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OFFICE OF INSPECTOR GENERAL
Catalyst for Improving the Environment
Attestation Report
Natural Resources Defense Council
Reported Outlays Under EPA
Cooperative Agreements
CX82546101, CX82675101, and
XA83033101
Report No. 2005-4-00120
September 21, 2005
This report contains findings that describe problems the Office of Inspector General (OIG) has
identified and corrective actions the OIG recommends. The report represents the opinion of
the OIG, and findings in this report do not necessarily represent the final EPA position. Final
determinations on matters in this report will be made by EPA managers in accordance with
established audit resolution procedures.
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Report Contributors: Keith Reichard
Richard Valliere
Sabrina Barry
Eileen Collins
Abbreviations
CFR Code of Federal Regulations
DOI Department of Interior
EPA Environmental Protection Agency
OIG Office of Inspector General
OMB Office of Management and Budget
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U.S. Environmental Protection Agency
Office of Inspector General
At a Glance
2005-4-00120
September 21, 2005
Catalyst for Improving the Environment
Why We Did This
Examination
We conducted this examination to
determine whether (1) the reported
outlays fairly present, in all
material respects, the allowable
costs incurred under EPA
cooperative agreements
CX82546101, CX82675101 and
XA83033101; and (2) the recipient
was managing its EPA cooperative
agreements in accordance with
applicable requirements.
Background
EPA awarded three cooperative
agreements to the recipient totaling
$3,260,467. Grant CX82546101
was awarded for storm water
education, and grants CX82675101
and XA83033101 were market
transformation grants awarded to
encourage developing and
purchasing energy-efficient
products. The project period for
the storm water education grant
was from December 15, 1996, to
October 31, 2001. The project
periods for the market
transformation grants ran
consecutively from September 1,
1998, to December 31, 2005.
For further information,
contact our Office of
Congressional and Public Liaison
at (202) 566-2391.
To view the full report, click on the
following link:
www.epa.aov/oia/reports/2005/
20050921-2005-4-00120.pdf
Natural Resources Defense Council Reported
Outlays Under EPA Cooperative Agreements
CX82546101, CX82675101, and XA83033101
What We Found
In our opinion, because of the effects of the questioned outlays discussed
below, the reported Federal outlays on the Financial Status Reports/Federal
Cash Transaction Reports do not present fairly, in all material respects, the
allowable outlays incurred in accordance with the terms and conditions of the
grants and applicable EPA regulations. We questioned $1,419,548 of reported
outlays because the recipient did not maintain the necessary documentation to
fully support the reported costs, as required by Federal regulations.
Specifically, the recipient did not (1) obtain required Federal approval for
indirect and fringe benefit costs, and (2) perform required cost or price reviews
to support the reasonableness for contract costs.
What We Recommend
We recommend that EPA (1) obtain sufficient documentation to support the
outlays of $1,419,548 in accordance with EPA regulations or disallow the costs
from Federal grant participation, and (2) negotiate fringe benefit and indirect
cost rates in accordance with Office of Management and Budget Circular
A-122.
The recipient disagrees with the questioned outlays, but plans to submit for
negotiation the required fringe benefit and indirect cost rate proposals.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OFFICE OF
INSPECTOR GENERAL
September 21, 2005
MEMORANDUM
SUBJECT: Natural Resources Defense Council Reported Outlays Under EPA Cooperative
Agreements CX82546101, CX82675101, and XA83033101
Report No. 2005-4-00120
This is the final report to express an opinion on the outlays reported through June 30, 2004, by
the Natural Resources Defense Council under cooperative agreements CX82546101,
CX82675101, and XA83033101. Our opinion does not extend to the recipient's financial
statements taken as a whole, nor does it extend to the quality or results of the funded research. In
addition, our conclusions are qualified subject to EPA's acceptance of the work upon completion
of the grant.
We have questioned over $1.4 million because the recipient did not have sufficient
documentation to support the allocation of these costs to the EPA grant in accordance with the
terms and conditions of the grant. The report represents the opinion of the Office of Inspector
General (OIG), and the findings contained in this report do not necessarily represent the final
EPA position. The OIG has no objection to the release of this report.
On July 22, 2005, we issued a draft report to the recipient for comment. The recipient did not
agree with the reported findings. We have included the recipient's response to the draft report in
Appendix B (we did not include the recipient's attachments but they are available upon request).
The response is also summarized after each finding with our comments.
FROM: Michael A. Rickey /s/ TtticAad/I. "Rickey
Director, Assistance Agreement Audits
TO:
Richard Kuhlman
Director, Grants Administration Division
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Action Required
In accordance with EPA Manual 2750, the action official is required to provide this office with a
proposed management decision within 120 days of the date of this transmittal memorandum.
The proposed management decision must address each finding and recommendation. Where you
disagree with a finding or recommendation, please provide alternative actions and support or
precedence for your position
If you have questions concerning this report, please contact Keith Reichard, at (312) 886-3045.
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Table of C
At a Glance
Background 1
Independent Auditor's Report 3
Summary Results of Examination 5
Schedule 1 - Reported Outlays and Results of Examination for
Cooperative Agreement CX82546101 6
Schedule 2 - Reported Outlays and Results of Examination for
Cooperative Agreement CX82675101 10
Schedule 3 - Reported Outlays and Results of Examination for
Cooperative Agreement XA83033101 12
Additional Issue - Recipient's Personnel Activity Reports
Did Not Comply with OMB Circular A-122 15
Appendices
A Scope and Methodology 16
B Recipient Response and OIG Comments 17
C Distribution 30
i
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Background
The U.S. Environmental Protection Agency (EPA) awarded three cooperative agreements to the
Natural Resources Defense Council (recipient) totaling $3,260,467. The recipient was formed in
1970, as a Section 501(c) (3) organization (per Internal Revenue Code requirements), and has
offices in New York City, Washington, DC, San Francisco, and Los Angeles. The following
table provides some basic information about the authorized project periods and funds awarded
under each of the three agreements:
Cooperative
Agreement
Award
Date
EPA
Share
Recipient's
Share
Total
Costs
Project Period
CX82546101
04/25/97
$ 857,112
$45,111
$ 902,223
12/15/96-10/31/01
CX82675101
08/24/98
1,204,362
0
1,204,362
09/01/98- 12/31/01
XA83033101
08/08/02
1,198,993
0
1,198,993
01/01/02-12/31/05
Total
$3,260,467
$45,111
$3,305,578
Cooperative Agreement CX82546101: This agreement was for the recipient to provide
educational services about the causes, impacts, and possible solutions to wet weather pollution.
The scope of work includes three specific tasks: (1) to gather information on the impact of storm
water, particularly on recreational water use, and to disseminate this information; (2) to conduct
a survey to determine what information citizens would find helpful, what they already know,
what information they lack, and what aspects of storm water are most important to them; and (3)
to focus on one area (EPA's Long Island Sound pilot project) and develop ways to more
effectively alert the public and local government to the issues surrounding wet weather pollution
and what can be done about it. The recipient was required to provide a 5 percent match of
$45,111.
Cooperative Agreement CX82675101: This agreement was for the recipient to analyze, support,
and implement projects that encourage the development and purchase of energy-efficient
equipment, primarily in the California market.
Cooperative Agreement XA83033101: This agreement was for the recipient to work within the
energy-efficiency and manufacturing community towards long-term market transformation of
energy efficient technologies and practices.
To assist the reader in obtaining an understanding of the report, key terms are defined below:
Reported Outlays: Program expenses or disbursements reported by the
recipient on the Federal Cash Transactions Reports or the
Final Financial Status Reports
1
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Questioned Outlays: Outlays that are (1) contrary to a provision of a law,
regulation, agreement, or other documents governing the
expenditures of funds, or (2) not supported by adequate
documentation.
2
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Independent Auditor's Report
We have examined the total outlays reported by the Natural Resources Defense Council
(recipient) under the EPA cooperative agreements, as shown below:
Cooperative
Agreement
Financial Status Report/Federal Cash
Transactions Report
Date
Submitted
Period
Ending
Reported
Outlays
Federal Share
Of Outlays
Reported
CX82546101
01/25/02
10/31/01
$904,577
$857,112*
CX82675101
03/21/02
12/31/01
1,196,740
1,196,740*
XA83033101
07/14/04
06/30/04
903,280
903,280**
Total
$3,004,597
$2,957,132
* Outlays reported on a Financial Status Report
** Outlays reported on a Federal Cash Transaction Report
The recipient certified that the outlays reported on the Financial Status Reports, Standard Form
269A, or the Federal Cash Transactions Reports, Standard Form 272, were correct and for the
purposes set forth in the agreements. The preparation and certification of the claims was the
responsibility of the recipient. Our responsibility is to express an opinion on the reported outlays
based on our examination.
Our examination was conducted in accordance with the Government Auditing Standards issued
by the Comptroller General of the United States, and the attestation standards established for the
United States by the American Institute of Certified Public Accountants. We examined, on a test
basis, evidence supporting the reported outlays, and performed such other procedures as we
considered necessary in the circumstances (see Appendix A for details). We believe that our
examination provides a reasonable basis for our opinion.
We questioned $1,419,548 of the $3,004,597 in reported outlays, because the recipient did not
maintain sufficient documentation to support the allocation of these costs to the EPA grants in
accordance with the terms and conditions of the grant.
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In our opinion, because of the effects of the questioned outlays discussed in the preceding
paragraph, the reported Federal outlays on the Financial Status Reports/Federal Cash
Transaction Reports do not present fairly, in all material respects, the allowable outlays incurred
in accordance with the terms and conditions of the grants and applicable EPA regulations.
Details of our examination are included in the Summary Results of Examination and supporting
schedules that follows.
"Keith 1£eic6a>id
Office of Inspector General
U.S. Environmental Protection Agency
April 29, 2005
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Summary Results of Examination
We questioned unallowable reported Federal outlays of $1,419,548 because the recipient did not
maintain the necessary documentation to fully support the reported costs, as required by Federal
regulations. The recipient did not prepare or submit its indirect cost rate proposals to EPA as
required by Office of Management and Budget (OMB) Circular A-122. Also, the recipient
procured sole-source consulting services without justification or performing a cost or pricing
review. The questioned outlays are summarized below and detailed in the supporting schedules.
Cooperative
Agreement
Reported
Outlays
Questioned
Outlays
Federal
Share
Questioned
Schedule
CX82546101
$904,577
$308,848
$293,406*
1
CX82675101
1,196,740
769,549
769,549**
2
XA83033101
903,280
356,593
356,593**
3
Total
$3,004,597
$1,434,990
$1,419,548
* The Federal share questioned was calculated by applying the 95 percent Federal share to the
questioned outlays.
** The Federal share was 100 percent of reported outlays.
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Schedule 1
Reported Outlays and Results of Examination for
Cooperative Agreement CX82546101
Description
Reported
Outlays
Questioned
Outlays
Note
Salary
$194,837
$0
1
Fringe Benefits
45,413
45,413
2
Travel
21,303
0
Contractual
393,721
102,705
3
Other
86,220
0
Indirect Costs
164,834
164,834
4
Subtotal
$906,328
$312,952
Less: Unexplained
Adjustment
(1,751)
(1,751)
5
Reported Outlays
$904,577
$311,201
Less: Outlays in
Excess Grant Ceiling
(2,353)
6
Total
$308,848
Note 1: Refer to our comments on page 15 entitled Recipient's Personnel Activity Reports
Did Not Comply With OMB Circular A-122.
Note 2: We questioned fringe benefit costs because the recipient did not submit its fringe
benefit cost rate proposals for fiscal years 1997 through 2002 to EPA supporting
the rates used in the calculation of the reported outlays as required by OMB
Circular A-122. The provisions of OMB Circular A-122, Attachment A,
subparagraph E.2. states:
(b) A non-profit organization which has not previously
established an indirect cost rate with a Federal agency
shall submit its initial indirect cost proposal immediately
after the organization is advised that an award will be
made and, in no event, later than three months after the
effective date of the award... (c) Organizations that have
previously established indirect cost rates must submit a
new indirect cost proposal to the cognizant agency within
six months after the close of each fiscal year.
The recipient did not consider fringe benefits to be indirect costs, and thus did not
believe that it was required to submit the fringe rates to EPA.
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We disagree with the recipient that the fringe benefits were not indirect costs.
According to OMB Circular A-122, costs charged to an award must be either
direct or allocated indirect costs. The recipient allocated fringe benefits costs to
the EPA grant(s) by applying fringe benefit rates1 to direct labor. Thus, the fringe
benefits are allocated indirect costs that must be authorized by negotiated rate
agreements. Accordingly, the recipient was required to prepare and submit the
fringe benefit rate proposals to EPA in accordance with the requirements of OMB
Circular A-122, Attachment A, subparagraph E.2. Since the recipient did not
maintain sufficient records to support the outlays for labor and fringe benefits, the
reported outlays are unallowable for Federal grant participation.
In addition, in our draft report, we commented that the recipient may have
recovered vacation costs twice: once through the salaries claimed under the EPA
agreements, and once through the fringe benefit rates. In response to the draft
report, the recipient responded that the actual costs for vacations, holiday, and
sick leave are treated as direct and not indirect costs, and did not agree that the net
accrued vacation expenses represented a duplication of costs. Nevertheless the
recipient informed its Independent Auditor that it will eliminate the accrued
vacation expense from its actual fringe benefit rate calculations. We agree with
eliminating vacation expenses from the fringe benefits.
Note 3: We questioned reported contractual outlays of $102,705, detailed as follows:
Description
Questioned
Outlays
Note
Fringe Benefits
$28,697
a
Unsupported
74,008
b
Total
$102,705
a. The questioned outlays represent fringe benefits on employee salaries
which were reported as contractual services. The recipient reported short-
term and part-time employee as contractual because some of these
employees did not receive fringe benefits. We have questioned these
outlays based on the same rationale discussed in Note 2.
b. We questioned labor costs of $74,008 because the recipient could not
provide any labor activity reports to support these outlays, as required by
OMB Circular A-122, Attachment B, subparagraph 7.m.
Note 4: The indirect costs were questioned because the recipient did not submit its
indirect costs rate proposals for fiscal years 1997 through 2002 to EPA to obtain
approval for the rates used in the calculation of reported outlays as required by
1 The fringe benefits rates for all the EPA grants ranged from 18.7 percent to 24.4 percent of total salaries for fiscal
years 1996 through 2004.
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OMB Circular A-122. The provisions of OMB Circular A-122, Attachment A,
subparagraph E.2. states:
(b) A non-profit organization which has not previously
established an indirect cost rate with a Federal agency
shall submit its initial indirect cost proposal immediately
after the organization is advised that an award will be
made and, in no event, later than three months after the
effective date of the award... (c) Organizations that have
previously established indirect cost rates must submit a
new indirect cost proposal to the cognizant agency within
six months after the close of each fiscal year.
The recipient did not prepare or submit its indirect cost proposal after it made
several attempts to receive clarification on EPA's indirect cost policy, in effect at
the time. According to the recipient, EPA has stated numerous times, over the
years, via telephone, that it no longer gives written confirmations of indirect cost
rates as long the rate calculation is beneath their threshold of 35 percent, then the
rate is acceptable. EPA also stated that the recipient can continue to use its rate
for proposals and that it does not have to calculate a new one.
EPA's policy in effect at the time was not in compliance with OMB Circular
A-122, Attachment A, subparagraph E.2. - Negotiation and Approval of Indirect
Cost Rates. EPA's policy has been rescinded.
Note 5: The recipient was unable to explain why it reduced the reported outlays by
$1,751.
Note 6: The recipient incurred and reported outlays of $2,353 in excess of the cooperative
agreement budget. Accordingly, we have offset the questioned outlays by the
same amount.
Recommendation 1
We recommend that EPA:
a. Obtain sufficient documentation to support the questioned outlays of $308,848 in
accordance with EPA regulations or disallow the questioned Federal share of $293,406
($308,848 x 95 percent).
b. Ensure that the recipient submits its fringe and indirect cost rates proposals for fiscal
years 1997 through 2002 as required by OMB Circular A-122, and not allow any fringe
benefits or indirect costs until the rates have been negotiated. In negotiating the rates, we
recommend that EPA ensure that the recipient removes:
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Accrued vacation expenses from the fringe benefit pool.
Executive compensation from the indirect cost pools and reallocate the
costs to the allocation base (see Schedule 3, Note 4 for our discussion on
executive compensation).
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Schedule 2
Reported Outlays and Results of Examination for
Cooperative Agreement CX82675101
Description
Reported
Outlays
Questioned
Outlays
Note
Salary
$375,662
$0
1
Fringe Benefits
77,422
77,422
2
Travel
43,302
0
Contractual
476,244
473,995
3
Other
5,978
0
Indirect Costs
218,132
218,132
2
Total
$1,196,740
$769,549
Note 1: Refer to our comments on page 15 entitled Recipient's Personnel Activity Reports
Did Not Comply With OMB Circular A-122.
Note 2: We questioned reported outlays for fringe benefits and indirect costs based on the
same rationale as discussed in Schedule 1, Notes 2 and 4.
Note 3: We questioned contractual costs of $473,995 because the recipient did not
(1) procure contractual services in accordance with Title 40 Code of Federal
Regulations (CFR) 30.43: (2) justify the lack of competition for purchases over
$100,000 as required by Title 40 CFR 30.46, and (3) perform the required cost or
price analyses for the procurement of goods and services obtained under the EPA
agreements as required by Title 40 CFR 30.45. Title 40 CFR 30.43 provides that
all procurement transactions shall be conducted in a manner to provide, to the
maximum extent practical, open and free competition. The recipient did not
comply with the provisions of Title 40 CFR 30.43 in that it awarded three
contracts to Ecos Consulting valued at $473,995 without competition, and had no
justification to support this lack of competition. Each contract award was in
excess of $100,000.
For purchases over $100,000, Title 40 CFR 30.46 requires that procurement
records and files shall include the following at a minimum: basis for contractor
selection, justification for lack of competition when competitive bids or offers are
not obtained, and basis for award cost or price. In response to this finding, the
recipient indicated that Ecos Consulting possessed a unique set of qualifications
that no other consulting firms could provide. According to the recipient, Ecos
Consulting was to (1) explore the potential for incorporating energy savings from
efficient lighting and appliances into various energy rating systems for new and
remodeled homes, and (2) help develop a performance based specification for
energy efficient screw based compact fluorescent lamps and provide
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recommendations for improvements to the existing specifications for pin-based
fixtures, (3) identify opportunities for bulk procurement of energy efficient
torchieres, and (4) prepare an in depth white paper on energy efficient lighting for
utility program implementers and policy makers. However, the recipient did not
provide any documentation to demonstrate that no other organization was capable
of performing this work. An undocumented belief that an organization possesses
unique qualifications does not justify making a noncompetitive award. There may
be other organizations unknown to the recipient that were qualified and could
have performed the work more efficiently and effectively. At a minimum, the
recipient should have advertised for request for proposals to verify or confirm that
only one source was available to do the work.
The recipient also did not perform a cost or pricing analysis of Ecos Consulting's
procurement as required by Title 40 CFR 30.45. Title 40 CFR 30.45 provides that
some form of cost or price analysis shall be made and documented in the
procurement files in connection with every procurement action. In response to
this finding, the recipient indicated that Ecos Consulting's rates were very
competitive with those charged by other energy efficiency consultants.
The recipient's supposition that Ecos Consulting rates were competitive is both
flawed and contrary to the requirements for cost or price analysis. The recipient
awarded the contract to Ecos Consulting without competition. Thus, our
assumption is none of the firms used for the comparison submitted price
quotations. Therefore, it was not possible to compare rates. Further, the sole
source justification stated that Ecos Consulting had unique qualifications. It
would be inconsistent to compare the Ecos Consulting rates to consultants that did
not have similar qualifications.
As a result of this lack of competition and evidence of a cost or pricing analysis,
there was no assurance that the contract costs paid under the cooperative
agreements were fair and reasonable. Therefore, these costs are not allowable
under Federal rules.
Recommendation 2
We recommend that EPA obtain sufficient documentation to support the questioned outlays of
$769,549 in accordance with EPA regulations or disallow the costs.
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Schedule 3
Reported Outlays and Results of Examination for
Cooperative Agreement XA83033101
Description
Reported
Outlays
Questioned
Outlays
Note
Salary
$313,700
$0
1
Fringe Benefits
68,106
68,106
2
Travel
27,171
0
Contractual
331,012
131,835
3
Other
6,639
0
Indirect Costs
156,652
156,652
4
Total
$903,280
$356,593
Note 1: Refer to our comments on page 15 entitled Recipient's Personnel Activity Reports
Did Not Comply With OMB Circular A-122.
Note 2: The recipient did not submit fringe benefit rate proposals for fiscal years 2002
through 2004. Accordingly, we questioned reported outlays based on the same
rationale discussed in Schedule 1, Note 2.
Note 3: We questioned the reported outlays for contractual costs of $131,835. Under this
cooperative agreement, the recipient awarded a contract to Ecos Consulting
valued at $131,835 without competition, and had no justification to support this
lack of competition. Additionally, the recipient did not perform a cost or price
analysis for the procurement as required by Title 40 CFR 30.45. We have
questioned these contract costs based on the same rationale discussed in Schedule
2, Note 3.
In response to this finding, the recipient indicated that Ecos Consulting possessed
a unique set of qualifications that no other consulting firms could provide.
According to the recipient, Ecos Consulting was to (1) conduct research on power
supply efficiencies and the overall power supply market structure, (2) collect data
on power consumption of computer monitors operating in various modes, (3)
conduct outreach to key monitor manufactures to discuss the contents of a future
performance specification for computer monitors, (4) respond to ceiling fan
manufacturers' inquiries regarding the test method for measuring performance of
ceiling fans and provide initial thoughts on ways to improve existing performance
specification, (5) perform research on the cost effectiveness and energy savings of
early retirement programs for refrigerators and room air conditioners, and (6)
research the energy efficiency of existing battery chargers used in consumer
products. However, the recipient did not provide any documentation to
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demonstrate that no other organization was capable of performing the work. An
undocumented belief that an organization possesses unique qualifications does not
justify making a noncompetitive award. There may be other organizations
unknown to the recipient that were qualified and could have performed the work
more efficiently and effectively. At a minimum, the recipient should have
advertised for request for proposals to verify or confirm that only one source was
available to do the work.
Note 4: In the draft report, we questioned the reported outlays because the recipient did
not submit its indirect cost rate proposals to EPA for fiscal years 2002 and 2003,
and we could not accept the recipient's 2004 proposed provisional rate because of
an inadequate labor distribution system. Specifically, the recipient did not require
its executive officers to prepare monthly personnel activity reports to support the
distribution of their salaries to direct and indirect activities including unallowable
direct activities such as lobbying and fundraising. Accordingly, without adequate
supporting documentation, we have no way to verify that the executive salaries
which were reported as indirect costs were reasonable, allowable, and allocable.
OMB Circular A-122, Attachment B, subparagraph 7.m.(2) requires labor activity
reports for employees whose work involves two or more functions or activities if
a distribution of their compensation between such functions or activities is needed
in the determination of the organization's indirect cost rate(s). Thus, employees,
officers included, who distribute their time to other functions such as fund raising,
lobbying, membership activities, or other direct functions such as time charges to
other affiliated organizations, must maintain labor activity report if the recipient
wishes to include the labor costs as part of the indirect cost rate(s).
In response to the draft report, the recipient agreed that it "did not require its
executive officers to prepare monthly activity reports to support the distribution of
their salaries to all activities, including unallowable activities such as lobbying
and fundraising." However, the recipient indicated that executive officers keep
track of certain specific activities like lobbying. In addition, on an annual basis,
NRDC allocated executive salaries to program, administrative, and fundraising
activities.
During our field work, we requested but the recipient did not provide us with any
documentation to support (1) the lobbying costs which were excluded from the
indirect expense pool, or (2) the allocation of executive salaries, to program,
administration, and fundraising activities. Accordingly, without adequate
supporting documentation, we have no way to verify that the executive salaries
which were included in the indirect costs were reasonable, allowable, and
allocable.
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In response to the draft report the recipient also provided us with approved
indirect rates for fiscal years 2003 and 20042. The rates were approved on August
16, 2005, subsequent to the issuance of the draft report, by the United States
Department of Interior, National Business Center (DOI), acting on behalf of EPA.
Because of our concerns related to the lack of personnel activity reports as
discussed above, we contacted DOI to discuss the negotiation of the final rates.
DOI told us that it had no knowledge of our audit or of any of the findings
identified in the report. Accordingly, we recommend that the approved rates be
rescinded, and DOI consider the findings in this report before negotiating any new
rates.
Recommendation 3
We recommend that EPA:
a. Obtain sufficient documentation to support the questioned outlays of $356,593 in
accordance with EPA regulations or disallow the costs.
b. Ensure that the recipient submits its fringe benefit cost rates proposals for fiscal years
2002 through 2004 as required by OMB Circular A-122, and not allow any fringe
benefits until the rates have been negotiated. In negotiating the rates, we recommend that
EPA ensure that the recipient removes the accrued vacation expenses from the fringe
benefit pool.
c. Require the recipient to recalculate and resubmit its fiscal years 2003 and 2004 indirect
cost rate proposals for renegotiation. In negotiating the rates, we recommend that EPA
ensure that the recipient removes all indirect executive compensation from the indirect
expense pool and reallocate the costs to the allocation base. We also recommend that
EPA not allow any indirect costs until the rates have been negotiated.
2 The recipient still has not submitted an indirect cost rate proposal for fiscal year 2002.
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Additional Issue
Recipient's Personnel Activity Reports Did Not Comply With OMB
Circular A-122
The recipient's personnel activity reports did not fully comply with the provisions of OMB
Circular A-122, Attachment B, subparagraph 7.m. Title 40 CFR 30.27 provides that non-profit
organizations shall follow the provisions of OMB Circular A-122 for determining allowable
costs. That Circular, Attachment B, subparagraphs 7.m (1) and (2), require that:
...the distribution of salaries and wages to awards must be
supported by personnel activity reports....Reports reflecting the
distribution of activity of each employee must be maintainedfor all
staff members (professionals and nonprofessionals) whose
compensation is charged, in whole or in part, directly to
awards....Reports maintained by non-profit organizations to satisfy
these requirements must meet the following standards:
(b) Each report must account for the total activity for which
employees are compensated and which is required in fulfillment of
their obligations to the organization.
The recipient's employees did not record hours worked on their monthly activity reports.
Instead, on a monthly basis, the employees estimated the percentage of time that they worked on
EPA agreements and lobbying. These monthly activity reports did not account for the total
activity for which the employees were compensated. For instance, vacation, holiday, sick leave,
indirect activities, and other direct activities such as litigation or other non-Federal projects were
not reported on the employees' monthly activity reports.
We did not question any of the labor outlays reported under the agreements because the
deficiency in the personnel activity reports did not cause any labor costs to be misallocated to the
EPA agreements. The recipient originally accounted for all the labor costs in a non-Federal
direct labor account. On a monthly basis, the time devoted to each EPA agreement was
reclassified and charged to the EPA agreement(s). Lobbying activities were also estimated
monthly and reclassified to a direct lobbying account. Consequently, any time not charged to the
EPA agreements or lobbying, remained in the accounting system as a direct labor costs and were
not allocated to EPA either directly or indirectly. The recipient agreed with the finding and has
implement new time keeping procedures to require employees to account for all work activities
for which the employee is compensated. Accordingly, we have no recommendation for this
finding.
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Appendix A
Scope and Methodology
We performed our examination in accordance with the Government Auditing Standards, issued
by the Comptroller General of the United States, and the attestation standards established by the
American Institute of Certified Public Accountants. We also followed the guidelines and
procedures established in the "Office of Inspector General Project Management Handbook,"
dated January 14, 2005.
We conducted this examination to express an opinion on the reported outlays, and determine
whether the recipient complied with all applicable laws and regulations, as well as any special
requirements under the agreement. We conducted our field work from April 14, 2005, through
April 29, 2005.
In conducting our examination, we performed the following procedures:
We interviewed EPA personnel and reviewed grant and project files to obtain background
information on the State and the agreement.
We interviewed recipient personnel to understand the accounting system and the
applicable internal controls as they relate to the reported outlays.
We reviewed the most recent single audit report to identify issues which may impact our
examination.
We reviewed the recipient's internal controls specifically related to our objectives.
We performed tests of the internal controls to determine whether they were in place and
operating effectively.
We examined the reported outlays on a test basis to determine whether the outlays were
adequately supported and eligible for reimbursement under the terms and conditions of
the agreements and Federal regulations and cost principles.
We verified that the recipient performed all tasks and provided all deliverables required under
the agreement.
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Appendix B
Recipient Response and OIG Comments
August 22, 2005
By Electronic and Overnight Mail
Richard Valliere
EPA-OIG
One Congress Street
Boston, MA 02414-2023
Re: Draft Attestation Report
Dear Mr. Valliere:
The Natural Resources Defense Council, Inc. ("NRDC") provides these
comments on the Draft Attestation Report dated July 22, 2005 ("Audit Report"),
prepared by the EPA Office of Inspector General ("OIG"). The Audit Report considers
reported outlays by NRDC pursuant to EPA Cooperative Agreements CX82546101
("Grant 1"), CX82675101 ("Grant 2"), and XA83033101 ("Grant 3").
To facilitate our review of and response to the Audit Report, NRDC retained an
independent auditing firm, O'Connor & Drew (the "Independent Auditor"). We granted
the Independent Auditor full access to NRDC records and employees, and asked it to
examine the OIG findings. A description of the firm and its qualifications is appended as
Attachment 1. The report the Independent Auditor provided to us is appended as
Attachment 2. Some of the comments in this letter are based on the Independent
Auditor's advice; others are based on NRDC's own review of its relevant records and
practices.
OIG Comment - The recipient's Independent Auditor did not conduct an audit or
an examination in accordance with the standards established by the American
Institute of Certified Public Accountants. The Independent Auditor was engaged
to assist the recipient with responding to the draft report.
Summary of Comments
NRDC has produced all deliverables and performed excellent work under the
audited grants. OIG found some good faith deficiencies in our procedures relating to
effort reports, indirect costs, and contracting. We have corrected each of these errors.
There is no evidence that NRDC drew down federal grant funds for any impermissible
purpose.
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OIG Comment - We did not have any findings related to work performed or
deliverables furnished under the agreements or that the recipient drew down
funds for any impermissible purpose.
To the contrary, as the Independent Auditor confirmed: "NRDC's accounting
system ensures that only time spent on a federal grant is charged to that grant. The
system also precludes any unallowable cost, such as lobbying, from being charged . . .
to a federal grant." Attachment 2 at 3.
OIG Comment - The recipient's Independent Auditor also observed that the
recipient's "...effort Reporting for Federal Grants and Lobbying timesheets do not
account for the total activity for an employee. Examples of the type of activities
missing are sick, vacation, personal, unpaid time off. and other time charged to
NRDC work."
We do not believe there is a reasoned basis to disallow any labor-related outlays.
Our recent back-calculations of fringe benefits and indirect cost rates indicate that some
adjustments in amounts we billed for those items may be appropriate. We look forward
to discussing directly with EPA those adjustments, which we believe will be in the range
of $70,000 for the eight-year audit period.
OIG Comment - We questioned the labor-related outlays (fringe benefits and
indirect costs) under agreements CX82546101 and CX82675101 because at the
time of our audit field work, the recipient did not prepare any final indirect costs
rate proposals (including indirect fringe benefits) for EPA to negotiate. Without
the approved rates, we had no basis to accept the reported outlays.
Similarly, we questioned the labor-related outlays (fringe benefits and indirect
costs) under agreements XA83033101 because the recipient did not prepare
final indirect costs rate proposals (including indirect fringes benefits) for EPA to
negotiate. Subsequent to issuance of the draft report, the United States
Department of Interior. National Business Center (DOI) acting on behalf of EPA.
negotiated the recipient's final indirect rates3 for fiscal years 2003 and 2004.
Finally, while NRDC entered into sole-source contracts for certain work, we fully
disclosed to EPA our intentions and actions, and procured top-level services at below-
market cost. Thus, we see no reason to disallow contracting costs.
OIG Comment - Whether or not the recipient fully disclosed its intention and
actions to EPA. the recipient was still required to follow the procurement
procedures in Title 40 CFR Part 30. and the cost principles in OMB Circular A-
122. To be allowable under a grant award, the provisions of OMB Circular A-
122. Attachment A. paragraph A.2. provides that costs must (1) conform to any
limitation or exclusions set forth in these principles or in the award as to types or
The recipient did iml siihmii lis iiuhrccl I'niiuc heiiel'il rules fur iicunlulkm Therel'ure. I he iicunlulcd rules exclude
l he recipient's I'm me henel'ils
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amount of cost items, and (2) be adequately documented. The recipient
procurement for services did not comply with the grant regulations at Title 40
CFR Part 30. Accordingly, the outlays are not allowable.
Background Facts
EPA awarded Grant 1 to stimulate stormwater education. The grant covered the
period December 15, 1996 through October 31, 2001, and totaled $857,112 in EPA
funds. EPA awarded Grants 2 and 3 to encourage the development and marketing of
energy efficient products. These grants ran consecutively from September 1, 1998
through December 31, 2005, and committed EPA funds in the amounts of $1,204,362
(Grant 2) and $1,198,993 (Grant 3).
EPA has been extremely satisfied with NRDC's work under all three grants. The
OIG auditors themselves state: "We verified that the recipient [NRDC] performed all
tasks and provided all deliverables required under the agreements]," Audit Report at
15.
Indeed, EPA Region 2 presented NRDC with an Environmental Quality Award for
our stormwater education work under Grant 1 (for producing and disseminating a report
on pollution prevention practices of the 78 municipal governments bordering Long
Island Sound). A description of other work we performed under Grant 1, including our
reports analyzing and publicizing nationwide data on beach closings and advisories
resulting from stormwater
and other pollution sources, and our research, analysis, and dissemination of
information about successful stormwater management techniques employed across the
United States, is described in Attachment 3.
Our energy-efficiency market transformation work (Grants 2 and 3) has been
equally effective. Between 1998 and 2004, NRDC's accomplishments under the grants
include: conducting groundbreaking research on the energy usage of consumer and
office electronics products such as cell phones and computers; leading a national effort
to reduce energy use of new refrigerated beverage vending machines by up to 50
percent; creating a rigorous national quality assurance program for efficient lighting,
which is directly responsible for the removal of several poor performing models from the
marketplace; and establishing an industry-wide labeling and rating system for cool
roofing materials, which greatly reduce buildings' air conditioning demands and improve
local air quality. A brief summary of achievements related to Grants 2 and 3 is included
in Attachment 4, along with a February 2004 Wall Street Journal article describing an
innovative, grant-related partnership between Intel and NRDC.
OIG Comment - The recipient's performance and accomplishments under the
agreements, and whether EPA's was satisfied with the work performed, has no
bearing on the findings in the report. In completing the work under the
agreements, the recipient was required to follow all the applicable federal rules
and regulations identified in the cooperative agreements. Thus, any failure on
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the recipient's part to follow the applicable rules and regulations subjects the
recipient to the disallowance of costs.
NRDC Comments on Audit Findings and Recommendations
OIG examined NRDC records to determine whether reported outlays under the
three grants in question "fairly present, in all material respects, the allowable costs
incurred," and whether NRDC managed the grants "in accordance with applicable
requirements." Audit Report at "At a Glance" page. OIG found deficiencies in NRDC
records relating to (A) effort reports, (B) indirect costs and fringe benefits, and (C)
contracting costs. We address these in order below.
A. Effort Reports
1. OIG Findings
OIG found that employee monthly effort reports used to allocate salary costs to
the grants "did not account for the employees' total activities" as required by applicable
regulations. Audit Report at 5. OMB Circular A-122 requires that employee activity
reports account for all NRDC-compensated activity, not simply activity related to the
EPA grants. OIG found that it could not "determine if the labor costs were properly
allocated to the EPA grant(s)," and thus questioned reported outlays of $194,837 (Grant
1), $375,662 (Grant 2), and $313,700 (Grant 3), or a total of $884,199. Id. at 6, 7, 11,
13.
2. NRDC Comments
We now understand that 40 C.F.R. § 30.27 and OMB Circular A-122 require
NRDC employees charging time to a federal grant to record time for all work for which
NRDC compensates them. Before the OIG examination of our records, we were not
aware of this requirement, and required employees working on the grants to record only
the percentage of total work time they spent on grant-related matters. This was an error
on our part.
We have fully corrected the error. As of February 2005, we have required all
NRDC employees working on any federal grant to record monthly all work activities for
which NRDC compensates them. See Attachment 5 (revised NRDC effort report form).
At our request, the Independent Auditor reviewed our new timesheets and verified their
compliance with applicable federal regulations. Attachment 2 at 3. We are
implementing the few suggestions the Independent Auditor made for further
improvements in these records. Id.
OIG Comment - It appears that the new procedures, if corrected to include
lobbying time, as recommended by the recipient's Independent Auditor, will
comply with the procedures in OMB Circular A-122. However, to clarify a point,
we would like to mention that OMB Circular A-122. Attachment B. subparagraph
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7.m.(2) also requires labor activity reports for employees whose work involves
two or more functions or activities if a distribution of their compensation between
such functions or activities is needed in the determination of the organization's
indirect cost rate(s). Thus, indirect employees, officers included, who distribute
their time to other functions such as fund raising, lobbying, membership activities,
or other direct functions such as time charges to other affiliated organizations,
must maintain labor activity report. Otherwise the labor costs will have to be
treated as unallowable direct costs.
While we are grateful to OIG for illuminating a limitation in our recordkeeping, we
find it difficult to understand its questioning of more than $880,000 in reported outlays
for grant-related labor. NRDC based salary charges to the EPA grants on after-the-fact
determinations of the actual activities of each employee, expressed as a percentage of
the employee's whole NRDC work effort each month. This is, in effect, what OMB
Circular A-122 requires. There is no evidence, either cited in the Audit Report or of
which we are aware, that NRDC's actual allocation of human effort to any of the three
grants was in any way inaccurate or problematic. To the contrary, the work NRDC
produced under each of the grants clearly required the degree of effort our employees
expended and reported.
Additional factors undermine OIG's questioning of the reported outlays. On
Grants 2 and 3, NRDC's principal program person spent 93 percent or more of his work
time on grant-related matters. As a result, the timesheet deficiency barely applies to
him, because there was virtually no non-grant-related effort for him to report. For the
two grants combined, this accounts for $451,659 in salary outlays, or nearly two-thirds
the salary outlays ($689,362) OIG questioned under these grants. See Attachment 6.
NRDC's limited recordkeeping was a good faith error. During each year of the
grants in question, NRDC effort reports were reviewed in an A-133 audit by a reputable
independent auditor, PricewaterhouseCoopers. Although this annual review was
geared specifically to the accuracy, completeness, and compliance of our accounting
under government contracts, our auditor did not find the error.
Neither did EPA itself. On March 10, 1999, an EPA grant specialist visited
NRDC's San Francisco Office (out of which the market transformation grants are run).
The purpose of the site visit was to monitor and review the "administrative and financial
aspects of" the EPA grants. See Attachment 7 (May 3, 1999 EPA letter commenting on
site visit). After completing their review, the EPA site monitors found that NRDC
"appears [to be] complying with the terms and conditions of the awards." Id. To the
degree there was any subsequent EPA Desk Review of NRDC's practices and
procedures, the agency never informed us of any recordkeeping (or other) deficiency.
We presume EPA conducted its review according to the agency's elaborate "On-Site
Monitoring and Evaluation Instrument," Attachment 8, a copy of which it provided to us
in advance of the March 1999 site visit. The purpose of the Instrument is to assist EPA
in "effective monitoring of" grant recipients so as to "avoid or reduce negative audit
findings, waste or abuse of federal funds." Id. at 1.
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NRDC requires all employees to document lobbying activities and vacation and
sick days. The lobbying records provide the date, hours, subject matter, and expenses
associated with lobbying, and are given a separate and specific code. This procedure
provides confidence that no NRDC employee charged lobbying or any other
unallowable time against a government grant. With regard to this possibility, suggested
by OIG, the Independent Auditor found:
The effort reports used by NRDC meet the criteria contained in OMB
Circular A-122 with the exception of accounting for 100 percent of an
employee's activity. However, NRDC's accounting system ensures that
only time spent on a federal grant is charged to that grant. The system
also precludes any unallowable cost, such as lobbying, from being
charged, directly or indirectly, to a federal grant.
Attachment 2 at 3 (emphasis supplied).
In sum: We acknowledge a deficiency in our effort reports; we have corrected
the inadvertent error; despite the error, NRDC had controls in place ensuring that only
allowable activity was charged to EPA grants; and we believe there is no reason to
disallow any of the questioned labor-related outlays.
OIG Comment - The recipient's personnel activity reports did not fully comply
with the provisions of OMB Circular A-122. Attachment B. subparagraph 7.m
(see page 15 for further details). However, we have reevaluated out position
related to questioning the labor outlays because of this noncompliance and have
reinstated the questioned outlays.
B. Indirect Costs
1. OIG Findings
OIG found that NRDC (a) failed to compute fringe benefits as an indirect cost,
Audit Report at 8; (b) may have recovered vacation costs twice (through both salaries
and fringe benefit rates), id.; (c) did not prepare or submit indirect cost rate proposals to
EPA, id. at 5; and (d) did not require executive officers to prepare monthly activity
reports to support the distribution of their salaries to all activities, including lobbying and
fundraising, id. at 13. For these reasons, for the three grants combined, OIG
questioned $190,941 in fringe benefit costs, and an additional $539,618 in indirect
costs. Id. at 6, 11, 13.
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2. NRDC Comments
a. Fringe Benefits
NRDC considered fringe benefits to be direct, not indirect, costs. This appears to
be proper under the governing regulations. The Independent Auditor notes that the
citation on which OIG relies for its finding does not refer to fringe benefit rates, but only
to indirect cost rates. OMB Circular A-122, Attachment B, section 7(g)(2), provides that
fringe benefits can be treated either as direct or indirect costs. See Attachment 2 at 4.
The Independent Auditor further found that NRDC's method of developing fringe benefit
rates annually and applying such rates to the salaries of grant-related personnel is
"common among federal grant and cooperative agreement recipients." Id.
NRDC has now developed actual (rather than estimated) fringe benefit rates for
each fiscal year from 1997 through 2004. In some years the rate billed to the
government exceeded the actual rate; in other years the rate billed was less than the
actual. See Attachment 9 (NRDC calculations); see also Attachment 2 at 4. We will
discuss these calculations with EPA, and make any appropriate adjustment. We
believe that any such adjustment will be within the range of $10,000 over the eight-year
period.
OIG Comment - The recipient is correct that OMB Circular A-122. Attachment B.
section 7(g)(2). provides that fringe benefits may be treated as either a direct or
indirect costs. The recipient has chosen to treat certain fringe benefits such as
accrued vacation, health insurance, pension, and life insurance as indirect costs.
Consequently, the recipient was required to submit new indirect cost rate
proposals to the cognizant agency within 6 months after the close of each fiscal
year in accordance with OMB Circular A-122. We can not accept the reported
outlays for indirect fringe benefit costs until the recipient submits, and EPA
negotiates, final rates for all fiscal years reported under the agreements.
Therefore, we recommend that the recipient submit its fringe benefit rates to EPA
for negotiation as required by the Circular.
b. Vacation Costs
Regarding vacation time, the Independent Auditor determined that NRDC did not
over-recover costs. Attachment 2 at 4.
OIG Comment - The recipient's Independent Auditor indicated (see Attachment
2 at 5) that the recipient informed them that it will eliminate accrued vacation
expenses in calculating actual fringe benefit rates. The elimination of the
accrued vacation time from the actual rates will remedy the potential over-
recover of costs.
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c. Indirect Cost Rates
NRDC submitted to EPA an initial indirect cost rate proposal in July 1995.
Attachment 10. In April 1996, EPA distributed a policy statement relating to indirect cost
rates. Attachment 11. The policy provided that grant recipients were not required to
submit a proposal to EPA if indirect costs were "35% or less of total project costs and
represent less than $200,000." Id. at 3.
Grants 1 and 3 fit within this category. In the Audit Report, OIG states that the EPA
policy was rescinded, but does not state when. Audit Report at 9. In reliance on the
policy, NRDC did not submit additional indirect cost rate proposals to EPA.
NRDC did, however, diligently seek further guidance from the agency.
We wrote to EPA on September 8, 1997, seeking confirmation that no further cost rate
proposal was required. Attachment 12. We called EPA on September 16, 1997, for the
same purpose. Attachment 13 (handwritten notes summarizing call). We called EPA
again on January 13, 1998, and followed up with a letter dated January 14, 1998.
Attachment 14.
On March 10, 1999, EPA conducted its site visit to our San Francisco office, and,
as noted above, found no deficiencies in our administrative or financial practices or
procedures, including the calculation of indirect costs. Attachment 7.
On July 15, 1999, by telephone, an EPA grant specialist advised us that the
22.29% indirect cost rate we had proposed in 1995 still applied. Attachment 15 (notes
summarizing call). EPA's notices of award for Grant 3, first issued in 2002, included an
indirect cost rate of 22.29%. Attachment 16.
On August 4, 2004, we prepared an indirect cost rate proposal based on fiscal
year 2003 costs, and submitted it to EPA as part of the application package for renewal
of the market transformation grant. On March 15 of this year, NRDC submitted the
same proposal, presented in the format specified by EPA. Attachment 17. EPA is now
considering our proposed indirect cost rates for 2003 and 2004.
We do not believe the failure to submit annual indirect cost rate proposals to EPA
should cause OIG to question, or EPA to disallow, any indirect costs under the grants.
As the Independent Auditor found: "NRDC followed the guidance provided by EPA
officials . . . and followed the rules that were in effect at the time." Attachment 2 at 10.
And we repeatedly sought confirmation that we were, in fact, in compliance.
We recognize and concede a good faith error regarding indirect costs: We
should have updated our indirect cost rates each year internally, kept them in our files,
and adjusted our billings to EPA accordingly. In addition, we should have submitted to
EPA a proposed cost rate each year during the pendency of Grant 2. We have now
performed the requisite calculations. Attachment 18. The rates indicate that NRDC
may have over-recovered indirect costs of approximately $50,000 for the eight-year
period covered by the OIG audit. We will pursue this matter directly with EPA, and
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make any appropriate adjustment. But for this amount, we see no basis for disallowing
any indirect cost charged to the grants.
OIG Comment - EPA's policy to allow the recipient to retain the indirect cost rate
proposal(s) on file did not comply OMB Circular A-122. Attachment A.
subparagraph E. 2. EPA cannot deviate from the requirements of the Circular
unless a waiver is granted by OMB. EPA rescinded its policy after we informed
EPA that the policy did not comply with the Circular.
The recipient indicated that it prepared and submitted an initial indirect cost rate
proposal to EPA in July 1995. After the recipient establishes an initial indirect
cost rate, the Circular required the recipient to submit new indirect cost proposals
to the cognizant agency within six months after the close of each fiscal year. The
recipient did not prepare, or at least did not provide us with, any final indirect cost
rate proposals for FYs 1996 through 2002. Accordingly, we have no basis to
accept any of the indirect costs for this period.
As part of the response to this report, the recipient did provide us with the
approved indirect rates for FYs 2003 and 2004. The rates were approved on
August 16. 2005. subsequent to the issuance of the draft report, by the United
States Department of Interior. National Business Center (DOI). acting on behalf
of EPA. Because of our concerns related to labor documentation problems
identified in this report, we contacted DOI to discuss the negotiation of the final
rates. DOI told us that it had no knowledge of our audit or of any of the findings
identified in the report. Accordingly, we recommend that the approved rates be
rescinded, and DOI consider the findings in this report before negotiating any
new rates.
We cannot accept the reported outlays for any of the indirect costs until the
recipient resubmits its indirect cost rate proposals and excludes all executive
salaries from the indirect expense pool and add the salaries to the allocation
base (see our discussion below on executive salaries).
d. Allocation of Executive Salaries
OIG notes correctly that NRDC "did not require its executive officers to prepare
monthly activity reports to support the distribution of their salaries to all activities,
including unallowable activities such as lobbying and fundraising." Audit Report at 13.
However, OIG's further statement that "controls were not sufficient to ensure that labor
was allocated equitably, and unallowable activity, such as lobbying, was excluded from
EPA grants," id., is, in our view, both unsupported and incorrect.
NRDC's executive officers keep track of certain specific activities like lobbying.
In addition, on an annual basis, NRDC allocates executive salaries to program,
administrative, and fundraising activities. The Independent Auditor found that "NRDC's
accounting system precludes any unallowable costs from being charged to a Federal
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grant. All lobbying and fundraising costs, including the portion of executive salaries, are
removed from the indirect cost pool." Attachment 2 at 10. Thus, any unallowable effort
by NRDC executives is excluded from the indirect cost calculation. In addition, we note
that the amount of executive salary charged through indirect costs is minimal
(calculated by the Independent Auditor as 0.3%, see id.). No NRDC executive charges
any direct time to any of the federal grants.
Accordingly, we see no reasoned basis to question whether unallowable
executive activity, such as lobbying or fundraising, was charged to any of the audited
grants. Notwithstanding this, in order to simplify accounting going forward, NRDC will
eliminate from its indirect cost rate calculation all salary for any executive allocating time
to more than one activity.
OIG Comment - By the recipient's own admission, the executives did not
prepare monthly activity reports to support the distribution of executive salaries to
the indirect cost pool or direct cost activities such as lobbying, fundraising.
membership activities, or program administration. The provisions of OMB
Circular A-122. Attachment B. subparagraph 7.m(2) requires labor activity reports
for employees whose work involves two or more functions or activities if a
distribution of their compensation between such functions or activities is needed
in the determination of the organization's indirect cost rate(s). Without adequate
supporting documentation, we have no way to verify that the executive salaries
which were included as indirect costs were reasonable, allowable, and allocable.
Accordingly, we recommend that all executive salaries be excluded from the
indirect cost pool for all fiscal years and added to the indirect cost allocation
base.
C. Contracting Costs
1. OIG Findings
OIG questioned outlays of $291,016 attributable to nonsalaried employees, Audit
Report at 8, based on the failure to keep full time records (see section A above). In
addition, OIG questioned outlays of $473,995 (Grant 2) and $131,835 (Grant 3)
because NRDC "procured sole-source consulting services without justification or
performing a cost or pricing review." Id. at 5, 11, 13.
2. NRDC Comments
a. Nonsalaried Personnel
Some people who performed grant-related work were short-term or part-time
personnel. NRDC charged their time as consultants, because NRDC itself did not treat
them as full-time employees (with full benefits). Since these people only received
NRDC pay for the hours they worked on the grant, their timesheets reflect all their
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NRDC-compensable activity. According to the Independent Auditor, these timesheets
meet all applicable federal criteria. Attachment 2 at 6.
OIG Comment - The recipient's personnel activity reports did not fully comply
with the provisions of OMB Circular A-122. Attachment B. subparagraph 7.m.
See page 15 for our report related to the improvements needed in the personnel
activity reports. However, we have reevaluated our position related to
questioning the labor outlays because of this technical noncompliance and have
reinstated the questioned outlays.
OIG also questioned fringe benefits related to nonsalaried labor, in the amount of
$28,697. Audit Report at 8. NRDC is in the process of recalculating these fringe benefit
figures, as we have done for salaried employees, to account for any difference between
estimated and actual expenses. We will present our calculations to EPA, and make any
appropriate adjustment.
OIG Comment - See our first comment on page 23 related to fringe benefits.
Finally in this regard, OIG questioned $74,008 because NRDC did not provide
labor activity reports to support the outlays. Audit Report at 9. These are costs
associated with a number of nonsalaried employees and vendors, and involve small
increments of time. We have gathered available documentation supporting these
charges, and believe the questioned outlays are appropriate. Attachment 19.
OIG Comment - Although the recipient states it has gathered documentation
supporting the questioned outlays, it did not provided any of the documentation
for review. Accordingly, the outlays remain questioned.
b. Sole-Source Contractor
The major financial item in the contractor category relates to the work of Ecos
Consulting on the market transformation grants. In performing its appointed tasks under
Grant 2, NRDC awarded three contracts to Ecos, valued at $473,995, without
competitive bidding. Audit Report at 11. Under Grant 3, NRDC awarded a
noncompetitive contract to Ecos worth $131,835. Id. at 13.
While the contracts with Ecos were not subject to competitive bidding, OIG fails
to recognize, or give sufficient weight to, various pertinent facts. Ecos had been a sole-
source consultant since the inception of the market transformation grants. EPA
program staff were fully aware of NRDC's actions with regard to Ecos, because both the
intent to retain Ecos and specific budget lines to cover its work were set forth explicitly
in NRDC's grant proposals. Attachment 20.
Despite EPA's knowledge of NRDC's intentions and actions, the agency did not
notify NRDC of the need for competitive bidding until 2002. Since that time, NRDC has
bid out contract work competitively. The process includes developing a qualified
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bidders list, preparing a written request for proposals ("RFP"), sending the RFP to the
bidders list, reviewing written bids, scoring bids, identifying the winning bidder, and
negotiating and executing a contract with the victorious firm.
We are aware of no evidence that Ecos overcharged in any way for its services.
Indeed, Ecos substantially outscored and provided a more cost competitive proposal
than its competitor during the 2003 process we instituted. See Attachment 2 at 7; see
also Attachment 21. Our experts in energy-efficiency market transformation, who have
earned the trust of EPA program staff, were fully aware of the available expertise and
going prices in the relevant market from 1998-2003, and believe that Ecos performed
excellent work at reasonable rates throughout the period of the audited grants. As of
late 2001, for example, billing rates in excess of $100 or $150 (for senior personnel) per
hour were common in the industry, but NRDC paid far less for Ecos's first-rate services.
NRDC (and federal taxpayers) benefitted from Ecos's two-tier pricing structure, which
provided reduced rates for nonprofit groups like NRDC. See Attachment 21.
The record reveals that NRDC adequately documented its reasons for selecting
Ecos. Indeed, NRDC's written grant proposals to EPA contained sufficient justification
for NRDC's decision. Given this, and the fact that Ecos performed high-quality,
economical work under the grants, we see no reason to disallow any of the questioned
outlays.
OIG's Comment - While EPA may have been aware of the recipient's action to
procure a specific consulting firm, it did not relieve the recipient of its
responsibility to adequately justify the lack of a non-competitive procurement or
perform the required cost analysis. The recipient has not provided adequate
documentation to justify the sole source procurements or documentation to
support that a cost analysis was conducted. Accordingly, the outlays remain
questioned.
Concluding Comments
We found the OIG audit to be useful in highlighting a few deficiencies in our
grant-related recordkeeping. However, but for the updated fringe benefit and indirect
cost rate calculations discussed above, we respectfully object to any suggestion in the
Audit Report that EPA disallow questioned outlays. Based on the Audit Report, the
Independent Auditor's examination, and our own further review of our records and
procedures, we do not see any basis in the evidence or in common sense to do so.
Where, as here, there are good faith errors in recordkeeping, all corrected, no
evidence of harm or wrongdoing, and ample affirmative evidence supporting the
legitimacy, economy, and quality of a recipient's effort under federal grants, we believe it
would be arbitrary, punitive, and unjust to disallow costs.
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We look forward to resolving all outstanding issues with EPA. If we can provide
any further information, or if OIG would like to meet with us to explore further any
relevant issue, please let us know.
In whatever form and to whomever OIG disseminates its final report, including
without limitation on the EPA Web site, we request that you include,
in toto, this response letter, with all attachments.
Thank you for the opportunity to comment.
Sincerely,
Is/ Judith A. Keefer
Judith A. Keefer
Director of Finance and Operations
Attachments
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Appendix C
Distribution
EPA Headquarters
Office of the Administrator
Director, Grants Administration Division (Action Official)
(responsible for report distribution to recipient)
Director, Office of Grants and Debarment
Audit Followup Coordinator, Office of Grants and Debarment
Assistant Administrator for Water
Assistant Administrator for Air and Radiation
Agency Followup Official (the CFO)
Agency Audit Followup Coordinator
Associate Administrator for Congressional and Intergovernmental Relations
Associate Administrator for Public Affairs
General Counsel
Inspector General
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