Force Account Straight-Time Costs
Appeal Brief
Appeal Letter
Citation: Appeal Brief; Second Appeal; California Department of Water Resources; FEMA-1155-DR-CA; PA #000-92004
Cross Reference: DSRs 75009, 75010, 75011, 75020 and 75021; Force Account Labor; Straight-Time Labor Costs; Special Exception; Category B;
Summary: As a result of late winter storms of 1996, the California Department of Water Resources (DWR) performed flood fighting efforts using State Water Project (SWP) personnel. FEMA prepared DSRs 75009, 75010, 75011, 75020 and 75021 for $259,345, $426,266, $282,840, $63,075 and $32,551 respectively to fund force account overtime labor, equipment and materials for staffing a joint operations center, sandbagging, search and rescue and patrolling of levees owned and maintained by DWR. During review, it was determined that SWP personnel were State employees and the amount of their regular time salaries was deducted from DSRs. With the first appeal, the DWR indicated that the straight-time salaries should be eligible for the SWP personnel because State Water Project Contractors, rather than taxpayers of the State, fund the SWP. The Regional Director denied the appeal because the straight-time or regular-time salaries and benefits of the SWP permanently employed personnel are not eligible in calculating the cost of eligible emergency work (44 CFR 206.228 (a)(4)). The State forwarded the second appeal on March 30, 1999, requesting a total of $519,859. The basis of the appeal is that the emergency work was completed by the specially funded personnel, which was more cost effective than "off the street" hires and it required additional cost to be incurred by the State. Additionally, the payment of their regular-time salaries should be an exception to the force account regulation. No additional documentation was submitted other than a request for an exception to the force account regulation, as was granted to Los Angeles for the Northridge earthquake, because the use of SWP personnel is more cost effective.
Issue:
Appeal Brief
| Disaster | FEMA-1155-DR |
| Applicant | California Department of Water Resources |
| Appeal Type | Second |
| PA ID# | 000-92004 |
| PW ID# | 75009,75010,75011,75020,75021 |
| Date Signed | 1999-10-29T04:00:00 |
Cross Reference: DSRs 75009, 75010, 75011, 75020 and 75021; Force Account Labor; Straight-Time Labor Costs; Special Exception; Category B;
Summary: As a result of late winter storms of 1996, the California Department of Water Resources (DWR) performed flood fighting efforts using State Water Project (SWP) personnel. FEMA prepared DSRs 75009, 75010, 75011, 75020 and 75021 for $259,345, $426,266, $282,840, $63,075 and $32,551 respectively to fund force account overtime labor, equipment and materials for staffing a joint operations center, sandbagging, search and rescue and patrolling of levees owned and maintained by DWR. During review, it was determined that SWP personnel were State employees and the amount of their regular time salaries was deducted from DSRs. With the first appeal, the DWR indicated that the straight-time salaries should be eligible for the SWP personnel because State Water Project Contractors, rather than taxpayers of the State, fund the SWP. The Regional Director denied the appeal because the straight-time or regular-time salaries and benefits of the SWP permanently employed personnel are not eligible in calculating the cost of eligible emergency work (44 CFR 206.228 (a)(4)). The State forwarded the second appeal on March 30, 1999, requesting a total of $519,859. The basis of the appeal is that the emergency work was completed by the specially funded personnel, which was more cost effective than "off the street" hires and it required additional cost to be incurred by the State. Additionally, the payment of their regular-time salaries should be an exception to the force account regulation. No additional documentation was submitted other than a request for an exception to the force account regulation, as was granted to Los Angeles for the Northridge earthquake, because the use of SWP personnel is more cost effective.
Issue:
- Are the SWP personnel full time state employees?
- Should an exception to the force account regulation be provided?
- Yes. Even though the SWP personnel are funded from special funds, they are full-time State employees and covered by the force account regulations.
- No. The exception granted to the City of Los Angeles was a one-time special exception that was based on extraordinary circumstances.
Appeal Letter
October 29, 1999
Mr. D. A. Christian
Governor's Authorized Representative
Governor's Office of Emergency Services
P.O. Box 419023
Rancho Cordova, California 95741
Re: Second Appeal - California Department of Water Resources, Force Account Straight-Time and Overtime, FEMA-1155-DR-CA, DSRs 75009, 75010, 75011, 75020 and 75021.
Dear Mr. Christian:
This is in response to your letter dated May 30, 1999, to the Federal Emergency Management Agency (FEMA). With that letter, you forwarded a second appeal of Damage Survey Reports (DSR) 75009, 75010, 75011, 75020 and 75021 under FEMA-1155-DR-CA on behalf of the California Department of Water Resources (DWR). The DWR is requesting a total of $519,859 for force account, straight-time labor costs for flood-related activities.
As a result of late winter storms of 1996, the California Department of Water Resources (DWR) performed flood-fighting efforts by State Water Project (SWP) personnel. FEMA prepared DSRs to fund force account labor, equipment and materials for staffing a joint operations center, sandbagging, search and rescue and patrolling of levees owned and maintained by DWR. During review, it was determined that SWP personnel were State employees and the amount of their regular time salaries was deducted. As a result the following DSRs were approved: 75009, 75010, 75011, 75020 and 75021 for $259,345, $426,266, $282,840, $63,075 and $32,551 respectively
With the first appeal, the DWR indicated that the straight-time salaries for the emergency activities in all five (5) DSRs should be eligible because State Water Project Contractors, rather than taxpayers of the State, fund the SWP. Additionally, reimbursement for office supplies and materials for DSR 75009 for the joint operations center was requested. The Regional Director denied the appeal because the straight-time or regular-time salaries and benefits of the SWP permanently employed personnel are not eligible in calculating the cost of eligible emergency work in accordance with Title 44 of the Code of Federal Regulation (CFR) section 206.228 (a)(4). The office supplies and materials were not approved because they were indirect administrative costs, which were not used directly in flood fighting.
The State forwarded the second appeal on March 30, 1999, requesting a total of $519,859 for the following DSRs: 75009 ($91,422), 75010 ($156,520), 75011 ($104,577), 75020 ($83,461) and 75021 ($83,879). The basis of the appeal is that the work was completed by the specially funded personnel, which was more cost effective than "off the street" hires and it required additional cost to be incurred by the State. Additionally, the payment of their regular-time salaries should be an exception to the force account regulation. No additional documentation was submitted other than a request for an exception to the force account regulation, as was granted to Los Angeles for the Northridge earthquake, because the use of SWP personnel is more cost effective.
The issue of this appeal is whether or not the SWP personnel are full-time State employees regulated under the force account provisions of 44 CFR 206.228. Additionally, the DWR is requesting an exception to the force account regulations.
The DWR indicated in its appeal submission that the DWR employees meet the definition of force account personnel in accordance with 44 CFR 206.228 (a)(4). However, the DWR contends that since the Water Contractors fund the SWP, the SWP personnel are in essence employees of the State Water Project Contractors. When employed for non-Water Contractor work, their salaries become an additional cost to the State. Therefore, the personnel costs should be an exception to regulation. The regulations are very clear. Regular-time salaries of an applicant's permanently employed personnel performing emergency work are not eligible costs. The funding of the City of Los Angeles permanent employees for emergency work was a one-time special occurrence that was based on extraordinary circumstances. An exception to the regulations is not warranted for these circumstances.
The SWP personnel are full-time State employees. Force account labor costs are governed by 44 CFR 206.228 (a)(4). Therefore, I am denying the appeal.
Please inform the applicant of my determination. In accordance with the appeal procedure governing appeal decisions made on or after May 8, 1998, my decision constitutes the final decision on this matter. The current appeal procedure was published as a final rule in the Federal Register on April 8, 1998. It amends 44 CFR 206.206.
Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
cc: Martha Whetstone
Regional Director
FEMA Region IX
Mr. D. A. Christian
Governor's Authorized Representative
Governor's Office of Emergency Services
P.O. Box 419023
Rancho Cordova, California 95741
Re: Second Appeal - California Department of Water Resources, Force Account Straight-Time and Overtime, FEMA-1155-DR-CA, DSRs 75009, 75010, 75011, 75020 and 75021.
Dear Mr. Christian:
This is in response to your letter dated May 30, 1999, to the Federal Emergency Management Agency (FEMA). With that letter, you forwarded a second appeal of Damage Survey Reports (DSR) 75009, 75010, 75011, 75020 and 75021 under FEMA-1155-DR-CA on behalf of the California Department of Water Resources (DWR). The DWR is requesting a total of $519,859 for force account, straight-time labor costs for flood-related activities.
As a result of late winter storms of 1996, the California Department of Water Resources (DWR) performed flood-fighting efforts by State Water Project (SWP) personnel. FEMA prepared DSRs to fund force account labor, equipment and materials for staffing a joint operations center, sandbagging, search and rescue and patrolling of levees owned and maintained by DWR. During review, it was determined that SWP personnel were State employees and the amount of their regular time salaries was deducted. As a result the following DSRs were approved: 75009, 75010, 75011, 75020 and 75021 for $259,345, $426,266, $282,840, $63,075 and $32,551 respectively
With the first appeal, the DWR indicated that the straight-time salaries for the emergency activities in all five (5) DSRs should be eligible because State Water Project Contractors, rather than taxpayers of the State, fund the SWP. Additionally, reimbursement for office supplies and materials for DSR 75009 for the joint operations center was requested. The Regional Director denied the appeal because the straight-time or regular-time salaries and benefits of the SWP permanently employed personnel are not eligible in calculating the cost of eligible emergency work in accordance with Title 44 of the Code of Federal Regulation (CFR) section 206.228 (a)(4). The office supplies and materials were not approved because they were indirect administrative costs, which were not used directly in flood fighting.
The State forwarded the second appeal on March 30, 1999, requesting a total of $519,859 for the following DSRs: 75009 ($91,422), 75010 ($156,520), 75011 ($104,577), 75020 ($83,461) and 75021 ($83,879). The basis of the appeal is that the work was completed by the specially funded personnel, which was more cost effective than "off the street" hires and it required additional cost to be incurred by the State. Additionally, the payment of their regular-time salaries should be an exception to the force account regulation. No additional documentation was submitted other than a request for an exception to the force account regulation, as was granted to Los Angeles for the Northridge earthquake, because the use of SWP personnel is more cost effective.
The issue of this appeal is whether or not the SWP personnel are full-time State employees regulated under the force account provisions of 44 CFR 206.228. Additionally, the DWR is requesting an exception to the force account regulations.
The DWR indicated in its appeal submission that the DWR employees meet the definition of force account personnel in accordance with 44 CFR 206.228 (a)(4). However, the DWR contends that since the Water Contractors fund the SWP, the SWP personnel are in essence employees of the State Water Project Contractors. When employed for non-Water Contractor work, their salaries become an additional cost to the State. Therefore, the personnel costs should be an exception to regulation. The regulations are very clear. Regular-time salaries of an applicant's permanently employed personnel performing emergency work are not eligible costs. The funding of the City of Los Angeles permanent employees for emergency work was a one-time special occurrence that was based on extraordinary circumstances. An exception to the regulations is not warranted for these circumstances.
The SWP personnel are full-time State employees. Force account labor costs are governed by 44 CFR 206.228 (a)(4). Therefore, I am denying the appeal.
Please inform the applicant of my determination. In accordance with the appeal procedure governing appeal decisions made on or after May 8, 1998, my decision constitutes the final decision on this matter. The current appeal procedure was published as a final rule in the Federal Register on April 8, 1998. It amends 44 CFR 206.206.
Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
cc: Martha Whetstone
Regional Director
FEMA Region IX
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