FMAG – Mutual Aid Agreements – Procurement

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-5059
ApplicantWashington State Patrol
Appeal TypeSecond
PA ID#000-UW9XH-00
PW ID#PW 4
Date Signed2018-05-14T00:00:00
Conclusion:  Washington State Patrol (Applicant) has not demonstrated that the labor hours claimed are eligible for reimbursement.
 Summary Paragraph
During an incident period from July 10, 2014 to July 22, 2014, the Mills Canyon burned 22,000 acres of private and public owned lands, threatening various infrastructure.  The fire was beyond the capability of the local fire jurisdiction to respond so the Washington State Fire Services Resource Mobilization Plan was activated. FEMA prepared a Fire Management Assistance Grant FMAG Project Worksheet 4 to document eligible costs incurred during the execution of the Mobilization Plan.  FEMA subsequently determined that PW 4 included ineligible non-emergency labor costs, and reduced funding accordingly.  The Applicant filed a first appeal on January 19, 2017, arguing that: (1) the Mobilization Plan supplemented the use of a contract, therefore the labor costs for time spent not actively engaged in emergency operations are eligible; (2) the labor costs reduced by FEMA should be considered as a “lost pay” stipend; and, (3) FEMA made a mistake when reducing the labor costs, which resulted in an over-reduction of $421.35. The FEMA Region X Regional Administrator denied the appeal August 11, 2017, finding that labor costs for work unrelated to eligible fire suppression or emergency response, are not eligible for FMAG funding and that there had been no miscalculation of eligible labor cost in the amount of $421.35.  On October 17, 2017, the Applicant filed a second appeal arguing that the payment of on-duty labor costs included in the regular shift hours of the Career Fire Personnel is a contract cost and allowed under the Mobilization Plan’s contractual agreement.
 
Authorities and Second Appeals
  • Stafford Act § 420.
  • 44 CFR §§ 13.3, 13.36, 204.42(c), 204.43(c).
  • 2 C.F.R. § 225 App. A.B.8.
  • FEMA P-954, at 23.
  • RP 9523.6, at 3.
  • RP 9525.7 at 3.
 
Headnotes
  • As outlined in 44 C.F.R. § 204.42(c), eligible costs include: overtime for permanent or reassigned state and local employees; regular time and overtime for temporary and contract employees hired to perform fire-related activities.
  • FEMA will reimburse mutual aid costs for eligible emergency work, in accordance with FEMA Recovery Policy 9523.6, Mutual Aid Agreements for Public Assistance and Fire Management.  RP 9523.6 provides examples of mutual aid work that are not eligible, including costs for preparing to deploy or standing-by. 
  • FEMA defines contract as meaning a procurement contract under a grant or subgrant pursuant to 44 C.F.R. § 13.3 and OMB Circular A-87
  • FEMA Recovery RP9525. 7, Labor Costs – Emergency Work, also states that all requested hours must be for actual time worked. Standby time is not eligible under the FMAG Program
    • The Applicant’s Mobilization Plan was a mutual aid agreement and thus is subject to RP9523.6.  While this mutual aid agreement was a contract between the Applicant and local jurisdictions, it was not a procurement contract under federal regulations, nor is it exempted from FEMA’s requirements for mutual aid agreements and labor costs.
    • Moreover, the Applicant has submitted timesheets to show that the Career Fire Personnel were working regular hours, rather than overtime. 
    • In addition, the Applicant has not demonstrated that the employees were engaged in fire-related activities.
 
 

 

Appeal Letter

Robert Ezelle
Director
State of Washington Military Department
Emergency Management Division
20 Aviation Drive
Building 20B, MS: TA-20
Camp Murray, Washington 98430-5122
 
Re:      Second Appeal – Washington State Patrol, PA ID 000-UW9XH-00, FEMA-5059-FM-WA, Project Worksheet 4 – FMAG – Mutual Aid Agreements – Procurement
 
Dear Mr. Ezelle:
 
This is in response to a letter from your office dated December 15, 2017, which transmitted the referenced second appeal on behalf of Washington State Patrol (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of $21,504.20 in costs pertaining to labor expenses.
 
As explained in the enclosed analysis, I have determined that the Applicant did not demonstrate that the costs associated with labor hours were for fire suppression or other disaster related work.  Additionally, the Applicant did not provide the requested documentation to support its claim that FEMA incorrectly reduced eligible labor hours in the amount of $421.35.  Therefore, I am denying this appeal.
 
Please inform the Applicant of my decision.  This determination is the final decision on this matter pursuant to 44 CFR § 204.54, Appeals.
 
Sincerely,
 
 /S/
 
Keith Turi
Assistant Administrator
Recovery Directorate
 
Enclosure
 
cc:  Mike O’Hare
Regional Administrator
FEMA Region X
 
 

Appeal Analysis

Background
 During an incident period from July 10, 2014 to July 22, 2014, the Mills Canyon Fire, located in Chelan County, Washington burned 22,000 acres of private and publicly-owned lands.  The Washington State Patrol (Applicant) applied for a Fire Management Assistance Grant (FMAG) on July 22, 2014.  FEMA prepared Project Worksheet (PW) 4 to document eligible costs, which included labor costs (personnel not compensated by their home agency), contract costs (personnel compensated by their home agency), and cost share incurred in accordance with the Washington State Fire Services Resource Mobilization Plan (Mobilization Plan).  The authority for the Mobilization Plan is provided under the Revised Code of Washington.  The purpose of the Mobilization Plan is to provide a process to “quickly notify, assemble, and deploy fire service personnel and equipment to any local fire jurisdiction in the state that has expended or will expend all available local and mutual aid resources in attempting to manage fires, disasters or other events that jeopardize the ability of a jurisdiction and/or region to provide for the protection of life and property.”[1]  As part of the response to the declared fire, the Mobilization Plan was activated to allow mobilization of needed resources for fire suppression and associated operations.  When the Mobilization Plan is activated, the Applicant reimburses individual local fire jurisdictions for costs incurred in the response to an FMAG-declared fire or other incident.[2] 
 
FEMA subsequently issued a determination memorandum on November 15, 2016, reducing funding by $21,504.20.  For justification, FEMA referred to its Recovery Policies, RP9525.7 Labor Costs-Emergency Work, and RP9523.6 Mutual Aid Agreements for Public Assistance and Fire Management Assistance, to determine that the claimed costs were not eligible because they are associated with time spent not working. 
 
First Appeal
 
The Applicant submitted a first appeal dated January 19, 2017, and asserted that payment of the contract costs were required and allowed pursuant to the terms of the Mobilization Plan.[3]  The Applicant explained that once mutual aid resources have been exhausted, the Applicant declares a mobilization under the Mobilization Plan, which allowed for reimbursement to local fire departments and fire protection districts for the resources they provided.  Each fire protection district providing resources for state mobilizations had a signed contractual agreement, which provides that the Applicant pay eligible costs identified in the Mobilization Plan, including paying regular scheduled shift hours.  Further, the Applicant stated that FEMA mistakenly reduced eligible labor hours and costs, in the amount of $421.35.  On March 20, 2017, the State of Washington (Recipient) concurred and transmitted the Applicant’s first appeal and noted that the Mobilization Plan was authorized under state law. 
 
FEMA sent a Final Request For Information (Final RFI) on June 15, 2017, stating that there was insufficient evidence to support the Applicant’s assertion that the Mobilization Plan’s requirement of a general service contract between the Applicant and districts constituted a contractual obligation per federal regulations as set forth in Title 44 of the Code of Federal Regulations (44 C.F.R.) § 13.3.  FEMA requested a copy of a contract between the Applicant and a fire jurisdiction to clarify the terms of the agreement.  Furthermore, the RFI stated that the documentation provided did not show that the $421.35 in labor costs were for eligible working hours.  Last, FEMA informed the Applicant that the administrative record would close upon issuance of the first appeal decision and no additional documentation would be considered on second appeal.  Neither the Recipient nor the Applicant responded to FEMA’s Final RFI.
 
The FEMA Region X Acting Regional Administrator (RA) denied the first appeal on August 11, 2017.[4]  The RA found that labor costs associated with time spent not actively engaged in fire suppression or emergency response were not eligible for FMAG funding.  In addition, the RA stated that the Mobilization Plan was a statewide mutual aid agreement that utilized agreements between the Applicant and state fire jurisdictions for the purpose of financial reimbursement, but per FEMA policy, the labor hours claimed must be reimbursed under the definition of temporary hires.  In addition, the RA determined that the Applicant did not provide sufficient documentation that there was a miscalculation of ineligible labor costs in the amount of $421.35.
 
Second Appeal
 
The Applicant appealed in an October 17, 2017 letter,[5] arguing that the payment of on-duty or regular time labor included in the regular shift hours of the career fire personnel is a contract cost pursuant to the Mobilization Plan’s contractual agreement.  The Applicant further argues that FEMA mistakenly reduced and changed eligible labor hours that were unrelated to whether personnel were or were not working.  The Applicant claimed costs in the amount of $21,082.85 related to the Mobilization Plan’s allowable contract costs, and $421.35 related to FEMA’s miscalculation.  The Recipient concurred on December 15, 2017[6] and claimed that activation of the Mobilization Plan by the Applicant initiated a contractual agreement with local jurisdictions and the hours identified in FEMA’s Determination Memorandum as time spent not working are reasonable and necessary and are contractually mandated by the Mobilization Plan.  The Recipient further contends that the Mobilization Plan constitutes written policies and labor union contracts that were in effect prior to the disaster.[7]
 
Discussion
 
Section 420 of The Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act), and its implementing regulations, grants FEMA the authority to provide fire management assistance to state and local governments.[8]  Many state and local governments enter into mutual aid agreements to provide services across boundaries in an emergency or major disaster.[9]  Such agreements provide for reciprocal services or direct payment for services.[10]  FEMA reimburses mutual aid costs for eligible emergency work in accordance with FEMA policy.[11]  FEMA’s Mutual Aid Agreements for Public Assistance and Fire Management policy provides examples of ineligible mutual aid work, including costs for preparing to deploy or standing-by (except to the extent allowed in the FMAG program pursuant to 44 C.F.R. § 204.42(e)).[12]  In addition to mutual aid agreements, Federal regulations also provide requirements for procurement contracts, which must comply with Federal procurement requirements, and lay out the terms of procurement.[13]  In addition, 204.42(c) provides that eligible costs in the FMAG program include overtime for permanent or reassigned state and local employees, regular time and overtime for temporary and contract employees hired to perform fire-related activities.[14]  FEMA Recovery RP9525.7, Labor Costs – Emergency Work, also states that all requested hours must be for actual time worked. Standby time is not eligible under the FMAG Program.[15]  
 
The Applicant claims that the Mobilization Plan is a binding contract, which provides that the Applicant will pay Career Fire Personnel for regular shift work as well as reimburse the Applicant for missed shift hours as a lost-pay stipend.  The purpose of the Mobilization Plan is to provide a process to notify, assemble, and deploy fire service personnel and equipment to any local fire jurisdiction to manage fires or other disasters.  As part of the response to the declared fire, the Mobilization Plan was activated.  Section 15, Compensation Principles of the Mobilization Plan, states “[a]ll fire jurisdictions participating in fire mobilization need to have a valid General Services Contract with the [Applicant].  This agreement allows the [Applicant] to exchange funds with the fire jurisdiction.”[16]  As such, the Mobilization Plan utilized by the Applicant and local fire jurisdiction constitutes a mutual aid agreement under FEMA policy.  Accordingly, it is subject to FEMA Recovery Policy 9523.6, Mutual Aid Agreements for Public Assistance and Fire Management.  As this policy excludes costs for preparing to deploy or standing-by, those costs in addition to non-disaster related work are ineligible.  Accordingly, the time claimed by the Applicant for regular shift work, as well as missed shift hours are not eligible for Federal funding.
 
Although the Applicant maintains that all of the costs allowed under the Mobilization Plan are eligible for reimbursement because it is a binding contract, this mutual aid agreement is not a contract as defined under 44 C.F.R. § 13.3 and 2 C.F.R. § 225 App. B.8.  The Plan is not intended to be a procurement contract, nor does it comply with Federal procurement requirements, or lay out the terms of procurement in accordance with § 13.36.  Rather, this mutual aid agreement provides for other contracts as a method to assemble fire personnel under the Plan.  The Mobilization Plan provides that even if a mobilization qualifies as a presidential or other federally declared incident, the reimbursement policy would not change, even if all the costs for an incident are not eligible for federal reimbursement, and the local jurisdictions would still be fully reimbursed.[17]  The Applicant did not procure the services of the Career Fire Personnel under a recognized procurement contract, provided for reimbursement to state agencies and local fire jurisdictions that incurred expenses when mobilized.[18]  FEMA will only fund disaster related work, regardless of whether the Mobilization Plan obligated the Applicant to reimburse the Career Fire Personnel.  In addition, regardless of whether the career fire personnel are considered permanent employees or temporary hires, the Applicant has not demonstrated that the work claimed is eligible.  The employees were not working overtime (as required for permanent employees) and there is no claim or documentation to show they were performing eligible firefighting activities or other emergency work.
 
Finally, in the Final RFI, FEMA requested the Applicant provide timesheets that could show the eligible hours worked or any document that could support the Applicant’s position that $421.35 was improperly reduced.  The Applicant did not submit any additional documentation in response and the Grantee acknowledged in its second appeal submittal that the document(s) requested are produced only for the disaster for hours worked by personnel assigned to the disaster, and are not produced for personnel working backfill at their home units, as was the case for the employee in question.  As such, the $421.35 in claimed costs are ineligible. 
 
Conclusion
 
The Applicant has not demonstrated that the costs associated with labor hours were for fire suppression or other disaster related work.  Additionally, the Applicant did not provide the requested documentation to support its claim that FEMA incorrectly reduced eligible labor hours in the amount of $421.35.  For these reasons, the appeal is d
 

[1] Wash. State Fire Services Resource Mobilization Plan, at 5 (Apr. 22, 2014) [hereinafter Mobilization Plan].
[2] Id. at 57 (“[l]ocal jurisdictions will be fully reimbursed for their eligible state mobilization expenses, even if all costs associated with the state mobilization incident are not eligible for federal reimbursement.”); and Id. at 59 (stating “Time in assigned status (on-duty time) – Assigned hours are those in which the employee is assigned to duty on the incident according to the shift plan.  Assigned hours include reasonable time spent in preparation for work before and after the shift, travel to and from the assignment, time spent in staging, briefings, check-in, and demobilization.”).
[3] Letter from Applicant Agent, Wash. State Patrol, to Acting Reg’l Adm’r, FEMA, at 2 (Jan. 19, 2017).
[4] FEMA First Appeal Analysis, Wash. State Patrol, FEMA-5059-FM-WA (Aug. 11, 2017).                                                                                  
[5] Letter from Applicant Agent, Wash. State Patrol Budget and Fiscal Servs., to Acting Reg’l Adm’r, FEMA (Oct. 17, 2017).
[6] Letter from Deputy State Coordinating Officer, Wash. Military Dept. Emergency Mgmt. Div., to Assistant Adm’r, Recovery Directorate, FEMA (Dec. 15, 2017).
[7] FEMA did not consider any of the additional documentation submitted on second appeal in its review.  The administrative record was closed upon issuance of the RA’s first appeal decision and the Applicant was properly informed as such.
[8] The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. No. 93-288, § 420(c), 42 U.S.C. § 5187 (2014); 44 C.F.R §§ 204.1-204.64 (2013).
[9] FEMA Fire Management Assistance Grant Program Guide, FEMA P-954, at 23 (Feb. 2014).
[10] Id.
[11] Id. (citing Recovery Policy 9523.6, Mutual Aid Agreements for Public Assistance and Fire Management (Nov. 10, 2012)).
[12] RP 9523.6, at 3; 44 C.F.R. § 204.42(e) provides that the actual costs of pre-positioning Federal, out-of-state (including compact), and international resources for a limited period may be eligible when those resources are used in response to a declared fire.
[13] 44 C.F.R. §§ 13.3, 13.36.
[14] Id. § 204.42(c).
[15] Recovery Policy RP 9525.7, Labor Costs – Emergency Work, at 3 (Nov. 16, 2006).
[16] Mobilization Plan, at 57.
[17] Mobilization Plan, at 57.
[18] Rev. Code of Was. § 43.43.964 (2014).
Last updated