Force Account Labor & Equipment Costs

Appeal Brief

Summary Paragraph

On August 4, 2020, Tropical Storm Isaias impacted areas within the City of New York Office of Management and Budget’s (Applicant) jurisdiction. The Applicant requested Public Assistance (PA) funding for force account labor (FAL) overtime (OT) associated with performing debris removal, patrolling, search and rescue, traffic control, and responding to storm-related emergency calls. The Applicant submitted timesheets, FAL OT summaries, and a fringe rate breakdown. FEMA issued a request for information (RFI) seeking additional details for the claimed FAL OT but did not receive a response. FEMA issued a Determination Memorandum denying PA funding, finding the Applicant did not substantiate eligibility of the claimed work. The Applicant appealed, providing an updated FAL OT summary, city human resource management system report, and fringe rate documentation. FEMA issued an RFI requesting supporting documentation tying specific work activities to claimed FAL OT hours and updated fringe benefit information. The Applicant provided an updated fringe rate calculation, a general description of the work performed, employee timesheets, and documentation it had previously submitted. FEMA denied the appeal finding the Applicant did not substantiate that the claimed hours were used to perform eligible work. The Applicant submits its second appeal, requesting approval of FAL OT totaling $164,168.70 for work it describes as above and beyond its employees’ normal duties in response to the disaster. 

Authorities

• Stafford Act § 403(a).
• 2 C.F.R. § 200.403(g); 44 C.F.R. §§ 206.206(a), 206.223(a)(1), 206.225(a).
• PAPPG, at 40, 51, 63, and 65.
• Fresno Cnty., FEMA-4569-DR-CA, at 3; Cnty. of Bergen, FEMA-4488-DR-NJ, at 3.

Headnotes

• For costs to be eligible, they must be directly tied to the performance of eligible work and adequately documented.
  • Here, the Applicant provides general work descriptions and a general narrative to support its request, but neither of which tie the claimed costs to eligible work. Therefore, the Applicant has not demonstrated the claimed FAL OT costs are directly tied to the performance of eligible work resulting from the disaster.

Conclusion

The Applicant has not demonstrated that the claimed FAL OT costs are directly tied to the performance of eligible work. Therefore, this appeal is denied.

Appeal Letter

Appeal Analysis

Background

On August 4, 2020, Tropical Storm Isaias caused damage throughout the state of New York. On October 2, 2020, the President declared a disaster (FEMA-4567-DR-NY) for impacted counties, which included Queens and Richmond counties within the jurisdiction of the City of New York Office of Management and Budget (Applicant). The Applicant requested Public Assistance (PA) funding for force account labor (FAL) overtime (OT) associated with work performed by its uniform and civilian officers. The Applicant stated the staff performed debris removal, patrolling, search and rescue, traffic control, and responded to storm-related emergency calls. The Applicant submitted timesheets, FAL OT summaries, and a fringe rate breakdown for civilian employees to support its claim. FEMA prepared Grants Manager Project 178205 to capture the claimed work.

On May 25, 2022, FEMA issued a request for information (RFI) seeking a more detailed summary of the FAL OT, including the type of payment, hourly rate, fringe rate, and exact days claimed. FEMA did not receive a response from the Applicant and cancelled the RFI on July 13, 2022. On November 30, 2022, FEMA issued a Determination Memorandum denying PA funding, finding the Applicant did not substantiate eligibility of the claimed FAL OT work.[1]

First Appeal

On January 25, 2023, the Applicant submitted its first appeal seeking approval of FAL OT costs in the amount of $195,526.81. The Applicant provided an updated FAL OT summary, city human resource management system report, and fringe rate documentation. The Applicant described the claimed work as Category B emergency work associated with the tasks described in its request for PA funding. The reports provided by the Applicant identified employee names, job titles, dates, OT hours, rates, fringe benefit amounts, a pay authorization code description (Tropical Storm Isaias), general work unit descriptions (e.g., Traf Spec Oper Sec T-504/5 C), and borough designations (Queens or Staten Island). The Applicant’s fringe rate documentation further explained the rates applied to police officers versus civilian employees. On March 24, 2023, the New York State Division of Homeland Security and Emergency Services (Recipient) transmitted the appeal with its support.

On August 24, 2023, FEMA issued an RFI requesting supporting documentation identifying specific work activities performed by each employee during the claimed FAL OT dates. FEMA also requested an updated fringe benefit certification, noting the previously provided documentation identified expenses not typically applied to OT wages. In an RFI response dated September 18, 2023, the Applicant provided an updated fringe rate calculation and modified the requested FAL OT amount to $164,168.70. The response also included a general description of the work performed, employee timesheets, and other documentation it had previously submitted.

On February 5, 2024, the FEMA Region 2 Regional Administrator denied the appeal. FEMA concluded the Applicant did not specify employees, days, or amounts related to specific work items and, therefore, did not demonstrate the claimed FAL OT hours were directly tied to the performance of eligible work.

Second Appeal

The Applicant submits its second appeal in a letter dated April 2, 2024, requesting approval of $164,168.70 for FAL OT costs associated with work it describes as above and beyond its employees’ normal duties in response to the disaster. On June 3, 2024, the Recipient transmitted the Applicant’s appeal and its support.

Discussion

Force Account Labor & Equipment Costs

FEMA is authorized to provide assistance for emergency protective measures to save lives or to protect public health and safety.[2] For emergency protective measures to be eligible, an applicant is responsible for showing that work is required due to an immediate threat resulting from the declared incident.[3] For costs to be eligible, they must be directly tied to the performance of eligible work and adequately documented.[4] At a minimum, FEMA usually requires the “who, what, when, where, why, and how much” for each item claimed.[5] It is the applicant’s responsibility to provide documentation to substantiate its claim as eligible and to clearly explain how those records support its appeal.[6]

The Applicant seeks PA funding for FAL OT costs it claims are associated with eligible emergency protective measures implemented to respond to the declared incident. The Applicant provides reports identifying individuals, job titles, dates, OT hours, rates, pay descriptions, work unit descriptions, and whether logged hours are in Queens or Staten Island. However, the Applicant does not detail specific work activities performed by the personnel associated with the claimed FAL OT hours. For example, the Applicant lists general work unit descriptions (e.g., Emergency Service Sq #9/UNIF, Emergency Service Sqd. #5/UNIF, Qns So. Traf Enf T-402/c, S.I. Traf Enf Unit T-302A/CIV, etc.), which does not demonstrate the claimed costs are associated with eligible work.[7] Moreover, although the Applicant supplied additional documentation that describes examples of activities performed in response to the disaster, such as debris removal, patrolling, search and rescue, traffic control, and responding to storm-related emergency calls, this narrative similarly does not tie specific time entries to eligible work activities. Therefore, the Applicant has not substantiated with supporting documentation that the claimed FAL OT costs are directly tied to the performance of eligible emergency protective measures.

Conclusion

The Applicant has not demonstrated that the claimed FAL OT costs are directly tied to the performance of eligible work. Therefore, this appeal is denied.