Snow Removal – Deferred Maintenance – Force Account Labor – Emergency Labor, Overtime Labor Costs – Increased Operating Expenses – Support Documentation – Direct Administrative Costs

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	FEMA-4165
Applicant	City of Atlanta
Appeal Type	Second
PA ID#	121-04000-00
PW ID#	PW 321
Date Signed	2017-10-17T00:00:00

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).

Summary Paragraph

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.

Headnotes

• 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.

 

 

Appeal Letter

Appeal Analysis

Background

From February 10-15, 2014, a severe winter storm resulted in sleet, ice, and snow accumulation in the City of Atlanta, Georgia (Applicant).  In response, the Applicant established a Joint Operations Center and Emergency Operations Center (JOC/EOC) staffed with its Fire Department personnel.  The Applicant also set up shelters and warming centers utilizing its Forestry, Recreation, and Corrections department personnel as operations staff and its Police Department personnel to provide security.  In order to handle an influx of emergency calls during the disaster, the Applicant increased its 911/311 Communications staff levels and utilized its Police Department personnel to assist with response efforts.  The Applicant also employed contractor labor and force account labor (FAL) from its Department of Public Works (DPW) to carry out ice removal activities on roads and highways.  FEMA prepared Project Worksheet (PW) 321 to document $11,012,816.68 in costs for FAL, contractor labor, materials, meals, lodging, equipment, and direct administrative costs (DAC) incurred in performing the activities described above.

On November 20, 2014, the Georgia Emergency Management Agency (Grantee) notified the Applicant that FEMA found most of the costs in PW 321 ineligible.  PW 321 stated that the Applicant did not provide its predisaster overtime pay policy for its Fire Department employees, nor did it produce a predisaster employee policy requiring provision of food and lodging.  Furthermore, PW 321 noted that the Applicant’s requested costs for snow assistance, equipment, and materials to salt roads and bridges are ineligible per FEMA Disaster Assistance Policy (DAP) 9523.1, Snow Assistance and Winter Storm Policy.  FEMA also found the Applicant’s requested generator repair costs ineligible because, as the Applicant conceded, its generators had not been maintained prior to the disaster.  Additionally, the Applicant did not substantiate its materials costs for its shelters and warming centers and only provided three sign-in sheets for three of six shelters accounting for a total of 138 residents.  FEMA also found that the Applicant claimed an excessive amount of DAC, and reduced funding accordingly.

First Appeal

The Applicant appealed FEMA’s determination on February 3, 2015, and requested the associated costs.  The Applicant argued that its pay policies allowed exempt employees to receive compensatory time and non-exempt employees to receive overtime, and these employees were performing critical emergency work.  The Applicant explained that it set up the JOC/EOC to coordinate and support emergency response efforts, as well as shelters and warming centers that the Parks Department helped setup and operate.  It also executed emergency contracts through the DPW to perform emergency road clearance to ensure City traffic was not brought to a standstill, to protect health and safety of the public, and to keep the roadways accessible for emergency responders.  The Applicant stated that ice removal was necessary and salting should be considered emergency work for ice removal, rather than being incorrectly classified as snow removal.  Consequently, the Applicant purchased $434,360.06 in salt/stone gravel to replenish the supply that was exhausted during a prior storm.  The Applicant argued that it needed additional police and fire personnel to help protect the City and to respond to emergency calls.  Accordingly, the Applicant also needed additional personnel at its 911 and 311 centers to address the increased call volume.  In addition, the Applicant claimed the generator repair costs were a necessary expense due to the extreme circumstances even though it had not maintained them.  In the alternative, the Applicant requested reimbursement for equipment costs for the generators.  Moreover, the Applicant also argued that it had a duty to feed its employees and provide lodging for its FAL performing emergency work.  Finally, the Applicant requested DAC for a dozen police officers who reviewed and assembled supporting documentation for Police department overtime.  The Grantee forwarded the appeal on February 11, 2015.

FEMA Region IV issued a Final Request for Information (RFI) on February 11, 2016, requesting the Applicant document the overtime worked, tasks performed, and costs charged.  The Applicant’s April 4, 2016 response addressed each request, included additional documents that it considered relevant, and suggested FEMA refer back to information previously provided.

FEMA Region IV Regional Administrator (RA) denied the Applicant’s appeal in a decision dated August 31, 2016.  The RA determined the Applicant did not demonstrate the eligibility of work and costs associated with the claimed emergency protective measures.  The RA explained that FEMA’s snow assistance policy includes reimbursement for snow removal, de-icing, salting, snow dumps, and sanding of roads and other eligible facilities, but only applies if the emergency declaration specifically authorizes snow assistance, and this declaration did not.  The RA also found that the Applicant did not maintain its generators prior to the disaster, nor provided documentation showing the generators were operated during the disaster (e.g., the dates and times of usage or fuel charges).  The RA also rejected the claimed material costs for supplies at the shelters and warming centers because they were not documented, and the majority of costs were incurred by departments not performing emergency work or for purchases outside the incident period.

The RA also deemed the Applicant’s costs for meals and lodging ineligible because its predisaster personnel policy did not provide for such costs, the lodging costs were also ineligible as an increased operating expense.  FEMA similarly had requested the Applicant provide daily activity logs reflecting specific tasks performed, labor spreadsheets for work periods when overtime or compensatory time was accrued and the work periods before and after for the Applicant’s Watershed Management, Corrections, and Police FAL.  The Applicant, however, only submitted spreadsheets with general descriptions of employees’ jobs, and labor spreadsheets with no information about the actual emergency tasks performed by its FAL.  The RA noted that the Applicant’s Park Department labor spreadsheet did not demonstrate that its FAL worked overtime under the Applicant’s labor policy.  In addition, the RA stated that the 311 communication FAL were eligible per the Applicant’s pay policy for overtime after exceeding 40 hours of work per week, but not after working an 8 hour day, as the Applicant claimed.  Similarly, the RA found that the Applicant did not show that the FAL overtime claimed by its Fire Department was eligible under its predisaster pay policy.  While the RA acknowledged that some of the Applicant’s FAL accrued overtime or compensatory time could be eligible, she noted that the information provided did not demonstrate it furthered emergency work. 

Finally, the RA determined that the Applicant’s DAC claim was excessive, and was not substantiated with documentation that included the detail and descriptions required by FEMA policy.  Overall, the RA stated that the Applicant did not provide adequate documentation to justify its claimed costs, nor satisfy record keeping requirements.

Second Appeal

The Applicant appealed the RA’s decision on November 18, 2016, and requested $10,184,923.36 in Public Assistance (PA) funding.  The Applicant’s second appeal reiterates its first appeal claims, requests a substantive review and direct response to its arguments, and requests a meeting with FEMA Headquarters.  The Applicant argues that its costs were incurred to address the possible disastrous impacts of the disaster’s severe ice accumulation.  Furthermore, the Applicant insists that it was effectively denied its appeal rights because the RA’s first appeal decision did not clarify basic policy or fully address the Applicant’s appeal arguments.  The Grantee concurred with the Applicant, and transmitted the appeal to FEMA on November 21, 2016.  In an April 12, 2017 letter to FEMA, the Applicant withdraws its request for $5,267,742.50 in ice removal costs from one of its contractors, and thus amends its appeal amount to $4,917,180.86.[1]

Discussion

Ice Removal and Associated Costs for FAL, Materials, and Equipment

The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988 (Stafford Act) § 403 grants FEMA discretionary authority to provide assistance essential to meet immediate threats to life and property resulting from a disaster.[2]  Implementing this authority, Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.225(a) authorizes reimbursement of emergency protective measures necessary to eliminate or lessen immediate threats to life, public health, or safety, as well as threats of significant additional damage to improved property.  However, 44 C.F.R. § 206.227 restricts emergency and major disaster declarations that are based on snow or blizzard conditions to cases of record or near-record snowfall and the associated federal assistance is limited to a set period of time, which is specified by the conditions of the disaster and in certain circumstances to perform eligible permanent work.

FEMA’s DAP 9523.1, Snow Assistance and Severe Winter Storm Policy, defines snow assistance as “[a]ssistance for all eligible activities under Category B, emergency protective measures . . . related to a snowstorm, including snow removal, de-icing, salting, snow dumps, and sanding of roads and other eligible facilities,”[3] and a severe winter storm as “an event that occurs during the winter season that includes one or more of the following conditions: snow, ice, high winds, blizzard conditions, and other wintry conditions; and that causes substantial physical damage or loss to improved property.”[4]  In contrast, that policy defines a snowstorm as “an event in which a State has record or near record snowfall.”  While the Stafford Act and DAP 9523.1 distinguish snowstorms from severe winter storms for declaration purposes, all associated emergency protective measures listed above are included under snow removal activities, regardless of disaster event type.  DAP 9523.1 specifically states that in addition to satisfying the requirements of disaster declarations, a severe winter storm is not required to meet the record or near record snowfall requirements.  However, FEMA will not include snow removal costs when calculating costs for severe winter storm declarations.[5]

On second appeal, the Applicant stresses the point that FEMA Region IV misclassified the event as a snowstorm, when in fact it was a severe winter storm.  This is highlighted because the Applicant believes there is a distinction between the availability of assistance depending on the classification.  Before discussing this alleged distinction and the implications therein, the Applicant’s description of the event in its first appeal is noteworthy:

Precipitation started as light rain late on the 10th, with significant snow by the following morning while still above freezing, turning back to light rain before ending mid-day.  More light rain began after midnight, changing to snow as temperatures fell, then to sleet, freezing rain, back to sleet again before another significant snow by the morning of the 13th.[6]

FEMA agrees that the weather event in this instance is a severe winter storm, and it was appropriately declared as such.  FEMA also notes that there was not a record or near record snowfall and accordingly finds that the assistance was limited.[7]  The policy limits snow removal costs for severe winter storms, just as it limits assistance in snowstorms.  The Applicant did not qualify for snow assistance, such as de-icing, sanding, and salting the roads.  Moreover, the Applicant did not demonstrate that it performed limited snow removal to perform otherwise eligible work.  Thus, the claimed work and associated FAL and material costs were not eligible for PA.  

Generator Repair/Associated Equipment Costs and FAL Enterprise Asset Management

To be eligible for PA funding, an item of work must be required as a direct result of a major disaster.[8]  Damage that results from a cause other than the designated event, such as work to correct inadequacies that existed prior to the disaster, is not eligible.[9]  FEMA’s Public Assistance Guide (PA Guide) authorizes reimbursement for temporary generators at facilities that provide health and safety activities.[10]  However, time spent maintaining and repairing applicant-owned equipment, such as generators, is not eligible because such costs are included in equipment rates.[11]  Costs to operate equipment are reimbursed at an hourly rate[12] that includes costs for operation, fuel, insurance, depreciation, and maintenance; however, they do not include the labor of the operator.[13]

The Applicant submitted invoices for its generator repair work and FAL overtime for Enterprise Asset Management to perform the work.  The Applicant alternatively requests estimated usage costs for two days of generator use.[14]  However, the Applicant has conceded that it did not maintain the generators prior to the disaster, and that the repairs were not disaster-related.[15]  Accordingly, the RA correctly denied PA funding for the repair of the generators and the FAL associated with the repair or usage.  The PA Guide and DAP 9523.15, Eligible Costs Related to Evacuations and Sheltering describe instances of generator usage that are eligible for PA funding.  However, aside from an estimate, the Applicant has not documented disaster-related generator usage at specific dates and times, nor its fuel costs.  Thus, the generator repair and usage costs are ineligible for PA reimbursement. 

Support Documentation: FAL - Watershed Management, Corrections, and Police Departments

As noted, the Stafford Act § 403(a) authorizes FEMA to provide federal assistance to meet threats to life and property.[16]  Emergency work is defined as “work which must be done immediately to save lives or to protect improved property and public health and safety, or to avert or lessen the threat of a major disaster.”[17]  Facility costs, including labor costs, for shelters and EOCs are eligible, as well as associated costs for supplies, commodities, and security.[18]  Eligible supplies and commodities include costs for linens, blankets, pillows, etc.  For FAL working at an EOC, an applicant must track the duties being performed by its personnel.[19]  In addition, overtime for Police FAL for shelters are eligible.  In order to demonstrate its FAL performed eligible emergency work, an applicant must provide adequate supporting documentation.[20] 

The Applicant requested costs for its Corrections, Police, and Watershed Management departments.  The Applicant generally described that its Corrections Department prepared meals, set up cots, and handled other tasks related to the operation of the facilities.[21]  The Applicant stated that its Police Department received and responded to disaster-related calls and provided security at its shelters.[22]  Finally, the Applicant claimed its Watershed Management Department ensured the continuation of water and sewer services during the disaster and addressed additional breaks and system issues that occurred as a result of the disaster.[23]

With regard to its claimed Corrections, Police, and Watershed Management FAL, the Applicant argues that it submitted a labor summary outlining employee names, department, dates worked, total hours, hourly rate (regular and overtime), benefit calculation information, and general descriptions of work performed, which is more information than FEMA required.[24]  However, the Applicant’s support documentation only includes some of this listed information.  Often, the spreadsheets show hours worked and department, but omit the duties performed and whether an employee was performing overtime.[25]  In other instances, the spreadsheets depict other information such as overtime hours worked, but not all of the information needed to determine if the work performed was eligible.[26] 

The Applicant’s documentation does not detail the work performed by its employees, nor whether the work was straight time or eligible for overtime.  The Applicant contends that FEMA must address all of its first appeal arguments on second appeal because the RA failed to substantively address the Applicant’s claims in the first appeal analysis.  However, the Applicant merely repeats its previous arguments without providing an explanation to overcome the documentation deficiencies identified by the RA on first appeal, and states that it does not know what other information it could provide.[27]  The Applicant fails to correlate claimed emergency work done by its FAL, outside of straight time, with specific, eligible emergency protective measures.  FEMA expressed that the Applicant’s support documentation lacked clarity and did not validate overall eligibility.[28]  The responsibility to substantiate appeals with documented justification rests with the Applicant and necessitates it to produce records and explain how they support the appeal.[29]  In this instance, that did not occur.  Accordingly, the Corrections, Police, and Watershed Management departments FAL is ineligible for PA.

Support Documentation – FAL Overtime Labor: 311, Parks, and Fire Departments

Overtime for nonexempt employees and compensatory time for exempt employees is eligible, but must be in accordance with an applicant’s predisaster policies, which should be applied consistently in both disaster and non-disaster situations.[30]  The Applicant claims that its FAL performed eligible emergency work in that: its 311 Department handled additional calls as a result of the disaster, its Fire Department staffed the JOC/EOC, [31] and the Parks Department helped staff and operate the shelters and warming centers.[32]

FEMA reviewed the Applicant’s predisaster pay policies and support documentation, which reveal a certain number of hours must be logged before an employee can submit for overtime or compensatory time.  The 311 Department’s pay policy requires employees to work 40 hours per week before they are eligible for overtime.[33]  However, the Applicant’s timesheets reflect less than 40 hours of regular time worked for employees before submitting for overtime (e.g., employees submitted regular time reflecting only 16, 24, or 32 hours of regular time before accumulating overtime or compensatory time),[34] but does not provide any explanation for this discrepancy.  In addition, the Applicant submitted for 568 hours of straight time for 21 firefighters and points out that it calculated overtime as anything above 212 hours in a 28 day period, in accordance with its pay policy.[35]  However, the Applicant submitted 568 hours all as overtime, but it did not provide any documentation to demonstrate that these hours were in addition to straight time work.  It also did not provide timesheets reflecting the 28 day period to verify that each employee worked these claimed hours in addition to the 212 hours required in the pay policy. 

The Parks Department spreadsheets also do not provide information to demonstrate that the FAL were in fact working overtime in accordance with the Applicant’s labor policy.[36]  FEMA specifically requested the Applicant address the discrepancies between the overtime hours claimed and what had already been reimbursed.[37]  The spreadsheet provided the total hours worked, hours of overtime worked, and hourly rate,[38] but still reflected ineligible time, such as an employee working 26.5 hours total, with 22.5 of those hours claimed as overtime over a five day period.[39]  The inconsistencies and lack of explanation do not allow FEMA to find the employees worked overtime in accordance with the Applicant’s pay policy.  Accordingly, the Applicant has not demonstrated that the claimed amount is overtime per its pay policy.[40]   

Meal and Lodging Costs

The PA Guide states that while the costs of operating a facility or providing a service may increase due to or after a disaster, these costs are not eligible, with a few exceptions.[41]  The PA Guide provides examples of ineligible increased operating costs, including feeding staff of critical facilities and food services.[42]  It is important to note, however, that if the underlying work performed is ineligible, the cost for associated materials is likewise not eligible.[43] 

The Applicant requests PA for meals and lodging for its FAL.  However, despite multiple requests and opportunities for the Applicant to submit a predisaster policy providing that meals and lodging be provided to employees working during an emergency, the Applicant has failed to do so.  The Applicant argues that due to the extraordinary circumstances, the costs for meals and lodging should be funded, but there is no provision in FEMA policy to allow for the Agency to award funding and these costs are appropriately classified as increased operating expenses.[44]  The Applicant claims that the costs should be considered emergency protective measures, and cites to the PA Guide statement, “reasonable short-term additional costs to an applicant that are directly related to accomplishing specific emergency health and safety tasks as part of eligible emergency protective measures may be eligible,” as the basis for reimbursing them.[45]  However, the PA Guide specifically notes expenses associated with feeding staff is an example of an ineligible cost.  Moreover, the Applicant has not specified what emergency protective measures its FAL performed that required they be sheltered and fed.  Accordingly, the cost for meals and lodging are ineligible for PA funding.

Materials for the Shelters

DAP 9523.15, Eligible Costs Related to Evacuations and Sheltering, provides that items needed for and used directly for the disaster are eligible, including costs associated with cots, food, water, linens, blankets, pillows, personal comfort kits, and towels or washcloths.[46]  The cost of supplies purchased or taken from an applicant’s stock and used during the performance of eligible work is also eligible.[47]

In response to the Final RFI, the Applicant submitted a spreadsheet outlining costs associated with operating the shelters and warming centers, including costs for hand sanitizer, disinfecting wipes, first aid kits, hygiene kits, towels, and washcloths, blankets, diapers, cots, etc., as well as purchase orders and invoices for the material costs.[48]  However, the submitted purchase orders and invoices are inconsistent with the amounts the Applicant claims in its appeal.[49] 

Only the invoices for Source1, Home Depot, KACO, and Maj. B. LeCounte match the amount claimed.  However, the Source1 invoice includes costs the Applicant may have also claimed as DAC, and it reflects that the supplies were for information technology work performed at the Mayor’s Office, for the Applicant’s Finance Managers, and Chief Financial Officer, and other locations that are not specified.[50]  The Applicant has not stated what emergency work was performed at any of these locations.  FEMA awarded $2,818.31 in material costs, which reflected the costs FEMA could verify.  While the Applicant had the opportunity to explain what purchases corresponded to the accompanying invoices and what they were used for, it failed to do so.  Accordingly, FEMA cannot determine what costs, above what was previously awarded, are eligible. 

Direct Administrative Costs

DAP 9525.9, Section 324 Management Costs and Direct Administrative Costs, describes grant management and administrative costs that are eligible under the PA Program.  FEMA reimburses DAC incurred by grantees and subgrantees for specific projects when costs are properly documented, tracked, charged, and accounted for directly to a specific project, such as staff time to complete field inspections and preparation of a PW.[51]  To allow FEMA to evaluate DAC, grantees and applicants must provide information about each activity performed in sufficient detail (e.g., site identification, kick-off meeting, immediate needs, preliminary cost estimate, data collection and dissemination, travel expenses, etc.).[52]  This information enables FEMA to assess the skill level of each person performing the activities, the suitability of that skill level to the activity in question, and the level of effort required to complete the activity.[53] 

FEMA requested time and equipment records and descriptions of each task performed to support the Applicant’s DAC claim for 130 hours in labor performed by 12 of its police department employees.[54]  However, the Applicant provided no information about the specific work performed other than salaries and generic task descriptions such as “production/operations,” and argues that its claimed DAC is eligible and reasonable based on its total FAL costs requested.[55]  The Applicant reiterates that based on total Police Department FAL requested, the DAC submitted is eligible and reasonable.  It does not provide additional information about the specific tasks performed.  FEMA cannot award DAC for vague references to activities that lack detail to indicate the actual work performed.[56]  The work descriptions provided by the Applicant are not detailed enough for FEMA to determine that the claimed work constitutes eligible grant management tasks nor the reasonableness of the costs for that work.  Accordingly, the DAC requested on appeal is ineligible.

Conclusion

The Applicant has not demonstrated that the ice removal work meets FEMA’s eligibility requirements.  Similarly, the Applicant did not demonstrate that the cost for generator repair, FAL to repair the generators or estimated generator use were eligible.  In addition, it did not demonstrate that its FAL performed emergency protective measures or that those who may have performed emergency work did so in accordance with the Applicant’s predisaster pay policies.  Finally, the Applicant did not show the costs associated with meals, lodging, materials, and DAC are eligible.  Accordingly, the appeal is denied. 

 

 

[1] The Applicant explains that it wishes to withdraw $5,267,742.50 in contractor costs from the appeal amount because it has become aware of issues involving those costs and the contractor, which are the subject of outside investigations.  Letter from Agent, City of Atl., and Special Counsel, City of Atl., to Assistant Adm’r, FEMA (Apr. 12, 2017).

[2] The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. No. 93-288, § 403, 42 U.S.C. § 5170b (2013).

[3] FEMA Disaster Assistance Policy DAP 9523.1, Snow Assistance and Severe Winter Storm Policy, at 2 (Nov. 2, 2009).

[4] Id.

[5] Id.

[6] Letter from Risk Manager, City of Atl., and Special Couns. to the City of Atl., to Reg’l Adm’r, FEMA Region IV, at 3 (Feb. 3, 2015) [hereinafter Applicant’s First Appeal].

[7] FEMA Second Appeal Analysis, City of Blair, FEMA-1878-DR-NE (May 15, 2012) (explaining “the incident “was not designated for snow assistance as an emergency protective measure under the major disaster declaration for this incident . . . [t]he Applicant is therefore ineligible to receive snow assistance under FEMA's Public Assistance Program”).

[8] Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.223(a)(1)(2013).

[9] Public Assistance Guide, FEMA 322, at 29 (June 2007) [hereinafter PA Guide].

[10] Id. at 72.

[11] Id. at 44.

[12] Id. at 48.

[13] Id. at 48.

[14] Letter from Agent, City of Atl., and Special Couns. to the City of Atlanta, to Reg’l Adm’r, FEMA Region IV, at 15 (Nov. 18, 2016) [hereinafter Applicant’s Second Appeal]. 

[15] Id. at 14-15

[16] Stafford Act § 403(a)(3)(I). 

[17] 44 C.F.R. § 206.201(b).

[18] Recovery Policy RP 9525.7, Labor Costs – Emergency Work, at 1-2 (Nov. 16, 2006); PA Guide, at 72-73.

[19] PA Guide, at 73.

[20] 2 C.F.R. § 225 att. A § C.1.j; see also 44 C.F.R. § 206.206(a) (requiring applicants to provide documented justification to support appeals).

[21] Applicant’s Second Appeal, at 14.

[22] Id. at 20-21.

[23] Id. at 18.

[24] Id. at 19-20.

[25] Applicant’s First Appeal, at Attachments 2, 17, 19, and 22.

[26] Id.

[27] Applicant’s Second Appeal, at 20.

[28] Letter from Reg’l Adm’r, FEMA Region IV, to Dir., Ga. Emergency Mgmt. Agency, at 9 (Aug. 31, 2016); See also FEMA Second Appeal Analysis, Florida Department of Transportation, FEMA-4068-DR-FL, PW 1091, at 6 (Aug. 5, 2016).

[29] Florida Department of Transportation, FEMA-4068-DR-FL, PW 1091, at 6.

[30] RP 9525.7, at 1-2.

[31] Applicant’s Second Appeal, at 18.

[32] Id. at 14; Applicant’s First Appeal, at Attachment 18.

[33] Applicant’s First Appeal, at Attachment 11.

[34] Id. at Attachment 21.

[35] Applicant’s Second Appeal, at 24.

[36] Applicant’s First Appeal, at Attachment 18.

[37] Letter from Recovery Div. Dir., FEMA Region IV, to Dir., Ga. Emergency Mgmt. Agency, at 1-2 (Feb. 11, 2016).

[38] Letter from Agent, City of Atl., and Special Counsel to the City of Atl., to Pub. Assistance Branch Chief, FEMA Region IV, at Attachment G (April 4, 2016) [hereinafter Applicant’s Response to RFI].

[39] Id.

[40] See FEMA Second Appeal Analysis, Chambers County, FEMA-1791-DR-TX, at 8 (May 26, 2017) (stating that “[t]he RA’s resulting enforcement action was appropriate because the claimed [overtime] is in excess of the contract allowance…and is therefore unreasonable.”).

[41] PA Guide, at 54.

[42] Id.

[43] PA Guide, at 48 (stating, “[t]he cost of supplies that were purchased or taken from an applicant’s stock and used during the performance of eligible work is eligible (emphasis added)).

[44] Applicant’s Second Appeal, at 26.

[45] Id. (citing the PA Guide, at 55).

[46] FEMA Recovery Policy RP 9523.15, Eligible Costs Related to Evacuations and Sheltering, at 2 (Apr. 6, 2007).

[47] PA Guide, at 48.

[48] Applicant’s Response to RFI, at Attachment J (the invoices in Attachment K reflect the costs mentioned above, as well as costs for a mirror, several pairs of boots, administrative kits, tape, grips, ties, etc.). 

[49] Id. at Attachment K (FEMA notes the following discrepancies: (1) the invoices for Grainger Industrial are claimed to be for linens, but the only invoice included is for ice melt and does not match the invoice number listed in the spreadsheet; (2) one of the invoices for Home Depot is for an amount that does not match the amount claimed and it is not clear what supplies are being claimed from the invoice; (3) the invoice for Bob Barker totaled over $16,000.00, but the Applicant only claims around $500.00 in supplies and none of the costs claimed match up to the line items purchased; (4) Keefe Commissary statement (not invoices) included three dates after the disaster, and totaled $1,400.00, but the Applicant claims $750.00, which does not match the individual invoices; and (5) the Correct RX invoice is for $23,037.56 for medication, while the Applicant is claiming $60.00, or $1.00 for each medication, to address the flu).

[50] Id.

[51] Disaster Assistance Policy DAP 9525.9, Section 324 Management Costs and Direct Administrative Costs, at 3, 6 (Mar. 12, 2008); 2 C.F.R. § 225 att. A §§ C.1.a-b, C.1.j (“To be allowable under Federal awards, costs must… [b]e necessary and reasonable… allocable… [and] adequately documented”); 2 C.F.R. § 225 att. A § E.1 (“Direct costs are those that can be identified specifically with a particular final cost objective”); see also FEMA Second Appeal Analysis, City of Cedar Rapids, FEMA-1763-DR-IA, at 3 (May 9, 2014) (“costs cannot be assumed eligible if the costs are not tracked and documented in a manner that enables FEMA to determine if they are reasonable, necessary, and appropriate.”)

[52] City of Cedar Rapids, FEMA-1763-DR-IA, at 3.

[53] Id.

[54] Applicant’s Second Appeal, at 27.

[55] Applicant’s Response to RFI, at Attachment L.

[56] See FEMA Second Appeal Analysis, Central Bradford Progress Authority, FEMA-4030-DR-PA, at 4-5 (Feb. 29, 2016).