Force Account Labor and Equipment Costs, Evacuation, Medical Care, and Sheltering, Project Documentation and Closeout

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Desastre	4464
Applicant	Williamsburg County
Appeal Type	Second
PA ID#	089-99089-00
PW ID#	PW 86/GMP 118867
Date Signed	2022-03-31T16:00:00

Summary Paragraph

During August 31 – September 6, 2019, Hurricane Dorian caused damage in South Carolina.  Williamsburg County (Applicant) requested Public Assistance (PA) reimbursement for force account labor and equipment, meal, and supply costs relating to emergency protective measures.  In a Determination Memorandum, FEMA denied $269,301.50 in force account labor (FAL), force account equipment (FAE), and meals, supplies, and commodities, and approved $7,800.00 for generator costs.  Upon first appeal, the Applicant requested $269,301.50.  The Regional Administrator partially granted the first appeal for $2,143.84 and denied $267,157.66 because the Applicant did not provide sufficient documentation to support costs claimed.  The Applicant’s second appeal requests $265,759.04.  The Applicant provides its pay policy, duty sheets, and merchandise receipts to support hours, personnel, and equipment.  The Applicant states it does not have a policy in place to feed shelter workers or employees during a disaster.   

 

Authorities and Second Appeals

• Stafford Act §§ 403(a)(3), 403(d)(1)(B)
• 44 C.F.R. §§ 206.225, 206.228; 2 C.F.R. § 200.403

• PAPPG, at 21, 24, 28, 62, 63, 67, 68, 133, 139
• Pickwick Electric Co-op, FEMA-4471-DR-TN, at 2.

 

Headnotes

• PAPPG at 21, 24, 133 provides that only overtime costs are eligible for budgeted employees performing emergency protective measures, and only if costs are tied to the performance of eligible work. 

• The Applicant’s duty log sheets show the employees’ assignments for various days related to the disaster.  They also include work location and identify the equipment operated.  This, in addition to, the log sheets, timesheets, and spreadsheets allow FEMA to determine that eleven employees’ duties during these periods comprised eligible emergency protective measures.

• Per 44 C.F.R. §206.228(a)(1), FAE costs must be directly tied to the performance of eligible work.

• The Applicant submitted log sheets, timesheets, and vehicle hourly rates that directly tie certain equipment costs to eligible FAL OT hours.

• The PAPPG, at 63, provides that the purchase of personal protective equipment to perform emergency protective measures is eligible for PA.
  • The Applicant purchased reflective vest and coats for its personnel performing emergency work to stay visible to the public while in the field while power was out.  Therefore, the costs are eligible.
• The PAPPG, at 28 provides that the cost of supplies, including materials, is eligible if purchased and justifiably needed to effectively respond to and/or recover from the incident.

• The Applicant provided receipts to support shelter facility supplies and commodities costs, but the documentation does not establish eligibility for meals and computers under FEMA policy.

 

Conclusion

The Applicant has provided documentation to demonstrate $3,721.62 in force account labor, $2,944.12 in force account equipment, and $628.43 in supplies and commodities, are eligible for funding.  The remaining costs are denied because the Applicant did not demonstrate they were associated with eligible emergency protective measures.  The appeal is partially approved in the amount of $7,295.17.

 

Appeal Letter

Appeal Analysis

Background                                      

During August 31 – September 6, 2019, Hurricane Dorian’s severe winds, rain, and flooding caused damage throughout South Carolina.[1]  Williamsburg County (Applicant) requested Public Assistance (PA) for force account labor (FAL), force account equipment (FAE), supplies and commodities, and meals related to emergency work.  The Applicant claimed 4,847 FAL hours and 3,251 FAE hours for work associated with its Emergency Operations Center (EOC), evacuation shelters operations, traffic control and monitoring, and rescue and response efforts.  The Applicant also requested reimbursement for the purchase of a generator, personal protective equipment, mattresses, meals for employees and shelter evacuees, televisions, computer monitors, hygiene kits, and bookcases.  The Applicant’s total costs claimed were $277,101.50.

During a Recovery Scoping Meeting, FEMA requested documentation in support of the Applicant’s claim, including payroll policies, timesheets, equipment use records, daily activity/work logs, and any contract documentation.  Later, the Applicant submitted copies of both its Emergency Operations Plan (EOP) and Employee Handbook. 

In a Determination Memorandum (DM) dated September 17, 2020, FEMA denied $269,301.50 in FAL, FAE, supplies and commodities, and meals, and approved $7,800.00 for generator costs.  FEMA found that the Applicant did not provide documentation demonstrating that overtime pay was supported by the Applicant’s pay policies.  FEMA also determined that it needed activity logs or similar documentation to verify: (1) that the FAL employees completed eligible work; (2) the hours of FAE were actively used to complete eligible work; and (3) that vehicles were used to perform eligible emergency protective measures.  Additionally, the Applicant did not provide its rationale supporting purchases of a variety of materials, including televisions, mattresses, bookcases, and shelving.

First Appeal

The Applicant appealed and requested $269,301.50.  Regarding its overtime policy, the Applicant explained that certain administrative staff, classified as non-exempt employees, are entitled to overtime for work beyond 40 hours per week.[2]  The Applicant advised it had provided several explanations as to what work was done during the event, including brief descriptions, summary records explaining vehicle usage, operation plans, and duty sheets.  The Applicant explained that when the EOC is activated, all county employees assigned to the disaster response mission are activated.  The Applicant provided details of the work duties of employees in various departments.

The Regional Administrator (RA) partially granted the appeal, finding that the Applicant provided documentation supporting eligibility of $2,143.84 for televisions, shelter supplies, and meals for evacuees.  However, FEMA determined the Applicant did not provide sufficient documentation to support costs claimed for FAL, FAE, personal protective equipment, bookcases, mattresses, meals for personnel, and hygiene products.  

Second Appeal

In its second appeal, the Applicant requests $265,759.04, and submits similar arguments to its first appeal.  The Applicant provides its pay policy and Williamsburg County Council minutes approving the policy and duty sheets.[3]  Referencing its pay policy, the Applicant explained that overtime is approved by supervisors according to the operation conditions of its EOC, and that employees may be assigned work that is not part of their normal job during an emergency. 

The Applicant also stated that it provided bookshelves and air mattresses for use at its shelters, computer monitors for its back-up EOC, personal protective equipment for emergency protective work done in the field, and additional air mattresses for Fire and Emergency Medical Services staff.  The mattresses used in the shelter were for certain individuals with disabilities or access and functional needs, while the mattresses purchased for Fire and Emergency Medical Services staff provided bedding for staff required to work 24-hours-per-day.  The Applicant also provides invoices for hygiene products supplied to its shelters.  Regarding meals, the Applicant argues it is reasonable to assume employees working at an activated, 24-hour-per-day EOC are not able to purchase meals or receive nourishment during the disaster period on their own because businesses were closed.  The Applicant states it does not have a policy in place to feed shelter workers or employees working a disaster event.

 

Discussion

Force Account Labor and Equipment

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]  When an applicant’s budgeted employees perform emergency work, only overtime labor is eligible for reimbursement through the PA grant program.[5]  FEMA provides PA funding for the use of FAE based on hourly rates for the time the applicant is actually operating equipment.[6]  Only costs tied to the performance of eligible work are eligible.[7]  It is the Applicant’s responsibility to substantiate its claim as eligible; if there is not sufficient documentation provided to support the claim as eligible, then FEMA is unable to provide PA funding for the work.[8] 

With its second appeal, the Applicant provides additional documentation, including duty log sheets that show the employees’ assignments for various days related to the disaster.  They also include work location and identify the equipment operated.  This, in addition to the log sheets, timesheets, and spreadsheets, allows FEMA to determine that 11 employees performed eligible emergency protective measures during these periods.[9]  Therefore, FEMA determines an additional 164 overtime hours are eligible as FAL costs, for a total of $3,721.62.  The remaining FAL costs requested are not supported by the documentation as incurred during the performance of eligible emergency protective measures. 

The Applicant requests FAE costs for emergency and transit vehicles, a backhoe, and a dump truck used by various departments and emergency medical services and provided FAE logs that record equipment type, operator, dates and hours of use, and hourly rate.  With its second appeal, the Applicant provides duty log sheets which show the employees’ daily assignments, listing their activities and the equipment used during their eligible OT hours.  Accordingly, FEMA determines 140 hours of FAE vehicle usage at various rates are eligible for a total of $2,944.12.  The remaining FAE costs are not supported by the documentation as the Applicant did not show they were related to the performance of eligible emergency protective measures.  

Immediate Threat

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.[10]  Under limited circumstances, the provision of food may be an eligible emergency protective measure.[11] Provision of meals, including beverages and meal supplies, for employees and volunteers engaged in eligible emergency work, including those at EOCs, is eligible provided the individuals are not receiving per diem, and (1) a qualifying labor policy or written agreement requires provision of meals; (2) conditions are sufficiently severe as to require employees to work abnormal, extended work hours without a reasonable amount of time to provide for their own meals; or (3) food or water is not reasonably available for employees to purchase.[12]  FEMA only reimburses the cost of meals that are brought to the work location and purchased in a cost effective and reasonable manner, such as bulk meals.[13] 

The Applicant stated that staff at the EOC worked 24-hours-a-day and needed food to continue the work, and in support, provided receipts from grocery stores.  However, the Applicant does not supply any written agreement for the provision of meals, and the Applicant’s records do not show where the meals and food were provided or who the meals were provided to.  Although some of the items purchased were multiples, it is not clear from the Applicant’s documentation whether meals were purchased in bulk.  FEMA is unable to determine that the food purchases comply with FEMA policy, therefore the Applicant’s food purchases are ineligible for PA. 

Project Documentation and Closeout

An applicant must provide documentation to support its claim as eligible and show that costs are directly tied to the performance of eligible work.[14]  The cost of supplies, including materials, is eligible if purchased and justifiably needed to effectively respond to and/or recover from the incident; or taken from the Applicant’s stock and used for the incident.[15]  The purchase of personal protective equipment to perform emergency protective measures is eligible for PA.[16]

The Applicant stated that while curfews were being lifted, county staff and public safety officials were tasked with performing safety checks traveling to ensure that roads were safe enough for people to travel.[17]  Personnel were responsible for checking for downed power lines, trees, and debris that would create driving hazards.[18]  Public Works and Water Department timesheets show employees worked storm-related activities including “power outages.”[19]  Accordingly, the Applicant purchased reflective vests and raincoats for its employees to stay visible to the public while in the field conducting emergency work, while power was out.[20]  The Applicant has justified the purchase of its personal protective equipment to respond to the incident. Therefore, FEMA approves $443.60 for the personal protective equipment.

The Applicant also purchased air mattresses for its Fire and Emergency Medical Services personnel.  However, the Applicant did not provide documentation to verify that the mattresses purchased were used in relation to employees performing eligible emergency protective measures and therefore, the mattresses cannot be considered eligible for PA.  

Evacuation, Medical Care, and Sheltering

FEMA may provide assistance for work or services (i.e., emergency protective measures) to save lives or protect public health and safety, including sheltering of survivors.[21]  The cost of shelter supplies is eligible if purchased and justifiably needed to effectively respond to and/or recover from the incident.[22]  Shelter supplies and commodities such as personal hygiene kits, mattresses, computers (one per 25 shelterees), and minor facility modifications if necessary to make the shelter habitable, are all eligible.[23] 

The Applicant has provided receipts to support $95.55 claimed for hygiene supplies.  The Applicant has not provided logs for the shelters to determine whether any computers purchased comply with a 1:25 ratio, rather the Applicant claims the costs are for its Information Technology personnel and has not shown the computers were necessary for the performance of emergency work.  Therefore, its claimed computer costs are ineligible for PA funding.  From the Applicant’s receipts, FEMA identified costs of $89.28 for bookshelves and television shelves eligible as minor facility modifications.  FEMA also reviewed receipts for the purchase of air mattresses however, FEMA could not determine which mattresses were designated for the shelter and which mattresses were designated for Fire and Emergency Medical Services staff.  In total, the Applicant has documentation to support eligibility of $628.43 in supplies and commodities.

 

Conclusion

The Applicant has provided documentation to demonstrate $3,721.62 in force account labor, $2,944.12 in force account equipment, and $628.43 in supplies and commodities, are eligible for funding.  The remaining costs are denied because the Applicant did not demonstrate they were associated with eligible emergency protective measures.  The appeal is partially approved in the amount of $7,295.17.     

 

 

[1] The President declared a major disaster (FEMA-4464-DR-SC) on September 30, 2019.

[2] Except sworn law enforcement and fire suppression personnel.

[3] The Applicant has removed previously requested sandbag operations costs from the second appeal. 

[4] The Robert T. Stafford Disaster Relief and Emergency Assistance Act, § 403 (a)(3); § 403 (d)(1)(B),

42 U.S.C. § 5170(b) (2018); Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.225(a)(3)(ii) (2018). 

[5] 44 C.F.R. § 206.228(a)(2); Public Assistance Program and Policy Guide, FP 104-009-02, at 24 (Apr. 2018) [hereinafter PAPPG].

[6] 44 C.F.R. §206.228(a)(1); PAPPG, at 26.

[7] PAPPG, at 21.

[8] Id., at 133.

[9] This includes 8 hours from the Applicant’s Detention Center, 59 hours from the Sheriff’s Office, and 97 hours from the Transit Department.

[10] 44 C.F.R. §§ 206.223(a)(1), 206.225(a)(3)(i); PAPPG, at 19.

[11] PAPPG, at 63.

[12] Id.

[13] Id.

[14] 2 C.F.R. § 200.403; PAPPG at 21, 133.

[15] PAPPG, at 28.

[16] Id., at 63.

[17] GMP 118867-DR4464SC Correspondence,Email,Letter-Safety Inspection Work.docx

[18] Id.

[19] GMP 118867 - Force Account Labor - Timesheets - Public Works & Water Dept. Corrected.

[20] Letter from Williamsburg Cnty. Supervisor, to Federal Emergency Management Agency, (Second Appeal) at 2.

[21] Stafford § 403(a)(3); 44 C.F.R. § 206.225(a)(1). 

[22] PAPPG, at 28.

[23] Id., at 67-68.