Immediate Threat, Force Account Labor & Equipment Costs

Appeal Brief

Summary Paragraph

The coronavirus (COVID-19) pandemic resulted in a major disaster declaration for the state of Mississippi. Jackson County (Applicant) requested Public Assistance (PA) funding for costs associated with claimed emergency protective measures, including costs for contracted security services for additional beach and park patrols to enforce limits on gatherings (beach patrols) and for FAE costs, e.g., a pickup truck and a cargo van, related to cleaning and disinfection of 22 facilities. FEMA issued a Determination Memorandum denying the costs for beach patrols and FAE. The Applicant appealed. The FEMA Region 4 Regional Administrator again denied costs for the beach patrols and FAE. FEMA found the costs were increased costs of operating in a COVID-19 environment and, thus, were ineligible. The Applicant submits a second appeal, reiterating first appeal arguments and contending that the beach patrols are eligible because the security officers communicated health and safety information to the public. The Applicant also states that the FAE costs are covered under FEMA COVID-19 policies.

Authorities and Second Appeals

• Stafford Act §§ 403, 502.
• 2 C.F.R. § 200.403(g), 44 C.F.R. §§ 206.223(a)(1), 206.225(a), 206.228(a)(1).
• PAPPG, at 19-21, 26, 57-58.
• FEMA Fact Sheet, Eligible Emergency Protective Measures, at 1-2.
• City of Akron, FEMA-DR-OH, at 4; Eternity Church, FEMA-4483-DR-IA, at 2.

Headnotes

• 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. Eligible emergency protective measures may include security such as barricades, fencing, and law enforcement, and communications of general health and safety information to the public.
  • The Applicant has not demonstrated the monitoring and enforcement of an executive order pertaining to large gatherings congregating outside is eligible for PA.
• To be eligible for PA reimbursement, costs must be directly tied to the performance of eligible work and adequately documented. For emergency work, FEMA may reimburse an applicant for certain force account equipment. 
• The Applicant has substantiated that the FAE costs claimed relating to vehicles are directly tied to the performance of previously approved cleaning and disinfection work.

Conclusion

FEMA finds the Applicant did not demonstrate the beach patrol work was an eligible emergency protective measure. However, the Applicant has provided documentation to substantiate that the FAE costs were directly tied to the performance of eligible work. Therefore, the appeal is partially granted in the amount of $58,913.48.

Appeal Letter

Appeal Analysis

Background

On April 5, 2020, the President declared a major disaster declaration for the State of Mississippi in response to the coronavirus (COVID-19) pandemic, with an incident period of January 20, 2020 to May 11, 2023. Jackson County (Applicant) requested reimbursement under FEMA’s Public Assistance (PA) program for costs the Applicant stated it incurred in responding to the declared incident. The request included costs for contracted security services enforcing state and county COVID-19 guidance to limit gatherings on public beaches and enforcing closure of public facilities (beach patrols) from March 28, 2020 through May 10, 2020. In addition, the request included costs for COVID-19-related signage; cleaning and disinfecting supplies; force account labor overtime for COVID-19 related work; and force account equipment (FAE), e.g., pickup truck and cargo van, used to carry out work to clean and disinfect the Applicant’s public facilities. FEMA prepared Grants Manager Project 143427 documenting requested costs totaling $436,257.73.

On February 2, 2022, FEMA issued a Determination Memorandum denying $317,888.08 for signs and postcards, beach patrols, and FAE.[1] FEMA found the Applicant did not describe the messages on the signs and postcards or how they contained health and safety guidance or warnings for the public. Regarding costs for the beach patrols and FAE, FEMA found these were increased costs of operating in a COVID-19 environment and, thus, were ineligible.

First Appeal 

On April 6, 2022, the Applicant submitted a first appeal, disputing $243,986.30 in denied costs for signs and postcards, beach patrols, and FAE. The Applicant provided additional information showing the postcards and signs included messaging related to COVID-19 safety guidelines and warnings to the public. The Applicant stated the beach patrols were necessary to respond to the immediate threat of COVID-19 by enforcing a state executive order limiting the number of people gathering on beaches to groups of 10, in its attempt to reduce the transmission of the virus. The Applicant stated that the FAE was integral to the work to disinfect eligible facilities and that, since disinfection activities were an eligible emergency protective measure in response to COVID-19, the FAE that was necessary to support those activities should also be eligible work. On April 8, 2022, the Mississippi State Emergency Management Agency (Recipient) transmitted the Applicant’s first appeal to FEMA with a letter of support. 

On May 11, 2023, the FEMA Region 4 Regional Administrator partially granted the first appeal, awarding costs for the signs and postcards, but denied costs for the beach patrols and the FAE. FEMA found the beach patrols were not eligible because law enforcement and security costs are only eligible when necessary to perform otherwise eligible emergency work, and enforcing health and safety mandates was not an eligible activity under any of FEMA COVID-19 policies. FEMA also found that the FAE was not eligible under any of FEMA’s COVID-19 policies.

Second Appeal

On June 28, 2023, the Applicant submitted its second appeal, requesting $219,220.55 in previously denied costs for the beach patrols and the FAE. The Applicant states that the beach patrols are eligible because they were monitoring beaches and parks to enforce social distancing and communicate public information about the risks of gathering in large groups; thus, their services were eligible as work related to disseminating information to the public to provide warnings and guidance about health and safety hazards. The Applicant also states the FAE is eligible because the FAE directly related to the previously approved daily cleaning and disinfection work of 22 eligible facilities. On July 28, 2023, the Recipient transmitted the Applicant’s second appeal, expressing support.

Discussion

Immediate Threat

FEMA is authorized to provide assistance for emergency protective measures to save lives and protect public health or safety.[2] 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.[3] Eligible emergency protective measures in response to COVID-19 may include security such as barricades, fencing, and law enforcement, and communications of general health and safety information to the public.[4] 

Here, the Applicant states it used contracted security officers to provide patrols to facilitate social distancing (by limiting groups to 10 or fewer people) on its beaches and parks. 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.[5] The Applicant’s beach patrols, which advised outside gatherings of more than 10 people about the executive order and requested the gathering disassemble to 10 or fewer people, did not perform security or law enforcement services that eliminated or lessened an immediate threat from the declared incident.[6] Moreover, the work of monitoring and enforcing the executive order pertaining to large groups did not constitute dissemination of health and safety information to the public. In its second appeal letter, the Applicant points to language in the contracts between it and the contracted personnel to support its argument that the officers disseminated health and safety information to the public. However, the contract language the Applicant references  required the personnel to advise large gatherings of the executive order and request groups disassemble where applicable; the Applicant did not reference language in the contracts or provide other documentation that demonstrates the beach patrols provided health and safety information.[7] Because the activities of the beach patrols are not considered security or law enforcement or communications of health and safety information, the costs associated with the beach patrol are ineligible for PA funding.

Force Account Labor & Equipment Costs

FEMA provides PA funding for the use of applicant-owned equipment to perform eligible emergency work based on hourly rates.[8] In response to COVID-19, eligible emergency protective measures include cleaning and disinfection to facilitate the safe opening and operation of all eligible facilities.[9] To be eligible for PA reimbursement, costs must be directly tied to the performance of eligible work and adequately documented.[10]

Here, the Applicant provided documentation to show that its FAE was directly tied to the performance of eligible work, the previously approved cleaning and disinfection of eligible facilities.[11] The Applicant used FEMA equipment rates to calculate FAE usage costs, providing documentation showing that it tracked the hours it used the FAE for eligible work.[12] Therefore, the FAE costs are eligible for PA funding in the amount of $58,913.48.

Conclusion

FEMA finds the Applicant did not demonstrate that the beach patrol work was an eligible emergency protective measure. However, the Applicant has provided documentation to substantiate that the FAE costs were directly tied to the performance of eligible work. Therefore, the appeal is partially granted in the amount of $58,913.48.