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Force Account Labor & Equipment Costs

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster4468
ApplicantBrevard (County)
Appeal TypeSecond
PA ID#009-99009-00
PW ID#PW 239/GMP 130188
Date Signed2022-05-09T16:00:00

Summary Paragraph

From August 28 to September 9, 2019, Hurricane Dorian caused strong winds, torrential rain, and tidal surge. On August 29, 2019, the Applicant issued a State of Local Emergency declaration. The Applicant used FAL for storm preparation; fire department operations, including storm monitoring; and provision of non-emergency ambulatory services between residences and medical facilities.  The Applicant also placed additional Fire Rescue staff on duty to prepare for potential catastrophic damage, and paid the staff overtime/premium pay.  The Applicant’s claims included straight-time hours and overtime hours totaling $308,892.25.  FEMA issued a Determination Memorandum denying the $308,892.25 in costs because the Applicant’s activity logs did not provide details outlining the work each employee performed and most of the entries were generic and described activities that conform to the employees’ normal duties.  The Applicant appealed for $308,892.25 and argued that its documentation adequately supported its claim that FAL costs were for eligible emergency protective measures.  FEMA denied the appeal, stating straight-time hours for budgeted employees performing emergency work were not eligible for PA funding and the documentation provided by the Applicant did not substantiate the performance of eligible emergency work.  The Applicant submits its second appeal, reiterating its first appeal arguments.  The Applicant’s straight-time is not eligible because the work was performed by the Applicant’s FAL.  In addition, the Applicant has not demonstrated its FAL performed eligible emergency protective measures during the overtime hours claimed.  Therefore, the appeal is denied.

Authorities and Second Appeals

  • Stafford Act § 403(a)(3).
  • 44 C.F.R. §§ 206.223(a)(1), 206.225(a)(3)(i), 206.228(a)(2)(iii).
  • PAPPG, at 19, 24, 57.

Headnotes

  • 44 C.F.R. provides 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.
  • The Applicant’s supporting documentation only shows the work performed associated with normal/routine tasks.
  • The PAPPG 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 did not provide documentation that verified work done during overtime hours was FEMA eligible emergency work, and its straight-time claimed is ineligible.

Conclusion

The Applicant’s straight-time is not eligible for claimed emergency work performed by its budgeted employees.  In addition, the Applicant has not demonstrated its FAL performed eligible emergency protective measures during the overtime hours claimed.  Therefore, the appeal is denied.

 

Appeal Letter

Kevin Guthrie            

Director                                                                      

Florida Division of Emergency Management           

2555 Shumard Oak Boulevard                                              

Tallahassee, Florida 32399

 

Re:  Second Appeal – Brevard (County), PA ID: 009-99009-00, FEMA-4468-DR-FL, Project Worksheet (PW) 239, Grants Manager Project (GMP) 130188, Force Account Labor & Equipment Costs

 

Dear Mr. Guthrie:

This is in response to a letter from your office, which transmitted the referenced second appeal on behalf of Brevard County (Applicant).  The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of funding in the amount of $308,892.25 for force account labor (FAL) costs.  

As explained in the enclosed analysis, I have found the Applicant’s straight-time is not eligible for claimed emergency work performed by its budgeted employees.  In addition, the Applicant has not demonstrated its FAL performed eligible emergency protective measures during the overtime hours claimed.  Therefore, the appeal is denied.

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

 

Enclosure

cc:  Gracia Szczech  

Regional Administrator

FEMA Region IV

 

Appeal Analysis

Background

From August 28 to September 9, 2019, Hurricane Dorian caused strong winds, torrential rain, and tidal surge, which resulted in extensive damage throughout coastal Florida.[1]  On August 29, 2019, Brevard County (Applicant) issued a State of Local Emergency declaration.  The Applicant requested Public Assistance (PA) funding for its force account labor (FAL) to conduct fire department operations and non-emergency ambulatory services between residences and medical facilities prior to the disaster.[2]  The Applicant also placed additional Fire Rescue staff on duty to prepare for potential catastrophic damage and paid the staff overtime/premium pay. 

The Applicant submitted timesheets, payroll policy, activity logs, payroll earnings statements, and merit system policies to substantiate FAL costs, in accordance with its Declared Emergency Conditions pay provisions under the Applicant’s pay policy.  The Applicant also provided employee activity log sheets that list shift activities including, but not limited to, shift briefings, facility maintenance, time sheet completion, routine emergency medical service calls (non-disaster related), truck checkout and restocking.  The Applicant’s claims included straight-time hours and overtime hours totaling $308,892.25 and contract costs for $22,823.75.

On September 28, 2020, FEMA issued a Determination Memorandum finding the contract costs eligible, but denying the remaining $308,892.25 in costs because the Applicant’s activity logs did not provide details outlining the work each employee performed; most of the entries were generic and described activities that conform to the employees’ normal duties.[3]  

First Appeal

The Applicant appealed the determination in a letter dated November 25, 2020.  The Applicant requested that FEMA approve PA funding and stated that the documentation supported its claim that FAL costs were for eligible emergency protective measures.  The Applicant submitted that emergency protective measures performed by the Fire Rescue Department’s included equipment checks and fueling of equipment and apparatus.  Additionally, the Applicant stated that Fire Rescue Station preparations were needed, including patrolling outside for debris, sealing buildings with hurricane panels or plywood, shuttling reserve vehicles to alternate storage facilities, and performing testing of primary and secondary communications and station generators.  The Applicant also argued that responding to medical emergencies which occur before, during, and after the disaster should be considered emergency protective measures.  The Florida Division of Emergency Management (Grantee) forwarded the Applicant’s appeal to FEMA in a letter dated January 8, 2021, recommending approval.

FEMA issued a request for information on May 20, 2021, requesting the Applicant provide: (1) copies of the labor and pay policies in effect at the time or immediately prior to the declared incident; (2) copies of a referenced merit system policy; and (3) a personnel payroll report indicating employee names, type of employee (i.e., budgeted or unbudgeted), wages per hour, dates and hours worked, type of hours worked, applicable fringe rates, specific locations worked, and emergency work performed.  The Applicant responded in a letter dated July 19, 2021, and provided various documents, including a labor code summary and merit systems policies.  

 

The FEMA Region IV Regional Administrator denied the appeal on October 18, 2021, stating that the Applicant’s payroll documentation included claimed straight-time hours for several budgeted employees performing emergency work, which are not eligible for PA funding.  FEMA also determined the documentation provided by the Applicant did not substantiate the performance of eligible emergency work. 

Second Appeal

The Applicant submitted its second appeal on December 17, 2021, reiterating its first appeal arguments.  The Applicant states that the primary issue for the second appeal is whether the denied FAL costs associated with Fire Rescue employees are reimbursable.  The Applicant also states that, due to the evacuation of area hospitals, it incurred short-term increased costs to address longer and emergency transport trips and services.  The Applicant argues that, as noted in FEMA policy, short-term increased costs that are directly related to accomplishing specific emergency health and safety tasks as part of emergency protective measures may be eligible.[4]  The Grantee supports the appeal and recommends that FEMA approve $308,892.25.

 

Discussion

 

FEMA is authorized to provide assistance for emergency protective measures to save lives or to protect public health and safety.[5]  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.[6]  For emergency work, only overtime labor is eligible for budgeted employees; straight-time labor for budgeted employees is not eligible for reimbursement.[7] 

The Applicant’s documentation includes straight-time FAL costs for work performed by its budgeted employees.[8]  Accordingly, the straight-time FAL costs are ineligible for funding, regardless of whether the employees were performing eligible emergency work. 

The Applicant has not demonstrated that its FAL costs associated with 9,379.25 overtime hours, for a total of $288,777.20, are associated with emergency protective measures related to the disaster.  Based on the documentation submitted by the Applicant (e.g., employee activity log sheets, timesheets, etc.), all shift activities appear to be routine tasks for Fire Rescue staff that are not related to the declared incident.  For example, the Applicant’s Fire Rescue staff routinely perform potential lifesaving tasks as part of their jobs; these tasks are not specifically tied to disaster response activities.  And, although the Applicant states additional staff were engaged, the staff logs do not indicate that staff conducted eligible emergency protective measures.[9]  Finally, the tasks noted in the Applicant’s documentation that may be associated with eligible emergency work cannot be tracked to overtime hours.  

 

Conclusion

The Applicant’s straight-time is not eligible for claimed emergency work performed by its budgeted employees.  In addition, the Applicant has not demonstrated its FAL performed eligible emergency protective measures during the overtime hours claimed.  Therefore, the appeal is denied.

 

[1] The President issued a major disaster declaration (FEMA-4468-DR-FL) on October 21, 2019.

[2] Project Worksheet 239, Brevard Cnty., Version 0 (Dec. 18, 2020) [hereinafter PW 239].

[3] Determination Memorandum from Infrastructure Branch Dir., FEMA, to Dir., Fla. Div. of Emergency Mgmt., and Admin. Assistant, Brevard Cnty., at 6 (Sept. 28, 2020).

[4] Letter from Assistant Cnty. Att’y, Brevard Cnty., to Reg’l Adm’r, FEMA Region IV, at 4 (Dec. 17, 2021) (citing  FEMA’s Public Assistance Program and Policy Guide, FP 104-009-2, at 42 (Apr. 1, 2018) [hereinafter PAPPG]).

[5] Robert T. Stafford Disaster Relief and Emergency Assistance Act § 403(a)(3), Title 42, United States Code § 5170b(a)(3) (2018).

[6] 44 C.F.R. §§ 206.223(a)(1), 206.225(a)(3)(i); PAPPG, at 57.

[7] 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.

[8] See Applicant’s GMP 130188 Personnel Timesheets A-Z.

[9] See Applicant’s GMP 130188 Individual Activity Logs.