000 in a rural area. (Rural area is defined as an area with a population of less than 200,000 and outside of an urbanized area.)
Arbitration must be requested within 60 days from the date of the first appeal decision. If the first appeal was submitted on time and FEMA has not provided a decision within 180 calendar days of receiving the first appeal request, the applicant must withdraw the first appeal before requesting arbitration. However, the arbitration must be requested within 30 days of the withdrawal of the appeal.
If an Applicant submits a second appeal, it may not withdraw the second appeal to request arbitration instead. Similarly, if an Applicant submits a request for arbitration, it may not submit a second appeal for the same matter. If an Applicant withdraws a pending first appeal that FEMA has not responded to within 180 calendar days, FEMA will not respond to the first appeal request, and the Applicant may not submit a second appeal request.
Arbitration is conducted by the Civilian Board of Contract Appeals (CBCA). CBCA regulations at 48 CFR §§6106.601 – 6106.613 detail the Section 423 arbitration procedures. Applicants must follow the procedures accordingly, which include the following steps:
• Email the request to the CBCA at email@example.com.
• Submit the electronic request simultaneously to the State PA Liaison and the FEMA Regional Administrator.
Whether requesting an appeal or arbitration, use the following as a guide to ensure all pertinent data is included. For arbitration, the list for the 2nd appeal should be used.