Washington Department of Social and Health Services, DAB No. 741 (1986)

GAB Decision 741

April 11, 1986

Washington Department of Social and Health Services;
Docket No.  85-257; 
Audit Control No. 10-46910
Settle, Norval D.; Tietz, Alexander D.  Ballard, Judith A.

The Washington Department of Social and Health Services (State)
appealed a determination by the Social Security Administration (Agency)
disallowing interest in the amount of $3,364 incurred by the State
during fiscal years 1980, 1981, and 1982 in connection with a
lease-purchase agreement for dictation equipment.  The State did not
dispute that interest costs are unallowable under the applicable
regulations, but argued that the costs should not be disallowed since
the Agency gave prior approval for the lease-purchase agreement.  For
the reasons discussed below, we uphold the disallowance.

Applicable Regulations

The costs in question were incurred by the Disability Determination
Services (DDS) in the Washington Department of Social and Health
Services.  The DDS makes disability determinations for persons applying
for federal disability insurance benefits under title II of the Social
Security Act.  The regulations setting forth the procedures under which
states perform the disability determination function for the Secretary
provide in pertinent part at 20 CFR 404.1626:

   (a) We will give the State funds, in advance or by way of
reimbursement, for necessary costs in making disability determinations
under these regulations.  Necessary costs mean direct as well as
indirect costs as defined in title 41 CFR Subpart 1-15.7 and in Federal
Management Circular 74-4, as amended or superseded.

   * * *

   (b) The State may not incur or make expenditures for items of cost
not approved by us or in excess of the amount we make available to the
State.

Section 1-15.713-7 of 41 CFR provided in pertinent part:

   Interest on borrowings (however represented), bond discounts, cost of
financing operations, and legal(2) and professional fees paid in
connection therewith, are unallowable except when authorized by Federal
legislation. . . .

This provision was a part of the Federal Procurement Regulations (FPR),
which were superseded on September 19, 1983 by the Federal Acquisition
Regulations (FAR).  The FAR incorporates by reference Office of
Management and Budget (OMB) Circular A-87, which contains a similar
prohibition on interest costs, and which was previously designated as
Federal Management Circular 74-4.  The parties did not identify any
federal legislation which would have allowed the interest costs in
question here.

Facts

In 1979, the State entered into a lease-purchase agreement for SONY
System 6000 equipment for physician input dictation.  The State obtained
the prior written approval of the Agency's Regional Office for the
lease-purchase agreement.  (Agency's appeal file, Ex. A) The letter
approving the agreement does not refer specifically to interest costs,
and the State stated that the Regional Office most likely did not see a
copy of the agreement, which identified an interest element.  (Tape
recording of telephone conference call held March 11, 1986) The State
contended, however, that the Regional Office both knew of and approved
the interest element, and that the Regional Office as well as the State
was unaware that such costs were unallowable. /1/


An audit report covering the DDS's operations for the period October 1,
1977 through September 30, 1982 stated that the interest costs were
unallowable and recommended that the costs be disallowed.  Following the
issuance of the audit report, the Regional Office requested that the
Agency's Commissioner waive the disallowance on the ground that the
State had not been aware of the prohibition on payment of interest
costs.  (State's appeal file, memorandum dated January 29, 1985) The
Associate Commissioner responded that a waiver was not justified since a
copy of OMB Circular A-87, as well as of another publication specifying
that interest costs are unallowable, had been provided to all disability
determination services and(3) parent state agencies prior to the audit
period in question.  (State's appeal file, memorandum dated March 13,
1985) The Regional Commissioner subsequently disallowed the costs.
(State's appeal file, letter dated March 29, 1985) In response to a
request by the State for reconsideration of the Regional Commissioner's
decision, the Associate Commissioner upheld the disallowance.  (Letter
dated November 8, 1985) The State appealed to this Board pursuant to 20
CFR 404.1681.

Discussion

We are not persuaded by the State's argument that the costs are payable
because the Regional Office approved the lease-purchase agreement.  The
Agency's letter does not address the allowability of the interest costs
as charges to federal funds, but merely approved the lease-purchase
transaction.  Although 20 CFR 404.1626 provides that a state will not be
paid for costs not approved by the Agency, this does not mean that all
costs arising from a transaction approved by the Agency will be paid.
The same regulation also provides that states will be paid for
"necessary costs" as defined in 41 CFR Subpart 1-15.7.  Thus, costs must
not only be approved by the Agency, but must also be necessary costs
within the meaning of the latter regulation.  As noted above, that
regulation specifically provides that interest costs are unallowabile.
Since the State was on notice that applicable regulations specifically
prohibited federal funding for interest costs, it could not reasonably
view the Regional Office's approval of the lease-purchase agreement as
approving federal payment of such costs nor could it reasonably rely on
any oral statement by Regional Office officials that such costs would be
paid. /2/


Moreover, even if the State had reasonably relied on the alleged Agency
approval of the interest costs, the Agency cannot be estopped from
taking the disallowance in the absence of affirmative misconduct by the
Agency official who allegedly approved the interest costs (although it
is unclear whether even affirmative misconduct would justify an
estoppel).  See Schweiker v. Hansen, 450 U.S. 785 (1981);  Heckler v.
Community Health Services of Crawford County, 467 U.S. 51 (1984). Here,
the Agency and the State, respectively, suggested that the approval of
the lease-purchase agreement may have been given in ignorance of the
interest element in the agreement or in ignorance of the prohibition on
interest costs.  There is no allegation that the Regional Office
deliberately misled the State regarding the availability of federal
funding for the costs.  While it is unfortunate that the Regional Office
may have failed to recognize that an interest element is generally
included in such transactions or may not have been aware that interest
costs were not allowable under the applicable regulations, this does not
relieve the State of its responsibility for conducting its program in
accordance with the regulations.

Conclusion

For the reasons set out above, we uphold this disallowance.  /1/ The
        State offered to supply affidavits to establish that the
Regional Office intended to approve payment of all costs of the
lease-purchase agreement, including interest costs.  (Tape of March 11,
1986 telephone conference call) We have determined that this would not
be a material fact, for the reasons discussed below, and proceed to
decide the case without the evidence offered.         /2/ Even if the
State did not have actual knowledge of the prohibition on interest costs
in 41 CFR 1-15.713-7 as made applicable by 20 CFR 404.1626, publication
of a document in the Code of Federal Regulations is sufficient to give
legal notice.  In any event, the DDS conceded that its accountant was
aware of the interest prohibition, although the accountant was not
consulted in connection with the lease-purchase agreement.  (Tape of
March 11, 1986 telephone conference)