Immediate Threat

Appeal Brief

Appeal Letter

Appeal Analysis

Background

The coronavirus (COVID-19) pandemic resulted in a major disaster declaration on March 25, 2020, for the State of Florida, with an incident period of January 20, 2020, through May 11, 2023. The City of Miami Beach (Applicant), a local government, requested reimbursement under Public Assistance (PA) for costs incurred between March 1, 2020, and December 31, 2020. The Applicant’s claimed costs relevant to this appeal included the rental of police barricades[1] ($151,519.17) and portable toilets and handwashing stations ($57,661.44). The Applicant claimed it had an influx of visitors despite the COVID-19 pandemic and needed to provide additional law enforcement and security throughout the city, beaches and parks to comply with the Centers for Disease Control and Prevention (CDC) guidelines and other orders.^[2] The Applicant claimed it rented the police barricades for crowd control and social distancing, and it rented the portable toilets and handwashing stations because every other sink and toilet in public restrooms was closed due to CDC guidelines and social distancing orders.[3] FEMA created Grants Manager Project 680008 to document the Applicant’s claimed costs. FEMA issued a Determination Memorandum on August 3, 2023, denying $230,446.11 in claimed costs for rented equipment. FEMA determined the rental of certain items was related to increased operating costs and not eligible emergency protective measures.[4]

First Appeal

The Applicant submitted a first appeal on October 2, 2023, requesting $209,180.61 in rental equipment costs for police barricades, portable toilets, and handwashing stations. The Applicant stated the police barricades were used to create safe zones for pedestrians and control vehicular traffic, citing the “security and law enforcement” provisions in FEMA’s COVID-19 policies for support. Additionally, the Applicant stated the handwashing stations were used to mitigate the spread of COVID-19. The Florida Division of Emergency Management (Recipient) forwarded the appeal on November 30, 2023 with its support.

The FEMA Region 4 Regional Administrator denied the appeal on September 10, 2024. FEMA stated the police barricades and handwashing stations were related to community-wide mitigation efforts and for measures not related to eligible emergency work for the safe opening and operating of an eligible facility or eligible emergency protective measures under FEMA COVID-19 or general PA policies. 

Second Appeal

The Applicant submitted a second appeal on November 8, 2024, requesting $209,180.61 in rental equipment costs for police barricades, portable toilets, and handwashing stations. The Applicant reiterates its first appeal assertions and provides a COVID-19 timeline along with a decision by the United States Civilian Board of Contract Appeals (CBCA) finding barricades and enforcement of social distancing orders eligible to further support its claim.^[5] The Recipient forwarded the appeal to FEMA on December 17, 2024, in support of the Applicant.

Discussion

FEMA is authorized to provide emergency protective measures to save lives and protect public health and safety.^[6]For emergency protective measures to be eligible, work must be required due to an immediate threat resulting from the declared incident.^[7] In response to COVID-19, eligible emergency protective measures may include law enforcement and security work, as well as certain measures implemented to facilitate the safe opening and operation of eligible facilities, including cleaning and disinfection, and the purchase and installation of temporary physical barriers, such as plexiglass barriers and screens/dividers, to support social distancing.^[8]To be eligible, costs must be, among other requirements, directly tied to the performance of eligible work, adequately documented, and necessary and reasonable to accomplish the work properly and efficiently.^[9] It is the applicant’s responsibility to provide documentation to substantiate its claim as eligible and to clearly explain how those records support its appeal.^[10]

Here, the Applicant states it placed police barricades throughout the entertainment district to enforce crowd control and social distancing, and to reduce the threat to public health and safety during COVID-19.^[11] However, FEMA does not extend emergency work eligibility to implement community-wide mitigation efforts to reduce a future event, such as the anticipated or potential transmission of COVID-19.[12] The Applicant has not demonstrated the barricades were associated with work that eliminated or lessened an immediate threat from the declared incident, were necessary to perform otherwise eligible COVID-19 emergency work under FEMA’s COVID-19 policies, or qualified as eligible activities implemented to facilitate the safe opening and operation of eligible facilities.^[13]

Additionally, the Applicant asserts the portable toilets and handwashing stations were placed throughout the city and beach areas to mitigate the spread of COVID-19 and to promote social distancing. FEMA’s policy establishing the parameters of eligible emergency protective measures performed to safely open and operate a facility during the COVID-19 pandemic limits eligible emergency protective measures to specific categories.[14] The rental of portable toilets does not fall within one of those categories and is not an eligible emergency protective measure.[15] 

Handwashing stations are only an eligible emergency protective measure when tied to safely opening and operating an eligible facility. Here, the Applicant does not specify the location of the handwashing stations in relation to any eligible facilities or demonstrate how these stations qualify as eligible activities implemented to facilitate the safe opening and operation of eligible facilities under the applicable COVID-19 policy. Therefore, the Applicant has not demonstrated that its claimed costs were directly tied to eligible emergency work to eliminate or lessen an immediate threat resulting from COVID-19.

Conclusion

The claimed equipment costs are not associated with eligible emergency work in response to COVID-19 that eliminated or lessened an immediate threat . Therefore, the appeal is denied.