Force Account Labor & Equipment, Immediate Threat

Appeal Brief

Appeal Letter

Appeal Analysis

Background

From August 28 through September 9, 2019, Hurricane Dorian caused strong winds, torrential rain and tidal surge which resulted in extensive damage throughout Coastal Florida.[1] Palm Beach County (Applicant) requested Public Assistance (PA) funding to reimburse costs for its force account labor (FAL), force account equipment (FAE), materials, and contractor services for various measures including storm preparation and evacuation; security at Emergency Operations Centers (EOCs), shelters, and detention facilities; traffic control and restoration of downed power lines and traffic lights; food and supplies for first responders; and movement of aircraft to secure locations. 

FEMA prepared Grants Manager Project (GMP) 122932 to document the work and costs claimed by the Applicant, which totaled $1,258,545.46. FEMA sent two Requests for Information (RFIs), on January 26, 2021, and March 18, 2021, to ascertain how FAL overtime (OT), FAE, and materials were used as part of eligible emergency protective measures.[2] The Applicant did not provide a response to the first RFI. The Applicant’s response to the second RFI clarified how the FAL was tabulated in the Applicant’s system and provided clarification on material purchases which were used for either law enforcement tasks or corrections personnel.

FEMA issued a Determination Memorandum on July 23, 2021, granting $102,048.06 for certain FAL OT, FAE, materials, and contractor services.[3] These costs related to: installing hurricane shutters; providing security at EOCs and shelters, providing traffic patrol; assisting with the restoration of downed power lines and traffic lights; providing necessary food and supplies to first responders; and moving aircraft to secure locations. FEMA denied $1,156,497.40, finding that the documentation provided by the Applicant for the remaining FAL OT, FAE, and materials did not demonstrate this work was necessary to address an immediate threat and instead, costs were ineligible increased operating expenses. Additionally, FEMA found that the Applicant’s claimed costs for straight-time hours for budgeted employees performing their standard duties, were ineligible. Finally, FEMA determined the Applicant did not substantiate through documentation that costs for materials, including catered meals, and additional food purchases and supplies were eligible. 

First Appeal 

The Applicant filed a first appeal dated September 22, 2021, which stated that the amount at issue was $1,111,485.92. The Applicant clarified that it was not claiming straight-time hours for police officers. Instead, the Applicant stated that officers were required to work OT, and, per the Applicant’s pay policy, the OT was necessary to prevent inadequate staffing. Additionally, the Applicant noted that some costs it paid at a straight-time rate were associated with OT hours. The Applicant made similar arguments for its corrections officers and personnel. The Florida Division of Emergency Management (Recipient) forwarded the first appeal on November 19, 2021, with a letter in support. 

In a letter dated March 7, 2023, the FEMA Region 4 Regional Administrator partially granted the Applicant’s first appeal. FEMA found that out of 2,531 payroll line items provided by the Applicant in a spreadsheet, 28-line items for FAL OT were identified as being associated with eligible emergency protective measures totaling $8,923.10. These included costs related to staging emergency supplies, removing and replacing traffic lights/signals, and providing hanger security for helicopters and marine vessels. FEMA found the remaining $1,102,562.82 were ineligible as the Applicant had not substantiated that the work performed by the rest of its FAL lessened or eliminated an immediate threat; rather, it consisted of standard duties performed during straight-time hours and represented ineligible increased operating expenses.

Second Appeal

In a letter dated May 5, 2023, the Applicant filed a second appeal requesting $241,035.75 in PA funding.[4] The Applicant claims that for FAL OT FEMA previously found eligible, FEMA’s award of FAL costs was inadvertently calculated at a straight-time rate, and additionally omitted fringe benefits, including retirement and Social Security and Medicare matching. The Applicant provided what it stated was the correct hourly rate for those personnel. Additionally, the Applicant requests: funding for work that it states is similar to what FEMA previously approved for the project; costs for standby time for non-officer correctional personnel who performed asset staging tasks and supply distribution within the detention centers; FAE hours for patrol vehicles used by police who conducted eligible work; costs for materials (e.g., tools purchased for police officers such as antennas, flashlights and lightbars), that its states are similar to other purchases FEMA funded in this project; and meals for employees (e.g., a catered meal for its correctional officers and a large bulk food purchase from a large-scale retailer for correctional detention staff and police officers). The Applicant provided a spreadsheet of the costs at issue and descriptions of tasks conducted during the incident period. The Recipient forwarded the second appeal on July 3, 2023, with its support.

Discussion

Force Account Labor & Equipment

FEMA is authorized to provide assistance for emergency protective measures to save lives and protect public health and safety.^[5] To be eligible, costs must be directly tied to the performance of eligible work and adequately documented.^[6] FAL OT for budgeted employees performing emergency work may be eligible based on the Applicant’s predisaster written labor policy, if certain criteria are met.^[7] FEMA reimburses FAL based on actual hourly rates plus the cost of the employee’s actual fringe benefits.[8] Fringe benefits may include retirement, Social Security matching, and Medicare matching.[9] FEMA also provides PA funding for costs related to stand-by time incurred in preparation for and directly related to actions necessary to save lives and protect public health and safety.[10] FEMA may provide PA funding for the use of Applicant-owned equipment (FAE), based on hourly rates.[11] Increased costs of operating a facility or providing a service are generally not eligible, even when directly related to the incident.[12]

First, the Applicant requests $85,043.34 in additional FAL OT costs related to work and costs previously found eligible. The Applicant claims FEMA previously approved its FAL OT at an incorrect rate and/or without eligible fringe benefits included. Here, the Applicant’s cost documentation provided on second appeal clearly explains how it calculated fringe benefits for each employee while its collective bargaining agreement substantiates that the additional time and one-half rates that were paid were consistent with its predisaster written labor policy for OT hours.[13] FEMA, therefore, approves the total requested funding of $85,043.34 in additional FAL OT costs associated with the work and costs previously approved, to account for the correct OT rates and eligible fringe benefits. 

Second, the Applicant requests $127,117.76 for FAL OT that FEMA previously found was not related to eligible emergency work. On second appeal, the Applicant has provided a summary spreadsheet detailing the work its FAL performed for those OT hours. The documentation shows that most of the work performed by police officers was required to address the immediate threats presented by the declared incident, including storm preparation, site security for certain disaster-distribution areas, EOC security, traffic control, and evacuation efforts.[14] Therefore, the Applicant has substantiated that $85,231.75 in law enforcement FAL OT was directly tied to eligible work. Conversely, the Applicant has not demonstrated the FAL OT claimed for the correctional officers and non-officer correctional personnel are directly tied to the performance of eligible emergency protective measures, rather than ineligible costs related to normal operations or increased operating costs.[15] For example, one entry for the FAL OT at issue noted that the correctional staff performed internal security checks of the correctional facility during the incident period.[16] Therefore, FEMA denies the FAL OT costs related to the correctional and non-correctional staff.

Third, the Applicant requests $971.23 in standby time for two non-officer correctional personnel. However, the descriptions of work associated with this time includes monitoring the activities of inmates in multiple housing units and controlling the movement of staff, inmates, and visitors in and out of the housing units. Therefore, the Applicant has not demonstrated it incurred the standby time costs in preparation for and directly related to actions necessary to save lives and protect public health and safety resulting from the declared incident. 

Lastly, for the FAE claimed, the Applicant substantiated through its spreadsheet of costs and other documentation that police vehicles were utilized by police officers to provide security at the EOC and travel to improved property also for disaster-related security. Therefore, the FAE costs are directly tied to the performance of eligible emergency work. The Applicant utilized FEMA’s hourly rate for police vehicles at the rate of $16.05 for 559 hours. FEMA approves the $8,971.95 additional FAE claimed by the Applicant.

Immediate Threat

FEMA is authorized to provide assistance for emergency protective measures to save lives and protect public health and safety.^[17] 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.^[18] FEMA may provide PA funding for the costs of supplies, including materials, if purchased and justifiably needed to effectively respond to and/or recover from the incident.[19] Under limited circumstances, the provision of food may be an eligible emergency protective measure.[20] Provision of meals, including beverages and meal supplies, for employees and volunteers engaged in eligible emergency work may be 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.[21] 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.[22] To be eligible, costs must be directly tied to the performance of eligible work and adequately documented.^[23] It is the Applicant’s responsibility to provide documentation to substantiate its claim as eligible, and to clearly explain how the documentation supports its appeal.[24]

For the materials purchased by the Applicant, including items such as flashlights, power tools and lightbars, the documentation does not explain how these items were used during the incident or were needed to respond to the declared incident, rather than being used for normal law enforcement operations.[25] The available documentation only includes the receipt for the materials and a statement that the materials were used for disaster-related law enforcement operations. As the Applicant has not demonstrated the claimed material costs are directly tied to the performance of eligible emergency work, the $3,252.41 claimed for materials purchased are ineligible for PA. 

Regarding the $15,679.06 in costs claimed for meals, these include different types of meals provided to different personnel. For the costs related to the corrections’ facilities, the meals were identified as bulk catered meals for correctional detention staff. However, the Applicant has not demonstrated these costs relate to meals provided for employees who were engaged in eligible emergency work. In contrast, meals provided to police officers who were performing emergency work of traffic control at broken traffic lights, relocating aircraft, EOC operations, and site security, are eligible. The Applicant has demonstrated the conditions were sufficiently severe as to require employees to work abnormal, extended work hours without a reasonable amount of time to provide for their own meals. The Applicant provides the purchase receipts and demonstrates through other documentation that the employees were not paid per diem, the bulk food purchases were made in a reasonable and cost-effective manner and were brought to their work location.[26] Therefore, $343.06 for police officers’ meals is eligible.

Conclusion

The Applicant has demonstrated that $179,590.10 in claimed costs are directly tied to the performance of eligible emergency work and are therefore eligible for PA funding. Therefore, this appeal is partially granted.