Indian University, DAB No. 774 (1986)

GAB Decision 774

August 15, 1986

Indian University; 

Docket No 86-86;  Audit Control No. 05-51001

Ballard, Judith A.; Settle, Norval D.  Teitz, Alexander, G.

(1) Indiana University (University) appealed a determination by the
Deputy Assistant Secretary, Finance (Agency), Department of Health and
Human Services (DHHS), that the University must repay $8,986 in interest
income earned on excess federal funds drawn down by the University under
a DHHS letter of credit (LOC).  The determination was based on an audit
by the DHHS Office of the Inspector General that reviewed, among other
activities, the University's cash management practices during the period
July 1, 1982 through June 30, 1983.

The major issue presented is whether the surplus and deficit daily cash
balances on the University's LOC should be averaged to determine if any
interest earned by the University on its draw-down of federal funds
should be returned to the federal government.  For the reasons stated
below, we find that federal regulations require that any interest earned
on invested federal funds must be remitted to DHHS, regardless of any
daily deficits that the University may incur on the LOC account.
Accordingly, we sustain the disallowance.

This appeal was heard under the Board's expedited process at 45 CFR
16.12(c).

Background

The audit evaluated the adequacy of the University's cash management
policies and procedures as they related to investment practices and LOC
draw-downs under DHHS regulations and instructions. /1/ The auditors'
review disclosed(2) that the University was not, in all instances,
crediting the federal account with a proportionate share of the interest
earned on invested federal funds.  The auditors found that the
University's cash management system needed to improve its procedures for
maintaining cash balances within the limits specified in Treasury
Department regulations.  One of the auditors' specific findings was that
"(the) University drew more cash than it needed to maintain a balance of
zero unneeded cash or close to zero." Audit Report, p. 4.


The University's obligation to account for interest

DHHS regulations provide that, except to the extent the exemption under
the Intergovernmental Cooperation Act of 1968 (Pub. L. 90-577,
originally codified at 42 U.S.C. 4213, but later recodified at 31 U.S.
C. 6501 et seq. by Pub. L. 97-258, Sept. 13, 1982), (Act), for
grants-in-aid to states applies, "grantees shall remit to the Federal
Government any interest or other investment income earned on advances of
HHS grant funds." 45 CFR 74.47(a) (1982).

Section 74.47(b) of 45 CFR, in accordance with the Act, provides that a
state /2/ is not accountable to the federal government for interest
earned where the income is attributable to a "grant." The definition of
the term "grant" specifically excludes:

   . . . (VI) a payment under a research and development (procurement)
contract or grant awarded directly and on similar terms to all
qualifying organizations.


31 U.S.C. 6501(4)(C).

The parties agreed that the LOC at issue concerned research and
development grant contracts so that the exemption for "grants-in-aid"
under the Intergovernmental Cooperation Act of 1968 did not apply.

Parties' arguments

The University did not dispute that it was obligated to return to the
federal government any interest it earned on federal funds.  What the
University objected to was the method in which surplus and deficit
balances were used to(3) determine the amount of interest owed the
federal government.  The University contended that it operated its LOC
on an equitable and reasonable basis both for the University and the
federal government.  The University asserted that the Agency arrived at
the $8,986 figure by looking at surplus balances only, ignoring the fact
that on many days the University had large deficit balances in its
account.  The University stated that it was not asking the federal
government to pay interest to the University on any net deficit, but
reasoned that an equitable interpretation of 45 CFR 74.47 is that the
surplus balance days and the deficit balance days for a specific LOC
should be averaged together to determine the amount of interest to be
returned. /3/


The Agency responded that there is no provision in DHHS regulations or
policy that permits such averaging.  According to the Agency, it was the
University's drawing down of excessive funds from its LOC that caused
the surplus balances.  The Agency argued that 45 CFR 74.47 is explicit
in requiring that any interest earned from such excessive draw-downs
must be returned to the federal government.

Analysis

Although we have no basis to question the University's contention that
its LOC account more often reflected a daily deficit than a surplus, we
are not persuaded, in view of the applicable regulations, that the
Agency is required to average any surpluses and deficits to determine if
interest is owed to the federal government.  As the Agency pointed out,
the ultimate responsibility for the management of its LOC lies with the
University.

Federal regulations require LOC recipients to limit cash advances to an
"actual, immediate" need level.  Treasury regulations at 31 CFR 205.4(
a) state:

   Cash advances to a recipient organization shall be limited to the
minimum amounts needed and shall be timed to be in accord only with the
actual, immediate cash requirements of the recipient organization in
carrying out the purpose of the approved program or project.

(4) The regulation provides further that:

   The timing and amount of cash advances shall be as close as is
administratively feasible to the actual disbursements for direct program
costs and the proportionate share of any allowable indirect costs.

Similarly, 45 CFR 74.92 requires a grantee to minimize the time elasping
between the transfer of funds and the grantee's disbursement of the
funds.

These regulations unabiguously direct a LOC recipient to closely monitor
its LOC and expenditures so that surpluses, or deficits, in the LOC
account are kept to a minimum.  While a zero daily balance may be an
unattainable goal, it is nevertheless incumbent upon a grantee to
closely monitor its account.  Here, the University experienced wide
variations in its LOC account over the audited year.  In the course of
this appeal the Agency stressed that it gives a grantee considerable
discretion in the management of its LOC, but excessive draw-downs are
not permissible.  Here the University's excessive draw-downs generated
interest income which, under explicit federal regulations binding on
this Board, must be returned to the federal government.

The University maintained that it operated its LOC account on a "checks
issued" basis, i.e., it deducted funds from the account when it wrote a
check.  The Agency argued, however, that the University used a "checks
paid" system, whereby the amount of a check was not deducted from the
account until the check was actually cashed.  The University contended
that the use of a "checks issued" system was authorized by Agency
publications. /4/


In a telephone conference, the University, in response to Board
questions, admitted that, even while using a "checks issued" system, it
nevertheless received interest on the funds until any checks cleared.
Thus we find it immaterial(5) whether a "checks issued" or a "checks
paid" system was in effect since, under either concept, the University
received interest on federal funds and must remit the interest earned to
the federal government under the specific provisions of 45 CFR 74.47(a).

The University could provide us with no citation of authority, or any
argument (other than its equitable one) for its proposition that
surpluses should be netted against deficits before generated interest is
returned to the federal government. /5/ If we were to accept this
proposition, there would be no incentive for a LOC recipient to keep its
draw-downs to a minimum.  The Treasury and DHHS regulations cited above
would be rendered meaningless by the University's reasoning.  The
detailed monitoring of a LOC and grant expenditures, required under the
regulations, could be circumvented if the University could ultimately
avoid the payment of interest associated with excessive cash advances on
a grant by later incurring deficits in its LOC account.


As the Agency stated, the ultimate responsibility for the management of
the LOC rests with the University.  Here the University managed the LOC
in a method that resulted in wide disparities of surpluses and deficits.
Federal regulations have no provision for deficits on a LOC, but they
are explicit in requiring that any interest earned on a surplus must be
remitted to the federal government.  Accordingly, we uphold the
disallowance.

Conclusion

For the reasons stated above, we sustain the disallowance of $8,986.
        /1/ The audit examined also the University's management of
Department of Education LOCs.  The auditors determined that the
University owed $28,075 in interest earned on these LOCs.  The
University did not seek Board review of this finding, but limited its
appeal to the DHHS LOC. The audit originally asked the University to
return $14,363 to DHHS;  this was subsequently redetermined to be
$8,986, the amount of the disallowance before us.         /2/ "State" is
defined in the Act to include any agency or instrumentality of a state,
and the definition does not exclude an institution of higher education
which is such an agency or instrumentality.  31 U.S.C. 6501( 8).  The
parties did not dispute that the University fell within this definition.
/3/ In the year audited, the University had a daily cash surplus for its
LOC on 113 days, totalling $39,423,780.  The University had a daily cash
deficit on 252 days, totalling $89,721,475.  Using an interest factor of
.0832/365, it was calculated that the surplus generated $8,986 in
interest, while the deficit amount would have generated $20,452 in
interest.  Agency's Ex. C, p. 3.         /4/ The University initially
referred to provisions of the DHHS Manual for Recipients Financed under
the Payment Management System to support this contention.  When the
Board pointed out that this Manual was dated January 1984 and therefore
inapplicable to the period at issue, the University supplied 1981
amendments to the Departmental Federal Assistance Financing System's
"Policy and Procedures Manual for Recipients" (April 1979) that
permitted the University to use a "checks issued" system.         /5/
Where there are applicable regulatory provisions, the Board is bound by
them, despite any general equitable arguments.  45 CFR 16.14. See Ohio
Developmental Disabilities Planning Council, Decision No. 330, June 30,
1982, p. 8.

APRIL 25, 1987