Document 24-2
Filed 04/02/2008
Page 1 of 30
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
BRISTOL BAY AREA HEALTH CORPORATION
PLAINTIFF, v.
) ) ) ) )
No.07-725C Hon. Margaret M. Sweeney
)
) ) ) ) )
THE UNITED STATES OF AMERICA,
DEFENDANT.
APPENDIX TO PLAINTIFF'S MEMORANDUM IN OPPOSITION TO DEFENDANT'S MOTION TO DISMISS
INDEX TO EXHIBITS IN THE APPENDIX
A. B. C. D. E. Indian Health Service, Alaska Area Shortfall Reports, FY 1993-1999 Indirect Cost Rate Agreements, FY 1993-1995 Affidavit of Robert J. Clark A1 A9 A11
Appeals ofSeldovia Village Tribe, mCA 3862 & 3863/97 (Oct. 20, 2003) ......A13 Menominee Indian Tribe o/Wisconsin v. United States, No.1 :07cv00812 (D.D.C.), Plaintiffs Motion for Partial Reconsideration (Mar. 24,2008) .......... A26
Excerpt from United States' Brief in Tunica-Biloxi Tribe ofLouisiana v. United A70 States, No. 1:02cv02413 (D.D.C.) (Dec. 21, 2006) IHS Brief in Fort Mojave Indian Tribe v. Leavitt, CBCA 547-ISDA (Civ. Bd. of Contract Appeals) (April 1, 2008) A72
F.
G.
Case 1:07-cv-00725-MMS
Document 24-2
Filed 04/02/2008
Page 2 of 30
Exhibit A
Indian Health Service, Alaska Area Shortfall Reports, FY 1993-1999
Area Office Annual Contract Report and Indirect cost Requirements Worl
Ft 13 ~
TOTAL Exdusions Indired cost Funding requir 5387,152 $2,818,802 52,477,917 5559,135 535,250 $419,610 5203.922 514,027 $72,817 $735,886 $86,397 $152,311 $175,232 $4,093 $90,404 PV TDC-LE FR SW PV TCC-L PV TDC-LE $1,657,405 $357,377 $68.921 $259,539 $3,470,691 $333.868 $4,367,286 0.0% 0.0% 0,0% 20,6% FY 93 Actual 5166,365 $1,458,789 5169,177
$0
Area Summary FY 93: Alaska Area· Revised May 2.1994 to include actual costs where available
'Program 5 Available CSC$ $361,886 DCSC 5106,954 5850,574
$0 $0
'Program $ Recurring DCSC 50 5155,026 $680,872 $3,700
$2.BOB,622
4th Quaner Non-Ree Type $1,388,671 FY 93 Adual FY 93 Actual 34,7% PV TDC-LE $36,653 PV TDC-LE $209,127 $14,027 FR TDC-LE PV TDC-LE PV TDC-L PV TOC-LE $91,036 $978,382 $523,239 $809,530 FY 93 Actual 29,6% 0,0% 0,0% 19,5% FY 93 Actual 79,4% 26,1% 30,5% 0.0% 22,5% 50,7% 0,0% 79.5% 20.1% 0,0% FY 93 Aetual $14,122,196 52,812,322 5221,360
$0 $0 $0
'Base Rate AppfTo Base
'Rate
Shortfalll Surplus ($25,268) (5340,885) (5250,395) ($1,403) (5103,629) ($5,205) $0 ($18,219) ($242,496) ($65,914)
'Recurring
Non-recurring $57,860 513,441,324 $221,360 51,964,489 $975,763 $84,476 $466,8SO $3,843,375 $191,827 $671,388 $13,421 $175,023 $9,840,670 5704,885 $114,104 $326,485 512.495,824 $2.619,278 523.519,612 $303,145 $318,667 $123,823 $712,565 519,169,069 $121,441
$0
Estimate 51,233,645
APIA
51,124,165
599,692
BBAHC 530,939 50
$0
512,338,910
5634,966
5297,744
Chugach $86,274 5107,508 $0 $165,338 $0 $84,476 $975,783 51,964,489 529,974 58,604
52,049,866
5535,873
$105,142
CITC
5154,671
535,750
CRNA
51,686,006
584,701
EAT
$646,045
5134,426
Eklulna 577,808
$71,774
$4,098
$0 $0
$0
$0
$0
$78,126 $0 $214,000 $0 $0 $57,300 $1,063,199 50 $3,715 $644,155 $0 $196,000 $14,000 $0 $0 $0 5285,217 $0
$0
FNA $181,972 $5,700 $19,453 $845 $0 $691,560 $73,897 50 $30,404 $4,154 $0 $0 $2.619,278 523,715,612 $317,145 $318,687 $123,823 $712,565 519,454,286 $186.365 $1,458,789 $169,177 524.310,724 $125,840,055 $1,910,649 $5,305,959 $0 $0 $0 50 $0 50 $0 $0 $32,063 $0 $13,139,979 5330,180 $114,104 50 $19,583 5849,147 $101,971 51,768,084 $0 $9,897,970 $0 $175,023 $0 $13,421 $0 $885,388 $0 $191,827 $0 $3,921,501 $11,605 $69,213 $133 $3,688 $81,562 $2,282 515,237
$389.042
$0
$486,850
KANA
53,493,619
$67,028
$178,882
Case 1:07-cv-00725-MMS
KIC
5101,410
573,112
Kenaitze
$652,481
$144,241
$124,237 $2,969 $31,021 $1,697,724 $363,236 $68,921 5107,582 $2,377,725 $333,866 52,527,781 580,902 $46,954 $28,978 $73,974 $46.954 $28,978
($50,995) ($1,124) ($59,383) $40,319 $5,859
$0
KNA
$9,543
$2,900
Kwann
$167,765
$3,570
Maniilaq
$8,672,891
$323,275
$210,244
MetiakaUa
51,547,213
565,412
Mt Sanford
579,418
52,000
Ninilchik
5262.174
529,032
($151,957) ($1,092,966) $0 ($1,839,S05) ($6,928) 50
$0
NSHC
511,175,284
$569,193
$546,355
SCF
51,980.161
5329,024
$208,122
Document 24-2
SEARHC
520,466.322
51,099,100
$823,830
$1.326,360 $0
$16,329 $8,501 534,478 5679,022 $0 50 $0 $1,022,717
Seldovia $47,894 $1,226 $11.860 515,248 $13,324 $8,448
5290.615
57,059
$19,471
SKIAP
$217,944
536,500
SI. George
$113,581
$515
Tanana
$646,942
$19,285
PV TDC-LE 0,0% 0.0% 0.0%
$146,788 52.130,303 $55,039 $511,952 $43,189
5100,386 $2,054,511 555,039 $511,952 $43,189
($46,402) ($75.792) $0 50
$0
TCC
$17,329,180
5602.263
5843,821
Tyonek
5133.671
$17,446
UIC
$1,270,611
$174,854
Valdez
$116,666
$12,000
YKHC
520,622,593
52.307,053
5358.361
$22,400,075 $120,534,096
FY 93 Aetual
$8,136,156
57.569,295
($566,861)
Filed 04/02/2008
----$6,218,012 $231,959
-
---$27,985,334 523,086,187 ($4,899,147) ($4,920,059)
Totals
5107.810.563
$7,414,370
$4,165,151
Page 3 of 30
A1
Area Office Annual Contract Report and Indirect cost Requirements Worksheet-FY 94 Area Summary FY94: Alaska Area ISO X Revisions - February 24, 1995 'TOTAL Exclusions 'Base Rate Base Indirect cost Available Type AppfTo Funding requi ICSC & ISO TDC-LE TOC-LE 'Rate 'Shortfall! · Surplus $29,007 ($2,092,884) $0
ee.)-s~'S~ ct Ii ~~~\ ~
$27,964 $513,019 $0
'Program $ 'Recurring
'Recurring Non-Rec 'Program $ OCSC Non -recurring 'OCSC
$262,388 $487,030 $3,600
$0 $0
$130,210 $27,339
$0
$100,000
$0 $0
$103,874 TDC-LE TDC-LE TDC-LE TOC-LE
$143,879 $961,303 $0 $0 $137,250 $0 $121,504
$0
($94,087) ($14,563) $93,561
$0 $0
$0 $0 $70,518 $0
$0 $0 $0 $0
$0 $0
$0 $0
Case 1:07-cv-00725-MMS
$0 $0
$0
$0
$124,163 $3.200
TDC-LE TOC-LE TDC-LE TDC-L TDC-LE TDC-LE TDC-LE TDC-LE TDC-LE TDC-LE
$0
$35,602 $445,330
$0 $0 $0 $0 $0 $0 $0
$10,320 $39,120
$0
$10,975 $62,612 $58,826 $2,599 $843 ($517) ($352,822) $25,869
Document 24-2
$0
$205,662 $6,442 $21,985 $955 $0 $781,589 $83,517 $0 $22,133 $959,690 $115,246 $1,638,000
$0 $0 $0
$520,684 $26,357
$0
$0
$0 $0 $0 $0 $0 $0
$0 $0
$20,168 $158,622 $0 $564,441 ($109)
$0 $0
TDC-LE TDC-LE ($9,861) ($88,569) $0
$17,453 $9,608 $38,966 $778,566
$0
$0
$0
TDC-LE TDC-LE ($1,677) ($22,411) $31,157,440 $29,527,463 #3 ($1,629,977)
Filed 04/02/2008
$0
$1,155,857 $7,199,605 #1 $183,906 #2
APIA** BBAHC CATG Chitina Chugach CITC CRNA EAT Eklutna FNA KANA K1C Kenaitze KNA Kwann Maniliaq Metlakatla MtSanfad Ninilchik NSHC SCF SEARHC Seldovia SKiAP St George Tanana TCC Tyonek UIC Valdez YKHC
----------------------------------------------------------------------------------------------$124,473,097 $2,728,943 $121,744,154
$1,069,040 $11,861,852 $191,475 $22,016 $2,048,052 $174,916 $1,460,784 $758,415 $76,459 $409,026 $3,510,429 $110,962 $865,106 $8,631 $173,802 $8,244,276 $1,572,602 $240,631 $289,648 $10,928,517 $2,401,679 $22,353,116 $321,716 $246,667 $107,820 $639,856 $17,567,082 $154,923 $1,312,145 $128,936 $21,239,353 $20,600 $15,100 $0 $0 $0 $699,449
$212,917 $57,702 $111,271 $9,869 $5,419 $30,231 $115,720 $7,769 $13,745 $3,200 $1,494 $296,604 $91,969 $1,000 $7,669 $405,752 $1,179,608 $1,458,835 $1,782 $17,308 $7,405 $25,319 $570,977 $8,669 $139,143 $1,765 $1,063,274
$0 $0 $0
$1,475,307 $13,310,185 $325,285 $49,355 $2,398,219 $232,618 $1,693,559 $768,284 $81,678 $439,257 $3,831,611 $125,193 $900,636 $12,786 5175,296 $9,322,469 $1,748,088 $241,631 $319,450 $12,293,959 $3,696,733 $25,476,308 $323,498 $281,428 $124,833 $704,141 $18,916,625 $163,592 $1,451,288 $130,701 $23,458,484 $391,280 $4,941,844 $114,084 $40,712 $901,320 $56,991 $420,075 $209,084 $13,955 $84,337 $977,936 $84,505 $190,285 $3,077 $90,404 $2,046,263 $337,414 $116,914 $214,536 $3,215,374 $439,487 $4,882,359 $80,902 $46,882 $28,778 $152,430 $2,263,175 $54,737 $509,331 $81,429 $8,187,540
$1,447,343 $12,797,166 $325,285 $49,355 $2,298,219 $232,616 $1,589,685 $768,284 $81,676 $439,257 $3,761,293 $125,193 $776,673 $9,586 $175,296 $9,286,867 $1,302,756 $241,631 $309,130 $12,254,839 $3,696,733 $24,955,624 $323,498 $281,428 $124,833 $683,541 $18,901,525 $163,592 $1,451,288 $130,701 $22,759,035
28.4%PV 42.0% PV None OR None OR 48.0%PV 24.5%PV 29.7%PV 10.5% PV*** None OR 19.2% FR 26,O%PV 67.5% PV 24.5%PV 32.1% FR None OR 29.0%PV 25.9% FR None OR 69.4% PV 27.8%PV None OR 21.1% PV None OR None OR None OR 22.3%PV 20.1% PV None OR None OR 47.0% PV 48.0%PV
$420,287 $2,848,960 $114,084 $40,712 $807,233 $42,428 $513,636 $209,084 $13,955 $95,312 $1.040,548 $143,331 $192,884 $3,920 $89,887 $1,693,441 $363,283 $116,914 $234,704 $3,373,996 $439,467 $5,466,800 $80,793 $46,882 $26,778 $142,569 $2,174,606 $54,737 $509,331 $59,752 $8,165,129
Page 4 of 30
Totals
$110,489,952
$6,599,634
** $11,405 transferred from ICSC to DCSC #1 includes $150,121 of ISO X for OCSC #2 $27,339 for Chitina was for start-up - lx cost #3 Includes $1,316,596 of ISO X $ - with $516,180 in ISO X to FY 95 ***EAT has both an Indirect rate and indirect like costs CSC Reconcll/iation = DCSC +$7,199,605 + OCSC N!R $183,906 + ICSC $29,527,463 +180 to FY 95 $516,180 = $37,427,154
A2
i!ut(crG
AI""ka Area ReporI4124/9tJ DIRECT COST FUNDING EKCIUllon./ Dlrecl CO$I Pass- Thtougt Bas8 Rale TOC-LE 375.185 88.603 46,822 Rata type INDIRECT COST RATE
CONTRACTOR SUMMARY FROM AREA FYQ5 CSC SHORTFALL REPORT
Pi tb ~~ F'( crS ~~~
1 2 3
AREA Tolal
CONTRACTOR
TOTAL PROGRAM FUNDS PROGRAM Recurring Non-RecurrinllFUNDtNG
FUNDS FOR INDIRECT COST IndilllclCosl TOIaIIDC Funding Base Fundlnll Available Indlrecl CO'll '1'00"'0.... App/To Requlremenl AlTheArea ShOlUalllSurplus
TDC-LE TOC-LE TOC-LE TOC-LE TDC-LE TOC-LE
435,Cillll 86,603 45,518 211,1611 80,143 196.473 lill,II14 3,125
209.084
00,404
Case 1:07-cv-00725-MMS
567.:JOO 64,2011 178,503 768,132 417,413 8OI.llag 119,511 11,739 177,503 1,754,372 551,508 319,285 645.1170 748,644 0 26ll,37ll 1111,313 TOC-lE TOC-LE TDC-LE TOC-LE
78.8 NONE 25.5 10.5" 19.2 24.5 56.5 32.1 NONE 26.9 42.3 70 NONE 21.1 PV OR FR PV FR PV PV FR OR FR PV PV OR PV OR OR PV TDC-LE PV TOC-LE OR OR PV TDC-LE NONE NONE 22.3 13.11 NONE NONE 52
ALAS ALAS ALAS ALAS ALAS ALAS ALAS ALAS ALAS ALAS ALAS ALAS ALAS ALAS ALAS ALAS ALAS ALAS ALAS ALAS ALAS ALAS ALAS
Cncl Alhabascan Trbl Gvrrmnls ChlDna Villalle CITC EAT FNA Kenaltze KlC KNA Kwann MeDakaUe MISanlord Nlnllc:llik SCF DENA SEARHCAL Seldovia Vlllalla SKIAP SI Georlle TAN IRA TCC reCALC Tyonek UIC Valdez
5451.1108 64.2011 178.S03 771,782 417.413 895,244 112,1196 6,773 176,653 1,612,8711 443,862 agS.172 845,970 700,000 0 251,726 1011.5117 662.522 0 700.000 156,260 1.333,7511 133,355 567,300 64,2011 178,503 788,132 417.413 1126,092 1111,511 11.739 177,503 1,754,372 551,500 319,265 845,1170 746,844 0 2811.378 1111.313 710,596 0 711 ,146 1511,448 1,338,523 134,042
17.392 0 0 16,3SO 0 8,eIl3 0 0 8SO 57,235 2,0112 1,731 0 0 0 0 0 8.769 0 0 1.168 4,754 6117
TOTAL DIRECT CSC Recurring Non-Recurdn! DCSC OCSC 567.300 0 O. 64,206 0 0 0 0 178,503 788.132 0 0 0 417,413 0 21,1185 0 904,107 0 112.llllll 5.515 8,773 0 1156 177,S03 0 0 1,Il8ll,1I14 0 64.456 445,774 0 105,732 29tJ,l103 22,382 0 0 845,1170 0 700,000 48,844 0 0 0 0 0 251,728 17.650 10ll,5117 9,71ll 0 571,291 39.405 0 0 0 0 700,000 11,146 0 159,448 0 0 1,338,523 0 0 134,042 0 0 0 0 0 0 0 124.153 0 0 0 0 0 0 0 0 0 0 0 20.llOO 0 0 0 0 0
690.096
0 711.148 159,446 ;'338.523 134,042 10.5ti5,1l511 TDC-LE TDC-LE TDC-LE TOC-LE
471,926 233,287 223,500 273.300 157,984 0 4ll,882 28,776 153.891 0 96,850 54,737 5OIl.331 83,108 3,556,567
88,228 190,285 84,S05 3.1120 90.114 357,735 162.306 234,704 136,132 1311.358 0 48.862 28.778 146.8118 0 46,ll51 54,737 5OQ.331 69.8111 3.132,377
(60,SOI) 0 3.304 {2,084} 8,085 (8,188) 14,5111 1114 (2llOJ (114,1111) (SO,lI81) 11,204 (137.168) (18,606) 0 0 0 (8,9113) 0 (51,699) 0 0 (13,287) (424,210)
ALAS 0 0 0 0 0 0 37.160 119,118
Document 24-2
Sub-Tolal Alaska
10,222.410
119.711 IOS,732 10,710,722
10.342,121 262.869 144,703
0
TOC-LE TOC-LE TOC-LE TDC-LE
OTSG OTSG OTSG OTSG OTSG OTSG OTSG OTSG OTSG OTSG OTSG OTSG OTSG 0 24,050 0 0 0
20.4 41.4· 35.5" ag.7. NONE 26 2ll" 31.1" NONE 21.1" NONE
AlauUan/Prlbllof B....tol Bay Area HIlII COIP Chuyachmlul Copper Alver NaUva Assoc Eklulna NaUve Village Kodiak Area Netlve A..oc Manlllaq Assoc Norlon Sound Hllh Corp SCF· SEARHC Seldovia Vlllaga TCC Yukon-Kuskokwi'n HltIl Corp
1,079,651 11.722,707 2,087,415 1,252,084 78.320 3,624,085 8,515.107 11,308.508 2,2113,833 23,087,843 333,878 111,1177.726 22,109,870 1,3117.573 13.868,8117 2,31ll1,3118 1;418,571 78.320 3,1158.381 1l.83lI,083 12,5llO,8116 4,127,123 26,100,871 370,513 18.3II1,3e1l 23,872,1l47
182,422 9ll3.854 170,156 43,634 0 24,338 332,5711 311.M5 1,874.897 1178,154 38,837 8275114 5ll4,1114
1,242.073 12,718,561 2,257.571 1.2115,llll8 78,320 3,648.401 8,847,686 11,620.191 3,966,330 24,045,1197 370.513 17,605,320 22,704,084
20.1·
50.5·
145,500 972,136 138,797 122,873 0 207.960 790,3117 970.505 134,743 2,054,874 0 778,086 1,166.863
0 103.874 0 70,518 35,802 39,120 0 106,839 0 15,100 699,449
1,286,7110 1,431,543 116,620.7411 127,186,708
1,350,413 13,5611.5711 2.396,388 1,314.8117 711,320 3,785.863 11,802,481 12,551,5711 4,127,123 25,934,032 370,513 10,386,2116 23,173,41111
PV PV PV PV OR PV PV PV OR PV OR PV
Py
TDC-LE TDC-LE
383,517 5,033,875 713,441 343,800 13,955 964,324 2,127,3116 3.5117,356 1,318.122 4,690,025 147,3ll2 2,153,763 8,386,4411 3D,01lI,oI5 33,847,602
4211.287 3,150.771 850,432 455.321 13,1155 1,040,548 2,243.702 3,383,B03 1,035.3 UI 5,183,418 110.033 2,060,318 8,346,820 28,314,724 31,447,101
3lI,770 (1,882,904}·Mulll Ralal 13l1,lllll ·MuIU Rale. 111,721 ·MulURalas 0 58,224 116,_ 8 {213,553)·MuIU Rallls {260,808} 7 2ll3,3113 8 (37,359) (73,445)"MulO Ra.... (311,8211}"MuIU Rales (1 ,778,2SI 1) (2,200.50 I)
OTSG Sub- Tolal OTSG 8,08ll,Cl53 120,742,846 1211,782 7,745,623 128,8111,251
104,450,783 5,1l411,ll42 110,400,725 24,050 117,907,5211 7,482,754
Filed 04/02/2008
ALAS
Grand Tolal AlaskaPTSG
114,1173,193
C05"
Footnollls 1 CATGcarried a balance 01 $152,815 In ISO IundslnloFY 115 for IndlrBCltype costs '2 ChlOna carried I balance of $311,205 In ISO canyovor 1010 FY 115 lor Indlract type 3 EAT lias an Indirect rala and Indll9Ct type cosls nagoUalad with AANHS 4 MSTC recelvad $105,000 In CSC ler N/A OCSC InFY 115 5 Dana was advlold $273.300 In CSC butonty ecwelty received $13l1, 132 - !he balance cI fund. wanllc NSHC-$1l,807 - YI
Page 5 of 30
sa
A3
ALASKA AREA NATIVE HEALTH SERVICE
2 FY 96 PROGRAM FUNDS NON-RECURRING 3 PROGRAM FUNDS USED FOR DIR. CSC 5 FY 96 DIRECT CSC NON·RECUR 4 FY 96 DIRECT CSC RECURRING 6 FY 96 INDIRECT CSC AWARDED 7 FY 97 INDIRECT CSC REQUIRED 8 NOTES
FY 97 Report to Congress on Contract Support Cost Shortfalls
COLUMN
1 FY 96 PROGRAM FUNDS RECURRING
AWARDEES
$0
$0 5145,500
New in FY97
$0
$1,478,764 $0 $7,253 $138,797
Case 1:07-cv-00725-MMS
$0 $382,564 51,238,789 $2,469,170 $31,064 $356
New programs in FY 97
$1,328,855 $1,197,125 $12,402,328 $602,671 $102,636 $2,268,294 $178,503 51,158,365
$677,344 $0 $0
$0
New in FY97
S122,873 $0 $0 $0 $0 $0 $207,980
New in FY97
Document 24-2
$5,771
Contract closed in FY 97
FY 97 Rate increases
Filed 04/02/2008
Includes Am Care Bldg.
$0 $0 $0 $0 $0 $0 SO SO $0 50 $0 $0 $0 50 50 $34,160 $0 $0 $0 $0 $26,776 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $22,233 $6,515 $966 50 $7,078 $790,397 584,458 SO $22,382 $1,262.825 $134,743 $2,103,518 $0 $9,716 $39,405 $787,214 $0 $0 $0 $1,295,413
Rate has lapsed
AKIACHAK APIA ASNA BBAHC CATG CHITINA CHUGACH CITC CRNA DIOMEDE EAT EKLUTNA FNA HOONAH KANA KARLUK KENAITIZE KIC KNA* KWANN Kwinhagak MANIILAQ METLAKATLA MSTC NINILCHIK NSHC SCF SEARHC SELDOVIA STGEORGE TAN IRA TCC TYONEK UIC VALDEZ YKHC
S790,089 $78.836 $417,413 SO $3,575,729 S70,883 $899,888 $114,939 $8,080 $181,349 S170.622 $13,267,560 $1,642,037 $491,812 $301,325 $11,416,778 $4,709,224 $24,070,498 $524.625 $113,009 $669.956 $17,715.232 $159.911 $1,375,290 $133,946 $22,158.363
$307,639 SO $14,942 530,325 SO 50 5708,837 $234 $21,396 $0 $0 $59,269 $987 $1,601,236 $67,020 $3,602 $569 $2,010.501 $2,031,397 $5,846,171 $84,641 $0 $39,355 $3.072.388 $2,320 5160,253 $5,410 $6,252.288
$0 $0 $0 $0 $0 $0 $0 SO $0 $0 $0 $0 $0 50 $0 SO $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0
SO SO
50
$0 $420,287 $504,255 $2,882,517 $308,253 $80,289 S866.565 $42,428 $452,031 SO 5209,084 513,955 S88,228 $0 $1.040,548 $51,450 $190,285 584,505 $3,920 $89,887 $114,026 $2,332,441 5357.735 5163,543 $234.704 $3,383.907 $918,771 $5,635,733 5158,432 $28,718 $142,569 $2,170.393 554,737 5509.331 $59,752 $8,104,638
$60,141 $483,234 $1,395,881 $5,102,767 S771,644 $80,289 $860,018 $43,912 $452,830 $62,780 $297,861 $13,955 $69,708 $97.000 $1,366,673 $68,600 $160,398 5104,208 $0 $109.147 $114,026 $5,645,415 $513,367 $208,036 $259,421 $4,260,130 $2,402.423 $6,307.055 $288,183 $28,778 $142,569 $4,140,798 554,737 S509,331 $86,401 $11,958,506
Page 6 of 30
TOTAL
$124.296.171 527.120,067 'Program $ include W/H Amounts
SO
$8,673,801
$60.936
$31,697,977
$48,520.222
A4
2..11
co110- col 7 Net CSC Short
9
10
ISO @FY 97
CSC + ISO
$
96,362
Case 1:07-cv-00725-MMS
$
143.509
$
($62,780)
74,574
$0 $33.415 ($891.626) ($2,220,250) ($463.391) $0 $150,056 ($1,484) $73,775
$
10.139
Document 24-2
$
209,381
$ 1,305,021
$
430,762
Filed 04/02/2008
$
41,278
($88,777) $10,139 $18,520 ($97,OOO) ($116,744) ($17.150) $29,887 ($19.703) $3,920 ($19.260) $0 ($2,007.953) ($155.632) ($44.493) ($24,717) ($876.223) ($1,052.890) ($671,322) ($88,473)
SO
$
780,925
AKIACHAK APIA ASNA BBAHC CATG CHITINA CHUGACH CITC CRNA DIOMEDE EAT EKLUTNA FNA HOONAH KANA KARLUK KENAITIZE KIC KNA* KWANN Kwinhagak MANIiLAQ METLAKATLA MSTC NINILCHIK NSHC SCF SEARHC SELDOVIA STGEORGE TAN IRA TCC TYONEK UIC VALDEZ
$ 2,325,751
$60,141 $516.649 $504.255 $2.882,517 $308,253 $80,289 $1.010,074 $42,428 $526,605 $0 $209.084 $24,094 $88,228 $0 $1,249,929 $51,450 $190,285 $84,505 $3.920 $89,887 $114.026 $3,637,462 $357.735 $163.543 $234,704 $3,383,907 $1,349.533 $5.635,733 $199,710 $28.778 $142,569 $2,951,318 $54,737 $509.331 559,752 $10,430,389 $0 ($1,189,480) $0 $0 ($26,649) ($1,528,117)
YKHC
Page 7 of 30
$5,417,702 ($11,344,402)
$37,175,820
A5
r
Y /11 r
HEALTH SERVICE
7
info only
ALASKA AREA HATNE
COLUMN #1 FY97DIRECT
2
AWARDEES
esc
NON·RECUR
REQUIRED
rJlle1 =T1 tiDe 3 =T3 @FY98
FY lIB Report to Congress on Contract Support Cost Shortfall. 3 4 5 6 FY ff7 PROGRAM FY 97 PROGRAM PROGRAM FY 97 DIRECT FUNDS FUNDS FUNDS USED esc RECURRING· NON·RECURRING' FOR DIR CSC RECURRING
8 FY 97 INDIRECT AWARDEO-
9 FY 98 INDIRECT
esc
10 Amtln Col 9 on ISO Queue as of 9/17197 cgl9·coI8 Net esc Short
AKIACHAK
60.141 S S 407,379 1,395,8111 $0 $150,271
$0
APIA ASNA BBAHC S1,445,207 $0 $0 $4,200 S1,014,072 515,800 $92,471 5 1,690 $0 $7,253
Tl T3 $7,112 $493,899 5871,315 $3,314,885 $8,031 $0 $0 $0 $0 $80,141 $478,852 $885,580 $4,327,724 S82,085 $455,089 $1,395,881 $5,689,321
('1.9404)
$23,763 (S730,321) ($1,381,597) ($552,998)
AKIACHAK
APIA
ASNA BBAHC
T3 T3
CATG
$30,727
Tl
$220,307 $1,343,259 $3,554,050 $13,019,057 $1,352,336
CATG
SO
($12,182) 5132,741 (S1,637) ChidaIIoon
Chickaloon
SO
SO
$0
Case 1:07-cv-00725-MMS
5104,166 $2,259,069 $0 $0 $0 $0 $ $
~2,"28
CHmNA CHUGACH CITC
$15,333 $525,249 $357 $333,857 $831,348 $44,065 5418,271 $90,248 $7;Q,340
$481,07" $15,600 $80,289 $984,089
CHITINA
CHUGACH
CRNA
T1 Tl T3 T1 T3
5178,770 51,170,448
CITC CRNA.
"3,337 129,239 DIOMEDE EAT
T1
$79,292
$0 $0
T3
$0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0
DIOMEDE EAT EKLUTNA FHA HOONAH
so
$0 $0
EKLUTNA
50,867 $ 88,800 FNA HOONAH
T3 T1 Tl
KANA
5929,8~
T3 T1
$0 $0 $60,000 $16,060
5418,037 5207,480 $3,614,157 $71,770
so
KANA
KARLUK
Document 24-2
T1
KARLUK KENAITIZE KIC Knlk 5116,008 $31,007 $173,010
T3 T1
S2,924 $328,403 S54,874 $836 $8,297 $952,299 . $0 S2O,978 $341 $0
$82,780 $338,323 $55,348 $78,748 $97,000 S1.271,731 568,600 $194,589 $158,897 518,957 $114,026 $7,304,664 $5B8,715
KENAn-IlE
KIC
Knik
$ $ $
Kwinhagak MANIlLAQ
Kwinhagak
T1
so
so
$497.864 $19,443 5209,084 S19,891 $88,228 $41,365 '1.160,528 $68,600 S190,285 $84,505 $18,957 $114,026 $2,920,378 $357,735 S182,306 $234,704 $3,359,556 $1,170,330 $5,635,733 $185,598 $28.778 S142.569 $2,468,646
T3 T3 $499,961 $304,870
$13,866,427 $1,661,468
$79,593 ($43,337) ($129.239) ($35,457) $9,480 ($55,635) ($111,205) $0 ($4.2841 (S72.392) $0 SO ($4 ,384 ,286)
$
MANIlLAQ METLAKATlA MSTC NINILCHIK
$5,397,019 $319,742 si,474 $3,150
T1
$0 SO $0 $0 SO SO So SO $0 $0
S184,782 $0 $151,614 $0 $0 $4.203 $0 $0 $292.311 $7,695 522,233 $8,515 $0 S8,978 $1,005,286 584,458 $0 $22,382 $1,262,825 $333.820 $2,103,518 $15,646 $9.718 $39,405 $1,071,529 50 $0
113,011 3,163.128 126,968 24,512
T1 T3 S2,286,806 $6,606,983 $6,103,377 $134,447
So
('230,980) ($24,512) ($29,61B) '206,818 $264.322 $4,031,979 53,475,952
$
ME1l.AKATLA
MSTC NINILCHIK NSHC 2,305,622 ($672,423) ('2,305,622) ($134,608)
S12,007,098
SCF
$
55,nO,341 $313,904 528,778 $186,1112 121.525 ($12B,308)
T3 T3
NSHC SCF SEARHC SELDOVIA
SO SO SO SO
T3
$5,177,624 $24,599,448 $527,888
Filed 04/02/2008
STGEORGE $296 $27,396 $3,424,870
so
SO
($44,D43) ($2.000,918) $0
SO $0
SEARHC SELDOVIA STGEORGE
TAN IRA
TCC
TYONEK
$114,694 $679,648 S17,852,419 $161,001
SO $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0
TAN IRA TCe TYONEK
$54,737 $509,331 S59,752 50 $1.932,219 S19,270 $4,469,784 $54,737 $5e9,331 $70,383
UIC
T1 T1 T3 T1 T1
UIC
VALDEZ
$183,570
VALDEZ
YKHC
$1,395,801 $135,002 $25,093,823
Page 8 of 30
Yakutat Tlingit
Tl T3 Tl
$669 $3,601 $312 $8,051,486 $415
SO SO $0 $0 $0 $0 $0
so so
$9.870,225 570,617
$12,l56,B52 $76,B30
$
825.093
$0 ($10,611) ($2.286.627) (S6,213)
YKHC
Yakutat Tlingi1'
·t4fA.~~:··.·':::.·
.·\:.. :· . ::.:W...l·,·.·..".·,:·:·:::.,?;}@~j*j'~Iif.}: ····· ~~ i~::}"~i#,1!1MWJ':}I;%·M: :...,WM:;;::.~.~i~af~ih~;.:·
·:@:;~{~~~;~~·::{f'\} · [email protected]:(I~~'ft':@i:ijbtm#Mt;~);.::l~;~fii!!:~:;::i'.4'!'B!(~f.~:
'Program $ indude WIH amounts - figures are from final Area advices
"'ndirect awarded inclul1es ISO $ from HQ (recevied in FY 97)
A6
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A7
Case 1:07-cv-00725-MMS
Document 24-2
Filed 04/02/2008
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A8
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Case 1:07-cv-00725-MMS
Document 24-2
Filed 04/02/2008
Page 11 of 30
Exhibit B
Indirect Cost Rate Agreements, FY 1993-1995
Case 1:07-cv-00725-MMS
Document 24-2
Filed 04/02/2008
Page 12 of 30
RATE AGREEMENT NONPROFIT ORGANIZATIONS
)
RISTOL BAY AREA HEALTH CORPORATION .0. BOX 130 ILLINGHAM, AK 99576
DATE: 09/03/93 FILING REF.: The preceding agreement was dated: 06/16/9~ N42114. 92
he rates approved in this agreement are for use on grants, contracts a~ ther agreements with the Federal Government, subject to the conditions ontained in section II. ECTION I : RATES
~
Effective Period From To COST RATES* 10/01/91 10/01/92 10/01/93 10/01/93 09/30/92 09/30/93 09/30/95 09/30/95
Rate 20.50% 20.50% 42.08% 23.00%
Location ALL ALL ON-SITE OFF-SITE
Applicable to ALL ALL ALL ALL PROGRAMS PROGRAMS PROGRAMS PROGRAMS
NDIRECT ina1 rov. rov. rov.
BASE: Total direct costs excluding capital expenditures (buildings, ndividual items of equipment, and alterations and renovations) and ubawards. REATMENT OF PAID ABSENCES acation, holiday, sick leave pay and other paid absences are included in alaries and wages and are charged to Federal projects as part of the normal harge for salaries and wages. Separate charges for the cost of these absences re not made. REATMENT OF OTHER FRINGE BENEFITS his organization charges the actual cost of each fringe benefit direct to ederal projects. However, it uses a fringe benefit rate which is applied to alaries and wages in bUdgeting fringe benefit cost under project proposals. he following fringe benefits are treated as direct costs: ICA, WORKER'S COMPENSATION, EMPLOYMENT SECURITY CONTRIBUTION, LIFE & HEALT NSURANCE, HOUSING SUBSIDY, ANNUAL LEAVE AND PENSION/RETIREMENT. PECIAL REMARKS: he direct cost base includes the salaries and wages of hospital employees aid by the Indian Health Service as detailed in the respective budgets.
A9
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RATE AGREEMENT NONPROFIT ORGANIZATIONS BRISTOL BAY AREA HEALTH CORPORATION P.O. BOX 130 DILLINGHAM, AK 99576
~
~©1P}J?
u
DATE: 06/09/94 FILING REF.: The preceding agreement was dated: 09/03/93 N42114.93
The rates approved in this agreement are for use on grants, contracts and other agreements with the Federal Government, sUbject to the conditions contained in section II. SECTION I
~
: RATES
Effective Period From To COST RATES* 10/01/92 09/30/93 10/01/93 09/30/95 10/01/93 09/30/95
Rate 22.20% 42.00% 23.00%
Location ALL ON-SITE OFF-SITE
Applicable to ALL PROGRAMS ALL PROGRAMS ALL PROGRAMS
INDIRECT Final Provo Provo
*BASE: Total direct costs excluding capital expenditures (buildings, individual items of equipment, and alterations and renovations) and subawards. TREATMENT OF PAID ABSENCES Vacation, holiday, sick leave pay and other paid absences are included in salaries and wages and are charged to Federal projects as part of the normal charge for salaries and wages. Separate charges for the cost of these absence: are not made. TREATMENT OF OTHER FRINGE BENEFITS This organization charges the actual cost of each fringe benefit direct to Federal projects. However, it uses a fringe benefit rate which is applied to salaries and wages in bUdgeting fringe benefit cost under project proposals. The following fringe benefits are treated as direct costs: FICA, WORKER'S COMPENSATION, EMPLOYMENT SECURITY CONTRIBUTION, LIFE & HEALTrl~ INSURANCE, HOUSING ~, ANNUAL LEAVE AND PENSION/RETIREMENT. SPECIAL REMARKS: ~ The direct cost base includes the salaries and wages of hospital employees paid by the Indian Health Service as detailed in the respective bUdgets.
~
A10
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Exhibit C
Affidavit of Robert J. Clark
Case 1:07-cv-00725-MMS
Document 24-2
Filed 04/02/2008
Page 15 of 30
IN THE UNITED STATES COURT OF FEDERAL CLAIMS No.07-725C (Judge Sweeney)
BRISTOL BAY AREA ) HEALTH CORPORATION, ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES, ) ) Defendant. )
AFFIDAVIT OF ROBERT J. CLARK IN SUPPORT OF PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
1. My name is Robert 1. Clark, and I am the President and Chief Executive
Officer of the Bristol Bay Area Health Corporation ("BBAHC"). I have been employed with BBAHC since 1974. For over 25 years one of my duties has been to participate annually on behalf ofBBAHC in negotiations with the Indian Health Service C'IHS") over the terms of Contracts, Compacts and Annual Funding Agreements ("FAs") under the Indian Self-Determination and Education Assistance Act ("ISDEAA"). 2. I have been asked to describe how funds are provided by IHS for contract
support costs over the FA funding year. Specifically, I have been asked if BBAHC engages in separate negotiations with IHS to add contract support costs funds to the FA after the parties negotiate the initial amount that is identified in the FA. 3. Generally, when we sit down to negotiate with IHS, the IHS tells us that
we can only identify in the FA an amount for contract support costs that is consistent with
A11
Case 1:07-cv-00725-MMS
Document 24-2
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Page 16 of 30
what the IHS paid the previous year and that is consistent with the amount the IHS believes it will have available to pay. This amount is always less than the amount that is calculated by application of the indirect cost rate to the base, the methodology the IHS's policy uses to calculate the total amount of contract support costs that BBAHC is entitled to be paid under the ISDEAA in a given year and the method called for in the Alaska Tribal Health Compact and our FAs. 4. Each year it is understood by both parties that if more funds become
available, IHS will pay those additional funds to BBAHC through the FA without the parties needing to negotiate an amendment that reflects the increased amount. The fact is that the IHS has never paid us the entire amount calculated by application of the indirect cost rate to the base because they have told us that they are chronically short of funds and that Congress has not appropriated sufficient funds for them to pay us with. So far as I am aware, BBAHC has never engaged in separate negotiations for additional contract support cost funds to be added to the FAs.
5.
In every year from FY 1993 through FY 1999, I believe that BBAHC had
in place indirect cost rate agreements with the Federal Government that were used to calculate and identify the full amount of contract support costs that BBAHC was entitled to be paid under the ISDEAA and our FAs with the IHS. Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct. Executed on thiso((P day of ,2008.
By Robert. J. CIa ,President and CEO Bristol Bay Area Health Corporation
2
A12
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Exhibit D
Appeals ofSeldovia Village Tribe, IBCA 3862 & 3863/97 (Oct. 20, 2003)
Case 1:07-cv-00725-MMS
Document 24-2
Filed 04/02/2008
Page 18 of 30
United States Department of the Interior
OFFICE OF HEARINGS AND APPEALS Interior Board of Contract Appeals 801 N. Quincy St. Suite 300 Arlington, VA 22203
703 235 3813 703235 1281 (fax)
APPEALS OF SELDOVIA VILLAGE TRIBE IBCA 3862 & 3863/97 Compact No. 58G950029-01-2 FY 1996 and 1997 Funding Agreements Indian Health Service, HHS APPEARANCE FOR APPELLANT: Decided: October 20, 2003 Appellant's Motion for Summary Judgment Granted; Government's Motions for Summary Judgment and to Dismiss Denied Geoffrey D. Strommer, Esq. Hobbs, Straus, Dean & Walker, LLP Portland, Oregon 97204 Joseph H. Webster, Esq. Hobbs, Straus, Dean & Walker, LLP Washington, DC 20006 APPEARANCE FOR GOVERNMENT: Duke McCloud, Esq. Chief, IHS Branch, HHS Rockville, Maryland 20857
OPINION BY ADMINISTRATIVE JUDGE PARRETTE Seldovia Village Tribe (Appellant or the Tribe) of Alaska has appealed two reductions in payments by the Indian Health Service (IHS) under the Tribe's FY 1996 and FY 1997 Annual Funding Agreements (AFA's) . Appellant alleges that IHS failed to pay the Tribe its full contract support costs (CSC's) of $126,439 in each of those years, amounts not in dispute. IHS contends that the CSC reductions were the result of inadequate appropriations by the Congress, and avers that the Tribe's CSC reductions were both proper and proportionately the same as those experienced by other CSC recipients. The appeals were filed in June 1997 and assigned to Judge Cheryl Rome, who is no longer with the Board. They were deferred for Board consideration because the issue of the propriety of CSC reductions was already before the Board in similar case, Cherokee Nation, which was ultimately reviewed by Court of Appeals for the Federal
A13
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Circuit. See Appeals of Cherokee Nation of Oklahoma, IBCA 3877-79, 99-2 BCA 30,462; reconsideration granted at 01-1 BCA 31,158; decision unchanged at 01-1 BCA 31,349 (hereafter "Cherokee"). The Board's decision was affirmed in Thompson v. Cherokee Nation of Oklahoma, 334 F. 3d 1075, 2003 U.S. App., LEXIS 13483. Familiarity with Thompson is presumed for the purposes of this opinion. Further information on IHS's Title III Self-Determination program can be found in Shoshone-Bannock Tribes v. HHS, 279 F. 3d 660 (9 th Circuit 2002) and in Cherokee Nation v. Thompson, 311 F. 3d 1054 (loth Circuit 2002). Both Circuits have decided appeals similar to this one in favor of the Government rather than the appellant. This Board, however, agrees with the decision of the Federal Circuit in Thompson, which is binding for us in any event. Appeal Background The present Appeals were filed pursuant to the Indian Self-Determination and Education Assistance Act (ISDA or the Act), which authorizes IHS to award to tribal organizations the same amounts that IHS would have spent in providing services to them, in order to enable the tribes to administer the programs themselves. Under Title III of the Act, the Secretary of HHS enters into Compacts with tribes to provide these funds, known as Secretarial funds, to enable them to provide health services to eligible Indians pursuant to Annual Funding Agreements. In addition, the tribes are entitled to funds to cover the administrative costs of the programs, called contract support costs, based on a rate arrived at through negotiation between the tribe and the cognizant Federal agency. The only limitation on the resulting CSC funding is that the funds must come out of, and may not exceed, available appropriations. During the years in question, IHS experienced shortfalls in the amounts recommended by the Congressional Appropriations Committees for CSC use, even though total ISDA appropriations were increasing each year. These reductions were not incorporated into the legislation itself but were only Committee recommendations. Nevertheless, IHS treated them as mandatory directives and apportioned the funds as recommended, despite the fact that the entitlement to full CSC funds was arguably required under 25 U.S.C. sec. 450j-l(a) and that adequate funds for CSC purposes were available under the ISDA general appropriation.
2
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Although the present Appeals predated Thompson and involve the same issues, IHS argues here that because the tribe's AFA's expressly provided that funding was to be in accordance with IHS's existing policy memorandum, which called for the allocation of funds only within the limits of the Appropriation Committee's recommendation, full CSC payments were not required. Thus, IHS believes that the facts in this case differ from those in Thompson, and that Thompson is inapplicable. Appellant challenges this view, and both parties have moved for summary judgment. These issues have been briefed at great length. Despite the Government's extensive arguments to the contrary, we hold that these appeals are within the ambit of Thompson and grant summary judgment for the reasons set forth in that decision. However, because they involve issues of first impression with respect to the Alaska tribes, it may be useful to set forth the general background of the Appeals as provided by Appellant in its Summary Judgment Motion. We will then address IHS' contention that Seldovia legally contracted away its entitlement to full CSC payments when it signed its Annual Funding Agreements. Contract Background A. History of Title III Compacting The Indian Self-Determination and Education Assistance Act (ISDA), Pub.L. 93-638, 88 Stat. 2206 (Jan. 4, 1975),25 U.S.c. § 450 et seq., was enacted by Congress in 1975, and has since been amended on a number of occasions. The ISDA allows tribes or tribal organizations to enter into agreements with the IHS to administer programs, functions, services or activities (PFSAs) which the IHS has operated for Indian tribes and their members. As originally enacted, the only mechanism for tribes to assume such PFSAs was through Title I contracts, which limited the flexibility of tribes to administer programs to accommodate unique local circumstances. Thus, in 1988 Congress enacted Public Law 100-472, which formally established the Tribal Self-Governance Demonstration Project (Title III), 25 U.S.c. § 450f note. Title III directed the Secretary of the Interior to initiate the Project as a five-year experiment involving up to 20 tribes. Under this Project, participating tribes were given the option of negotiating compacts and annual funding agreements (AFA's) with the Secretary of the Interior for the operation of DOl programs for
3
A15
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Indians. In accordance with such compacts, tribes are authorized to administer such PFSA's and receive funds from all levels of the agency to perform these responsibilities -- funds that the Secretary otherwise would have spent to perform the PFSAs. In addition to these "Secretarial funds," tribes are also entitled to CSC funds to cover the administrative costs of operating the programs. The AFA, which is to be negotiated as part of a compact and re-negotiated each year, establishes the funding levels for operating the programs in the compact. With certain limitations, tribes are authorized to redesign and reallocate program funds on the basis of tribal priorities. On December 4, 1991, President Bush signed the Tribal Self-Governance Demonstration Project Act, Public Law 102-184, into law. Among other things, this Act amended Public Law 100-472 to establish an Indian Health Service SelfGovernance Demonstration Project and directed IHS to study the feasibility of expanding the Project to IHS programs and services. In 1992 Congress again 1 amended Title III by enacting Section 314 of the Indian Health Amendments of 1992. The 1992 amendments authorized the Secretary of the Department of Health and Human Services (HHS) to negotiate Self-Governance compacts and AFAs with tribes that had completed the required planning activities. B. The Alaska Tribal Health Compact
In 1994, 13 tribes and tribal organizations in Alaska negotiated and signed the Alaska Tribal Health Compact (ATHC) and AFAs authorizing them to operate health care programs under Title III in fiscal year 1995. The ATHC was subsequently signed by the Director of IHS on behalf of the Secretary of HHS. The ATHC and AFAs went into effect on October 1, 1994, after having been filed with the Congress for review by the Senate Committee on Indian Affairs and the House Committee on Natural Resources, and other affected tribes, as required by law. Since 1994, a number of other tribes and tribal organizations in Alaska have become co-signers of the ATHC and have negotiated AFAs thereunder, including the
Public Law 102-573.
4
A16
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Appellant Seldovia Village Tribe. To date, 18 tribes and tribal organizations from throughout Alaska are signatories to the ATHC. As a result, the vast majority of the IHS programs in Alaska are currently operated under tribal administration in accordance with the provisions of Title III and the ATHC.
C.
Calculation of Contract Support Costs
The Indian Self-Determination Act requires the Secretary to pay full contract support cost funding to a contracting or compacting tribe in addition to the Secretarial amount for direct program funding. 25 U.S.C. 450j-l(a)(2); CSC funds "cover the full administrative costs the Tribe will incur -- and which, absent the selfdetermination contract, the Federal government would incur -- in connection with the operation of [direct Indian] programs." Ramah Navajo School Board v. Babbitt, 87 F.3d 1338, 1341 (D.C. Cir. 1996); see also 25 U.S.C. 450b(f). One aspect of CSC is "indirect costs." The ISDA defines these as "costs incurred for a common or joint purpose benefitting more than one contract objective, or which are not readily assignable to the contract objectives specifically benefitted without effort disproportionate to the results achieved;" 25 U.S.c. § 450b(f). The amount of indirect costs to which a tribal contractor is entitled is based upon a rate which is "arrived at through negotiation between an Indian tribe or tribal organization and the appropriate Federal agency." 25 U.S.c. § 450b(g). The ISDA provides that funds for all such CSC "shall be added" to the tribe's contract. 25 U.S.c. § 450j-l(a)(2)(emphasis added). The only limitation is that all funding is "subject to the availability of appropriations." 25 U.S.c. § 450jl(b).2
As noted by the court in Shoshone-Bannock Tribes v. Shalala, 988 F. Supp. 1306, 1329 (D. Or. 1997), "CSC are automatically awarded as a percentage of the tribe's Secretarial Amount, but funding is 'subject to the availability of appropriations' and the Secretary's need to serve non-contracting tribes."
5
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D.
Use of ISDM 92-2 to Distribute Contract Support Funds
IRS utilizes ISDM 92-2,3 an unpromulgated, internal agency guideline, to determine and allocate "contract support funds for all Public Law (P.L.) 93-638 contracts." ISDM 92-2 at 2 (Appt. Exh. H). Through this mechanism, the IHS limits the availability of CSC funding for ongoing contracts and compacts to a predetermined amount based on the level of prior year CSC funding to each Area Office. In the case of ongoing contracts, ISDM 92-2 (pg. 7) provides: The amount of indirect contract support funds representing the previous year's base will be distributed to Areas "recurring" [4] to fund each Area's indirect cost need. Each contractors' need for indirect contract support shall be determined by calculating changes, if any, in indirect cost rates, bases, and pools. If funds available in the Area's indirect cost base are not adequate to meet total requirements, then the amount available shall be distributed according to each contractor's proportion of total need. These funds will be awarded to the contractor as non-recurring funds. (underline in original, bold added). The term "available" is not defined by ISDM 92-2. However, historically IHS has only increased the funds "available" for CSC to the extent that such an increase is recommended in the Conference Committee Report that accompanies the IHS' annual appropriation. Thus, this limitation on the funds available for CSC is not based upon any statutory mandate, but is only based upon Committee recommendations. E. Congressional Appropriations for the IHS
The Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, 110 Stat. 1321 (1996) appropriated thefollowing lump-sums for the Indian Health Service for FY 1996:
In 1996, ISDM 92-2 was superseded by ISDM 96-04, which is consistent in relevant parts with its predecessor. However, for purposes of this appeal, ISDM 92-2 was the applicable guideline at the time that the Tribe entered into both its FY 1996 and FY 1997 AFAs.
ISDM 96-04 (pg. 2) defines "recurring funds" as "Contract or compact funds that do not require rejustification each year to the Secretary. Annual increases are provided through congressional mandatory increases or other resource allocation methodologies applicable to the respective funding category of the award."
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For expenses necessary to carry out the Act of August 5, 1954 (68 Stat. 674), the Indian Self Determination Act, the Indian Health Care Improvement Act, and titles II and III of the Public Health Service Act with respect to the Indian Health Service, $1,747,842,000, together with payments received during the fiscal year pursuant to 42 U.S.c. 300aaa-2 for services furnished by the Indian Health Service." (emphasis added). Of the IHS' lump-sum appropriation of $1,722,842,000 for FY 1996, nonearmarked funds totaled $1,364,937,000. Similarly, the FY 1997 Appropriations Act provided: For expenses necessary to carry out the Act of August 5,1954 (68 Stat. 674), the Indian Self Determination Act, the Indian Health Care Improvement Act, and titles II and III of the Public Health Service Act with respect to the Indian Health Service, $1,806,269,000, together with payments received during the fiscal year pursuant to 42 U.S.c. 238(b) for services furnished by the Indian Health Service (emphasis added). Omnibus Consolidated Appropriations Act for FY 1997, Pub. L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996). Thus, the FY 1997 Act is nearly identical to the FY 1996 Act except that Congress increased the Indian Health Service's lump-sum appropriation by nearly 60 million dollars to $1,809,269,000. Of this total, non-earmarked funds totaled $1,408,736,000. Nowhere is there any suggestion in the plain language of the FY 1996 and FY 1997 Appropriations Acts that Congress intended to impose a spending cap on esc s funds. Only in the Committee reports is the issue of total funding for CSC addressed and there the Committee simply makes a recommendation. Neither the report nor the recommendation rises to a binding duty. The FY 1996 Report states:
Contract Support Costs.--The Committee recommends $153,040,000 for contract support costs including decreases of
The plain language of the Appropriation Acts must control. See Idaho First Nat'l Bank v. Commissioner of Internal Revenue, 997 F.2d 1285, 1289 (9th Cir. 1993) ("[I]f the [statutory] language ... is unambiguous, and its literal application does not conflict with the intentions of its drafters, the plain meaning should prevail. "); Environmental Defense Fund v. Reilly, 909 F.2d 1497, 1502 (D.C. Cir. 1990) (the starting point of statutory construction is lithe language of the statute itself and absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive").
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$11,864,000 for pay and fixed costs and $3,770,000 for support cost shortfalls." H. R. Rep. 104-173, at 97 (1995)(emphasis added); see also S. Rep. 104-125, at 94 (1995).
The FY 1997 Report states:
Contract support costs.--The Committee recommends $160,660,000 for contract support. This amount includes increases over the fiscal year 1996 enacted level of $120,000 for the staffing of new facilities and $7,500,000 for the Indian selfdetermination fund." S. Rep. 104-319, at 90 (1996)(emphasis added); see also H. R. Rep. 104-625 (1996).
F.
IHS Budget Requests for CSC
In both FY 1996 and FY 1997, the IHS failed to request adequate CSC to cover the existing shortfall. For FY 1996, the IHS requested $161,174,000, an increase of $15,714,000 over the previous year. However, as of the end of FY 1995, the CSC shortfall was approximately $43 million. As of March 30, 1996, the CSC shortfall just for new and expanded contracts was over $25 million. Shoshone-Bannock, 988 F. Supp. at 1329. For FY 1997, the IHS requested significantly more for CSC -- $200,955,000, an increase of $46,115,000 -- but still far short of the then existing CSC need. As of the end of FY 1996, the IHS had a CSC shortfall of approximately $62 million. Further, the IHS separately reported to Congress that its total CSC shortfall for FY 1997 was $81,956,000. See IRS CSC Annual Shortfall Report to Congress for FY 1997 (Sep. 24, 1997), at 3. Thus, the IHS requested almost $36 million less than it acknowledged was necessary to fully fund its CSC need for FY 1997. G. Background of the Seldovia Village's Claim
In 1995, the Tribe and the Office of Cost Allocation, Department of Health and Human Services, negotiated an indirect cost rate of 47.3 percent for FY 1996 and FY 1997. Proposed Amendments 2 & 3 to FY 1996 AFA (with attached IDC Agreement). Based upon this rate, the Tribe's CSC need for both years was $247,696.
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On January 24, 1996, the Tribe submitted to the IHS proposed amendments 2 and 3 to the FY 1996 AFA. Among other things, these amendments would have adjusted the funding in the FY 1996 AFA to provide for the payment of indirect costs under the negotiated indirect cost rate of 47.3 percent in accordance with the terms of the AFA. Section 4(B) of the FY 1996 AFA provides for the payment of contract support funds for indirect costs under section 106(a)(2) of the Act and Indian Self6 Determination Memorandum No. 92_2. The amount requested by the Tribe was determined based on the policies in ISDM 92-2. At a meeting between tribal and IHS representatives held on December 3, 1996, the IHS tentatively responded that no action had been taken by the IHS on the amendments submitted almost a year earlier and that consequently these amendments were not incorporated into the FY 1996 AFA. On December 10, 1996 the Area Office, after further file review, confirmed that "we find that neither the Area [Office] nor IHS Headquarters processed the proposed amendments when received." While the IHS agreed that $247,696 was the Tribe's CSC need, it stated that only $121,257 was available for CSC. Based upon this lack of "available" funds, the IHS did not incorporate the amendment into the Tribe's FY 1996 or FY 1997 AFA's. Instead, the IHS simply noted that it "did not have contract support cost shortfall funding available to meet [the Tribe's] needs at the time the amendment was first proposed, nor does it have those funds now." Similarly, the Final Contracting Officer's Decision seeks to justify the failure of the IHS to pay the Tribe's CSC requirement by stating that "the Alaska Area IHS did not have any new funds to award for the IDC rate change." As a result, the Tribe suffered a CSC funding shortfall of $126,439 in both FY 1996 and FY 1997. Although not clearly stated, the IHS's position that no funds were available was apparently based upon its process for determining available funds for CSC under ISDM 92-2, through which the IHS generally only increases its allocation of funds for CSC if the Conference Committee recommends such an increase in report language. Thus, although Congress increased the IHS' budgets for FY 1996 and FY 1997 by tens
The AFA provides that ISDM No. 92-2 shall apply if no revisions of this memorandum is in effect by October 1, 1995, which was the case.
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of millions of dollars in non-earmarked funds each year, the position of the IHS seems to be that these and other non-mandatory funds were not "available" for CSc. Positions of the Parties The Government argues that even if it accepts the Thompson decision, IRS is entitled to summary judgment because the funding provisions of the ISDA are not selfexecuting but require annual funding agreements to identify the programs, services, functions, and activities to be performed or administered, the funds to be provided, the general budget category assigned, the time and method of payment, and any other provisions to which the parties agree. Appellant agrees that how the Board rules depends upon interpretation of the relevant provisions in Appellant's AFA's for FY' s 1996 and 1997, and IRS's policies ISDM 92-2 and IRS Circular 96-04. At the time Seldovia's FY 1996 AFA was entered into, IRS was in the process of revising ISDM 92-2, so the AFA provided as follows: The parties have not agreed on the amounts to be paid or the method and process for calculation and payment of contract support costs under the AFA. The IRS has proposed a new policy, which will be the successor to ISDM 92-2. This proposal is currently being circulated for tribal comment. It is anticipated that a new policy will be adopted by the IRS Director on or before October 1, 1995. It is the position of the IRS that any payment of or calculation of contract support costs shall be made in accordance with the new IRS policy referred to herein, except that if such a new policy is not in effect by October 1, 1995, contract support negotiations shall be based on ISDM 92-2 (emphasis added). IHS's Circular 96-04, the successor policy to ISDM 92-2, was not issued until April 1, 1996. Thus, the Government asserts that Appellant's FY 1996 AFA was governed by ISDM 92-2, and that the amount of CSC paid for that year was in accordance with this policy. According to IHS, the only question before the Board is whether IHS met its obligations under ISDM 92-2, which it argues it did. Seldovia requested an amendment to its 1996 AFA on January 24, 1996, approximately four months into the term of the FY 1996 AFA, because it had negotiated a new indirect cost rate with RRS' s Office of Cost Allocation. IRS applied the new cost rate in determining the CSC payments the Tribe was entitled to but
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allegedly could not pay the entire amount because of its shortfall in appropriations. Although the Tribe subsequently sought the full amount to which it was otherwise entitled, IHS maintains that Seldovia was bound by the funding scheme it had agreed to in its AFA, which limited total CSC payments to the amounts recommended by the Appropriations Committee despite an increase in the total ISDA appropriation. But Appellant cites MAPCO Alaska Petroleum, Inc., v. United States, 27 Fed. Cl. 405 (1992), for the proposition that the Government cannot contractually force the Tribe to accept less than full CSC's when the Tribe is entitled to full CSC's by law. It also asserts that the Government cannot lawfully benefit from a contract provision contrary to law, citing Beta Systems, Inc., v. United States, 838 F.2d at 1185. We agree. IHS also renews in this Appeal its argument that Sec. 314 in the Omnibus Consolidated and Emergency Supplemental Appropriations Act for FY 1999, Pub. L. 105-277, restated the Congress's intention that the obligation to fund contract support costs is limited to the amount specifically appropriated for that purpose each year. Sec. 314 states in part: Notwithstanding any other provision of law, amounts appropriated to or earmarked in committee reports for the Bureau of Indian Affairs and the Indian Health Service by Public Laws 103-138, 103-332, 104-134, 104-208 and 105-83 for payments to tribes and tribal organizations for contract support costs associated with self-determination or self-governance contracts, grants, compacts, or annual funding agreements with the Bureau of Indian Affairs or the Indian Health Service as funded by such Acts, are the total amounts available for fiscal years 1994 through 1998 for such purposes. By contrast, Appellant's position is that (1) IHS had a mandatory obligation to fully fund the Tribe's CSC requirement to the extent that funds were legally available, and (2) adequate funds were legally available in both FY 1996 and FY 1997 to fully fund the Tribe's CSC requirement. Appellant also disputes IHS' contention that it was bound by the wording of its AFA to accept a lesser amount, noting that the 1996 AFA specifically stated that Seldovia would receive CSC payments "as defined in section 106(a)(2) and (3)" of the Act (i.e., 25 U.S.c. sec. 450j-l(a)(2) and (3). According to Appellant: This mandatory contract language obligated the IHS to pay the Tribe's contract support requirement to the extent that funds were available in FY 1996 and FY 1997. Since more than adequate funds were available in those years, the
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contract and statute required the IHS to pay 100 percent of the Tribe's contract support requirement. Because the IHS failed to do so, it breached its contract with the Tribe and the Tribe is entitled to a judgment for damages. The Board is unable to conclude that the Tribe ever agreed in the FY 1996 AFA that the policies set forth in ISDM 92-2 were controlling. If anything, the relevant language indicates a lack of agreement by the parties as to the amounts to be funded and the method of funding. As for Sec. 314, Appellant contends that IHS' position that it "extinguishes" the Tribe's claims for more contract support costs must mean that the Tribe previously had a valid claim. It further argues that giving Sec. 314 retroactive effect would be inconsistent with the plain language of that provision and in clear violation of the three-part test for retroactivity enunciated in Madrid v. Gomez, 150 F. 3d 1030 (9 th Cir. 1998), citing Landgraph v. USI Film Products, 511 U.S. 244 (1994). The tests are (1) whether Congress has expressly prescribed the statute's proper reach: a statute can operate retroactively only with a clear statement to that effect; (2) whether the statute is retroactive under the ordinary rules of statutory construction, including its legislative history; but (3) if neither of the previous steps sheds light on the scope of the statute, then the court must apply the judicial default rule that statutes are not to be applied so as to create a "retroactive effect." Appellant asserts that the terms of Sec. 314 are on their face prospective ("are the total amounts available" and "may use"). It cites the language of Landgraph that: "The largest category of cases in which we have applied the presumption against statutory retroactivity has involved new provisions affecting contractual or property rights, matters in which predictability and stability are of prime importance." 511 U.S. 244 at 271. The Landgraph court adds a footnote as follows: While the great majority of our decisions relying upon the antiretroactivity presumption have involved intervening statute burdening private parties, we have applied the presumption in cases involving new monetary obligations that fell only on the government [Ibid., case citations omitted]. However, we need not discuss the effect of Sec. 314 at greater length because the Board's position on that issue has already been made clear in Cherokee and been 12
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affirmed by the Federal Circuit in Thompson. Briefly, as Appellant urges, we did not find it contains the necessary requisites for retroactive application. Thus, Section 314 does not preclude summary judgment for Appellant. Decision Having thoroughly reviewed the parties' voluminous submissions in this matter, we find that this Appeal has no significant differences from Cherokee, and that the precedent in Thompson is controlling. Accordingly, we grant Appellant's Motion for Summary Judgment and hold that, in the circumstances of this case, (1) the Tribe's mandatory and agreed-upon contract support costs should have been fully funded out of IHS' s more than adequate lump-sum appropriations for the years in question, rather than being limited to amounts informally recommended by the Appropriations Committee; (2) IHS had an obligation to reprogram funds, if necessary, to fulfill that statutory obligation; and (3) Seldovia is entitled to an additional $252,878 in CSC to cover IHS's underpayment in FY's 1996 and 1997, together with interest calculated in accordance with the Contract Disputes Act. The Government's motions are hereby denied.
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I concur:
Bernard V. Parrette Administrative Judge
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Candida S. Steel Chief Administrative Judge
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