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Temporary Facilities for Government Operations Following a Disaster

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Emergency Management, Helene Response, Purchasing, Construction, Property Transactions, Uncategorized

Published: 12/10/24

Author:

During Hurricane Helene, many local governments in Western North Carolina experienced significant damage to their administrative buildings that rendered them unusable. As local governments prepare to repair damaged buildings or construct new ones, they must also determine how to manage the physical location of their daily operations during the interim. The solution for many local governments will be temporary facilities. This blog post discusses key factors for local governments to consider when planning to use temporary facilities, with an emphasis on federal cost principles and procurement standards. This post also provides a sample solicitation document for leasing modular office facilities.

Authority for Reimbursement for Temporary Facilities

FEMA’s Public Assistance (PA) program reimburses local governments[1] for certain work and costs associated with disaster recovery. FEMA classifies work that is eligible for Public Assistance funding as either short-term Emergency Work (further classified as Categories A and B) or long-term Permanent Work (further classified as Categories C through G). The temporary relocation of facilities for essential community services is allowed under Emergency Protective Measures (Category B).[2] Accordingly, a local government may request reimbursement for reasonable, eligible costs for temporary facilities so it can continue to provide its essential community services. But what are “essential community services” and what are eligible costs?

Essential Community Services

FEMA guidance defines “essential community services” as those services performed by governmental entities that are necessary to save lives, protect and preserve property or public health and safety, or preserve the proper function and health of the community at large. FEMA’s Public Assistance Program and Policy Guide (PAPPG) identifies the following as essential community services:

  • Education
  • Election and polling
  • Emergency, including police, fire, and rescue
  • Homeless and domestic violence shelters
  • Emergency medical care
  • Prison
  • Utilities
  • Other facilities that provide public health and safety services of a governmental nature

Services provided in administrative and support facilities essential to the provision of the essential community service are also eligible for relocation. These include administration buildings, hospital and prison laundry and cooking facilities, parking, and storage if items are needed on-site. On the other hand, facilities that do not provide essential community services—such as museums, zoos, community centers, recreation and parking[3], senior citizen centers, and libraries—are not eligible for temporary relocation.

How should a local government proceed if it wants to relocate services that are not clearly “essential community services”? A 2023 FEMA decision on an appeal involving the Housing Authority of the City of New Bern provides some insight. In this appeal, the housing authority was initially denied reimbursement of $90,000 for relocation of its administrative offices. FEMA found that duties performed by the housing authority were not essential community services necessary to save lives, protect property and the public, or preserve the proper function and health of the community at large. Upon its second appeal, the housing authority provided statutory language and incorporation documents to establish its status as a private non-profit (PNP) tasked with the “amelioration of increases in and spread of disease and crime caused by the lack of affordable and safe dwellings.” With this additional documentation, FEMA granted the $90,000 reimbursement. In making its decision, FEMA relied on Federal Register language and prior FEMA appeals that defined health services affecting the “health and safety of individuals” as including low-income housing, alcohol and drug rehabilitation, programs for battered spouses, transportation to medical facilities and food programs. Accordingly, a local government or special purpose local government must sufficiently document that the services it seeks to relocate are related to protecting the public and preserving the proper function and health of the community at large.  

Eligible Costs

FEMA does not provide Public Assistance funding for utility, maintenance, or operating costs in a temporary facility, even if these costs increase. According to the PAPPG, eligible costs associated with the provision of temporary facilities include, but are not limited to:

  • Rental or purchase of equipment necessary to continue the services in the temporary facility
  • Reasonable alterations of the temporary facility, if required to make the space functional based on the pre-disaster use of the damaged facility
  • Restoration of the temporary facility to its pre-disaster condition when no longer needed
  • Moving expenses to and from the temporary facility
  • Minimal life-safety or other building upgrades required by an applicable code or standard in effect at the time the temporary facility is purchased or leased
  • Public outreach and messaging costs necessary to inform the public that the service will temporarily be provided at a different location

A Threshold Question: Lease or Purchase?

Once a local government determines that its services are eligible for relocation, local governments need to decide whether to lease or purchase a temporary facility. In leasing a temporary facility, a local government could be the lessee of space within an existing, permanent building or a local government could rent modular office trailers that would be delivered to a specific site within the jurisdiction. In either instance, the cost principles of the Uniform Guidance, 2 C.F.R. §200.465,  provide that “rental costs are allowable to the extent that the rates are reasonable in light of such factors as cost of comparable rental properties; market conditions in the area; alternatives available; and the type, life expectancy, condition, and value of the property leased.” FEMA generally reimburses the least costly option of leasing, purchasing, or constructing a temporary facility.

In determining whether to purchase or lease a temporary facility, a local government must provide FEMA with a cost analysis. I have previously written about cost or price analysis, but “cost analysis” in this context is more akin to (although much less involved than) the Benefit-Cost Analysis (BCA) associated with FEMA’s Hazard Mitigation Assistance. According to the PAPPG, the cost analysis should include at least three options with cost estimates based on the timeline to restore the original facility. Purchasing or constructing a temporary facility is eligible if FEMA confirms that it is the least costly option. Thus, a local government needs to compare the overall costs of leasing a modular office trailer to purchasing the same by doing the following:

  • Determine the timeline for constructing or repairing its permanent facilities
  • Evaluate the cost of leasing a facility for that period using at least three quotes or proposals
  • Evaluate the cost of purchasing and installing a comparable facility

Once a local government has this information, it should choose the most economical option that meets its needs.

The costs for modular trailers depend on numerous factors. Most obviously, larger trailers cost more than smaller trailers. Additionally, the amenities needed for and public access to modular trailers influence price. For example, office trailers may need bathrooms and public-facing trailers must be ADA-accessible, all of which increases the price. Transportation and delivery expenses range based upon the trailer size and the logistics needed for transportation and placement on the site. In the wake of Hurricane Helene, this consideration will be especially important in Western North Carolina where major roadways may not yet be navigable for large trucks or wide loads and inclement weather may further affect roadways. Moreover, in a lease arrangement, the term impacts price; longer lease terms are often more cost-effective than month-to-month rentals. Finally, local governments will need to account for costs such as setup, permitting, grading, skirting, maintenance, and teardown, as well as other costs associated with initial installation, ongoing operation, and, if applicable, removal of the temporary facility.

Procurement Process for Leasing or Purchasing Temporary Facilities

Leasing Temporary Facilities

If a local government chooses to lease temporary facilities, whether in an existing building or as a modular office building, it must follow the Uniform Guidance to maximize the possibility of reimbursement from FEMA. This means that in addition to performing a cost analysis, the local government must follow the procurement methods outlined in 2 C.F.R. 200.320: informal procurement as a micro-purchase or simplified acquisition (formerly known as small purchases) or formal procurement as a sealed bid or competitive proposal. Most leases for temporary facilities will likely fall within the informal range, so local governments can look to this FEMA Informal Methods Fact Sheet for more information. Local governments should also consider whether self-certifying a higher micro-purchase threshold will provide more flexibility for procuring leased facilities.

Ultimately, the appropriate method depends on the total cost of the procurement, meaning a local government needs to consider all of the costs from delivery to removal for a modular office trailer or overall lease cost for space within a permanent building. Additionally, a local government should ensure that the rental of private property does not constitute a “sale and lease back” arrangement, a “less-than-arm’s-length” lease, or any other unallowable arrangement as described in 2 C.F.R. §200.465.

Under state law, “true” leases—meaning leases without an option to purchase—are not subject to competitive procurement. Thus, there are no additional procurement regulations to consider at the state level. However, local governments must follow their own procurement policies where applicable. Additionally, depending on the length of the lease and the source of funding, approval by the Local Government Commission could be required; this is discussed in more detail in the “Other Considerations” section below.   

Purchasing Temporary Facilities

If a local government chooses to purchase temporary facilities, North Carolina procurement laws apply along with the federal procurement standards. Thus, the purchase of modular office trailers costing $30,000 or more is subject to the North Carolina informal bidding statute, G.S. 143-131. This statute requires “informal bids,” which generally means obtaining quotes and awarding to the lowest, responsive, responsible bidder. However, if a local government has not self-certified a higher micro-purchase threshold under the Uniform Guidance, it will need to obtain quotes if the purchase cost is $10,000 or more because local governments are required to apply the most restrictive rule. The purchase of modular office trailers costing $90,000 or more must be solicited using the formal bidding procedures under G.S. 143-129. The formal bidding process generally involves sealed bidding, public advertisement, and a public bid opening. Although modular buildings are exempt from the building construction requirements of G.S. 143-128, any construction-related work for installation (e.g., pouring a foundation or connecting electricity or plumbing) must be treated as a separate contract for construction work.

State law provides for exceptions that may allow a local government to purchase a temporary facility without competitive procurement, but local governments should be mindful that the Uniform Guidance provides fewer exceptions to competitive procurement than state law. Most notably, the “used item” exception, G.S. 143-129(e)(10) may provide an avenue for procuring a modular office trailer, as vendors often offer used trailers for sale. However, the Uniform Guidance does not provide for a “used item” exception. So, a local government should rely on the used item exception only if the overall contract cost will be less than $30,000 and the local government has self-certified a higher micro-purchase threshold.  (If the local government has not self-certified a higher micro-purchase threshold, then the used item exception is useful only if the overall contract cost is $10,000 or less.)

In addition to the state law requirements noted above, local governments need to follow the Uniform Guidance when purchasing modular office trailers. As described in the earlier section “Leasing Temporary Facilities,” this means performing a cost analysis and using the proper procurement method under 2 C.F.R. 200.320. When purchasing property using federal funds, local governments should be aware of the applicable property standards, which require a local government to return to FEMA the federal share of its equity in the temporary facility.

What About Emergency Procurement?

At the risk of burying the lede, some local governments may be wondering whether they can use the federal emergency or exigency exception to purchase or lease temporary facilities. While emergency (or exigent) circumstances can justify procurement without competition, it’s not clear when the “emergency” ends under FEMA guidance. Relying on the emergency exception is risky for local governments. There is a possibility that FEMA could later conclude that the justification was not sufficient to support the ongoing exception of competitive procurement requirements, thereby denying reimbursement. Plus, while the exact timeline for the end of “emergency” is not clear under FEMA guidance, local governments must eventually competitively procure temporary facilities, so competition cannot be avoided entirely. For these reasons, local governments will position themselves more effectively for reimbursement if they competitively procure temporary facilities at the outset of acquisition.

Other Considerations

Of course, procurement is only one aspect of obtaining temporary facilities. Particularly for modular office trailers, there are other issues that may influence a local government’s decision-making, such as choosing an appropriate location. This section briefly describes other topics that local governments should consider.

Local Permitting Approvals

In placing modular office buildings, local governments are subject to their jurisdictions’ building and zoning codes. This means that construction documents and site plans may need to be submitted to the building inspections department depending on the requirements of the jurisdiction. The local government will need to demonstrate compliance with accessibility provisions of the building code and provision of relevant site utilities to serve the facility. Additionally, if the setup costs and other ancillary costs for modular office trailers exceed $40,000, a licensed general contractor must perform the work. While each jurisdiction will have its own requirements, this fact sheet from Iredell County provides some examples of what may be expected for permitting. Before soliciting leased or purchased modular office trailers, local governments should check with the appropriate code officials to ensure that a modular office trailer can be placed on a specific site. For this reason, leasing space within an existing building may sometimes be a simpler option.

Possible Approval by the Local Government Commission

As described in more detail in this blog post by my colleague Kara Millonzi, the Local Government Commission (LGC) must sometimes approve leases or contracts involving capital assets. (Capital assets generally encompass assets that are of significant value, with a useful life of more than a single fiscal period.) If a local government is leasing or purchasing a temporary facility under FEMA’s Public Assistance (PA) program, the contract is not subject to LGC approval. If a local government is using a source of funds other than PA, the contract is not subject to LGC approval if the term, including any options to extend, is less than five years. For local governments on the LGC Unit Assistance List, though, the term threshold for LGC approval is three years. This flowchart provides more information about LGC approval of leases and contracts.

Possible Environmental Historic Preservation (EHP) Review

FEMA’s PAPPG explains that temporary relocation of facilities that involves “ground disturbance” requires Environmental Historic Preservation (EHP) review before implementation of the action. This process involves federal agencies’ review of numerous federal laws and executive orders applicable to the scope, such as the Floodplain Management Executive Order of 1977 and the Migratory Bird Treaty Act. While each local government will need to discuss with its Program Delivery Manager (PDMG) the details of placing modular office trailers on a site—and in particular, whether EHP review is required—Appendix C of FEMA’s Unified Federal Environmental and Historic Preservation Review Guide explains what information may be required. In particular, if ground disturbance is proposed, details about the extent (e.g., depth, length, and width) of the disturbance are required.

Fund Balance Concerns

Some local governments may not have a sufficient fund balance to lease or purchase temporary facilities. This section outlines two options that may help local governments obtain modular office trailers with less impact on their fund balances.   

Direct Federal Assistance

When the impact of an incident is so severe that a state or local government is unable to perform or contract for Emergency Work, the federal government is authorized to provide this assistance directly. This is known as Direct Federal Assistance (DFA). In such an instance, FEMA issues a “mission assignment” to task the work to another federal agency. Then, the assisting federal agency applies for reimbursement from FEMA. The United States Army Corps of Engineers (USACE) often receives mission assignments to perform support in core mission areas, such as debris management and temporary critical public facilities. Some local governments in Western North Carolina are working closely with USACE for the provision of modular office trailers. Currently, the estimated date for delivery and installation of the USACE trailers is early March 2025. If this is an option your local government wishes to explore, contact your PDMG.

Expedited Project Funding

FEMA offers expedited project funding, whereby it provides 50% of funding upfront for Emergency Work (Categories A and B) that meets or exceeds the large project threshold, which is $1,037,000 for 2024. If this is an option your local government wishes to explore, contact your PDMG.

Sample Solicitation for Leasing

While local governments have several options for temporary facilities, many local governments will probably opt for leasing modular office facilities, so this blog post includes a sample solicitation for that activity. The sample solicitation, drafted as a Request For Proposals (RFP), assumes reimbursement through FEMA’s PA program and includes the required and recommended contract clauses identified in FEMA’s 2024 Contract Provisions Guide. However, the sample RFP does not include recommended language for trailer specifications since those will vary widely. Examples from Camden County, New Jersey and the Williamsburg Area Transit Authority in Virginia may be helpful to understand what is typical for trailer specifications. As always, local governments should consult with the appropriate professionals, such as their attorney or engineers, for final approval of solicitations and subsequent contracts. The sample RFP and accompanying instructions are available below.

[1] FEMA identifies the following as local government eligible applicants: counties; municipalities; local public authorities; school districts; councils of government; agencies or instrumentalities of local governments; special districts established under state law; and community development districts.

[2]  Authorized by Section 403(a)(3)(D) of the Stafford Act, 42 U.S.C. 5170b.

[3] In the PAPPG, “recreation and parking” are grouped together as ineligible facilities or services, which is potentially confusing—is the grouping of the two meaningful, or is there inadvertent omission of a comma? At least anecdotally, FEMA has indicated that both recreation facilities and associated administration services are not eligible for temporary relocation.

Coates’ Canons NC Local Government Law

Temporary Facilities for Government Operations Following a Disaster

Published: 12/10/24

Author:

During Hurricane Helene, many local governments in Western North Carolina experienced significant damage to their administrative buildings that rendered them unusable. As local governments prepare to repair damaged buildings or construct new ones, they must also determine how to manage the physical location of their daily operations during the interim. The solution for many local governments will be temporary facilities. This blog post discusses key factors for local governments to consider when planning to use temporary facilities, with an emphasis on federal cost principles and procurement standards. This post also provides a sample solicitation document for leasing modular office facilities.

Authority for Reimbursement for Temporary Facilities

FEMA’s Public Assistance (PA) program reimburses local governments[1] for certain work and costs associated with disaster recovery. FEMA classifies work that is eligible for Public Assistance funding as either short-term Emergency Work (further classified as Categories A and B) or long-term Permanent Work (further classified as Categories C through G). The temporary relocation of facilities for essential community services is allowed under Emergency Protective Measures (Category B).[2] Accordingly, a local government may request reimbursement for reasonable, eligible costs for temporary facilities so it can continue to provide its essential community services. But what are “essential community services” and what are eligible costs?

Essential Community Services

FEMA guidance defines “essential community services” as those services performed by governmental entities that are necessary to save lives, protect and preserve property or public health and safety, or preserve the proper function and health of the community at large. FEMA’s Public Assistance Program and Policy Guide (PAPPG) identifies the following as essential community services:

  • Education
  • Election and polling
  • Emergency, including police, fire, and rescue
  • Homeless and domestic violence shelters
  • Emergency medical care
  • Prison
  • Utilities
  • Other facilities that provide public health and safety services of a governmental nature

Services provided in administrative and support facilities essential to the provision of the essential community service are also eligible for relocation. These include administration buildings, hospital and prison laundry and cooking facilities, parking, and storage if items are needed on-site. On the other hand, facilities that do not provide essential community services—such as museums, zoos, community centers, recreation and parking[3], senior citizen centers, and libraries—are not eligible for temporary relocation.

How should a local government proceed if it wants to relocate services that are not clearly “essential community services”? A 2023 FEMA decision on an appeal involving the Housing Authority of the City of New Bern provides some insight. In this appeal, the housing authority was initially denied reimbursement of $90,000 for relocation of its administrative offices. FEMA found that duties performed by the housing authority were not essential community services necessary to save lives, protect property and the public, or preserve the proper function and health of the community at large. Upon its second appeal, the housing authority provided statutory language and incorporation documents to establish its status as a private non-profit (PNP) tasked with the “amelioration of increases in and spread of disease and crime caused by the lack of affordable and safe dwellings.” With this additional documentation, FEMA granted the $90,000 reimbursement. In making its decision, FEMA relied on Federal Register language and prior FEMA appeals that defined health services affecting the “health and safety of individuals” as including low-income housing, alcohol and drug rehabilitation, programs for battered spouses, transportation to medical facilities and food programs. Accordingly, a local government or special purpose local government must sufficiently document that the services it seeks to relocate are related to protecting the public and preserving the proper function and health of the community at large.  

Eligible Costs

FEMA does not provide Public Assistance funding for utility, maintenance, or operating costs in a temporary facility, even if these costs increase. According to the PAPPG, eligible costs associated with the provision of temporary facilities include, but are not limited to:

  • Rental or purchase of equipment necessary to continue the services in the temporary facility
  • Reasonable alterations of the temporary facility, if required to make the space functional based on the pre-disaster use of the damaged facility
  • Restoration of the temporary facility to its pre-disaster condition when no longer needed
  • Moving expenses to and from the temporary facility
  • Minimal life-safety or other building upgrades required by an applicable code or standard in effect at the time the temporary facility is purchased or leased
  • Public outreach and messaging costs necessary to inform the public that the service will temporarily be provided at a different location

A Threshold Question: Lease or Purchase?

Once a local government determines that its services are eligible for relocation, local governments need to decide whether to lease or purchase a temporary facility. In leasing a temporary facility, a local government could be the lessee of space within an existing, permanent building or a local government could rent modular office trailers that would be delivered to a specific site within the jurisdiction. In either instance, the cost principles of the Uniform Guidance, 2 C.F.R. §200.465,  provide that “rental costs are allowable to the extent that the rates are reasonable in light of such factors as cost of comparable rental properties; market conditions in the area; alternatives available; and the type, life expectancy, condition, and value of the property leased.” FEMA generally reimburses the least costly option of leasing, purchasing, or constructing a temporary facility.

In determining whether to purchase or lease a temporary facility, a local government must provide FEMA with a cost analysis. I have previously written about cost or price analysis, but “cost analysis” in this context is more akin to (although much less involved than) the Benefit-Cost Analysis (BCA) associated with FEMA’s Hazard Mitigation Assistance. According to the PAPPG, the cost analysis should include at least three options with cost estimates based on the timeline to restore the original facility. Purchasing or constructing a temporary facility is eligible if FEMA confirms that it is the least costly option. Thus, a local government needs to compare the overall costs of leasing a modular office trailer to purchasing the same by doing the following:

  • Determine the timeline for constructing or repairing its permanent facilities
  • Evaluate the cost of leasing a facility for that period using at least three quotes or proposals
  • Evaluate the cost of purchasing and installing a comparable facility

Once a local government has this information, it should choose the most economical option that meets its needs.

The costs for modular trailers depend on numerous factors. Most obviously, larger trailers cost more than smaller trailers. Additionally, the amenities needed for and public access to modular trailers influence price. For example, office trailers may need bathrooms and public-facing trailers must be ADA-accessible, all of which increases the price. Transportation and delivery expenses range based upon the trailer size and the logistics needed for transportation and placement on the site. In the wake of Hurricane Helene, this consideration will be especially important in Western North Carolina where major roadways may not yet be navigable for large trucks or wide loads and inclement weather may further affect roadways. Moreover, in a lease arrangement, the term impacts price; longer lease terms are often more cost-effective than month-to-month rentals. Finally, local governments will need to account for costs such as setup, permitting, grading, skirting, maintenance, and teardown, as well as other costs associated with initial installation, ongoing operation, and, if applicable, removal of the temporary facility.

Procurement Process for Leasing or Purchasing Temporary Facilities

Leasing Temporary Facilities

If a local government chooses to lease temporary facilities, whether in an existing building or as a modular office building, it must follow the Uniform Guidance to maximize the possibility of reimbursement from FEMA. This means that in addition to performing a cost analysis, the local government must follow the procurement methods outlined in 2 C.F.R. 200.320: informal procurement as a micro-purchase or simplified acquisition (formerly known as small purchases) or formal procurement as a sealed bid or competitive proposal. Most leases for temporary facilities will likely fall within the informal range, so local governments can look to this FEMA Informal Methods Fact Sheet for more information. Local governments should also consider whether self-certifying a higher micro-purchase threshold will provide more flexibility for procuring leased facilities.

Ultimately, the appropriate method depends on the total cost of the procurement, meaning a local government needs to consider all of the costs from delivery to removal for a modular office trailer or overall lease cost for space within a permanent building. Additionally, a local government should ensure that the rental of private property does not constitute a “sale and lease back” arrangement, a “less-than-arm’s-length” lease, or any other unallowable arrangement as described in 2 C.F.R. §200.465.

Under state law, “true” leases—meaning leases without an option to purchase—are not subject to competitive procurement. Thus, there are no additional procurement regulations to consider at the state level. However, local governments must follow their own procurement policies where applicable. Additionally, depending on the length of the lease and the source of funding, approval by the Local Government Commission could be required; this is discussed in more detail in the “Other Considerations” section below.   

Purchasing Temporary Facilities

If a local government chooses to purchase temporary facilities, North Carolina procurement laws apply along with the federal procurement standards. Thus, the purchase of modular office trailers costing $30,000 or more is subject to the North Carolina informal bidding statute, G.S. 143-131. This statute requires “informal bids,” which generally means obtaining quotes and awarding to the lowest, responsive, responsible bidder. However, if a local government has not self-certified a higher micro-purchase threshold under the Uniform Guidance, it will need to obtain quotes if the purchase cost is $10,000 or more because local governments are required to apply the most restrictive rule. The purchase of modular office trailers costing $90,000 or more must be solicited using the formal bidding procedures under G.S. 143-129. The formal bidding process generally involves sealed bidding, public advertisement, and a public bid opening. Although modular buildings are exempt from the building construction requirements of G.S. 143-128, any construction-related work for installation (e.g., pouring a foundation or connecting electricity or plumbing) must be treated as a separate contract for construction work.

State law provides for exceptions that may allow a local government to purchase a temporary facility without competitive procurement, but local governments should be mindful that the Uniform Guidance provides fewer exceptions to competitive procurement than state law. Most notably, the “used item” exception, G.S. 143-129(e)(10) may provide an avenue for procuring a modular office trailer, as vendors often offer used trailers for sale. However, the Uniform Guidance does not provide for a “used item” exception. So, a local government should rely on the used item exception only if the overall contract cost will be less than $30,000 and the local government has self-certified a higher micro-purchase threshold.  (If the local government has not self-certified a higher micro-purchase threshold, then the used item exception is useful only if the overall contract cost is $10,000 or less.)

In addition to the state law requirements noted above, local governments need to follow the Uniform Guidance when purchasing modular office trailers. As described in the earlier section “Leasing Temporary Facilities,” this means performing a cost analysis and using the proper procurement method under 2 C.F.R. 200.320. When purchasing property using federal funds, local governments should be aware of the applicable property standards, which require a local government to return to FEMA the federal share of its equity in the temporary facility.

What About Emergency Procurement?

At the risk of burying the lede, some local governments may be wondering whether they can use the federal emergency or exigency exception to purchase or lease temporary facilities. While emergency (or exigent) circumstances can justify procurement without competition, it’s not clear when the “emergency” ends under FEMA guidance. Relying on the emergency exception is risky for local governments. There is a possibility that FEMA could later conclude that the justification was not sufficient to support the ongoing exception of competitive procurement requirements, thereby denying reimbursement. Plus, while the exact timeline for the end of “emergency” is not clear under FEMA guidance, local governments must eventually competitively procure temporary facilities, so competition cannot be avoided entirely. For these reasons, local governments will position themselves more effectively for reimbursement if they competitively procure temporary facilities at the outset of acquisition.

Other Considerations

Of course, procurement is only one aspect of obtaining temporary facilities. Particularly for modular office trailers, there are other issues that may influence a local government’s decision-making, such as choosing an appropriate location. This section briefly describes other topics that local governments should consider.

Local Permitting Approvals

In placing modular office buildings, local governments are subject to their jurisdictions’ building and zoning codes. This means that construction documents and site plans may need to be submitted to the building inspections department depending on the requirements of the jurisdiction. The local government will need to demonstrate compliance with accessibility provisions of the building code and provision of relevant site utilities to serve the facility. Additionally, if the setup costs and other ancillary costs for modular office trailers exceed $40,000, a licensed general contractor must perform the work. While each jurisdiction will have its own requirements, this fact sheet from Iredell County provides some examples of what may be expected for permitting. Before soliciting leased or purchased modular office trailers, local governments should check with the appropriate code officials to ensure that a modular office trailer can be placed on a specific site. For this reason, leasing space within an existing building may sometimes be a simpler option.

Possible Approval by the Local Government Commission

As described in more detail in this blog post by my colleague Kara Millonzi, the Local Government Commission (LGC) must sometimes approve leases or contracts involving capital assets. (Capital assets generally encompass assets that are of significant value, with a useful life of more than a single fiscal period.) If a local government is leasing or purchasing a temporary facility under FEMA’s Public Assistance (PA) program, the contract is not subject to LGC approval. If a local government is using a source of funds other than PA, the contract is not subject to LGC approval if the term, including any options to extend, is less than five years. For local governments on the LGC Unit Assistance List, though, the term threshold for LGC approval is three years. This flowchart provides more information about LGC approval of leases and contracts.

Possible Environmental Historic Preservation (EHP) Review

FEMA’s PAPPG explains that temporary relocation of facilities that involves “ground disturbance” requires Environmental Historic Preservation (EHP) review before implementation of the action. This process involves federal agencies’ review of numerous federal laws and executive orders applicable to the scope, such as the Floodplain Management Executive Order of 1977 and the Migratory Bird Treaty Act. While each local government will need to discuss with its Program Delivery Manager (PDMG) the details of placing modular office trailers on a site—and in particular, whether EHP review is required—Appendix C of FEMA’s Unified Federal Environmental and Historic Preservation Review Guide explains what information may be required. In particular, if ground disturbance is proposed, details about the extent (e.g., depth, length, and width) of the disturbance are required.

Fund Balance Concerns

Some local governments may not have a sufficient fund balance to lease or purchase temporary facilities. This section outlines two options that may help local governments obtain modular office trailers with less impact on their fund balances.   

Direct Federal Assistance

When the impact of an incident is so severe that a state or local government is unable to perform or contract for Emergency Work, the federal government is authorized to provide this assistance directly. This is known as Direct Federal Assistance (DFA). In such an instance, FEMA issues a “mission assignment” to task the work to another federal agency. Then, the assisting federal agency applies for reimbursement from FEMA. The United States Army Corps of Engineers (USACE) often receives mission assignments to perform support in core mission areas, such as debris management and temporary critical public facilities. Some local governments in Western North Carolina are working closely with USACE for the provision of modular office trailers. Currently, the estimated date for delivery and installation of the USACE trailers is early March 2025. If this is an option your local government wishes to explore, contact your PDMG.

Expedited Project Funding

FEMA offers expedited project funding, whereby it provides 50% of funding upfront for Emergency Work (Categories A and B) that meets or exceeds the large project threshold, which is $1,037,000 for 2024. If this is an option your local government wishes to explore, contact your PDMG.

Sample Solicitation for Leasing

While local governments have several options for temporary facilities, many local governments will probably opt for leasing modular office facilities, so this blog post includes a sample solicitation for that activity. The sample solicitation, drafted as a Request For Proposals (RFP), assumes reimbursement through FEMA’s PA program and includes the required and recommended contract clauses identified in FEMA’s 2024 Contract Provisions Guide. However, the sample RFP does not include recommended language for trailer specifications since those will vary widely. Examples from Camden County, New Jersey and the Williamsburg Area Transit Authority in Virginia may be helpful to understand what is typical for trailer specifications. As always, local governments should consult with the appropriate professionals, such as their attorney or engineers, for final approval of solicitations and subsequent contracts. The sample RFP and accompanying instructions are available below.

[1] FEMA identifies the following as local government eligible applicants: counties; municipalities; local public authorities; school districts; councils of government; agencies or instrumentalities of local governments; special districts established under state law; and community development districts.

[2]  Authorized by Section 403(a)(3)(D) of the Stafford Act, 42 U.S.C. 5170b.

[3] In the PAPPG, “recreation and parking” are grouped together as ineligible facilities or services, which is potentially confusing—is the grouping of the two meaningful, or is there inadvertent omission of a comma? At least anecdotally, FEMA has indicated that both recreation facilities and associated administration services are not eligible for temporary relocation.

This blog post is published and posted online by the School of Government for educational purposes. For more information, visit the School’s website at www.sog.unc.edu.

Coates Canons
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