The Morehouse Community Improvement Organization, Inc., DAB No. 888 (1987)

.��..�  DEPARTMENTAL GRANT APPEALS BOARD

Department of Health and Human Services

SUBJECT:  Morehouse Community Organization

Docket No. 87�152
Motion to Reconsider
Board Decision No. 888

DATE:  October 1, 1987

The Morehouse Community Improvement Organization, Inc.  (MCIO orGrantee)
notified the Board that it wished to appeal at a higherlevel Board
Decision No. 888, dated August 5, 1987.  Decision No.888 upheld the
determination by the Office of Human DevelopmentServices (Agency)
disallowing costs claimed for transportationservices that exceeded the
price established by a contractbetween MCIO #nd the provider of the
services, Mr. White.  TheGrantee alleges that the Board's decision was
"unfair and withoutprogrammatic foundation." Specifically, MCIO
complained that ithad requested an "onsite review of the situation" and
that it hadsubmitted briefs analyzing and comparing transportation
coststhroughout the area but that "no consideration was given toeither."

As the cover letter to our decision indicated, the decision isthe final
administrative action in the appeal, and consequently,there is no
further administrative review at a higher levelalthough the Grantee is
not precluded from seeking judicialreview.  Nevertheless, Board
regulations at 45 C.F.R. 16.13permit the Board to reconsider a decision
where a party promptlyalleges a clear error of fact or law.
Accordingly, we will treatthe Grantee's notice as a request for
reconsideration.

The record before the Board in Decision No. 888 established thatMCIO had
contracted with Mr. White to provide transportationservices covering
five school routes for the seven months atissue.  This contract provided
that Mr. White would be paid on acents�per�mile basis each month for
every mile of transportationactually provided during the month.  MCIO
did not dispute thenature of the terms nor the applicability of the
contract butargued that Mr. White had been confused about the

actual terms of the contract.  The terms, however, correspondedprecisely
with the bid Mr. White had submitted to MCIO beforereceiving the
contract.  In spite of the binding nature of thecontract, MCIO decided
to pay Mr. White $5034 in excess of thecontract formula because of his
alleged confusion as to theterms.  The Board upheld the Agency's
determination that the$5034 in claimed costs were not properly charged
to this grantbecause the grantee was under no obligation to pay the
excessamounts to the provider of transportation services, and thepayment
could not be viewed as a necessary cost of the grant.�j In its letter to
the Board, MCIO argued that no consideration hadbeen given to its
request for an onsite review of thecircumstances surrounding the
payment.  Prior to and during Boardproceedings MCIO had in fact asked
the Agency counsel or otherAgency representatives to perform an onsite
review.  TelephoneConference Tape of May 27,1987. ## The Agency counsel
declinedthe request for an onsite visit because, he asserted, the
issuessurrounding the disallowance had already been fully �

*/ At no time during the appeal did MCIO request the #oard toprovide an
onsite review or a hearing. While Board regulations donot contemplate
that the Board will perform onsite investigativereviews, they do provide
that the Board may provide a hearing. If an appellant believes that a
hearing is appropriate, theregulations say it should specifically
request one from the Boardat the earliest possible time in the Board's
proceedings.  TheBoard will approve a request "if it finds there are
complexissues or material facts in dispute the resolution of which
wouldbe significantly aided by a hearing, or if the Board determinesthat
its decision�making otherwise would be enhanced by oralpresentatations
and arguments in an a#versary, #videntiaryhearing." No hearing was
requested h#re, nor was tl#ere anydemonstration that a hearing would be
#opropriate under theregulatory standard.

This appeal involved an amount in #ispute of less than $25,000,and so
the Board used its expe#ited process.  This processexpressly provides
for a telepho#e conference call to enable theparties to respond orally
to each other's writ##n submissions. In fact, the Board provided the
parties in this case with theopportunity to participate in �two�
telephone conference calls andaddit#onal opportunities to present
written submissions notexpressly contemplated by regulations.

developed and there was no reason to believe that the Agencywould in any
way be aided in its understanding of the case.  Thisdisallowance was
originally based on audit findings prepared bythe Grantee's own
accountant, and the parties were given ampleopportunity during Board
proceedings to present writtensubmissions and to participate in
telephone conferences insupport of their positions.  The Grantee,
moreover, did not givethe Agency at the time of its request any
indication of theinformation that might be provided during an onsite
visit thatcould cause the Agency to alter its position.  Nor did
theGrantee allege that the Agency was required under
Departmentprocedures to provide an onsite visit either before or
afterissuing a disallowance.

Accordingly, we can find no reason to conclude that the Boardshould
reconsider its decision because the Agency declined theGrantee's request
to perform an onsite review.  It is afundamental principle of grant
administration that the grantee�j

MCIO also alleged in its letter to the Board that it hadsubmitted briefs
analyzing and comparing transportation coststhroughout the area but that
no consideration was given to thebriefs.  In fact, MCIO never submitted
to the Board �any� briefscomparing transportation costs.  (Even if such
an exhibit hadbeen submitted, it would have been of questionable
relevance tothe central issue.) The closest thing to a comparison of
costsactually submitted was an exhibit entitled "TransportationExample �
Profit Margin." This exhibit was specifically discussedby the Board on
page 6 of its decision.  The Board stated thatthe disallowed costs
exceeded the contract price and thereforewould have been unallowable
whether or not the contract provideda profit margin for the contractor.
The Board also noted,however, that using the Grantee's own profit

assumptions, Mr. White would have made a profit from the
paymentsprovided by the contract.

In summary, the Board considered in its decision all relevantexhibits
submitted by MCIO, including the exhibit analyzing Mr.White's profit
margin.

�Conclusion�

For the reasons discussed above, MCIO has provided us with nobasis upon
which to reconsider,our decision.  We must thereforedeny the request
for#re#onsideration.

 

       �  .          #
       #.' ###'######.
       � Norval D.
     (John) Settle

        �    �


     Alexan#er G. ##eit###


�j .��..��..��..��.#̔    ####### .. ._..'         � Donald
F.Garrett�#J� Presiding Board Member

� .��..�  DEPARTMENTAL GRANT APPEALS BOARD Department ofHealth and Human
Services�.J� SUBJECT:  Morehouse Community             DATE:  August 5,
1987 Improvement Organization, Inc.  Docket No. 87�41 � .��..�Audit
Control No. 06�65170 Decision No. 888�.J�

The Morehouse Community Improvement Organization, Inc.  (Granteeor MCIO)
appealed a decision by the Office of Human DevelopmentServices (Agency)
to disallow costs paid in excess of thecontracted price for
transportation services covering five schoolroutes.  The disallowance
followed the recommendation containedin an audit report for the grant
period that ended March 1, 1986. The Agency based the disallowance on
the fact that the costs werenot allocable to the project and, therefore,
violated the costprinciples in OMB Circular No. A�122.

During the course of the proceedings before the Board, the Agencyfiled a
motion to increase the disallowance amount from $724 to$5,034, and the
Board granted that motion.l/

For reasons stated below, we uphold the disallowance of $5,034for five
school routes subject to reduction if the Grantee candocument extra
costs for field trips and other allowable costs oftransportation not
previously claimed.  We allow the Grantee 30days from the date of this
decision to provide to the Agencyverification of such other allowable
transportation costs.

�                    �

�1�/ The original disallowance amount represented approximately
onemonth's alleged overpayment for the five school routes.  TheAgency
subsequently moved to amend the disallowance to includethe alleged
overpayment for seven months in the grant period atissue.  In a
telephone conference call, on July 14, 1987, thePresiding Board Member
granted the Agency's motion to increasethe disallowance.  The Presiding
Board Member noted 1) that theAgency was changing the amount only, not
the basis for thedisallowance, 2) that the original disallowance amount
had beenbased on a finding by the Grantee's accountant, which the
Agencyin its initial brief had questioned, but not corrected, due tothe
absence of documentation from the Grantee, and 3) that theGrantee had a
full opportunity to respond to the increase in theamount duri#g Board
proceedings.

�Background� �j

On August 26, 1985, the Grantee contracted with Mr. White toprovide
transportation for the Morehouse Community ImprovementOrganization Head
Start program for the 1985�86 school session. The contract stated, in
part:

� .�The following agreement contained herein, and solely herein,is
hereby entered into by the undersigned parties for aperiod of �nine�
months. . . . The Agency shall pay thecontracted Agency at the following
rate.  Fifty cents (50cents) per mile for Bastrop routes 1, 2, and 3;
sixty cents(60 cents) per mile for Mer Rouge Route #4 and sixty�five(65
cents) per mile for Oak Ridge/Collinston Route #5.  Therate for field
trips and other transportation as agreedprior to the departure of such
trips.  �Payments shall bemade at the end of each month in� �accordance
to the number ofmiles calculated per day� �and verified by the
Director�. Agency's Appeal File, Ex. A.  (Emphasis added)�.J�

�                    �

2/ Because the Grantee's program year ends on March 31st, #nlypayments
made during the months of September 1985 through March1986 are at issue.
The Agency stated that two additionalpayments under the contract for
April and May 1986 made during asubsequent grant year were not included
in this disallowance. Agency's First Supplemental Brief, p. 2, n. 1.

The contract made no reference to the estimated total payment of$25,506
calculated in the Board of Director's internal memorandumfor a
hypothetical 180 day school year.

Subsequently, the Head Start Director attempted to pay Mr. Whitefor the
first month with a payment of $1,837.80, which was basedon actual
mileage of transportation provided during that month. However, the
Grantee alleged that Mr. White com#lained to theMCIO Board of Directors
because he believed this amount was�j

The Agency argued before this Board that Mr. White's bid wasbased on a
cents�per�mile basis, and that the Grantee contractedwith Mr. White on
that basis.  �See� Agency's Appeal File, Ex. A. Further, the Agency
argued that the Grantee's June 28, 1985memorandum was not a part of the
solicitation or bidding process,having been developed as a# internal
document for Grantee's useafter the bids had been received.  Moreover,
the Agency arguedthat the contract itself contains a clause limiting the
terms ofthe agreement to the "agreement contained herein, and
�solely��herein�. . . ." (emphasis added) Agency's Brief, p. 4.  The
Agencyconcluded that since Mr. White was to be paid under the
contractfor miles travelled during actual school days (and not
ahypothetical school year) it is immaterial what MCIO calculatedas its
total "dollar amount" obligation in deciding whether toaccept Mr.
White's bid.  �Id�.

Finally, the Agency submitted its calculation of the amount thatit
maintains is due Mr. White under the Grantee's contract. During MCIO's
grant year, April 1, 1985 through March 31, 1986,the Grantee paid Mr.
White a total of $19,880 comprised of sevenpayments of $2,840.  The
Agency maintained that for the sevenmonths at issue, Mr. White was due a
total of $14,845.37 underthe applicable transportation contract �based
on the actual� �daysof transportation provided�.3/ �See� Agency's First

�                    �

3/ The Agency submitted a detailed series of calculations #oarrive at
its total amount due Mr. White under the contract.  �See�Agency's First
Supplemental Brief, pp. 3�5.  (continued...)

Supplemental Appeal File, Exs. D�G.  The disallowance representsthe
difference (rounded off) between the amount due under thecontract and
the amount paid.

�Discussion�

The question raised by the appeal is whether the payments inexcess of
the terms of the contract are allocable to the HeadStart grant.  We find
that the amounts paid to Mr. White inexcess of fee arrangements in the
contract executed by theGrantee are not allocable to the Head Start
grant and aretherefore unallowable.

OMB Circular No. A�122, "Cost Principles for Non�ProfitOrganizations,"
at Attachment A, A.2.a., provides that to be�j

Here, the Grantee cannot claim the amount in excess of thecontracted
price as a valid Head Start expenditure because theGrantee has not shown
that it was necessary to incur these costsin view of the contractual
terms obligating it to pay only alesser amount.  Nor has the Grantee
provided any other basis onwhich the costs could be allocated to the
grant.  While theGrantee's budget allows for transportation costs, the
Granteemust show why it was necessary to incur costs in excess of
thecontract for transportation services provided to Head Startchildren
under the grant charged.

The Grantee's reliance on its June 25 transportation bidsmemorandum is
misplaced.  As noted by the Agency, this memorandumwas an internal
document used only for the purpose of bidselection.  The later written
contract was a complete expressionof the parties' agreement.  �See�
Agency's Appeal File, Ex. A. Although the Grantee appeared to argue that
the amount in thememorandum was a more accurate expression of the
parties'agreement on the �                    �

3/(...continued) #he Grantee did not contest the Agency's calculations.
Therefore, since the calculations are not at issue, they will notbe
reproduced here.

contract amount, the memorandum itself is faulty because thecalculations
contained in the memorandum were based on theassumption that the
contractor would provide transportationservices for 180 school days,
which was far more days than theactual number for that year �� 128 days.

The Grantee argued that after Mr. White received his firstpayment under
the contract, he complained to the MCIO Boardbecause he felt that he was
entitled to more money.  The MCIOBoard apparently then met and voted to
pay Mr. White more money. However, it is undisputed that the MCIO Board
did not perform anyacts that would amend or invalidate the original
contract.  Nordid the Grantee present any legal reason why it did not
have toadhere to the contract.  Since the original contract
remainedvalid, the Grantee could have sued Mr. White for damages if
Mr.White refused to provide the contracted services at the agreedrate.
In any event, the Agency is not responsible for the amountpaid to Mr.
White in excess of the written contract fortransportation services.  �j

The Grantee, however, has provided the Board with no concreteevidence of
any misunderstanding on the part of the MCIO Board atthe time it entered
into the contract.  The contract clearly doesnot provide for a total fee
of $25,506.  Instead, it provides fora per�mile fee based on actual
miles driven during the contractperiod.  The Grantee admitted its
Director's initial payment wasbased on such a per�mile figure for actual
miles driven duringthe first month.  Thus, we have no basis for finding
that theMCIO #oard misunderstood the contract terms at the time
itexecuted the contract.  Further, the Grantee never adequatelyexplained
how Mr. White misunderstood the contract terms sincethe $25,50# figure
was developed as part of Grantee's internalassessment of the bids well
after all the bids had beensubmitted.  At the time Mr.  White submitted
his bid, he couldonly have thought, based on the terms of the bid, that
he wouldbe paid based on actual miles driven and this is precisely
whatthe contract provided.

The Grantee also argued that the amount paid to Mr. White wasbelow a
"reasonable profit margin" necessary for the contractorto provide the
contracted services and pay for his vehicles,insurance, drivers
(including fringe benefits) and vehiclemaintenance.  However, if this
issue were relevant to the Board'sallocability concerns (which it is
not), the Grantee failed tosubstantiate its allegation.  Indeed, by
using the Grantee's ownprofit assumptions identified as Grantee's
Exhibit 6, Mr. Whitecould have made a profit for the seven months based
on paymentsprovided by the contract.

 


�Extra Transportation Costs�

The Agency indicated during this appeal that it would be willingto
reduce the $5,034 disallowance by the amount due Mr. White for213 miles
of transportation provided on September 3 and 16, 1985(Agency's First
Supplemental Appeal File, Ex. H) and any other"extra" transportation for
which the Grantee can verify mileage. Agency's First Supplemental Brief,
p. 5.  Indeed, the applicablecontract specifically provides that payment
of transportation forother Head Start activities would be agreed upon
prior to thedeparture of such trips.  Since the Agency has agreed to
allowthe Grantee an opportunity to supply evidence of thetransportation
costs for other Head Start activities, the Granteeis directed to provide
such information within 30 days of the�j

�Conclusion�

Based on the foregoing, we uphold the Agency's disallowancesubject to a
reduction as discussed above.

 


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     � N##val  D.  ###hn)  Se::le

           �
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     Alexander G. Te#tz

 


� .��..��..��..��.#̔   . ! #.##### ##      � Donald F.Garrett�#J�
     Presiding Board Member