Force Account Labor and Equipment Costs

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Desastre	4337
Applicant	Hialeah
Appeal Type	Second
PA ID#	086-30000-00
PW ID#	PW 6176
Date Signed	2021-07-12T16:00:00

Summary Paragraph

On September 10, 2017, Hurricane Irma struck Florida with strong winds, torrential rains, and flying debris, damaging parks and recreational facilities operated by the City of Hialeah (Applicant).  FEMA prepared Grants Manager Project 24076/Project Worksheet 6176 as a permanent work project to document damages to 17 project sites and associated repair work.  FEMA wrote a scope of work that approved removing and replacing baseball netting at seven sites and removing and replacing shade structures using force account labor (FAL) and force account equipment (FAE).  However, after review of supporting documentation, FEMA issued a Determination Memorandum denying costs associated with FAE (five pickup trucks) because the Agency could not validate the actual scope-of-work, actual costs as eligible performed work, and cost reasonableness.  In support, the Agency cited to a portion of FEMA policy that states only FAE costs associated with actual operation of equipment and mobilization are eligible, whereas costs for standby time are not eligible.  The Applicant appealed.  FEMA determined the Applicant did not provide documentation showing FAE was in active use for the hours claimed and denied all requested costs of $30,295.70.  The Applicant’s second appeal asserts that the FAE Record sheets sufficiently documented vehicle use.

 

Authorities and Second Appeals

• Stafford Act § 406(a)(1)(A).
• PAPPG, at 26.

Headnotes

• FEMA provides PA funding for the use of Applicant-owned equipment (i.e., FAE) based on hourly rates.  FEMA only applies equipment rates to the time the Applicant is actually operating equipment.  Although costs associated with mobilizing equipment to a project site are eligible, costs for standby time (time spent on hold or in reserve) are not eligible unless the equipment operator uses the equipment intermittently for more than half of the working hours for a given day.  
  • The Applicant has established that FAE was in active use for the hours claimed.

Conclusion

The Applicant has demonstrated the requested $30,295.70 in FAE costs are directly tied to the performance of eligible work.  Accordingly, the second appeal is granted.

Appeal Letter

Appeal Analysis

Background

On September 10, 2017, Hurricane Irma struck Florida with strong winds, torrential rains, and flying debris, damaging various parks and recreational facilities operated by the City of Hialeah (Applicant).  FEMA prepared Grants Manager Project 24706/Project Worksheet 6176 as a permanent work project to document damages to 17 citywide parks and associated repair work.  FEMA wrote a scope of work that approved removing and replacing baseball netting at seven sites and removing and replacing shade structures using force account labor (FAL) and force account equipment (FAE).  However, after review of supporting documentation, FEMA issued a Determination Memorandum on November 14, 2019, denying costs associated with FAE (five pickup trucks) because it could not validate the actual scope of work, actual costs as eligible performed work, and cost reasonableness.[1]  In support, FEMA cited to a portion of FEMA policy that states only FAE costs associated with actual operation of equipment and mobilization are eligible, whereas costs for standby time are not eligible.

 

First Appeal

The Applicant appealed by letter dated January 30, 2020 and provided supporting documentation including FAE Record sheets. The applicant also explained that two timesheets that failed to upload into the Grants Portal were later provided directly to the Program Delivery Manager.  The Florida Emergency Management Agency (Grantee) forwarded the appeal to FEMA accompanied by a March 23, 2020 letter of support. 

On December 31, 2020, the FEMA Region IV Regional Administrator determined the Applicant had not demonstrated the FAE was in active use for the hours claimed.  FEMA found the Applicant had neither demonstrated the trucks were used for eligible work during the hours documented nor separated eligible equipment hours from ineligible stand-by time.  FEMA therefore denied all requested costs of $30,295.70. 

 

Second Appeal

In its February 11, 2021 second appeal, the Applicant points out that per FEMA policy, mobilization costs are eligible.  The Applicant describes in detail the travel time and distance from its Park and Recreation base to the applicable parks, and how trucks went back and forth all day each day, transporting personnel, materials, and tools, to, from and between the permanent work project sites.  The Applicant affirms each pickup truck was in active use during the entire 7.5-hour workday.  To support its position, the Applicant references a FAE spreadsheet titled “Parks Netting” that lists specific trucks/models, operators’ names, equipment codes and rates per hour, and the specific dates the Applicant used the equipment (with a minimum usage time of 7.5 hours under each date).  The Grantee supports the second appeal by letter dated April 20, 2021.

 

Discussion

Section 406(a)(1)(A) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act authorizes FEMA to provide funding to a state or local government for the cost of repairing, restoring, reconstructing, or replacing a facility damaged or destroyed by a major disaster.[2]  FEMA provides Public Assistance (PA) funding for the use of Applicant-owned equipment (i.e., FAE) based on hourly rates.[3]  FEMA only applies equipment rates to the time the Applicant is actually operating equipment.[4]  Costs associated with mobilizing equipment to a project site are eligible, however, costs for standby time (time spent on hold or in reserve) are not eligible unless the equipment operator uses the equipment intermittently for more than half of the working hours for a given day.[5]  In this case the intermittent standby time is eligible.[6]   

Based on documentation provided on second appeal as well as documentation contained in FEMA’s grants management database, FEMA finds that $30,295.70 in FAE costs are eligible for PA.  FEMA reviewed FAL summaries, which describe eligible activities (completed via the FAE) such as loading nets and materials, installing nets, and unloading old damaged nets at various applicable parks.  The Applicant’s FAE spreadsheet for “Parks Netting” confirms its FAL used the pickup trucks during the entire 7.5-hour workday.  In its second appeal, the Applicant describes in detail how the trucks were used: (1) to transport personnel, netting, materials, and tools up to 8 miles from the Park and Recreation base; and, (2) at larger parks to transport personnel, netting, materials, and tools to, from and between project sites.  The Applicant explains the amount of time required to prepare, load and travel at the start of each day, and the time required to reload, travel back, unload and clean the vehicles at the end of each day.  Based on this documentation, the Applicant has supported that it used the equipment for more than half of the working hours for a given day.  Therefore, the Applicant has demonstrated the FAE costs are associated with eligible operational, mobilization, and intermittent standby time work.

 

Conclusion

The Applicant has demonstrated the requested $30,295.70 in FAE costs are directly tied to the performance of eligible work.  Accordingly, the second appeal is granted.

 

 

[1] The Applicant received the determination memorandum on December 4, 2019.

[2] 42 United States Code § 5172(a)(1)(A) (2012).

[3] Public Assistance Program and Policy Guide, FP 104-009-02, at 26 (Apr. 2018).

[4] Id.

[5] Id.

[6] Id.