Force Account Labor & Equipment Costs

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster4337
ApplicantDepartment of Corrections
Appeal TypeSecond
PA ID#000-U0413-00
PW ID#GMP 28544/PW 6614
Date Signed2022-05-24T16:00:00

Summary Paragraph

The Florida Department of Corrections (Applicant) sought $19,698,922.17 to reimburse force account labor (FAL), equipment, materials, and contract costs it incurred for emergency protective measures between September 4 and October 3, 2017 due to Hurricane Irma.  FEMA requested more information and backup documentation to validate special compensatory leave (SCL) costs.  The Applicant provided excel spreadsheets that listed employee activity descriptions.  FEMA found $4,367,664.75 in eligible FAL overtime costs but disallowed $13,396,192.16 in SCL costs as the Applicant failed to substantiate that individual employees performed eligible work.  The Applicant appealed for a reduced amount of $7,790,205.69, noting that it administered SCL in accordance with its labor policy and bargaining agreements, and the Florida Administrative Code (FAC).  The Applicant stated that its labor policy and the FAC provide for accrual and payment of SCL and complied with FEMA policy.  FEMA denied the appeal on August 30, 2021, determining the Applicant did not provide documentation to validate the claimed costs.  In its October 25, 2021 second appeal, the Applicant repeats and expands on first appeal arguments and notes FEMA approved and reimbursed its FAL overtime claim for the same activities.  

Authorities and Second Appeals

  • Stafford Act § 403(a).
  • 44 C.F.R. §§ 206.225(a), 206.228(a).
  • PAPPG, at 21, 23, 24, 42, 57.

Headnotes

  • FEMA determines the eligibility of overtime, premium pay, and compensatory time costs based on the applicant’s predisaster written labor policy, provided it complies with FEMA policy.  When an applicant’s budgeted employees perform emergency work, only overtime labor is eligible for reimbursement through the PA grant program.
    • The Applicant submitted the predisaster written labor policy and labor report summaries, timesheets, and activity reports supporting its claim for SCL associated with its FAL overtime labor for emergency work performed.  

Conclusion

The Applicant’s SCL request associated with straight-time labor is denied.  However, the Applicant has demonstrated the SCL costs it incurred by budgeted employees performing emergency work during overtime are eligible. Accordingly, the appeal is partially granted for $4,367,664.75.

Appeal Letter

Kevin Guthrie

Director

Florida Division of Emergency Management

2555 Shumard Oak Boulevard

Tallahassee, FL 32399-2100

 

Re:       Second Appeal – Department of Corrections, PA ID: 000-U0413-00, FEMA-4337-DR-FL Grants Manager Project 28544/Project Worksheet 6614 – Force Account Labor & Equipment Costs

 

Dear Mr. Guthrie:

This is in response to a letter from your office dated December 13, 2021, which transmitted the referenced second appeal on behalf of Florida Department of Corrections (Applicant).  The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of $7,790,205.69 in Public Assistance funding for special compensatory leave (SCL) costs.  

As explained in the enclosed analysis, I have determined that the Applicant’s SCL request associated with straight-time labor is denied.  However, the Applicant has demonstrated that the SCL costs it incurred by budgeted employees performing emergency work during overtime are eligible.  Accordingly, the appeal is partially granted for $4,367,664.75.  By copy of this letter, I am requesting the Regional Administrator to take appropriate action to implement this determination.

Please inform the Applicant of my decision.  This determination is the final decision on this matter pursuant to 44 C.F.R. § 206.206, Appeals.

 

                                                                                                       Sincerely,

                                                                                                           /S/

                                                                                                       Ana Montero

                                                                                                       Division Director

                                                                                                       Public Assistance Division

                                                                       

 

cc:  Gracia B. Szczech  

Regional Administrator

FEMA Region IV

Appeal Analysis

Background

From September 4 – October  18, 2017, Hurricane Irma impacted Florida, creating an immediate threat to public health and safety and requiring emergency protective measures at Florida Department of Corrections (Applicant) detention facilities.  The Applicant sought $19,698,922.17 to reimburse force account labor (FAL), equipment and materials and contract costs incurred from September 4 to October 3, 2017.  FEMA requested more information and backup documentation to validate special compensatory leave (SCL) costs incurred for essential staff members required to work while state offices were closed during the hurricane.  The Applicant responded with excel spreadsheets that listed employee activity descriptions.  In a determination memorandum partially approving funding, FEMA found $4,367,664.75 in FAL overtime costs to be eligible but disallowed $13,396,192.16 in SCL costs as the Applicant did not substantiate that individual employees performed eligible work.

First Appeal

On October 8, 2020, the Applicant appealed the SCL denial for a reduced amount of $7,790,205.69, citing revised SCL activity and cost summary worksheets limited to employees who performed emergency protective measures, and noting its activity report was updated to provide detailed daily work descriptions of the emergency services performed by each employee.  The Applicant noted it administered SCL in accordance with its labor policy, bargaining agreements, and with the Florida Administrative Code (FAC).  The Applicant stated its labor policy and the FAC provide for accrual and payment of SCL and complied with FEMA policy.  The Florida Division of Emergency Management (Grantee) supported the appeal in its November 28, 2020 concurrence.

The FEMA Region IV Regional Administrator denied the appeal on August 30, 2021, stating the Applicant did not provide sufficient documentation to support its assertion that the SCL costs incurred were associated with eligible emergency protective measures.

Second Appeal

In its October 25, 2021 second appeal, the Applicant reiterates and expands on its first appeal arguments.  The Applicant states the revised activity report included with the first appeal provided employee names, titles, dates and hours worked and activity descriptions, and “the same activities were also used to support the [emergency protective measures] overtime claim which was approved and obligated.”[1]  In its December 13, 2021 transmittal the Grantee supports the second appeal. 

 

Discussion

FEMA is authorized to provide PA reimbursement for eligible emergency protective measures necessary to save lives, protect public health and safety, and protect improved property.[2]  To be eligible for reimbursement, costs must be directly tied to the performance of eligible work and be adequately documented.[3]  FEMA determines the eligibility of overtime, premium pay, and compensatory time costs based on the applicant’s predisaster written labor policy, provided the policy does not include a contingency clause, is applied uniformly regardless of a Presidential declaration, and has set non-discretionary criteria.[4]  When an applicant’s budgeted employees perform emergency work, only overtime labor is eligible for reimbursement through the PA grant program; straight-time labor for budgeted employees is not eligible for reimbursement.[5]   

The Applicant incurred costs for SCL for essential staff members required to work during closure of state offices during the hurricane.  These costs were incurred in accordance with its labor policy,[6] the FAC,[7] and bargaining agreements.[8]  FEMA reimbursed the Applicant for FAL overtime costs on the basis of the predisaster written labor policy and labor report summaries, timesheets, and activity reports in the record.  The documentation that supported reimbursement for FAL overtime also validates SCL costs associated with the same work.  As such, the Applicant’s costs for SCL earned by budgeted employees performing emergency work during overtime labor is eligible.  However, straight-time labor costs for budgeted employees are not eligible for PA funding, and the Applicant’s SCL request associated with straight-time labor is denied.     

                                                                 

Conclusion

The Applicant’s SCL request associated with straight-time labor is denied.  However, the Applicant has demonstrated that the SCL costs it incurred by budgeted employees performing emergency work during overtime are eligible. Accordingly, the appeal is partially granted for $4,367,664.75.

 

 

[1] Letter from FDOC, to Appeals Office and Compliance Supervisor, Fla. Div. of Emergency Mgmt., at 2 (Oct. 25, 2021).

[2] Robert T. Stafford Disaster Relief and Emergency Assistance Act, as amended, § 403(a)(3), 42 U.S.C. § 5170b (2012); Title 44 Code of Federal Regulations (44 C.F.R.) § 206.225(a) (2016); Public Assistance Program and Policy Guide, FP 104-009-2, at 42, 57 (Apr. 2018) [hereinafter PAPPG].

[3] PAPPG, at 21.

[4] Id., at 23.

[5] 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.

[6] Procedure 208.062, Overtime, at 2 (Apr. 8, 2014) (Special Compensatory Leave Credits, where used herein, refers to leave credits earned by employees filling career service included or career service excluded positions when work is required on the day a holiday is observed; the day of observance of a holiday falls on the employee’s regular day off; or the actual hours worked plus holiday time observed exceed the normal hours for the workweek, bi-weekly work period, or twenty-eight (28) day work period. Also, leave credits earned by employees below the Bureau Chief or comparable level, that the agency determines are necessary for providing essential services during closure of their facility and during which other employees are granted administrative leave.).

[7] Florida Administrative Code (FAC) 60L-34.0071(3)(e)(1)(a): Employees assigned to the facilities the agency has closed shall be released from duty and granted administrative leave for the period the facility is closed, unless and except for those employees the agency determines are necessary for providing essential services. Those employees whom the agency requires to report for duty to provide essential services shall be granted special compensatory leave credits for the hours worked during the period the facility is closed only if they hold a position below that of bureau chief (or bureau chief comparable as defined in Section 20.04(3)(b), F.S.).

[8] 2017-2020 State of Florida and Police Benevolent Association – Security Services Unit Agreement, Article 23, Section 6 – Special Compensatory Leave, at 39.  Fiscal Year 2017-20 State of Florida & AFSCME Master Contract Successor Agreement, Article 18, Section 6 – Special Compensatory Leave, at 27.

Last updated June 1, 2022