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Second Appeal Brief
PA ID# 121-04000-00; City of Atlanta
PW ID# PW 321; Snow Removal – Deferred Maintenance – Force Account Labor – Emergency Labor, Overtime Labor Costs – Increased Operating Expenses – Support Documentation – Direct Administrative Costs
Conclusion: The City of Atlanta has not demonstrated that its force account labor (FAL) performed eligible emergency protective measures; incurred the claimed overtime and compensatory time in accordance with its pay policies; or the eligibility of its ice removal work, generator repairs, generator usage costs, material costs, meal and lodging costs, and direct administrative costs (DAC).
From February 10-15, 2014, a severe winter storm resulted in sleet, ice, and snow accumulation in the City of Atlanta, Georgia (Applicant). FEMA prepared Project Worksheet (PW) 321 to document the costs for force account labor (FAL), materials, and equipment, as well as contract work for city-wide emergency protective measures. FEMA subsequently determined most of the costs in PW 321 were ineligible, and the Applicant appealed. The Region IV Regional Administrator (RA) denied the appeal, and concluded (1) the claimed costs were not adequately documented; (2) costs for ice removal activities, materials, and equipment were ineligible because snow assistance was not authorized for the disaster; (3) meal and lodging costs were ineligible as an increased operating expense and because the Applicant did not have a predisaster pay policy provision to cover those costs; (4) generator repairs were ineligible as deferred maintenance and because the Applicant did not show that it operated its generators during the disaster; (5) the Applicant did not demonstrate that its FAL performed eligible emergency protective measures nor showed that its FAL accrued overtime or compensatory time exceeding the amount approved by FEMA; and (6) the claimed DAC was excessive and not documented. On second appeal, the Applicant claims its FAL performed eligible emergency work and all costs associated with the work, materials, meals, lodging, generator use and DAC are eligible.
Authorities and Second Appeals
- Stafford Act § 403.
- 44 C.F.R. §§ 206.201, 206.206, 206.223, 206.225, and 206.227.
- 2 C.F.R. § 225 att. A §§ C.1.a-b, C.1.j, E.1.
- RP9525.7, Labor Costs-Emergency Work; DAP 9523.15, Eligible Costs Related to Evacuation and Sheltering.
- PA Guide, at 29, 33, 40, 42, 48-49, 54-55, 72-73.
- City of Blair, FEMA-1878-DR-NE.
- Dept. of Transportation, FEMA-4068-DR-FL, at 5.
- Fla. Dept. of Transportation, FEMA-4068-DR-FL, PW 1091, at 6.
- Chambers County, FEMA-1791-DR-TX, at 8.
- City of Cedar Rapids, FEMA-1763-DR-IA, at 3.
- Central Bradford Progress Authority, FEMA-4030-DR-PA, at 4-5.
- 44 C.F.R. § 206.225(a) authorizes emergency work that eliminates immediate threats, however, § 206.227 limits funding for snow assistance to cases of record or near-record snowfall.
- FEMA will not include snow removal costs when calculating costs for severe winter storm declarations, unless the county qualifies for snow assistance as a record or near record snowfall.
- The Applicant did not qualify for snow assistance for the severe winter storm.
- Damage that results from a cause other than a disaster and time spent maintaining and repairing applicant owned equipment is not eligible. Costs to operate equipment is reimbursed at an hourly rate.
- The cost to repair the generators was not disaster-related and the Applicant did not demonstrate it operated the generators during the disaster.
- For emergency protective measures, overtime and compensatory time is determined in accordance with the applicant’s predisaster policies.
- The Applicant has not demonstrated that its FAL were performing eligible emergency protective measures.
- Even where the work may have been eligible, the Applicant did not demonstrate that the overtime and compensatory time were billed in accordance with its pay policy.
- The PA Guide states that while the cost of operating a facility or providing a service may increase due to or after a disaster, these costs are generally not eligible, an example being feeding staff at critical facilities.
- The Applicant did not show that the meals, materials, and lodging are eligible.