Force Account Labor & Equipment Costs, Immediate Threat

Appeal Brief

Summary Paragraph

The Woolsey Fire burned land in multiple counties of California during the incident period of November 8 through November 25, 2018. Los Angeles County (Applicant) activated its Department of Public Work’s Department Operation Center (DOC) to help coordinate the wildfire response. FEMA wrote Grants Manager Project 84179, an emergency protective measures’ project, to document the Applicant’s claimed costs for force account labor (FAL) overtime (OT), force account equipment (FAE) (i.e., a car), and meal costs. In a Determination Memorandum issued on August 4, 2020, FEMA denied $102,449.48, for FAL OT, FAE, and meals related to the DOC, as the Applicant did not document the specific activities performed by the FAL while supporting the DOC, to demonstrate the costs were associated with eligible emergency protective measures. The Applicant appealed and stated that the costs were eligible as they were associated with the dissemination of information to the public, an eligible emergency protective measure. The FEMA Region 9 Regional Administrator denied the appeal finding that the Applicant did not demonstrate specific emergency work performed, only providing a generic description of the work performed. The Applicant submitted a second appeal to the Recipient, requesting a total of $157,570.08, in FAL straight time, FAL OT, FAE and meal costs. The Applicant provides documentation including a cost analysis, a listing of the responsibilities of each specific employee, daily reports, and documentation to support DOC staff meal costs. The Applicant argues the documentation is sufficient to demonstrate that the work performed by the DOC staff represents eligible emergency protective measures.

 

Authorities and Second Appeals

• Stafford Act § 403(a).
• 44 C.F.R. § 206.223(a)(1), 206.225(a) (2019), 206.228(a)(1), 206.228(a)(2)(iii).
• PAPPG, at 19, 24, 26, 58, 62, 63.

Headnotes

• The applicant is responsible for showing emergency work is required due to an immediate threat resulting from the declared incident. FAL straight-time costs for budgeted employees performing emergency work are not eligible. Provision of meals, for employees and volunteers engaged in eligible emergency work may be eligible, provided one of the conditions set forth in FEMA policy are met.
  • The Applicant provided documentation demonstrating the FAL OT costs are directly tied to work that was required due to an immediate threat resulting from the disaster, but did not demonstrate the FAL straight-time is related to unbudgeted staff, and did not provide documentation to demonstrate the force account equipment or meals are eligible.

Conclusion

The Applicant has demonstrated that $101,530.17 in FAL OT is directly tied to eligible emergency protective measures. However, the Applicant has not demonstrated that the costs requested for FAL straight-time, FAE, or meals are eligible. Therefore, the appeal is partially granted in the amount of $101,530.17.

Appeal Letter

Appeal Analysis

Background

The Woolsey Fire burned land in multiple counties of California during the incident period of November 8 through November 25, 2018. Los Angeles County (Applicant) activated its Department of Public Work’s Department Operation Center (DOC) to help coordinate the wildfire response. The Applicant sent employees to work at the DOC, the County of Los Angeles Emergency Operations Center (EOC), and the Woolsey Fire Incident Command Post (ICP). FEMA wrote Grants Manager Project 84179, an emergency protective measures project, to document the Applicant’s claimed costs for force account labor (FAL) overtime (OT), force account equipment (FAE) (i.e., a car), and meal costs, in the amount of $170,358.76. In a Determination Memorandum issued on August 4, 2020, FEMA partially granted the requested costs. FEMA approved $67,909.28 for FAL staff who worked at the County of Los Angeles EOC and the Woolsey Fire ICP, as the Applicant demonstrated those costs were related to eligible emergency protective measures. In contrast, FEMA denied $102,449.48, for FAL OT, FAE, and meals related to the DOC, as the Applicant did not document the specific activities performed by the FAL while supporting the DOC, to demonstrate the costs were associated with eligible emergency protective measures.[1] 

First Appeal 

In a letter dated September 29, 2020, the Applicant appealed FEMA’s denial of $102,449.48. The Applicant stated the DOC-related costs were eligible as they were associated with the dissemination of information to the public, an eligible emergency protective measure. The Applicant provided an electronic log of the FAL staff assigned to the DOC, timecards for each individual employee listing the dates and hours worked, handwritten sign in sheets documenting when staff began and ended work, and a general summary of the work the Applicant claimed FAL performed at the DOC. In a letter dated November 10, 2020, the California Governor’s Office of Emergency Services (Recipient) clarified that Applicant was also seeking costs for FAL straight-time.[2] The Recipient stated it supported the Applicant’s appeal of the previously denied costs but did not support the Applicant’s claim for FAL straight-time.

On July 16, 2021, FEMA issued a Request for Information (RFI), seeking daily activity logs with descriptions of the specific emergency work performed by each individual employee assigned to the DOC, the amount of time spent on each activity, equipment mileage records tied to individual employee activity, and the Applicant’s justification for claiming overtime rates instead of straight-time labor rates. In a letter dated August 19, 2021, the Applicant responded to FEMA’s RFI providing a description of activities performed; a spreadsheet listing employee names and the date and hours worked; a labor activity memorandum listing the work completed by shift; and DOC sign in sheets.

The FEMA Region 9 Regional Administrator denied the Applicant’s appeal in a letter dated June 26, 2023, finding that the Applicant did not demonstrate the specific emergency work performed by the DOC staff, but rather, only provided a generic description of the work performed.[3]

Second Appeal

In letter dated August 31, 2023, the Applicant filed a second appeal, requesting a total of $157,570.08. This includes the original requested costs of $102,449.48 for FAL OT, FAE, and meals related to the DOC, as well as $55,120.60 in FAL straight-time costs for staff who worked at the DOC. The Applicant provides new documentation including a cost analysis, a listing of the responsibilities of each specific employee when the DOC is activated, daily reports documenting FAL activities performed in the DOC during the incident period, and receipts for DOC-employee meal costs. The Applicant argues the additional documentation is sufficient to demonstrate that the work performed by the FAL assigned to the DOC constitutes eligible emergency protective measures.

In a letter dated October 11, 2023, the Recipient partially supports the Applicant’s appeal, stating that the Applicant provided documentation to demonstrate $102,449.48 is associated with eligible emergency protective measures. The Recipient does not support the requested FAL straight time costs.

Discussion

Force Account Labor & Equipment Costs

FEMA is authorized to provide Public Assistance (PA) for emergency protective measures to save lives and protect public health and safety.[4] For emergency protective measures to be eligible, the applicant is responsible for showing the work is required due to an immediate threat resulting from the declared incident.[5] Eligible emergency protective measures include the dissemination of information to provide warnings and guidance about health and safety hazards; debris removal from, or emergency repairs to, an access facility, such as a road; and activities to direct and coordinate resources and response activities associated with eligible work.[6] FAL OT costs for budgeted and unbudgeted employees performing emergency work may be eligible based on the applicant’s predisaster labor policy.[7]FAL straight-time costs for budgeted employees performing emergency work are not eligible; for unbudgeted employees performing emergency work, FAL straight-time costs may be eligible.[8]FEMA provides assistance for the use of applicant-owned equipment (i.e., FAE) based on hourly rates.[9] To be eligible for PA, costs must be directly tied to the performance of eligible work.[10]

Regarding the FAL, the Applicant provides new documentation on second appeal, which includes specific descriptions of the work the claimed FAL performed at the DOC (activated in response to the disaster), clearly delineating its coordination of response efforts that are directly related to the declared incident. The daily reports, containing detailed activity logs, pertain only to work performed during the incident period, and verify that the FAL costs are directly tied to eligible emergency protective measures. For instance, the daily reports note that staff disseminated health and safety information by updating the Applicant’s public website with road closures so that the public could safely evacuate. The daily activity reports also document the staff coordinating with field crews to respond to and clear downed trees from multiple roads and coordinating the deployment of individuals to restore power to traffic signals and warning flashers at various locations. Additionally, the documentation shows that staff worked to ensure the availability of water for firefighting efforts. 

The administrative record does not establish whether the FAL OT relates to only budgeted employees, or unbudgeted employees, or a mix; however, FAL OT for emergency work may be eligible for either budgeted or unbudgeted employees. The Applicant has demonstrated, through the documentation provided on second appeal, that the FAL OT costs are directly tied to work that was required due to an immediate threat resulting from the declared incident. In addition to the new daily activity reports provided on second appeal, the Applicant has previously provided documentation confirming: (1) the names, job titles, and functions of the FAL claimed; and (2) days and hours worked through timesheets.[11] When viewed collectively, the Applicant has demonstrated the $101,530.17 in FAL OT is associated with eligible emergency protective measures and is eligible for PA.  

In contrast to FAL OT, FEMA policy explicitly states that FAL straight-time costs are prohibited for budgeted employees performing emergency work and only allowed for unbudgeted employees performing such work. Here, the Applicant has not demonstrated the FAL straight-time costs relate to unbudgeted personnel. Therefore, the requested $55,120.60 in FAL straight-time is not eligible for PA.

Lastly, the Applicant requests $46.87 in FAE for the use of a car on December 3, 2018. However, November 22, 2018 is the last date for which the Applicant claims FAL costs. Furthermore, the Applicant has not produced documentation, such as an equipment usage log, that specifically describes the emergency work associated with the FAE, to directly tie the use of the car to eligible emergency work. Therefore, the $46.87 in FAE is not eligible for PA.

Immediate Threat

Provision of meals, including beverages and meal supplies, for employees and volunteers engaged in eligible emergency work may be eligible provided the individuals are not receiving per diem, and (1) meals are required based on a labor policy or written agreement; (2) conditions constitute a level of severity that requires employees work abnormal, extended work hours without a reasonable amount of time to provide their own meals; or (3) food and water is not reasonably available for employees to use.[12]

Although the Applicant has demonstrated that employees were engaged in eligible emergency work at the DOC, the Applicant has not provided documentation that demonstrates the meals meet the conditions required by FEMA policy. The Applicant did not submit documentation establishing that: (1) the meals were required based on a labor agreement; (2) employees were not able to obtain their own meals in a reasonable time; or (3) food and water were not reasonable available for employees to use. Therefore, the requested $872.44 for meals is not eligible for PA.

Conclusion

The Applicant has demonstrated that $101,530.17 in FAL OT is directly tied to eligible emergency protective measures. However, the Applicant has not demonstrated that the costs requested for FAL straight-time, FAE, or meals are eligible. Therefore, the appeal is partially granted in the amount of $101,530.17.