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Second Appeal Letter
PA ID# 059-99059-00; Fairfax County
PW ID# 399; Emergency Protective Measures
February 15, 2013
Michael M. Cline
Commonwealth of Virginia
Department of Emergency Management
10501 Trade Court
Richmond, Virginia 23236-3713
Re: Second Appeal–Fairfax County, PA ID 059-99059-00, Emergency Protective Measures,
FEMA-1874-DR-VA, Project Worksheet (PW) 399
Dear Mr. Cline:
This letter is in response to a letter from your office dated April 20, 2012, which transmitted the referenced second appeal on behalf of Fairfax County (Applicant). The Applicant requests that the Department of Homeland Security’s Federal Emergency Management Agency (FEMA) approve funding in the amount of $355,120 for emergency response activities performed during the December 2009 severe winter storms and snowstorms by the Fire and Rescue Department (FRD).
As a result of the severe winter storms and snowstorms that occurred in December 2009, the Applicant’s FRD personnel responded to numerous emergency calls and performed various emergency protective measures. The Applicant requested reimbursement of $781,600 from FEMA for labor, equipment, and material costs incurred during the event. FEMA prepared PW 399 for the FRD’s costs and, upon review, determined the PW to be ineligible because the Applicant did not provide information regarding the work performed to demonstrate that the work was required as the result of the event.
The Virginia Department of Emergency Management (Grantee) transmitted the Applicant’s July 18, 2011, first appeal of PW 399 to FEMA on August 23, 2011. In the appeal letter, the Applicant stated that a portion of the FRD’s gross costs for emergency response during the event represents eligible emergency protective measures, but noted that the FRD’s dispatch system does not provide sufficient detail to determine which emergency calls were eligible for funding. The Applicant requested that FEMA provide $355,120 in funding for the work performed by the FRD during the incident period based on the 38.65 percent increase in total incident response time over the aggregate of time for incident response during the week before the event.
On November 28, 2011, the FEMA Regional Administrator determined that the requested labor and equipment costs were not eligible and denied the first appeal. The Regional Administrator explained that the Applicant did not provide a basis for the proposed percentage of total costs incurred during the event and referenced the method FEMA used to determine the FRD’s eligible costs under FEMA-1905-DR-VA with PW 575. FEMA had used the dispatch records and call logs to identify eligible emergency work and estimate the eligible cost for PW 575; however, the Applicant had not yet submitted the call logs for the FEMA-1874-DR-VA declaration.
The Applicant submitted a second appeal on February 22, 2012, which the Grantee forwarded to FEMA on April 20, 2012. The Applicant stated that the funding request for $355,120 is associated with eligible emergency work conducted as a direct result of the event and that the costs are fully supported by the documentation submitted. The Applicant maintained that the percentage of total FRD costs is a reasonable representation of eligible costs and requested that FEMA reimburse the costs because the method of calculating the percentage was developed in collaboration with FEMA field staff.
On September 11, 2012, representatives of the Applicant, met with Grantee and FEMA Public Assistance Division staff at FEMA headquarters in Washington, D.C. to provide an in-person presentation of the second appeal argument. The Applicant reiterated that the FRD performed eligible emergency work during the event but claimed that the dispatch and call logs do not include all emergency work performed and are not detailed enough to separate time spent conducting eligible emergency work in response to the declared event from routine operational activities.
According to Title 44 Code of Federal Regulations (44 CFR) §206.223(a)(1), to be eligible for financial assistance, an item of work must be required as the result of the major disaster event. Based on a description of the work performed by FRD staff and a detailed log of emergency calls responded to by FRD staff during the incident period, only a portion of the costs claimed by the Applicant under PW 399 is associated with eligible emergency work that was required as the result of the event.
In its appeal, the Applicant states that all parties agree that the costs for the work performed by FRD staff during the incident period include eligible and ineligible costs, including increased operating costs; however, the Applicant states that FRD and FEMA worked on and agreed upon a fair and reasonable methodology to determine eligible work based on a percentage of the total FRD labor and equipment costs incurred during the event. The Applicant states that a portion of the time FRD spent on eligible work is not represented in the call logs, because some eligible activities were not dispatched and would therefore not show up on the dispatch records. The Applicant states that FEMA proposed calculating the increase in costs by comparing the incident response time during the week before the event with the incident response time during the event and should honor this method.
As discussed, clearly some work performed by the FRD was eligible, and in the absence of documentation to tie the costs claimed by the Applicant to actual work performed, the FEMA Project Specialists working with the Applicant attempted to develop a fair and reasonable approach to determine what portion of the work performed was required by the event and eligible for funding. However, the derived percentage is based on increased response time which is not a true indicator of the amount of time spent on emergency work required by the event. Response times for all calls were increased during the storm; however, all calls were not associated with work required by the event.
While the call logs may not capture all emergency protective measures performed by the FRD that were required by the event, the Applicant has provided no documentation to support that all claimed costs were associated with eligible work. The Applicant has provided detailed documentation supporting actual costs incurred by FRD during the event and a description of the activities performed by FRD staff that were not captured in the call logs, but has not provided documentation to support the actual, specific costs associated with those activities.
FEMA analyzed the information provided by the Applicant in dispatch records and call logs to determine eligible costs for PW 575 for FRD prepared under FEMA-1905-DR-VA. FEMA used the dispatch records and call logs to determine which emergency calls were not disaster related such as house fires, drug overdoses, suicide attempts, and assaults. FEMA assumed that the remaining calls were required as the result of the event and estimated the labor and equipment costs based on the time of each call and the type of equipment used. The call logs did not indicate which employees were involved in each call. Accordingly, FEMA used information provided by the Applicant regarding the number of staff assigned to each type of equipment and applied an average labor rate to calculate labor costs for each call.
As stated in FEMA’s first appeal response, the dispatch records and call logs associated with FEMA-1874-DR-VA were not available at the time of the review of PW 399. The Applicant provided the call logs in support of its second appeal. The approach used by FEMA in the development of PW 575 (FEMA-1905-DR-VA), discussed above, was a reasonable approach to estimate eligible costs based on the documentation provided by the Applicant; therefore, FEMA will approve eligible funding for the work performed by FRD in response to FEMA-1874-DR-VA using the same approach.
In the second appeal, the Applicant states that another applicant, the City of Alexandria, applied the same percentage approach in its request for equipment costs for emergency work, and FEMA approved the costs. The Applicant requests equal treatment to that provided to the City of Alexandria. FEMA analyzes the eligibility of each individual request for assistance in accordance with the Robert T. Stafford Disaster Relief and Emergency Assistance Act and 44 CFR based on the specifics of each request for assistance, and Federal funding for large projects is limited to the actual eligible documented costs as outlined in 44 CFR § 206.203 (c)(1), Federal grant assistance, Project funding. Final inspection and cost reconciliation are components of the closeout process and FEMA may make adjustments to the obligated amount in cases where the documentation does not substantiate the total award amount. Notwithstanding eligibility determinations made by FEMA for similar projects completed by other applicants, in this case, the Applicant has not provided sufficient documentation to support that the work associated with all the costs claimed was required by the declared event.
Based on a review of the call logs submitted with the Applicant’s appeal, the costs shown in Table 1 are eligible and associated with emergency work required as the result of the event. The detailed analysis used to determine the eligible labor and equipment costs is shown in Table 2, attached. Note that material costs (tire chains) claimed by the Applicant are included in the eligible cost; however, only a portion of the Direct Administrative Costs (DAC) claimed by the Applicant ($11,249) is included. The only documentation submitted that addresses DAC is the initial summary of costs attached to PW 399 that totals $2,236.
Force Account Labor - Overtime
Force Account Equipment
Force Account Materials
Direct Administrative Costs
I have reviewed the information submitted with the second appeal and have determined that the Applicant’s appeal should be partially granted. Based on documentation provided by the Applicant with the appeal, only a portion of the work performed by the FRD was required as the result of the event and is eligible for funding in the amount of $83,564. By this letter, I am requesting that the Regional Administrator take appropriate action to implement my decision.
This determination is the final decision on this matter pursuant to 44 CFR § 206.206, Appeals. Please inform the Applicant of my decision.
cc: MaryAnn Tierney
FEMA Region III