Force Account Labor & Equipment Costs; Immediate Threat

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4564
Applicant	Florida Department of Transportation
Appeal Type	Second
PA ID#	000-U03E9-00
PW ID#	GMP 160888/ PW 447
Date Signed	2023-05-12T16:00:00

Summary Paragraph

From September 14-28, 2020, Hurricane Sally caused strong winds, torrential rain and tidal surge, which resulted in extensive damage in the Panhandle of Florida. The Florida Department of Transportation (Applicant) requested $115,285.54 in Public Assistance (PA) funding for emergency protective measures  related to debris clearance from roads and rights of way to allow emergency access. Its request included contract costs and costs for force account labor (FAL) and force account equipment (FAE). FEMA sent a Request for Information to the Applicant requesting FAL and FAE summary sheets so it could properly validate the claimed completed work. In response, the Applicant provided explanations, emails and production reports. FEMA issued a Determination Memorandum, partially granting the request for incurred materials and supplies and contract services costs totaling $82,364.58. FEMA denied the FAL, FAE and Emergency Operations Center (EOC) meal costs, totaling $32,920.96, because the Applicant did not provide sufficient documentation to support and validate the costs claimed. The Applicant appealed the denied costs, stating that it justified its claimed costs and provided additional documents, including timesheets and summaries. The FEMA Region 4 Regional Administrator denied the appeal, finding that the Applicant’s FAL and FAE documentation was inconsistent and insufficient for FEMA to determine the eligibility and validity of the claimed FAL and FAE costs as well as to validate the related costs for  meals purchased. The Applicant submitted a second appeal, reiterating its first appeal arguments and supplementing its submission with salary spreadsheets, daily maintenance crew sheets, and correspondence with FEMA regarding the Applicant’s other FAE assignments.

Authorities and Second Appeals

• Stafford Act § 403(a).
• 2 C.F.R. § 200.403(g); 44 C.F.R. § 206.225(a).
• PAPPG, at 65, 69, 72, 115, 117.

Headnotes

• For emergency work, overtime labor is eligible for budgeted employee hours costs based on the Applicant’s predisaster written labor policy.
• FEMA provides PA funding for the use of Applicant-owned equipment based on hourly rates and only applies equipment rates to the time an Applicant is actually operating equipment.
• Provision of meals for employees and volunteers engaged in eligible emergency work is eligible provided the individuals are not receiving per diem, and (1) meals are required per a qualifying labor policy or written agreement; (2) severe conditions require employees to work extended hours without reasonable time to provide their own meals; or (3) the employees cannot reasonably purchase food or water. 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.
  • The Applicant provided sufficient documentation to show the claimed FAL, FAE, and meals are directly tied to the performance of eligible work.

Conclusion

The Applicant has provided documentation to substantiate that $18,624.10 for FAL, $13,397.11 for FAE, and $123.85 for meals are directly tied to the performance of eligible work for PA funding. The remaining $775.90 for FAL costs are ineligible because the Applicant did not demonstrate the additional estimated costs are directly tied to eligible emergency protective measures. Therefore, the appeal is partially granted in the amount of $32,145.06.

Appeal Letter

Appeal Analysis

Background

From September 14-28, 2020, Hurricane Sally caused strong winds, torrential rain and tidal surge, which resulted in extensive damage in the Panhandle of Florida.[1] The Florida Department of Transportation (Applicant) requested $115,285.54 in Public Assistance (PA) funding for emergency protective measures related to debris clearance from roads and rights of way to allow emergency access. The request included contract costs and force account labor (FAL) and force account equipment (FAE), which the Applicant stated were all associated with the emergency access debris clearance work. Additionally, the Applicant maintained an emergency operations center (EOC) during the disaster’s incident period and requested reimbursement for meals it provided to EOC personnel.

FEMA sent a Request for Information to the Applicant requesting detailed FAL and FAE summary sheets to document employee information and the total hours and costs claimed. The Applicant responded, providing emails, process summaries and production reports. However, the Applicant explained it could not provide the FAL summary sheets due to payroll system errors, or the FAE summary sheets because the equipment was assigned to crews instead of specific individuals. Among the provided documents, the Applicant’s pay policy set forth the regular and compensatory pay procedure for included employees,[2] while the Applicant’s cost summary states that “all salary [overtime] costs are estimates.”[3]

On July 27, 2021, FEMA issued a Determination Memorandum (DM), partially denying the Applicant’s request in the amount of $32,920.96 for FAL, FAE, and EOC meal costs and granting $82,364.58 for contract costs.[4] FEMA stated that the Applicant did not provide necessary documentation for FEMA to validate the estimated hours worked by the employees, which employees used the claimed equipment, and how long the equipment was used.[5] FEMA also stated it denied the costs for purchased EOC meals that could not be validated against the Applicant’s FAL documentation.
First Appeal

On September 23, 2021, the Applicant submitted its first appeal, seeking the denied costs for FAL, FAE, and EOC meals. The Applicant stated that it justified its claimed costs and provided copies of its documentation verification process, timesheets, production reports, and summary documents. The Florida Division of Emergency Management (Recipient) transmitted the appeal with a letter recommending FEMA’s approval.

On October 14, 2022, FEMA’s Region 4 Regional Administrator denied the appeal, finding that the Applicant’s FAL and FAE documentation did not allow FEMA to determine the eligibility of the claimed costs. Specifically, FEMA found that the timesheets were mismatched and that a generic cost summary did not correspond to other provided documents or specify which employees or dates were included in the calculations for each listed category. Further, the document did not indicate individuals’ employment status, benefits or salaries, and it lacked equipment operator information necessary to verify the hours of use. FEMA also determined that because the Applicant did not provide sufficient documentation to validate the corresponding FAL hours, the costs for meals could not be reimbursed.

Second Appeal

On December 5, 2022, the Applicant submitted a second appeal, reiterating its first appeal arguments. The Applicant also supplemented its first appeal submission by providing:
1) corresponding salary spreadsheets; 2) a “Florida Department of Transportation (FDOT) Emergency Force Account Costs Overview” (FA Costs Overview) document clarifying the information, including an explanation of the “employee type” listed in the salary spreadsheets, and a breakdown of how overtime and costs are calculated; 3) “Daily Maintenance Crew Reports” (Maintenance Crew Reports); 4) daily duty logs to back up the information in the Production Reports; and 5) an email to show the Applicant previously requested clarification and received approval from FEMA allowing the Applicant’s assignment of FAE to crews rather than individuals. The Recipient transmitted the Applicant’s second appeal with a letter recommending granting the appeal.

 

Discussion

Force Account Labor and Equipment Costs

To be eligible for PA reimbursement, costs must be directly tied to the performance of eligible work and adequately documented.[6] For emergency work, FEMA may reimburse an Applicant for certain FAL and FAE.[7]  Overtime labor is eligible for budgeted employee hours.[8] FEMA determines the eligibility of overtime and compensatory time costs based on the Applicant’s predisaster written labor policy, provided it complies with specific requirements.[9] PA funding provided for the use of FAE is based on hourly rates and only applies equipment rates to the time an applicant is actually operating equipment.[10] FEMA may also provide funding based on mileage for vehicles, if the mileage is documented and is less costly than hourly rates.[11] 

On second appeal, the Applicant supplemented its previously provided timesheets and estimated FAL-related costs sheet with: salary spreadsheets listing the employees’ activities, titles, hours worked, and pay rates during their eligible overtime hours; the FA Costs Overview which provides further clarification of the Applicant’s internal policies and processes; and its pay policy. The Applicant’s pay policy includes compensation for overtime and explains how to calculate employee hours eligible for overtime compensation and otherwise complies with FEMA’s labor policy requirements. The timesheets and salary spreadsheet categories taken together with the FA Costs Overview show that the listed employees performed eligible emergency protective measures during the incident period for the hours recorded. Accordingly, the actual, not estimated, overtime hours of these budgeted employees are eligible as FAL costs, for a total of $18,624.10.

In addition, the Applicant supplemented its previously provided production reports with Maintenance Crew Reports that show the employees’ duty assignments for various days related to the disaster, work location, and hours worked, and identify the crew members and equipment operated. The Applicant also provided a FA Costs Overview which further clarifies the equipment information and a statement explaining that it generally does not assign specific FDOT equipment to individual operators. The maintenance crew logs and production reports collectively record FAE type by FDOT number, mileage used, operator names, dates of operation, operator hours worked and additional explanations and some of the key codes for FDOT numbered equipment. Specifically, the maintenance crew logs show whether the equipment was FAE or rented and whether the equipment was used for the entire operator or crew worktime or was down or idle. The maintenance crew logs also either identify the operator or hours worked with a FDOT identification number or description for a specific piece of equipment listed as used or identify several crew operators with each operator’s hours worked on that date with multiple items of identified equipment that were operated by the crew during that time period.

Based on the maintenance crew records, the Applicant’s explanations and code key, and the operators’ timesheets, the Applicant has adequately demonstrated that its claimed FAE was operated to perform eligible emergency protective measures during the incident period. Applying FEMA’s 2019 equipment hourly rate schedule to the identifiable equipment operated during the operators’ entire worktime, FEMA finds that the claimed related FAE costs of $13,397.11 are eligible for PA funding.

Immediate Threat

FEMA may provide assistance to eligible PA applicants for emergency protective measures implemented to save lives and reduce immediate threats to public health and safety.[12] 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.[13] 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.[14]

The Applicant contends that staff at the EOC and equipment operators needed food to continue the work, and in support provided vouchers and restaurant receipts showing where the meals and food were purchased and to whom the meals were provided. The Applicant’s documentation shows that the employees were not paid per diem and that the food purchases were made in a reasonable and cost-effective manner and brought to the work location in compliance with FEMA’s meals policy for an Applicant’s employees engaged in eligible emergency work. The Applicant also demonstrated that the emergency access debris clearance work required the employees to work abnormal, extended hours on site at multiple locations without a reasonable amount of time to provide for their own meals. Accordingly, the EOC and equipment operator meal costs are eligible for PA funding in the amount of $123.85.

 

Conclusion

FEMA finds the Applicant has provided documentation to substantiate that $18,624.10 for FAL, $13,397.11 for FAE, and $123.85 for meals are directly tied to the performance of eligible work for PA funding. The remaining $775.90 for FAL costs are ineligible because the Applicant did not demonstrate the additional estimated costs are directly tied to the eligible emergency protective measures. Therefore, the appeal is partially granted in the total amount of $32,145.06.