Force Account Labor & Equipment Costs

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4337
Applicant	Miami-Dade (County)
Appeal Type	Second
PA ID#	086-99086-00
PW ID#	6325
Date Signed	2021-10-20T16:00:00

Summary Paragraph

Hurricane Irma caused strong winds, torrential rain, and tidal surge, which resulted in extensive damage throughout Florida, and specifically, Miami-Dade County (Applicant).  The Applicant utilized force account labor (FAL) to perform emergency protective measures.  The Applicant requested $24,094,532.27 in PA funding, and FEMA partially approved, finding that the Applicant did not adequately document costs for eligible work in the amount of $18,488,284.56.  On first appeal, the Applicant argued that it provided adequate documentation, believing FEMA did not fully understand the work the county employees performed, and therefore, wrongly determined those activities to be ineligible.  FEMA evaluated the remaining emergency protective measures and associated costs, and found $13,350,310.15 ineligible.  The Applicant’s second appeal argues that the remaining work and costs were necessary to safeguard the lives of the public, protect property, and maintain the safety of the community, and provided descriptions of each activity, with one category redistributed. 

Authorities and Second Appeals

• Stafford Act § 403(a).
• 44 C.F.R. §§ 206.225(a), 206.228(a)(2)(iii).
• 2 C.F.R. § 200.402(g).
• PAPPG, at 21, 24, 58, and 60.
• Dep’t of Transp., FEMA-4068-DR-FL, at 5; City of Sweetwater, FEMA-1345-DR-FL, at 3.

Headnotes

• Emergency protective measures and costs are eligible when they are associated with saving lives, protecting public health and safety, and protecting improved property.
  • The Applicant demonstrated that some of the claimed emergency work activities were eligible emergency protective measures necessary to save lives, protect public health and safety, and to protect improved property.
• When an applicant’s budgeted employees perform emergency work, only overtime labor is eligible for reimbursement through the PA grant program.  Materials and equipment associated with overtime costs are eligible for reimbursement.
  • The Applicant demonstrated that $4,934,693.21 in costs associated with overtime for its budgeted employees performing emergency work is eligible.  However, the Applicant did not differentiate between equipment used during regular time (straight-time) and overtime and is found ineligible.

Conclusion

The Applicant has demonstrated that $4,934,693.21 in labor costs associated with emergency work is eligible.  However, the Applicant has not provided documentation to support the remaining $8,215,616.94 in claimed costs for non-eligible work and equipment used.  Accordingly, the second appeal is partially granted.

Appeal Letter

Appeal Analysis

Background

Between September 4 – October 18, 2017, Hurricane Irma caused strong winds, torrential rain, and tidal surge, which resulted in extensive damage throughout Florida, including to Miami-Dade County (Applicant).  The Applicant utilized force account labor (FAL) to perform emergency protective measures.  Initially, the Applicant requested $24,094,532.27, broken down into $23,533,737.94 in labor costs, $559,301.83 in equipment costs, and $1,492.50 in material costs.  On October 23, 3019, FEMA sent the Applicant a Request for Information (RFI) asking for documentation to support claims for work performed by its FAL.  The Applicant responded to the RFI on November 12, 2019, stating that the requested duty roster was uploaded to the Grants Portal, but the Dispatch/Calls Service Logs were no longer available.[1] 

On December 30, 2019, FEMA issued a Determination Memorandum (DM) partially approving Public Assistance (PA) funding for $5,606,247.71, finding that the Applicant did not adequately document costs to differentiate between eligible and ineligible work for the remaining $18,488,284.56. 

 

First Appeal

On March 6, 2020, the Applicant appealed the DM, stating that FEMA misunderstood or did not look at the entire array of information that the Applicant provided to justify the eligibility of the work and associated costs.  The Applicant clarified that the duty rosters were not intended to document the activities of the employees, but instead the 511F reports, which track employees and expenses, and the daily activity reports were the documentation of record for emergency work activities.  The Applicant attached a job description matrix to outline how the work its FAL performed is eligible for PA funding.[2]  On May 14, 2020, the Florida Division of Emergency Management (Grantee) forwarded the Applicant’s appeal, along with its concurrence.

On March 9, 2021, the FEMA Region IV Regional Administrator partially granted the Applicant’s appeal, stating that the Applicant had provided enough documentation for certain work activities, but found the remaining $13,350,310.15 in associated FAL and equipment costs ineligible.  FEMA determined the Applicant’s documentation did not include enough detail regarding each employee’s activities and location to determine that the work completed was disaster-related and it was unable to differentiate between eligible and ineligible work.  Additionally, FEMA stated the job description matrix used duplicate descriptions for claimed work for multiple different activities. 

 

Second Appeal

The Applicant submitted its second appeal on May 7, 2021 for $13,329,797.11.[3]  The Applicant submitted additional information and descriptions to demonstrate eligibility and revised the job description matrix to provide a more descriptive narrative for the categories of work.  Additionally, the Applicant included cost analysis sheets for each of the work activities, breaking down the costs associated with the work done by individual employees.  On July 6, 2021, the Grantee forwarded the Applicant’s second appeal to FEMA affirming its support.

 

Discussion

FEMA is authorized to provide PA funding for emergency protective measures necessary to save lives, protect public health and safety, and to protect improved property.[4]  Eligible emergency protective measures and associated costs include, but are not limited to, transporting and pre-positioning equipment and other resources for response, emergency operation center related costs, emergency access, evacuation and sheltering, and security, such as barricades, fencing, or law enforcement.[5]  Costs related to pre-positioning resources specifically for the declared incident are eligible if the resources are used in the performance of eligible emergency work.[6]

When an applicant’s budgeted employees perform emergency work, only overtime labor is eligible for reimbursement through the PA grant program.[7]  Only costs tied to the performance of eligible work are likewise eligible.[8]  The burden to fully substantiate an appeal with documented justification falls exclusively on the applicant and hinges on the applicant’s ability not only to produce its own records, but to clearly explain how those records support the appeal.[9]

In reviewing the Applicant’s documentation, including the cost analysis sheets,[10] duty roster,[11] and the 511F Report,[12] FEMA is able to verify who performed the work and when, and the associated cost.  The Applicant submitted 19 categories of FAL costs on second appeal.  FEMA reviewed these categories with the descriptions provided in the Applicant’s appeals and the job description matrix.  Twelve of the work categories include descriptions of work that are eligible for PA funding, as they are categories of work determined to be emergency protective measures necessary to save lives, protect public health and safety, and to protect improved property.[13] 

The cost analysis breakdowns include the requested regular pay (i.e., straight-time), overtime pay, and equipment costs for each permanent employee within the individual work categories.  Straight-time labor costs are not eligible for PA funding, and as such, that request for all work categories is denied in full, regardless of work activity eligibility.  In contrast, $4,934,693.21 in costs for overtime for employees performing eligible emergency work is eligible.[14] 

The Applicant did not provide any supporting documentation to differentiate between equipment used during regular time work and equipment used during eligible overtime work.  The Applicant only provided the costs associated with the equipment use throughout the entirety of the work performed.  The documents provided do not substantite that the equipment costs are tied to the performance of eligible work.  Without sufficient documentation, FEMA is unable to find the requests for equipment costs eligible.

 

Conclusion

The Applicant has demonstrated that $4,934,693.21 in labor costs associated with emergency work is eligible.  However, the Applicant has not provided documentation to support the remaining $8,215,616.94 in claimed costs for non-eligible work and equipment used.  Accordingly, the second appeal is partially granted.

 

[1] The Applicant purged the Dispatch/Calls Service Logs in accordance with State of Florida General Records Schedule GS1-SL For State and Local Government Agencies: Feb. 19, 2015 R. 1B-24.003(a)(a), Fl. Admin. Code (GS1-SL for State and Local Government Agencies (floridados.gov).

[2] The activities and corresponding descriptions are outlined in the Appendix associated with this response.

[3] The Applicant withdrew its request for reimbursement, in the amount of $20,513.04, related to the “Processing Prisoners” work category.

[4] Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act § 403(a); 44 U.S.C. § 5107(b) (2012); 44 C.F.R. § 206.225(a) (2016).

[5] Public Assistance Program and Policy Guide, FP 104-009-02 at 58 (Apr. 1, 2018) [hereinafter PAPPG].

[6] Id. at 60.

[7] 44 C.F.R. § 206.228(a)(2)(iii) (stating that the straight- or regular-time salaries and benefits of a grantee’s or applicant’s permanent employee personnel are not eligible in calculating the cost of eligible emergency protective measures, except for those costs associated with state evacuation and sheltering); PAPPG, at 24.

[8] PAPPG, at 21.

[9] FEMA Second Appeal Analysis, Dep’t of Transp., FEMA-4068-DR-FL, at 5 (Aug. 5, 2016); see also FEMA Second Appeal Analysis, City of Sweetwater, FEMA-1345-DR-FL, at 3 (Aug. 15, 2017) (“An applicant is required to substantiate its appeal by not only producing records, but [also] explaining how those records should be applied to support the appeal.”).

[10] The Applicant submitted cost analysis sheets for each of the appealed work activities, and they included the names of the employees, the dates they worked, regular pay, overtime pay, work location, work performed, equipment costs, and total costs.

[11] The duty roster is a breakdown of each of the employees, their normal work schedule, and the effective date of that work schedule.

[12] The 511F Report is the Applicant’s expense tracking system, which tracked the employee, the dates worked, regular and overtime salaries, work location, work performed, and equipment and material costs.

[13] A more detailed analysis of which categories are found eligible and why are provided in the Appendix to this second appeal response.

[14] See attached Appendix.