B-236782, Sep 30, 1991, 70 Comp.Gen. 723

B-236782: Sep 30, 1991

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APPROPRIATIONS/FINANCIAL MANAGEMENT - Accountable Officers - Disbursing officers - Relief - Illegal/improper payments - Overpayments Bureau of Indian Affairs certifying official is relieved of liability pursuant to 31 U.S.C. Sec. 3528(b)(1)(B) for certifying payments that were not proper under the appropriation. The Interior Department Associate Solicitor determined that the contracts were unauthorized and. Other federal agencies through the Education of the Handicapped Act (EHA) to assure that all disabled children have available to them free. These contracts provided special educational services to disabled Indian preschoolers who would have otherwise gone without appropriate education due to the lack of state-established programs.

B-236782, Sep 30, 1991, 70 Comp.Gen. 723

APPROPRIATIONS/FINANCIAL MANAGEMENT - Accountable Officers - Disbursing officers - Relief - Illegal/improper payments - Overpayments Bureau of Indian Affairs certifying official is relieved of liability pursuant to 31 U.S.C. Sec. 3528(b)(1)(B) for certifying payments that were not proper under the appropriation. However, BIA should take appropriate action to resolve the amount owed the government as a result of the improper payments.

William D. Back

Assistant Regional Solicitor

Pacific Northwest Region

Department of Interior:

This responds to your request of August 30, 1989, modified by letter of May 21, 1990, asking that we grant relief to a Bureau of Indian Affairs (BIA) certifying official who certified payments totalling $268,634.94 under contracts with various Pacific Northwest tribes. Subsequent to these payments, the Interior Department Associate Solicitor determined that the contracts were unauthorized and, thus, void ab initio. addition, by letter of February 8, 1991, the Regional Solicitor asked whether a recent amendment to the Education of the Handicapped Act now authorizes payments to these tribes for the services that BIA previously contracted for, and settles the debt the tribes owe the government as a result of the improper payments. For the reasons stated below, we grant relief. However, since relief of the certifying official does not extinguish the underlying debt, BIA should adjust its accounts to charge the amounts that the tribes owe to otherwise available funds.

BACKGROUND

The Department of Education (Education) provides funds to states, localities, and other federal agencies through the Education of the Handicapped Act (EHA) to assure that all disabled children have available to them free, timely and appropriate public education. 20 U.S.C. Sec. 1400(c). The Department of the Interior (Interior) receives funding under the EHA to implement programs through BIA for disabled Indian youth. As a part of its responsibilities under the Act, BIA uses the pass-through funds from Education to support programs that provide special educational services to disabled Indian preschoolers. 20 U.S.C. Sec. 1411(f)(2)(B).

Prior to 1986, each state had the discretion to determine whether or not it would provide special educational services to disabled preschoolers. Thus, BIA only provided special educational services to preschoolers in states where accreditation standards required such services. In 1986, the Congress mandated that every state, no later than fiscal year 1991, establish programs to provide appropriate educational services to all disabled preschoolers. Pub.L. No. 99-457, Sec. 201, 100 Stat. 1145, 1155. In addition, the Congress amended 20 U.S.C. Sec. 1411(f) to require the Secretary of Education to make payments to the Secretary of the Interior for the provision of special educational services to all disabled Indian children on reservations served by BIA-funded schools, regardless of the accreditation standards of the particular state. Pub.L. No. 99-457, Sec. 404, 100 Stat. at 1173. /1/

By the beginning of the 1987-88 school year, BIA had established a comprehensive program to identify and serve disabled preschoolers on reservations with BIA-funded schools. Then, in fiscal year 1988, in addition to providing special educational services to preschoolers on reservations with BIA-funded schools, the Pacific Northwest Region of BIA entered into nine contracts with tribal contractors to provide special educational services to disabled preschoolers in programs on reservations without BIA-funded schools. The Region renewed the nine contracts and entered into an additional contract in fiscal year 1989. These contracts provided special educational services to disabled Indian preschoolers who would have otherwise gone without appropriate education due to the lack of state-established programs.

A Region certifying official certified payments under these contracts in April, May, August and October 1988 authorizing expenditures totalling $268,624.92. /2/ The certifying official made the certifications after receiving approval of the programs from the Interior Deputy to the Assistant Secretary (Office of Indian Education Programs) (hereinafter, the "Deputy").

In April 1989, the Interior Associate Solicitor, Indian Affairs, notified the Deputy that the contracts were void ab initio and that BIA should deobligate funding for the contracts. In a memorandum to Portland's Educational Program Administrator, the Deputy explained that the EHA only authorized BIA to fund special educational services in preschool programs that are on reservations with BIA-funded schools. /3/ Thus, the Deputy instructed the Administrator to close out all contracts for special educational services provided on the noncomplying reservations.

DISCUSSION

Relief of Liability

Under 31 U.S.C. Sec. 3528(a), a certifying official is liable for improper payments. The Comptroller General is authorized to relieve a certifying official of liability under the provisions of 31 U.S.C. Sec. 3528(b)(1) if he decides that

"(B) (i) the obligation was incurred in good faith;

(ii) no law specifically prohibited the payment; and

(iii) the United States Government received value for payment."

31 U.S.C. Sec. 3528(b)(1)(B).

We have concluded that subparagraph (B) provides us a basis on which to grant relief in this case.

We found no evidence to suggest that the certifying official lacked good faith when she certified the payments. In prior decisions, we found good faith when there was no evidence that the certifying official doubted his/her authority to make certifications. See, e.g., B-241879, Apr. 26, 1991; B-222048, Feb. 10, 1987. The determination of whether the certifying official should reasonably be charged with doubt concerning his/her authority to certify payment cannot be resolved on the basis of a hard and fast rule, but must necessarily involve a weighing of all the facts and circumstances surrounding the questioned certification. Here, we found no evidence indicating that the certifying official doubted or had reason to doubt her authority to certify the payments to the tribal contractors.

In addition, no law specifically prohibited the payments to the tribal contractors. We have interpreted the second element of subparagraph (B) as referring to statutes which expressly prohibit payments for specific items or services. B-191900, July 21, 1978. See also 46 Comp.Gen. 135 (1966). After reviewing the relevant provisions of the EHA plus the provisions of the Snyder Act, /4/ we conclude not only that there is no express prohibition on payments, but that other statutory authority was available that would have permitted payment, although not with EHA pass- through funds to Interior. See B-222048, Feb. 10, 1987. At the time of the certification, 20 U.S.C. Sec. 1411(f)(1) only authorized BIA to use Education pass-through funds to provide special educational services for disabled Indian children on reservations served by BIA-funded schools. However, this does not mean that other appropriated funds were not available for these payments.

Lastly, the government received value for the payments to the tribal contractors. BIA audits establish that the payments to the tribal contractors reflect the actual benefit that BIA received for the services rendered. Thus, since all three elements for relief under subparagraph (B) are present, we grant relief to the certifying official.

Adjustments

Concerned that BIA's withdrawal of services would prove harmful by denying special educational services to certain Indian preschoolers, the Congress, on October 30, 1990, amended the EHA to establish the eligibility of those tribal contractors who had received contracts to provide special educational services prior to fiscal year 1989. /5/ Although the legislative history of the amendment indicates that its purpose was to "requalify" or "reinstate the eligibility of" the nonqualifying tribal contractors, /6/ the language of the amendment itself includes no indication that it should apply retroactively. See B-183290, Aug. 21, 1975. Therefore, BIA should take appropriate action to resolve the improper payments by adjusting its accounts to use appropriations which remain available from fiscal years 1988 and 1989 for the operation of Indian programs, by exercising any available authority under the Federal Claims Collection Act, 31 U.S.C. ch. 37 (in consultation with the Department of Justice as appropriate), or by requesting private relief legislation to effectuate the intent evident in the committee reports cited above. With regard to those tribal contractors whom BIA has not yet paid, BIA should consider using funds for the operation of Indian programs to cover such payments.

/1/ Prior to the 1986 amendment, payments to the Secretary of Interior were subject to the discretion of the Secretary of Education. The amendment also increased the amount appropriated for the education of disabled Indian youth.

/2/ One of the contracts was actually certified on March 13, 1989; however, since the records indicate that no money was disbursed pursuant this particular certification, it does not effect the personal liability of the certifying official.

/3/ At the time, the EHA provided, in pertinent part, as follows:

"The Secretary of Education shall make payments to the Secretary of the Interior according to the need for assistance for the education of handicapped children on reservations served by elementary and secondary schools operated for Indian children by the Department of Interior. U.S.C. Sec. 1411(f)(1) (1988).

/4/ The Snyder Act gives BIA broad authority to use appropriated funds for the benefit, care and assistance of Indians. 25 U.S.C. Sec. 13.

/5/ Section 1411(f)(1) currently provides, in pertinent part, as follows:

"The Secretary of Education shall make payments to the Secretary of the Interior according to the need for assistance for the education of children with disabilities on reservations (A) served by elementary and secondary schools operated for Indian children by the Department of Interior, and (B) for whom services were provided through contract with an Indian tribe or organization prior to fiscal year 1989. ..."

20 U.S.C. Sec. 1411(f)(1), as amended by Pub.L. No. 101-476, Sec. 201, 104 Stat. 1103, 1111 (1990)

/6/ See H.R. Conf. Rep. No. 787, 101st Cong., 2d Sess. 57 (1990); H.R. Rep. No. 544, 101st Cong., 2d Sess. 19 (1990).