FMAG – Mutual Aid Agreements

Appeal Brief

Appeal Letter

Appeal Analysis

Background

In July 2014, the Chiwaukum Creek Fire, a severe wildfire located in Chelan County, Washington, spread over 18,000 acres of privately and publicly owned lands, and threatened power lines, railways, businesses, orchards, fishing streams, wildfire, cultural resources, and over 1,700 structures.  In response, the FEMA Region X Regional Administrator (RA) approved a Fire Management Assistance Grant (FMAG), and the Washington State Patrol (Applicant) activated the Washington State Fire Services Resource Mobilization Plan (Mobilization Plan) to provide statewide mutual aid resources to assist with fire suppression.  The Mobilization Plan is an agreement between the Applicant and local fire protection districts, and it allows for other local fire districts to assist the Applicant once all local mutual aid resources are exhausted.   Following mobilization, the Applicant engaged the fire, which involved volunteer firefighters being placed on the Applicant’s payroll and paid at an agreed upon rate.  All of the positions were temporary and fire suppression activities, as well as reasonable mobilization and demobilization, were eligible for reimbursement under the Mobilization Plan. 

FEMA determined that the Mobilization Plan was a mutual aid agreement and awarded Project Worksheet (PW) 10 to reimburse labor and contract costs associated with fire mitigation, management, and control costs during the incident period.  The Applicant submitted time reports,[1] as well as time records,[2] to document the hours each firefighter worked.  Accordingly, FEMA obligated $2,256,629.30 to reimburse the Applicant for costs incurred during the execution of fire suppression operations.  However, FEMA determined that the amount the Applicant requested for labor costs included labor hours spent not working or not performing eligible emergency work. 

FEMA issued a determination memo on April 4, 2017, reducing the submitted labor costs by $29,457.17 and equipment costs by $168.00.  The Agency cited to FEMA Recovery Policy RP9525.7 Labor Costs – Emergency Work, and FEMA Recovery Policy RP 9523.6 Mutual Aid Agreements for Public Assistance and Fire Management Assistance, explaining that time spent not engaged in emergency work was not eligible for reimbursement under the FMAG Program.  In addition, FEMA found that while the Mobilization Plan sets requirements regarding payment for work that participants must abide by, it does not bind FEMA to pay for ineligible costs.

First Appeal

The Applicant appealed on June 9, 2017, and asserted the costs claimed were in accordance with the Mobilization Plan.  The Applicant cited to the revised Code of Washington (RCW), which it claimed provides for the Applicant to mobilize and reimburse local fire departments and districts for the resources they supply, after all local and mutual aid resources have been exhausted.  The agreement between the fire protection districts and the Applicant required the Applicant to pay all shift hours assigned to Career Fire Personnel, including regular scheduled shift hours.  The Applicant included a list of the employees and associated labor hours and requested funding be restored for all.  The Applicant also disagreed with the determination that $168.00 be deobligated due to a privately owned vehicle being used.  The Applicant claimed the vehicle was used as a command vehicle by a Strike Force Team/Task Force Leader, who performed overhead operation and was assigned to the fire line, pursuant to the Mobilization Plan. 

The Washington Emergency Management Division (Grantee) forwarded the Applicant’s appeal on August 8, 2017, along with its recommendation that FEMA grant the appeal.  In addition to the Applicant’s arguments, the Grantee also stated that FEMA was incorrect in finding hours spent preparing to deploy or stand-by were ineligible.  According to the Grantee, that time is part of the firefighters’ regular shift time, which is guaranteed to be paid as a contractual obligation between the Applicant and the local fire districts.  The Grantee asserted that it was a lost pay stipend and cited to RP9525.7 which states that “straight time and overtime will be determined in accordance with the applicant’s [predisaster] policies, which should be applied consistently in both disaster and non-disaster situations.”[3]  This lost pay stipend ensured that firefighters working the disaster would not lose pay as a result of mobilizing.  The Grantee further argued that the Mobilization Plan was a contract in which the firefighters mobilized and therefore should not be considered temporary hires, but rather contract employees and as such, RP 9523.6 did not apply.

FEMA Region X sent a Final Request for Information (RFI) on March 6, 2018.  The Region requested the Applicant explain how the Mobilization Plan fit under federal procurement regulations – specifically the definition of a contract under Title 44 of the Code of Federal Regulations (44 C.F.R.) §§13.3 and 13.36 – and supply a copy of the contract for the Agency to review the terms of the agreement.  In addition, because the Grantee argued that sleep/eat time was covered in the Mobilization Plan and also supported by Title 5 of the Code of Federal Regulations (5 C.F.R.), FEMA requested the applicable legal authority upon which the Grantee’s justification rests for the payment of labor while personnel were sleeping.  FEMA also requested documentation that the personally owned vehicle was eligible based on historical precedent showing the Applicant paying for it in the past. 

The Grantee responded to the Final RFI in a memorandum dated April 13, 2018, reiterating the argument that the Mobilization Plan was a contractual agreement and that FEMA needed to reimburse any agreed-upon hours under that agreement.  The Grantee explained there were two categories of firefighters mobilizing under the Mobilization Plan – the first were paid by the Applicant and were considered force account labor and the second were paid by their local jurisdictions and were considered Career Fire Service personnel, both of which the Applicant was required to pay.  Moreover, the Grantee maintained that 5 C.F.R. § 551.432 provided for paying firefighters for time spent not actively fighting fires because the shifts and nature of the work did not provide for an uninterrupted period of sleep. 

FEMA Region X partially approved the appeal on July 16, 2018.  The RA found that FEMA had used the incorrect hourly rate for one of the firefighters, and consequently awarded an additional $0.87, in addition to awarding $168.00 in equipment costs that the Agency previously incorrectly deobligated since the personal vehicle was used as a command vehicle.  However, the RA determined that the remaining requested labor hours were not eligible because the hours were not spent conducting emergency work, finding that the hours included time standing by or preparing to deploy.  In addition, the RA noted that FEMA policy only allows reimbursement for the performance of emergency work, even if an applicant’s contract requires reimbursement.  Accordingly, FEMA is bound by federal statutes, regulations, and policies, even where there is a conflict with state law.  The RA also stated that 5 C.F.R. applies only to federal agencies, not to state and local entities, and does not apply to the FMAG program, and the Applicant had not demonstrated that it had adopted those regulations at a state level.  The RA explained that, under the Agency’s grant regulations, the word “contract” refers to procurement contracts and that the purpose of the Applicant’s “contract,” or Mobilization Plan, was to establish how local fire districts are paid by the Applicant, not to establish reasonable costs for services, labor, equipment, and materials.  Furthermore, the Applicant did not procure the services of the local fire districts, and as such, the work could not be viewed as contracted labor. 

Second Appeal

The Applicant appeals the RA’s decision in a September 21, 2018 letter.  The Applicant argues again that the Mobilization Plan is a contract that includes an agreement to pay career fire service personnel for their regular shifts, which are 24 hours long.  Moreover, the Applicant contends that the base camp cycle was 24 hours of fire suppression activities, but that time extended regularly to ensure smooth transitions and allow personnel to attend meetings and travel back to base camp. 

The Grantee also renews the arguments it made on first appeal.  The Grantee maintains that FEMA incorrectly determined that the claimed costs were for time spent not working, and that the decision not to reimburse the costs violates Title 2 of the Code of Federal Regulations part 200 and RP 9525.7.  The Grantee notes that the Mobilization Plan defines stand-by time as hours up to one operational period while waiting to be assigned and calculated for each 24-hour period after check-in for resources that have not been assigned to the incident.  However, the Grantee argues, the costs claimed were for the lost pay stipend, which ensures that firefighters in other districts do not lose pay when they respond under the Mobilization Plan.  The Grantee explains RP 9525.7 provides that straight time and overtime are determined according to an applicant’s pre-disaster policies, and also states that costs for contract labor, mutual aid in accordance with an existing agreement, or temporary hires are eligible for reimbursement.  The Grantee also argues that the Mobilization Plan is part of the interagency agreement and that qualifies as a procurement contract under 44 C.F.R. § 13.36.  Thus, the Grantee argues that because the Mobilization Plan is a contractual agreement that was in effect prior to the disaster and is also codified under the RCW, and requires reimbursement for all claimed costs, RP 9525.7 applies and FEMA must reimburse the Applicant accordingly.

Discussion

FMAG - Eligible Labor Costs 

Section 420 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act and its implementing regulations vest FEMA with the authority to offer fire management assistance to state and local governments.[4]  In addition, emergency work performed under a mutual aid agreement is eligible if it is necessary to meet immediate threats to life, public safety, and improved property, including firefighting activities.[5]  Costs for contract, labor, mutual aid in accordance with an existing agreement, or temporary hires needed to accomplish emergency work are eligible for reimbursement.[6] 

Under RP 9523.6 – Mutual Aid Agreements for Public Assistance and Fire Management, a providing entity’s force account labor will be considered contract labor, with regular time, overtime, and benefits eligible for reimbursement.[7]  FEMA will determine eligible straight time and overtime in accordance with an applicant’s predisaster policies, and all costs must be reasonable and equitable.[8]  Importantly, reimbursement of labor costs for employees performing emergency work is limited to actual time worked.[9]  Costs for firefighting employees preparing to deploy or standing-by are not eligible for reimbursement, except for certain pre-positioning costs.[10]  For pre-positioning costs to be eligible, the grantee must notify the RA of the intent to claim them, and must provide a detailed explanation of the need for the prepositioning costs, including locations, hours, and estimated costs of the efforts, based on various scientific factors.[11]  In addition, an applicant has the burden of substantiating its arguments and must explain how documentation supports its appeal.[12] 

On second appeal, both the Applicant and the Grantee argue that the claimed hours included the firefighters’ regular shifts, thus making all of the hours eligible for reimbursement by FEMA.  Moreover, the Grantee argues that the firefighters are entitled to what equates to a lost-pay stipend, a necessary form of reimbursement for firefighters who respond under the Mobilization Plan but are not compensated by their home districts.   However, neither the Grantee nor the Applicant demonstrate, either through documentation or argument, how the hours were spent conducting emergency firefighting activities.  Although the Applicant claims that some of the hours were eligible as time spent traveling to the fire and attending briefings, the Applicant did not specify which hours for which employee were dedicated to these tasks.  Neither did the Grantee provide evidence that it had submitted notice to the RA of its intent to seek pre-positioning costs as required under 44 C.F.R. § 204.42(e). 

The Applicant bears the burden of substantiating its claims on appeal, and it did not explain here how the hours were for the performance of actual eligible emergency work, other than by arguing the hours were part of the firefighters’ regular shift hours required under the Mobilization Plan.[13] 

Mutual Aid Agreements

Mutual aid agreements are agreements between jurisdictions or agencies to provide services across boundaries during an emergency or disaster.[14]  FEMA reimburses costs for eligible emergency work under mutual aid agreements in accord with FEMA policy.[15]  FEMA’s grant regulations at the time of the disaster define “contract” as “a procurement contract under a grant or subgrant [and also a] procurement subcontract under a contract.”[16]  Moreover, “[r]eimbursement of labor costs for employees performing emergency work is limited to actual time worked, even when [an] applicant is contractually obligated to pay for 24 hour shifts.”[17] 

In awarding PW 10, FEMA determined that the Mobilization Plan is a mutual aid agreement, and consequently reimbursed the Applicant for costs associated with eligible mutual aid emergency work.  On second appeal, the Applicant and Grantee argue that the Mobilization Plan functions as a binding contract between the requesting and responding fire districts, and that under the Mobilization Plan, all regular shift hours for the firefighters are eligible for reimbursement, even if time is spent not working.   In addition, the Grantee argues that the Mobilization Plan mandates that firefighters must be reimbursed with a lost-pay stipend for any shift hours they would have missed with their home jurisdiction, in addition to payment for their regular shift hours during the fire incident period.  Although both the Applicant and Grantee maintain that the Mobilization Plan is a contract that requires FEMA to reimburse all of the claimed hours, that is not the case.  The Mobilization Plan does not meet the definition of a contract under FEMA’s regulations because it is a not a procurement contract under a grant or subgrant, nor did the Applicant procure the services of the responding districts. 

Furthermore, whether or not the Mobilization Plan is considered a procurement contract or a mutual aid agreement, FEMA policy provides that only actual time spent working is eligible.  This is the case even if a contract or mutual aid agreement requires payment for 24-hour shifts.  Moreover, the Mobilization Plan does not include language referencing a “lost-pay stipend” and FEMA does not reimburse costs for standing-by or preparing to deploy, even if the Mobilization Plan requires it.  Thus, the firefighters’ regular shift hours, including stand-by time and lost-pay stipends, are not eligible for reimbursement. 

 Conclusion

The claimed labor costs were not for time spent conducting emergency work.  In addition, while the Mobilization Plan qualifies as a mutual aid agreement under FEMA policy, the Mobilization Plan is not a contract procured under a subgrant.  Whether or not the Mobilization Plan is considered a procurement contract or mutual aid agreement, FEMA policy does not allow for reimbursement for time not spent performing emergency work, even if the Mobilization Plan requires reimbursement of 24-hour shifts.  Therefore, the second appeal is denied.