Appeal Brief | Appeal Letter | Back
Second Appeal Letter
PA ID# 071-06A69-00; Sewerage Water Board of New Orleans
PW ID# Project Worksheet 3535; Force Account Labor
July 13, 2009
Colonel Thomas Kirkpatrick (Ret.)
State Coordinating Officer
Governors Office of Homeland Security
and Emergency Preparedness
7667 Independence Boulevard
Baton Rouge, LA 70806
RE: Second AppealSewerage and Water Board of New Orleans, FIPS 071-06A69-00,Force Account Labor
, Project Worksheet (PW) 3535
Dear Colonel Kirkpatrick:
This letter is in response to a letter from your office dated September 12, 2008, which transmitted the referenced second appeal on behalf of the Sewerage and Water Board of New Orleans (Applicant). The Applicant is appealing the Department of Homeland Securitys Federal Emergency Management Agencys (FEMA) denial to fund force account labor costs.
As a result of Hurricane Katrina the Applicant cited the need to staff numerous departments to perform emergency work and requested force account labor funding of $7,209,680. Because the Applicant provided insufficient documentation to justify the requested funding, FEMA prepared PW 3535 for $2,976,419.53 to fund emergency force account labor costs.First Appeal:
On March 28, 2007, the Governors Office of Homeland Security and Emergency Preparedness (GOHSEP) submitted the Applicants first appeal. In its appeal the Applicant reduced its request for funding from $7,209,680 to $6,441,045. In addition, the Applicant cited its pre-existing personnel policy which states all employees working during a disaster are paid under emergency procedures at 1.5 times the rate of standard compensation.
FEMA requested additional documentation supporting specific emergency work performed by specific employees via e-mail on April 13, 2007. FEMA issued the same request by way of a formal letter via U.S. mail on August 8, 2007. Included in the request were instructions to the Applicant that the information must be submitted within 14 days, or the appeal decision would be made based on previously submitted documentation. GOHSEP submitted
the Applicants response on May 27, 2008. Included in the response, the Applicant requested an amendment to PW 3535 to include:
four additional weeks of work
an addition of seven departments
emergency use of equipment and material
FEMA denied the Applicants first appeal on June 25, 2008, citing the Applicant did not provided documentation sufficient enough to make determinations on eligibility and reasonableness for either the work completed or the labor costs submitted. In addition, FEMA included in the analysis of the denial that the Applicants inclusion of force account equipment and materials in the appeal is without merit, as PW 3535 does not include these items and FEMA had not previously denied the request. Second Appeal:
On August 15, 2008, GOHSEP submitted the Applicants second appeal which reduced the requested additional force account funding to $1,759,598.00. By reducing the requested force account funding the Applicant acknowledged:
exempt employees are not eligible for reimbursement for emergency work as originally requested in PW 3535.
work such as grants administration, site inspections, other administrative tasks and the like are ineligible.
the fringe benefit rate for emergency and overtime is 14.28%.
In support of its appeal, the Applicant cited:
the payroll documentation submitted with the first appeal was identical in nature to the accepted documentation to write PW 3535.
in previous catastrophic disasters, such as the World Trade Center, FEMA has accepted modified methods of documentation in lieu of detailed records.
Included in the second appeal was a request by the Applicant to meet with FEMA representatives. On December 16, 2008, the Applicant met with FEMA representatives and presented a summary of information regarding the necessity of emergency work in association with Hurricane Katrina. Determination:
Based on my review of the documentation submitted; the face-to-face discussion, and in accordance with the April 4, 2008, clarification memorandum concerning Hurricanes Katrina and Rita labor costs, I have determined FEMA will fund the following:
up to twenty-four hours per day for the first two weeks of the disaster, and up to 16 emergency/overtime hours at a standard hourly rate of .5 and 1.5, respectively for
those non-exempt employees performing emergency work maintaining the water and
sewer process, and running pump stations through and including November 27, 2005.
up to 16 emergency/overtime hours at a standard hourly rate of .5 and 1.5 respectively, per day, for those non-exempt employees performing emergency work through and including November 27, 2005, in the following departments:
o 0540 Meter Reading and Investigations
o 0801 Admin Building Maintenance
o 0811 Building Maintenance
o 0840 Central Yard Garage
o 0841 Satellite Garage
o 6000-6010 Networks
o 7000-7800 Engineering
This determination applies to this case only and should not be interpreted as a precedent-setting decision. By copy of this letter I am asking the Regional Director to proceed accordingly.
Please inform the Applicant of my decision. This determination constitutes the final decision on this matter pursuant to 44 CFR §206.206, Appeals.
James A. Walke
Acting Assistant Administrator
Disaster Assistance Directorate
cc: Gary Jones
Acting Regional Administrator
James W. Stark
Gulf Coast Recovery Office