Let us finish my look at the recent Armed Services Board of Contract Appeals (ASBCA) Technology Systems, Inc. (TSI) (ASBCA 59577) and the nine areas I believe are worth discussing:
- Supporting Material Overhead rate
- DCAA auditor independence
- DCAA’s right to change their mind in subsequent audits
- Tax vs. Book on depreciation issues
- Accrued costs crossing fiscal year
- Unapproved subcontractors
- An excellent example of DCAA properly developing findings.
- Documenting consultants work product
The scratched out areas were discussed in previous articles. Today, I am going to look at the last two areas, “Accrued costs crossing the fiscal year” and “Bonuses”. Again, I am not a lawyer and this is not legal advice. I am an accountant and there may be some accounting advice.
Accrued Costs Across Fiscal Years.
Twice in the ruling the government raises an objection to the allowability of TCI’s costs because TCI accrued them in one year and expensed them in a subsequent year. At least I hope that is the government’s objection, as the only reasonable alternative opens up a can of worms that the government would appear blind to.
Here are the two objections:
The ACO also disallowed some of the bonuses because they were paid in March 2008, in the fiscal year after FY 2007, which is the subject of this ICP.
According to the COFD, this prohibition prevented TSI from submitting its legal costs contemporaneously with their being incurred, 15 but the reason that TSI gave the DCAA for submitting the costs in the FY 2007 ICP, instead of in 2006 (when it supposedly became aware of the fact that it was cleared of wrongdoing), was that it “forgot” (R4, tab 16 at 260). Mr. Fletcher (with whom DCAA was dealing and would have been the person who DCAA claimed stated that he “forgot” to include the legal fees in FY 2006) denies ever making such a statement to DCAA (tr. 2/212).
For its part, the government does not dispute the fact that the legal fees for the investigation, as subjected to the 20% discount, would otherwise be allowable (see gov’t br. at 62, 64 ), but argues that the fees were expensed to the wrong year (id. at 62-63).
In the first case, the Board ignored the timing argument and disallowed the bonuses for reasons we will discuss later. In the second case, the Board directly rejected the timing argument in reference to the legal fees and allowed the majority of the fees.
Over the years, I encountered this timing argument from only a couple of DCAA auditors. Auditors raised the argument rarely and we addressed it pretty quickly by responding that GAAP required the accruals. The question displays a limited understanding of accrued accounting which is forgivable in a young auditor working through the differences between cost and expense. It is a bit more difficult to understand when the limited understanding rises all the way up DCAA and into an appeal before the Appeals Board. It is disheartening to look at the Appeals Board teaching DCAA GAAP 101.
Let us start with a simple absolute rule: if a cost is properly accrued and recorded, this is only reconsidered if the original entry is invalidated. An example of invalidation would be a subsequent decision not to pay the accrued expense. I would also note that GAAP enjoys extensive procedures for addressing such a subsequent event.
Legal fees present some unique challenges in government contractor accounting. Legal fees are, in my humble opinion, one of the only reasons for suspense accounts, as I go into detail about in this previous article. As I recommend in this article, legal costs where the allowability is unknown at year end should be capitalized (after being accounted for tax and financial statement purposes) and expensed out as either claimed or unclaimed when their character is recognized. This would be a GAAP compliant policy in keeping with government contracting requirements.
In order for the government’s argument to make sense — that the contractor “forget” (see above) and the contractor expensed them in the wrong year, there are only three reasonable possibilities: 1) the costs were not on the general ledger or 2) the expenses were not recorded properly in the first place (capitalized instead of expensed), or 3) the expenses were capitalized but not expensed properly (the wrong year).
Obviously, the first issue is the can of worms I mentioned earlier and, if true, we would be experiencing a completely different discussion.
The second possibility is one that major publicly traded corporations are often accused of – unnecessary capitalization to control earnings. Not something a tax paying small business if often accused of, and again the argument here would not be timing but why the expense was capitalized.
As noted above, GAAP enjoys extensive rules to address mistakes surrounding the third possibility and DCAA does not appear to raise these, especially in light of both times DCAA raises timing in this case (bonus and legal fees).
No, DCAA seems to object to the fact that the contractor wishes to charge the government in 2007 but not pay it until 2008.
Hm, isn’t that concept enshrined in the FAR at FAR 52.216-7? The one where a few DCAA auditors chastise contractors for not paying accrued expenses fast enough?
Come on DCAA, the real question is if the contractor reversed the accruals in 2008 before paying them or just expensed them again.
Bonuses or Incentive pay, present unique challenges for contractors. The issue is complicated by the specific and narrow regulations found within the FAR.
The Appeals Board quotes FAR 31-205.6(f) in its entirety but also utilized FAR 31-205.6(a)(6) when they refer to profits:
“This determination is buttressed by evidence that Mr. Fletcher considered the bonus pool to effectively come from company profits and the fact its distribution ca at the whim of TSI’s “in” group, justifying “close scrutiny,” Nolan Brothers, 437 F.2d at 1834, which it simply cannot withstand.”.
Every time a DCAA auditor brings up the ‘distribution of profits’ I respond, or am tempted to respond, that the statute defines the 401(k) as a ‘profit sharing’ plan and that is allowable.
I believe it is proper for DCAA, and in this case the Appeals Board, to use the IRS distribution of profits as a method for assessing unclaimed bonuses, I just wish they understood it better. The IRS standard is directed toward ‘C’ corporations that pay out all of the profits at year end as a bonus to avoid the double taxation inherit in ‘C’ corporations. But the rules work as a good method of determining what is a profit and what is earned compensation.
What every small business contractor wants is the right to award employees, at management’s complete discretion, for a job well done. I imagine the employees would like the same.
The regulations take all the fun out. In order to pass muster a bonus plan must be so well written that it is “an agreement to make such payment”. TCI failed this standard even after they thought they received DCAA acceptance.
So what is a poor small business contractor to do? Why the same thing the huge federal government does: avoid the words “bonus” or “incentive pay”.
Remember the GSA bonus scandals a few years ago? When the federal government handed out millions of dollars to employees despite poor performance? Look for the words “bonus” or “incentive pay” in GSA policies. The word “bonus” is there alongside another program not as extensively defined: “award”.
Contractors are free to develop well written and measurable bonus plans that meet the regulatory requirements. Contractors should also reserve the right to award employees for single or periodic exceptional performance (as does the federal government).
Of course awards are subject to audit and question by DCAA, but under the reasonable and prudent standard plus a possible excessive compensation argument.