Oklahoma Department of Human Services, DAB No. 1292 (1992)

Department of Health and Human Services

DEPARTMENTAL APPEALS BOARD

Appellate Division

SUBJECT:  Oklahoma Department of Human Services

DATE:  January 13, 1992
Docket No. 91-63
Decision No. 1292

DECISION

The Oklahoma Department of Human Services (State) appealed a
determination by the Administration for Children and Families (ACF,
Agency) disallowing $221,179 in federal financial participation (FFP)
claimed by the State under the Aid to Families With Dependent Children
(AFDC) program established by Title IV-A of the Social Security Act
(Act). 1/

The disallowance is the full amount of FFP claimed for the State's
purchase of numerous items of automatic data processing (ADP) equipment
for the period October 1, 1989 through June 30, 1990. 2/  The basis of
the disallowance is ACF's position that any item of equipment costing
$25,000 or less must be depreciated rather than expensed if purchased
together with other items of equipment where the aggregate acquisition
cost of all of the equipment is over $25,000.

As discussed below, we conclude that the Agency's interpretation that
the definition of "unit acquisition cost" of ADP equipment includes
parts of a configuration of hardware in a computer processing system is
reasonable (although we do not agree that all items of equipment
purchased at the same time must automatically be aggregated for the
purpose of determining the acquisition cost).  We therefore uphold that
part of the Agency's disallowance which pertains to computer hardware
(which we find was acquired as part of a configuration of equipment in a
computer processing system), and reverse that part of the disallowance
which pertains to computer software (which the Agency acknowledged could
be expensed).  Finally, we note that the State is allowed to claim
depreciation expense of the computer hardware, so that it may ultimately
recover the federal share of the cost of the hardware.

Background

The dispute in this case arises from the parties' differing
interpretation of 45 C.F.R.  95.705, which appears in 45 C.F.R. Subpart
G, entitled "Equipment Acquired Under Public Assistance Programs."
Section 95.705 provides, in relevant part:

     (a)  General rule.  In computing claims for Federal financial
     participation, equipment having a unit acquisition cost of $25,000
or less may be claimed in the period acquired or depreciated, at the
option of the State agency.  Equipment having a unit acquisition cost of
more than $25,000 shall be depreciated. . . .

     (b)  Exceptions. . . . (2)  Reimbursement for ADP equipment having
     an acquisition cost in excess of $25,000 and subject to Subpart F
of this part must be depreciated over its useful life unless otherwise
specifically provided for by the Department.

Subpart F of 45 C.F.R. prescribes the conditions under which the federal
government will approve FFP for the costs of ADP equipment.

The facts of this case are undisputed.  In 1989, the State sought to
purchase various items of ADP equipment, including terminals, personal
computers, and printers.  See State's Ex. 7, Stephens Aff., . 2; State's
Ex. 11.  While no item cost more than $16,000, and a substantial portion
cost less than $500, the overall purchase totalled $442,357.
Negotiations between the State and manufacturers for purchase of the
various items took place in the summer of 1989.  The State contacted
three vendors, including Memorex Telex.  Memorex Telex offered a
substantial discount if the items of equipment would be.purchased in
quantity.  The State maintained that the discount was over $130,000 for
the quantity purchased.  See State's Ex. 8.

On August 9, 1989, the State submitted an advance planning document
(APD) to the Agency and to the Department of Agriculture's Food and
Nutrition Service (FNS) requesting FFP in the purchase of approximately
2500 items of hardware and software equipment.  State's Ex. 10.  By
letter dated October 5, 1989, the Agency approved the request for FFP
for the equipment.  State's Ex. 12.

The Agency's October 5, 1989 letter approved the APD contingent upon the
State's submission and the Agency's acceptance of the Request for
Proposal (RFP), the selection criteria and process, and the report of
the selection committee with the list of winning vendors and their
ranking.  Finally, the letter stated that "[o]nly depreciation or use
allowance may be charged by the State for this equipment."  Id.

After APD approval, the State completed the purchase from Memorex Telex.
At the same time, by letter dated October 12, 1989, the State requested
that the condition in the October 5th letter be removed to permit it to
expense the costs of the equipment as they were incurred, rather than
depreciating each individual piece of equipment. State's Ex. 13.

By letter dated December 21, 1989, the Agency denied the State's request
to expense the equipment.  Specifically, the letter stated:

     HHS [Department of Health and Human Services] continues to maintain
     the position that this equipment must be depreciated.  The State
may depreciate the cost of this ADP equipment over a 5-year period or
its useful life.

State's Ex. 14.  By letter dated May 23, 1990, the State informed the
Agency that:

     Expenditure reports submitted by [the State] for the quarters
     ending December 31, 1989 and March 31, 1990, included certain
expenditures for equipment purchased for use in Oklahoma's statewide
automated data processing system. . . .  In the State's view,.because
each item of the equipment in question cost $25,000 or less, the State
is entitled to use an expensing method in claiming FFP on the equipment.

State's Ex. 15.  By letter dated August 1, 1990, the Agency responded to
the State's May 23rd letter.  In essence, the Agency maintained that its
long-standing interpretation of 45 C.F.R. 95.705(a) is that the language
regarding ADP equipment cost refers to the aggregate cost of all pieces
of equipment acquired under a single acquisition, and not the cost of
each individual piece of equipment acquired under a single unit
acquisition or procurement.  Further, the Agency maintained that the
preamble to the Notice of Proposed Rulemaking for that regulation at 46
Fed. Reg.  38280 (which the State claimed supported its position) is an
imprecise statement of the regulation, and "acquisition cost" must be
read in light of the actual regulation at 45 C.F.R. 95.705(a) which
refers to "unit acquisition cost" and does not refer to "an item."
State's Ex. 16.

By letter dated August 28, 1990, the Agency deferred FFP of the State's
claim for the quarters ended December 31, 1989, March 31, 1990 and June
30, 1990.  State's Ex.  17.

By letter dated September 19, 1990, the State wrote the Agency and
requested any action transmittals or other policy statements regarding
HHS' interpretation of the phrase "unit acquisition cost" for purposes
of section 95.705(a).  State's Ex. 18.

By letter dated November 21, 1990, State's Ex. 19, the Agency responded
to the State's request and transmitted three documents. 3/ .Analysis

     I.  The State was not entitled to claim all of its  equipment
     purchase on an expense basis.

Although the applicable regulations do not define "unit acquisition
cost,"  45 C.F.R.  95.703 provides, in relevant part:

     "Acquisition cost" of an item of purchased equipment means the net
     invoice price of the equipment, including the cost of
modifications, attachments, accessories, or auxiliary apparatus
necessary to make the equipment usable for the purpose for which it was
acquired.

     "Equipment" means an article of tangible personal property that has
     a useful life of more than two years and an acquisition cost of
$500 or more.

The Agency maintained that two issues are involved in this case:  (1)
whether the acquisition cost of ADP equipment is the total cost of all
ADP equipment acquired under an acquisition; and (2) whether the Agency
properly disallowed the claimed costs of ADP equipment.  The Agency
argued that ADP equipment purchased by the State collectively consists
of several components which form statewide mechanized claims processing
and information retrieval systems.  Thus, "ADP equipment" acquisition
costs can only be based on the aggregate acquisition cost of the ADP
system, and not on the cost of each unit or item of the ADP system.

The State argued that the Agency's interpretation is directly contrary
to the plain language of the regulation, which indicates that the
$25,000 threshold is to be applied separately to each item of newly
purchased equipment.  The State maintained that the Agency has twisted
the word "unit" to mean its opposite.  The State asserted that the
definitions could not be clearer to show that unit acquisition cost of
equipment means the net invoice cost of an item of equipment.

The Agency is reasonable in determining that 45 C.F.R. 95.705(a) means
that "unit acquisition cost" of ADP equipment which is all part of a
configuration of hardware comprising a computer processing system means
the aggregate acquisition cost of all components of the system. 4/  The
section 95.703 definition of "acquisition cost" makes it clear that the
cost includes not only the basic piece of equipment but any equipment
which is a necessary accessory to that equipment. 5/  Therefore, if a
grantee is purchasing a mainframe computer and the peripherals that go
with it such as terminals and cables, the unit consists of the computer
and the peripherals.  The peripherals cannot be treated as a separate
item for purposes of determining acquisition cost. Thus, the factual
issue which arises under the most reasonable reading of the Agency's
standard concerns the extent to which a particular procurement is of
systemically integrated components or of components which are intended
to operate independently.

Furthermore, the 1987 OCSE policy on purchase of ADP equipment (which
may have been sent to the State as part of a regular transmittal to
states although the Agency did not specifically allege this) states a
position on treating a systemic or integrated computer configuration as
one acquisition which should be capitalized and depreciated. See State's
Ex. 20.

Even though the equipment acquisition here is not the purchase of the
original processing system, the evidence shows that this is an expansion
of the teleprocessing system.  The State's APD explains its
teleprocessing system and details how the system functions:

     Data processing system support includes:  Maintenance of all case
     related data required to support the Federal programs covered under
Titles IV-A, IV-B, IV-D, IV-E, XIX [and] XX . . . .  Claims for services
arising out of the operation of these programs are processed, payment
records maintained and warrants prepared.  Financial, statistical, and
management reports are prepared from the available data. . . .  An
essential element in providing this support is the development,
operation, and maintenance of the statewide teleprocessing system which
includes:

          o  Statewide Teleprocessing Network connecting all local
          [Department of Human Services] offices and institutions with
the host computer site maintained at the State Office . . . .

          o  Network of distributed processing sites serving the offices
          of child support enforcement also connected to the host
computer site.

          o  On-line computer links with the Oklahoma Tax Commission,
          Oklahoma Employment Security Commission, Oklahoma Department
of Public Safety, and an interstate link connecting this state with
Missouri, Kansas, Illinois and Nebraska.

     The [State] also operates a number of state and federal data
     exchange programs in accordance with program requirements.

State's APD, p. 2, December 20, 1991 submission.  In addition, the APD
provides that --

     [t]he [State] is requesting approval, in accordance with 45 C.F.R.
     95.600, Subpart F, of this [APD] for the purchase of additional
terminals to expand this states [sic] teleprocessing network.

Id., p. 1.  Finally, the APD notes that the equipment purchase would:

     o  Increase caseload management capability.

     o  Provide more access to case information for local office staff.

     o  Provide word processing capabilities for local office staff.

Id., p. 3.  Since these items are not intended to function independently
and were purchased to expand the State's unitary teleprocessing system,
the aggregate cost of the hardware must be used in determining whether
it may be expensed or depreciated.

Contrary to the State's argument, the Agency's interpretation of
acquisition cost is not inconsistent with the preamble for these
regulations.  That preamble simply indicates that the purpose was to
allow states to expense most of their equipment (and thus avoid the cost
of accounting for depreciation).   See 46 Fed. Reg. 38280 (July 24,
1981).  This was accomplished, however, by setting the threshold
acquisition cost for requiring depreciation at $25,000.  Nothing in the
preamble indicates that the definition of acquisition cost which was
adopted would require treating pieces of equipment which are part of a
computer system configuration separately for purposes of determining
acquisition cost.  While the State argued that it would be costly to
depreciate each "item" of computer equipment separately, the Agency's
position would require only treating the equipment as one unit to be
depreciated, rather than separately depreciating each item.

The State also maintained that a regulation recently issued by FNS
underscores the lack of authority for the Agency's position.  In the
Agency's the final rule, at 47 Fed.  Reg. 41575 (September 21, 1982),
the Agency responded to comments received.  In particular, comment 3
said:

     3. Relationship to the Food and Nutrition Service (FNS)
     Requirements.  Comment:  To achieve the maximum benefit associated
        with the simplification, the requirements of both the Department
of Health & Human Services and the Department of Agriculture's FNS
should be the same.  Response:  We agree with the comment.
        Standardization and simplification of a State agency's system of
accounting for depreciation requires a uniform approach by the Federal
Government.  HHS is working with the FNS to standardize these
requirements.

Effective March 15, 1983, FNS approved the $25,000 threshold for
depreciating units of equipment so as to conform its policy with HHS
regulation.  See State's Ex. 27.  In 1989, however, FNS changed its
policy.  According to the policy statement, "[e]ffective April 1, 1989,
the FNS changed its policy on the expensing of equipment.  When the cost
of equipment, either per unit or in the aggregate will exceed $25,000,
the depreciation method will be used."  See State's Ex. 26.

Nothing in FNS's change of policy effects the disallowance here.  In
fact, it appears that FNS's change in policy may be more restrictive
than ACF's in this case.  Here, ACF took the disallowance because it
considered the equipment purchase part of a system.  It appears that FNS
could require depreciation of an aggregate equipment purchase even if
the items were not part of a system.

Finally, the State also asserted, and the Agency did not dispute, that,
in 1988, in a settlement between the Division of Cost Allocation and the
State, HHS agreed that individual items of equipment costing $25,000 or
under would be expensed.  See State's brief, pp. 20-21.  Here, again,
this fact does not preclude the Agency from taking the disallowance at
issue.  The State did not present any evidence to show that the items of
equipment in that settlement were part of a system configuration.  In
any event, in a settlement situation, the Agency presumably would not be
precluded from waiving any existing requirement if it chose to do so as
part of a larger negotiated context.

Consequently, we uphold the Agency's determination that the hardware
component of the Memorex Telex contract could not properly be expensed.

     II.  The State is entitled to claim this hardwarepurchase on a
     depreciation basis and to expense itssoftware purchase.

In the alternative, the State maintained that, in any event, the
disallowance is overstated.  The State argued that it is entitled to at
least the depreciation expense of the equipment for the three quarter
period of the disallowance, and that the portion for software should be
expensed.  We agree.

The Agency has always maintained that depreciation is the proper
claiming mechanism. Thus, nothing in this decision precludes the State
from revising its claim to recover the depreciation to which it is
entitled.

Finally, we agree with the State that to the extent that the Agency's
disallowance requires that all items of equipment purchased at the same
time must automatically be aggregated and depreciated, the Agency's
position is unreasonable.  As we have discussed above, the Agency's
standard, reasonably read, depends on the degree of systemic integration
of computer items.  Purchase of numerous items at the same time may be
an indication of interrelatedness, but it is by no means dispositive.

There were software items included in the purchase, and ACF has
confirmed that software may in fact be expensed.  A letter from ACF's
Associate Administrator for Management and Information Systems to the
State provided, in relevant part:

     Your understanding that neither operating system software or
     application software must be depreciated is correct.  Costs of
software, whether purchased, licensed, or developed in-house, may be
claimed in the quarter in which the expenditures for such software are
made.

State's Ex. 25.  Thus, the disallowance should also be reduced by the
cost of the software.

Conclusion

Based on the foregoing, we uphold the Agency's determination that the
hardware components of the Memorex Telex contract could not be expensed.
However, the State should be allowed to revise its claim to recover
depreciation for the hardware components.  Finally, we reverse that part
of the disallowance which pertains to software.

 

 

                          Judith A. Ballard

 

 

                          Donald F. Garrett

 

 

                          Norval D. (John) Settle Presiding Board Member


1.  This disallowance was originally issued by the Family Support
Administration (FSA).  Effective April 15, 1991, FSA was one of several
agencies combined into the Administration for Children and Families.

2.  For the quarter ended December 30, 1989, the FFP disallowed was
$65,720; for the quarter ended March 31, 1990, the FFP disallowed was
$56,068; for the quarter ended June 30, 1990, the FFP disallowed was
$99,391.

3.   The Agency's letter forwarded three documents to the State: (1) a
July 1987 document entitled:  Automated Systems for Child Support
Enforcement:  A Guide for States Seeking Enhanced Funding.  State's Ex.
20; (2) an October 11, 1990 discussion paper developed by the Division
of Cost Determination Management, Office of Grant and Contract Financial
Management within HHS. State's Ex. 21; (3) an Action Transmittal,
OCSE-AT-90-11 (October 9, 1990).  State's Ex. 22.

4.  The Agency's argument that the term "equipment" in 45 C.F.R.
95.705(a) is limited to only "non-ADP equipment" is not persuasive.  The
exception in section 95.705(b)(2) applies only to "acquisition cost" of
ADP equipment over $25,000.  Thus, the general rule in (a) applies to
"acquisition cost" under $25,000 and it is therefore necessary to read
the sections as treating "acquisition cost" the same (even though the
word "unit" does not appear in (b)(2)).

5.  The State also argued that an alternative, independent reason why a
substantial portion of the disallowance should be reversed is that most
of the computer hardware purchased under the APD cost less than $500.
See State's Ex. 2 .2 and State's Ex.  11, p. 6.  The State alleged that
to be considered "equipment" for purposes of the depreciation and
expensing rule an article must have "an acquisition cost of $500 or
more."  State's brief, p. 23.  However, as discussed in the text, this
argument is based on a per item basis.  The items of equipment purchased
in this case must be viewed as a whole, since they are part of a
computer system.