Rapid City American Indian Development, Inc., DAB No. 1401 (1993)

Department of Health and Human Services

DEPARTMENTAL APPEALS BOARD

Appellate Division

SUBJECT: Rapid City American  Indian  Development, Inc. 

DATE:  April 2, 1993
Docket No. A-92-102
Audit Control Nos. CIN A-08-91-15416 and CIN A-08-91-15417
Decision   No. 1401

   DECISION

Rapid City American Indian Development, Inc. (RCAID) appealed decisions
by the Administration for Native Americans (ANA), in the Administration
for Children and Families (ACF), disallowing a total of $51,141 advanced
to RCAID for two Social and Economic Development Program (SEDS) grants
awarded pursuant to the Native Americans Programs Act of 1974 (the Act),
42 U.S.C . 2991 et seq.  ANA disallowed $28,557 under Grant No. 90NA0595
and $20,884 under Grant No. 90NA0484 on the ground that RCAID failed to
provide the required 20% non-federal matching share.  ANA also
disallowed $1,700 under Grant No. 90NA0484 on the ground that RCAID had
retained unobligated funds. 1/

For the reasons discussed below, we uphold ANA's disallowance in full.

Background

The SEDS provides financial assistance to American Indians, Alaskan
Natives, and Native Hawaiians in order to promote the economic
self-sufficiency of these groups.  The SEDS seeks to strengthen Native
American institutions and governing bodies, as well as aid the economic
and social development of these communities.  50 Fed. Reg. 32,542
(August 12, 1985).

RCAID submitted grant applications for two different projects which
shared a common goal "to create employment for Indian people."  RCAID
Brief (Br.), Tab I at 1.  The first project included plans for the
development of a business support center and an Indian productivity
zone.  The second project envisioned an expansion of the Indian
productivity zone concept.  ANA awarded financial assistance to RCAID
for each project.  The approved project period for Grant No. 90NA0484
(including a six-month extension) was from October 1, 1986 through March
31, 1988, and the approved project period for Grant No. 90NA0595 was
from October 1, 1987 through September 30, 1988.

These grants were both awarded with the condition that RCAID would
provide a 20% non-federal matching share pursuant to . 2991b(b) of the
Act and 45 C.F.R. . 1336.50(b) (1986).  Section 1336.50(b) states that
"[r]ecipients of financial assistance under . . . the Act are required
to provide a matching share of 20 percent of the approved cost of the
assisted project."  RCAID proposed to meet the non-federal share
requirement for Grant No. 90NA0484 with the proceeds from the sale of
economic development bonds, which were to be issued by the City of Rapid
City, and with in-kind contributions.  ANA Response to Request for
Additional Information, (hereinafter ANA Response), Tab D at 3.  RCAID
further proposed that it would meet the non-federal share requirement
for Grant No. 90NA0595 with grants it expected to receive from the
Bureau of Indian Affairs (BIA) and the Economic Development
Administration (EDA), as well as in-kind contributions.  ANA Response,
Tab H at 2-3.

The disallowances at issue were based principally upon audits conducted
for the fiscal years (FYs) ending September 30, 1987 and September 30,
1988.  The auditor found that RCAID had retained an unobligated balance
from Grant No. 90NA0484 and that there was a non-federal share
deficiency for both grants.

Analysis

I.  The $1,700 unobligated balance

ANA based its determination that there was a $1,700 unobligated balance
for Grant No. 90NA0484 on the audit report for this grant as well as the
audit report for Grant No. 90NA0595.  The audit report for Grant No.
90NA0484 reflected an unobligated balance of $1,699 as of September 30,
1987. 2/  1987 Audit Report at 9.  The audit report for Grant No.
90NAO595 stated that as of September 30, 1988, RCAID owed $1,722 to the
Department of Health and Human Services (DHHS). 3/  1988 Audit Report at
12.  Since the unobligated balance remained approximately $1,700 from
September 30, 1987 to September 30, 1988, ANA concluded that it was
attributable to Grant No. 90NA0484 as extended through March 31, 1988.

RCAID argued that there was no unobligated balance because ANA had
approved RCAID's request to expend the $1,700 in question when it
approved RCAID's request for a three-month no-cost extension for yet
another SEDS grant, Grant No. 90NA0806/02, from September 30, 1990 to
December 31, 1990.  See RCAID Br. at 2, RCAID Notice of Appeal for Grant
No. 90NA0595.  However, as explained below, RCAID's argument has no
merit.

The "Budget Extension Breakdown" attached to RCAID's September 17, 1990
extension request for Grant No. 90NA0806/02 stated that the "[e]xtension
does not require additional ANA money."  ANA Br., Tab K, attachment at
3.  The budget indicated that RCAID would fund the extension with
$20,063.74 that was available as of October 1, 1990.  The extension
request did not reference a carryover of funds from Grant No. 90NA0484,
and did not indicate that the monies cited as available for the
extension included the $1,700 unobligated balance from Grant No.
90NA0484.  Thus, there is no basis for finding that RCAID actually
requested a carryover of the funds when it requested the three-month
extension, much less that ANA approved such a request.

RCAID also alleged that ANA had approved a carryover because the
unobligated funds were included in a Federal Cash Transactions Report
for Grant No. 90NA0806/02.  This report included an attachment titled
"Financial Data," which listed a "Cash on hand" amount of $1,699.85 for
the FY ending September 30, 1987.  ANA Br., Tab L, attachment.  However,
as with the extension request, neither the Federal Cash Transactions
Report nor the "Financial Data" attachment included a request to carry
over the unobligated balance from Grant No. 90NA0484.  Moreover, since
the grants were not for consecutive budget periods, it was not clear
that RCAID intended to carry over the unobligated balance from one grant
to the other.  In addition, there was no indication that the $1,699.85
fund balance was retained from Grant No. 90NA0484.  Thus, even if the
report was read together with the extension request for Grant No.
90NA0806/02, it was not clear that RCAID was making a carryover request.
In any event, the mere submission of a financial report which included
the unobligated fund balance in question does not establish that ANA
approved the carryover.  See Bronx Professional Standards Review
Organization, DAB No. 953 (1988) at 8; Oregon Dept. of Human Resources,
DAB No. 729 (1986) at 23.  Moreover, RCAID did not dispute ANA's
statements that this report would not routinely have been sent to the
ANA official with authority to approve the extension request, and, in
any event, that this report had not been received until after the
no-cost extension was approved.  Responses of ANA to Issues at 5.

Furthermore, RCAID never requested permission to carry over the
unobligated funds as required by the applicable regulations at 45 C.F.R.
Part 74 and by the rules contained in the Office of Human Development
Services (OHDS) Discretionary Grants Administration Manual (hereinafter
OHDS Manual).  Part 74 of 45 C.F.R. and the OHDS Manual were made
applicable to both grants in question by the Notices of Financial
Assistance Awarded. 4/  Under 45 C.F.R. . 74.111(b)(2), unless the
grantee is permitted to carry over unobligated funds, it must "refund or
otherwise dispose of . . . any unobligated balance of cash advanced."
In order to receive permission to carry over unobligated funds, the
grantee must submit a request to do so to the HDS Grants Officer.  OHDS
Manual at 1-9.  If permission is granted, the unobligated balance may
only be transferred between budget periods of the same grant. 5/  OHDS
Manual, at 1-8.  This is consistent with the basic principle of grants
administration, set out at 45 C.F.R. . 74.170, that "[g]rant funds may
be used only for allowable costs of the activities for which the grant
was awarded."

As previously discussed, RCAID never made a clear request to carry over
the funds in question to an HDS Grants Officer (or to any ANA official
for that matter).  Even if RCAID had made such a request, it could not
have been properly approved because unobligated funds may only be
transferred between budget periods of the same grant.  OHDS Manual at
1-8.  Here, Grant No. 90NA0484 and Grant No. 90NA0806/02 were separate
project grants awarded for project periods which did not overlap.  (For
Grant No. 90NA0806/02 the approved project and budget periods, as
extended, were September 30, 1988 through December 31, 1990.)  RCAID
Notices of Appeal, attachment 2; ANA Response, Tab A.  Thus, RCAID could
not properly use the $1,700 in unobligated funds in the administration
of Grant No. 90NA0806/02.

RCAID also argued that ANA authorized RCAID's carryover of the
unobligated balance when one of its employees suggested that the funds
be included in the extension request for Grant No. 90NA806/02.  RCAID
Reply at 2.  ANA asserted in response that the employee in question
never made this suggestion.  Responses of ANA to Issues at 15.
Furthermore, ANA alleged that the employee was not an ANA official and
therefore could not grant permission to RCAID to carry over the
unobligated balance.  We do not find RCAID's argument persuasive.  Even
if RCAID had been advised to include this unobligated balance in its
extension request, there is no evidence in the record that RCAID ever
made a specific request to carry over the unobligated balance from Grant
No. 90NA0484 to Grant No. 90NA0806/02.  Therefore, the alleged oral
advice does not support RCAID's assertion that ANA approved carryover of
the unobligated balance.  For the reasons stated above, we affirm ANA's
disallowance of the $1,700 balance.

II.  The non-federal share

ANA disallowed $20,884 under Grant No. 90NA0484 and $28,557 under Grant
No. 90NA0595 on the grounds that RCAID failed to provide the required
non-federal matching share for these grants in violation of the Act at .
2991b(b) and 45 C.F.R. . 1336.50(b).

For the reasons stated below, we find that there is no legal basis for
relieving RCAID from its non-federal share obligations for these two
grants.  While the underlying facts here are hardly a model for
responsible grants administration, this factor is not adequate to
override the terms of the grants which RCAID accepted.  The record shows
that RCAID informed ANA shortly after Grant No. 90NA0484 expired that it
had understood that the Rapid City resolution, approving a bond issue to
support RCAID's project, would suffice to meet its non-federal share
requirement.  The record also contains several requests from RCAID for
written confirmation of this, as well as several requests for waiver of
the non-federal share requirements for both grants.  See Notices of
Appeal:  attachment 5, November 30, 1989 letter; attachment 9, January
27, 1989 letter; attachment 10, September 12, 1988 letter; attachment
11, July 26, 1988 letter.  See ANA March 9, 1993 submission, June 25,
1990 letter.  There is only one letter in the record from ANA responding
to RCAID's inquiries.  (As discussed below, this letter stated that the
bonds' "issuance" was adequate.)  In fact, when the Board asked ANA what
consideration it gave to RCAID's waiver requests, ANA's response was
that it could not answer this question because the ANA files for both
grants were not available.  Responses of ANA to Issues at 9.

Yet, notwithstanding any possible failure by ANA to respond to RCAID's
requests, there is no question that RCAID had applied for funding
conditioned on a non-federal share.  Accordingly, since RCAID did not
make a timely waiver request, and since it failed to raise the expected
funds, it thereby also failed to meet its non-federal share
requirements.  This entitled ANA to the return of a portion of the funds
advanced.  RCAID can not reasonably expect treatment more favorable than
that accorded other grantees who applied for funding subject to the same
restrictions.  Below, we examine in more detail the issues raised by
RCAID's appeal of the non-federal share disallowance.

A.  Approval of Economic Development Revenue Bond Issue

RCAID contended that the resolution passed by the Common Council of the
City of Rapid City, South Dakota (City) approving the issuance of
economic development revenue bonds in an amount up to $5,000,000 was an
appropriate matching share for Grant No. 90NA0484. 6/  The City had
approved the issuance of the bonds to raise funds to finance the capital
costs of RCAID's industrial park project; however, an audit of Grant No.
90NA0484 found that as of September 30, 1987, "the bonds have been
approved by the Common Council of the City of Rapid City but not
issued."  1987 Audit Report at 4.  RCAID argued that the approval of the
bond issue alone was adequate documentation for its matching share since
the City's authorization of the bonds provided "meritorious value" in
the form of increased interest in the grant project among local
developers and federal agencies.  RCAID Br. at 1.

However, the City's approval of the bond issue alone does not satisfy
the requirements for an allowable non-federal match.  Cost sharing or
matching is defined under 45 C.F.R. . 74.51 as "the value of third-party
in-kind contributions and that portion of the costs of a grant-supported
project or program not borne by the Federal Government."  Here, the
approval of the bond issue did not result in the transfer of any funds
to RCAID for use on this project.  Moreover, the approval did not
constitute an in-kind contribution, which under 45 C.F.R. . 74.51 must
consist of property or services.  The increased interest in the grant
project by developers or other federal agencies relied on by RCAID
clearly did not qualify as property or services but was merely an
intangible benefit.

B.      RCAID's Understanding that ANA Approved the City's Resolution as
an Adequate Non-federal Share

RCAID argued that ANA had accepted the approval of the bond issue as an
appropriate non-federal match for Grant No. 90NA0484.  According to
RCAID, during a meeting held in Washington, D.C. in February of 1987,
ANA officials represented to RCAID's Executive Director, Ms. Means, who
is now deceased, that the $5 million in economic development revenue
bonds authorized by the City was an adequate non-federal share. 7/  See
RCAID Notice of Appeal for Grant No. 90NA0484; RCAID Notices of Appeal,
attachment 10, July 26, 1988 letter.  RCAID also alleged that David
Dowd, ANA Project Officer, authorized the use of the bonds as a matching
share.  RCAID Br. at 1.  RCAID submitted a letter from Mr. Dowd to Ms.
Means in which Mr. Dowd approved the "issuance" of the bonds as a
non-federal share. 8/  See RCAID Notices of Appeal, attachment 7, April
27, 1989 letter.  RCAID asserted that if Mr. Dowd did not believe he had
the authority to authorize RCAID's use of the bonds as matching share,
he should have gone to a higher official.  RCAID Br. at 2.

In essence, RCAID argued that ANA is estopped from denying the approved
bond issue as a non-federal match.  This argument has no merit.  There
can be no estoppel absent the traditional requirements of a
misrepresentation of fact, reasonable reliance, and detriment to the
opposing party.  Heckler v. Community Health Services of Crawford
County, Inc., 467 U.S. 51, 59 (1984); see also Tennessee Dept. of Human
Services, DAB No. 1054 (1989).  Moreover, estoppel against the federal
government, if available at all, is presumably not available absent
affirmative misconduct by the federal government.  Schweiker v. Hansen,
450 U.S. 785 (1981). 9/

As explained below, the record here is inadequate to establish the
elements necessary for a showing of estoppel.  The record does not show
that any ANA official or employee in fact misrepresented to RCAID that
the City's approval of the bonds was enough to constitute a matching
share.  RCAID did not substantiate its assertion that ANA officials, who
met with Ms. Means in Washington, D.C., permitted the formal approval of
the bond issue to be used as a matching share.  The record reflects only
Ms. Means' understanding that the City's resolution was adequate and
that she asked ANA to confirm this in writing.  See Notices of Appeal:
attachment 9, January 27, 1989 letter; attachment 10, September 12, 1988
letter; attachment 11, July 26, 1988 letter.  Furthermore, Mr. Dowd's
letter to Ms. Means stated only that ANA "accepted the issuance of the
bonds as a non-federal share."  RCAID Notices of Appeal, attachment 8,
April 27, 1989 letter.  However, RCAID acknowledged, and it is evident
from the record, that the bonds were never issued.

Even assuming that ANA incorrectly represented to RCAID that it could
use the City's resolution as its non-federal share, RCAID's reliance
upon such representations was unreasonable.  No ANA official, regardless
of position, could have properly authorized the City's approval of the
bond issue as a matching share under the applicable regulations.

RCAID had notice of the regulations at Part 74 of 45 C.F.R. and could
not have reasonably relied on representations which were contrary to the
clear requirements of these regulations.  See Triplett v. Heckler, 767
F.2d 210, 213 (1985) ("the government cannot be bound by the
unauthorized or incorrect statements of its agents").  Moreover, RCAID
could not have reasonably relied on Mr. Dowd's letter (assuming it could
be construed to accept the approval of the bonds as a non-federal share)
because it received the letter only after Grant No. 90NA0484 had
expired.

Accordingly, the record here does not support a conclusion that ANA is
estopped from denying the approved bond issue as a non-federal share.

C.  In-Kind Contributions

RCAID failed to show that there were volunteer services for Grant Nos.
90NA0484 and 90NA0595 which met the applicable requirements for in-kind
contributions. 10/  Under 45 C.F.R. . 74.51, third-party in-kind
contributions are defined as "property or services which benefit a
grant-supported project or program and which are contributed by
non-Federal third parties without charge to the grantee."  Subject to
certain requirements, the value of these third party in-kind
contributions may be used to satisfy the matching share requirement.  45
C.F.R. . 74.52.  The services may be valued in accordance with the rates
which the recipient would normally pay its employees or in accordance
with the rates paid by other employers.  45 C.F.R. . 74.54(a).  Thus,
there must be some basis upon which to measure the value of the in-kind
contribution.  In this case, the audits for both grants, in relevant
part, stated:

    No amounts have been reflected in the statements for donated
    services inasmuch as no objective basis is available to measure the
    value of such services; however, a substantial number of volunteers
    have donated significant amounts of their time in the organization's
    program services.

1987 Audit Report at 11; 1988 Audit Report at 10.

The auditor further stated, in response to ANA's inquiry, that no value
could be given to the services because they did not meet the conditions
required by the American Institute of Certified Public Accountants,
before a service may be accepted as an asset to the organization.
Responses of ANA to Issues at 13.  Among these conditions is the
requirement that "[t]he organization has a clearly measurable basis for
the amount to be recorded."  Id.  This requirement is consistent with 45
C.F.R. . 74.53(d), which requires grantees to keep records of any
third-party in-kind contributions and provides that the records must
"show how the value placed on third-party in-kind contributions was
arrived at."

Although it was clear from the audit report that the donated services
were inadequately documented, RCAID made no attempt to provide the
documentation required by 45 C.F.R. . 74.53(d).  The Board has
consistently found that a grantee's failure to meet its burden of
documentation is a legally sufficient reason for upholding a
disallowance.  See Narragansett Indian Tribe, DAB No. 1103 (1989);
Organization of the Forgotten American, DAB No. 850 (1987).
Accordingly, we conclude that the volunteer services provided to RCAID
do not constitute an allowable in-kind match.

D.  Waiver of the Non-Federal Share Requirement

RCAID stated that both its Executive Director, Ms. Means, and the
auditor requested a waiver of the non-federal share requirement.  RCAID
Notices of Appeal:  attachment 10, July 26, 1988 letter; attachment 4,
November 30, 1989 letter.  ANA March 9, 1993 submission, June 25, 1990
letter.  RCAID asserted that because ANA failed to respond to the
auditor's request for a waiver, the auditor had to re-issue the audit
report for Grant No. 90NA0484 in order to reflect RCAID's failure to
obtain a waiver of the matching share.  RCAID Br. at 2.  RCAID argued
that Grant No. 90NA0484 and Grant No. 90NA0595 were awarded for the same
purpose so that if a waiver were granted, it should be for both grants.
RCAID Reply at 1.

Under 45 C.F.R. . 1336.50(b)(2), a grantee who seeks a waiver of the
matching requirement must "include with its application for funding a
written justification that clearly explains why the applicant cannot
provide the matching share and how it meets the criteria." 11/  ANA
asserted, and RCAID did not dispute, that RCAID did not request waiver
of the non-federal share requirement in its applications for funding.
ANA did not deny that RCAID requested waivers for both grants after the
grants had been awarded; however, ANA contended that a retroactive
waiver was and still would be inappropriate.  Responses of ANA to Issues
at 11-12.  After reviewing the record, including the waiver requests
submitted by RCAID and its auditors, we conclude that ANA's decision not
to grant a retroactive waiver was reasonable.

The Board has consistently upheld the exercise of discretion by a
federal agency "where the Agency's decision is in accordance with the
rules and the Agency's exercise of its discretion is reasonable."  The
Neighborhood House Association, DAB No. 136 (1980) at 4;  accord Manila
Westhaven Parent Council, Inc., DAB No. 212 (1981).  In this case, RCAID
did not make its waiver request when it submitted its applications for
funding as required by 45 C.F.R. . 1336.50(b)(2).  Moreover, ANA's
regulations do not provide for post-award waiver of the non-federal
share requirements.

If ANA were to grant a request for a retroactive waiver whenever a
grantee faced difficulties in providing the required match, the
requirement that SEDS grantees must provide a non-federal match in all
but exceptional circumstances would be undermined.  Here, RCAID
contended that it was a "fledgling organization . . . somewhat dependent
on ANA staff for assistance in interpreting rules and regulations
governing the activities of the project."  RCAID Reply at 2.
Nevertheless, we find that ANA could have reasonably determined that
RCAID's inexperience was not an exceptional circumstance which justified
granting a retroactive waiver.

Furthermore, the criteria a grantee must meet to demonstrate its
eligibility for a waiver are usually applied prospectively, during the
review of the grant application.  These criteria are outlined at 45
C.F.R. . 1336.50(b)(3), which provides that a waiver applicant must
provide documentation to prove that 1) it lacks the available resources
to meet part or all of the non-federal share requirement, as well as
prove that 2) all "reasonable efforts to obtain cash or in-kind
contributions . . . have been unsuccessful."  It is unlikely that ANA
can determine now whether these criteria were met since the grants
expired in 1988.  In addition, it is unlikely that at this late date,
ANA could make the preliminary determination required by 45 C.F.R. .
1336.50(b)(4) for waiver approval.  This regulation provides that before
a waiver may be granted, the granting agency "must determine that it
will not prevent the award of other grants at levels it believes are
desirable for the purposes of the program."  This determination is
intended to be made prospectively; thus, for ANA to make a retrospective
determination on this factor would be mere speculation.

RCAID was obliged under the terms of its grant awards to meet a
non-federal share requirement.  RCAID clearly knew that the non-federal
share match it proposed, the bonds and other federal grants, was
somewhat dependent on the success of its project in generating other
funds.  For ANA to grant post-award waivers to RCAID is potentially
unfair to other grantees who had applied for funding.

Accordingly, we conclude that ANA's denial of retroactive waiver of the
non-federal share requirement was reasonable.

Conclusion

On the basis of the foregoing analysis, we uphold the disallowance in
full.

 _______________________________ M. Terry Johnson

 _______________________________ Norval D. (John) Settle

    _______________________________ Cecilia Sparks
 Ford Presiding Board Member

1.    Due to a miscalculation, ANA initially overstated the amount
disallowed for Grant No. 90NA0484.  ANA had mistakenly treated the
$1,700 unobligated balance as expended in its calculation of the amount
of federal funds RCAID was required to return due to the non-federal
share deficiency.  During Board proceedings, ANA corrected this
calculation and reduced the non-federal share deficiency disallowance
from $22,224 to $20,884.  Responses of ANA to Issues and Questions
Raised by the Departmental Appeals Board (DAB) at 1 (hereinafter
Responses of ANA to Issues).

2.    ANA apparently rounded this number off to $1,700.

3.    The additional $22.00 reflected the remaining balance under Grant
No. 90NA0595.

4.    During the term of the grants, ANA was a subagency of OHDS and the
policies in the OHDS Manual applied.  OHDS was one of the DHHS agencies
combined in 1991 to form ACF, under whose authority the disallowance was
issued.

5.    OHDS defines "budget period" as "[t]he intervals of time into
which a multi-year period of assistance (project period) is divided for
budgetary and funding purposes.  Budget periods are usually 12 months
long, but may be for shorter or longer periods, if appropriate."  OHDS
Manual at ix.

6.    RCAID did not contest the 1988 audit finding that RCAID never
received the grants from EDA and BIA, which were to make up a portion of
the matching share for Grant No. 90NA0595.  See 1988 Audit Report at 4.

7.    In a related argument, RCAID argued that those individuals who
were members of the Board of Directors when the grants were in effect
should not be held accountable for the actions of their Executive
Director.  RCAID Br. at 2.  RCAID's position was that Ms. Means was the
only party responsible for the $20,884 disallowed for Grant No. 90NA0484
since she was the only person who corresponded with ANA and was
responsible for the issuance of the bonds.  This argument is not germane
to the non-federal share issue, however, since ANA is not proceeding
against the individual Board Members.

8.    RCAID also submitted a letter written by the auditor to DHHS, in
which the auditor stated that Mr. Dowd had orally authorized the
approval of the bond issue as a matching share.  RCAID Br., Tab II, June
23, 1992 letter.  However, the auditor acknowledged that Mr. Dowd
appeared not to have the authority to do so.  The auditor was ultimately
not able to obtain written confirmation and reissued the 1987 audit
report finding a non-federal share deficiency.  RCAID Notice of Appeal,
attachment 4, February 14, 1990 letter.

9.    In Office of Personnel Management v. Richmond, 496 U.S. 414
(1989), the court deplored the fact that its dicta on affirmative
misconduct had "spawned numerous claims for equitable estoppel in the
lower courts."  Id. at 422.  While it cited with favor the older cases
tending to view estoppel against the government as impossible (e.g.,
Utah Power & Light Co. v. United States, 243 U.S. 389, 408-409 (1917)
and Federal Crop Insurance Corporation v. Merrill, 332 U.S. 380 (1947)),
the court said it "would leave for another day whether an estoppel claim
could ever succeed against the Government."  Richmond, 496 U.S. at 423.
In Richmond the Supreme Court refused to apply estoppel because it dealt
with a claim for payment of money from the public treasury contrary to a
statutory appropriation.

10.    Both grant applications list the services of an Advisory Group
Panel as in-kind contributions.  However, RCAID stated that had the
productivity zone been in place, its Advisory Group Panel would have
been a source of in-kind contributions.  The productivity zone never
came about, and RCAID also stated that the Advisory Group was never
formed.  RCAID Br. at 1.

11.    RCAID did not dispute ANA's contention that adequate notice of
these procedures was given by the Program Announcements for both grants.
Responses of ANA to Issues at