Tips on Base Level Fiscal Law

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Tips on Base Level Fiscal Law
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THE BOX DOES NOT CHANGE!

• PURPOSE
• Funds may be obligated and expended only for
  specified purposes
• TIME
• Funds are available for obligation only for
  specified time limits
• AMOUNT
• Agencies may not spend more than is appropriated

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The Power of the Purse

• No money shall be drawn from the Treasury, but
  in Consequence of Appropriations made by law . .
  .
• Constitution, Article I, section 9, clause 7

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what does it mean?

• The established rule is that the expenditure
  of public funds is proper only when established
  by Congress, not that public funds may be
  expended unless prohibited by Congress.

United States v. MacCollom, 426 US 317 (1976)
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Sources of Law

• US CODE
• AUTHORIZATION ACTS
• AUTHORIZE PROJECTS - 10 USC 2802
• AUTHORIZE APPROPRIATIONS - 10 USC 114
• ENACT PERMANENT LEGISLATION
• APPROPRIATION ACTS
• 31 USC 1301(d)
• GENERALLY TEMPORARY
• OTHER PUBLIC LAWS
• OPINIONS

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Banking and Laundering Funds

• If it sounds too good to be true, it is.
• Sending money to GSA does not change the
  character of your money!
• (Neither does MIPRing it somewhere!)
• Nor can you extend the life of money by
  offloading it somewhere!

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The Economy Act 31 USC 1535

• Allows federal agencies to order goods and
  services from other federal agencies and to pay
  the actual costs of those goods and services.
• Requirements Funds available Agency head
  decides order is in best interests of government
  agency or unit filling the order can provide or
  get by contract the goods or services and Agency
  head decides the ordered goods or services cannot
  be provided as conveniently or cheaply
  commercially. Written agreement between the two
  agencies necessary to record the obligation.
• Ordering agency obligates funds current when the
  performing activity accepts the reimbursable
  order and records the obligation upon receipt of
  written acceptance.
• If performing activity has not incurred
  obligations to fill an order before the end of
  the period of fund availability, then the
  ordering activity must deobligate (recover) the
  funds.
• CICA compliance required.

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Other Authorities

• 41 USC. 23 (Project Orders)
• Orders or contracts for materials placed with
  Government-owned establishments considered
  obligations in the same manner as similar orders
  placed with commercial manufacturers
• 10 USC 2563 (Authority to sell outside DoD)
• Permits DoD to sell to a person outside the
  Department of Defense certain articles and
  services that are not available from any United
  States commercial source.

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Franchise Funds

• Examples
• GSA (40 USC 321)
• any other statutorily authorized revolving funds
• Government Management Reform Act of 1994, Pub. L.
  103-356 (Franchise Fund Pilot)
• Treasury (31 USC 322)
• Interior (P.L 104-208, Sept. 30, 1996)

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Interagency AgreementsDoD Policy on Non-Economy
Act Orders with Non-DoD Agencies

• USD(C) Memo of 16 Oct 2006
• Implemented by ASN(FMC) memo of 31 Jan 2007
• USD(C) Memo of 1 Mar 2007
• Implemented by ASN(FMC) memo of 30 Mar 2007
• USD (ATL)/USD(C) Memo of 14 Jun 2007
• OUSD(ATL) Memo of 28 Mar 2008
• Implemented by ASN(FMC) memo of 29 April 2008

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Interagency AgreementsB-308944, July 17, 2007

• A MIPR lacking specificity as to the goods or
  services ordered does not serve properly to
  obligate DOD funds
• Funds must be used within a reasonable time of
  receipt in order to meet the bona fide needs rule.

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Intra-agency Agreements

• For stock funded activities that are required
  sources of supply, if an ordering agency records
  an obligation for supplies and
• - the requiring agency has a bona fide need for
  the supplies at the time the order is placed
• - the request for supplies is sufficiently
  definite for the supplying activity to provide
  the supplies without further clarification and
• - the request provides a required delivery date
• a valid obligation exists and it does not matter
  when the stock funded activity awards a contract
  or otherwise provides the supplies to the
  ordering activity.

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Funding of Severable Services ContractsSeverable
Services Contracts, B-317636, April 21, 2009

• 10 USC 2410a authorizes agencies to enter into
  severable services contracts that begin in one
  fiscal year and end no more than 12 months later
  funded with the appropriation current at the time
  of contract award
• a statutory exception to the bona fide needs rule
• only applies to contracts funded with time
  limited appropriations
• An agency using a multiple year appropriation
  would not violate the bona fide needs rule if it
  enters into a several services contract for more
  than one year so long as the period of
  performance does not exceed the period of
  availability of the appropriation
• Bona fide needs rule not an issue with no-year
  funds

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Recurring Issues

• Plus ca change plus c'est la meme

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Food

• Free food . . . Normally cannot be justified
  as a necessary expense under an appropriation
  since such expenses are considered personal
  expenses that government employees are expected
  to bear from their own salaries.
• 72 Comp. Gen. 178
• Forest Service--Light Refreshments for National
  Trails Day, B-310023, April 17, 2008

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The Food Exceptions

• Emergencies
• Training
• Meetings
• Conferences
• Awards Ceremonies
• Cultural Awareness Ceremonies
• Travel
• DoD DGC(Fiscal) memo dtd 1 Sept 05
• FMB memo dtd 12 May 06
• http//www.gao.gov/special.pubs/appforum2005/appro
  funds/index.html

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U.S. Army Garrison Ansbach, B-317423, March 9,
2009(the obligatory annual food case)

• food may be provided for civilian employees,
  military members, and nonfederal participants
  such as contractors and host nation first
  responders at annual antiterrorism training
  exercises where necessary to achieve the
  objectives of the training exercise
• that it would be an embarrassment not to
  provide food to host nation first responders is
  not sufficient justification for using
  appropriated funds to buy food for nonfederal
  personnel

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Bottled Water

• The Rule
• personal expense!
• Appropriated funds may be used only upon a
  showing of necessity i.e., there is no potable
  water available.
• 2 Comp. Gen 776 (1923) and many other cases!
• B-310502, 4 Feb 2008

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Kitchen Appliances

• Use of Appropriated Funds to Purchase Kitchen
  Appliances, B-302993, 25 June 2004
• appropriated funds may be used to purchase major
  kitchen appliances that would be placed in common
  areas for the use of personnel at the site

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Clothing

• . . . every employee of the Government is
  required to present himself for duty properly
  attired according to the requirements of his
  position.
• 63 Comp. Gen. 245, 246 (1984)
• See also B-288828, 3 Oct 02 B-289683, 7 Oct 02

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The Clothing Exceptions

• Official Civilian DOD Uniforms 10 U.S.C. 1593
• Administrative Expenses Act 5 U.S.C. 7903
• Special/unusual clothing
• Item must be for the benefit of the the
  Government, essential to the safe and successful
  accomplishment of the work, and not solely for
  the protection/comfort of employee
• Must involve hazardous duty
• OSHA Compliance 29 U.S.C. 668

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Not Exceptions!

• Raincoats and umbrellas for employees who must
  frequently go out into the rain
• Running shoes for couriers
• Cold weather/foul weather gear

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the strolling through the mall test
Jackets with cool Navy Logos given to all
employees to increase esprit d corps
Organizational Clothing
Clothing items that are specifically required
safety equipment under NAVOSH Instructions
Foul weather gear and work overalls demanded by
the local Labor Union
GOOD
BAD
MAYBE
Deep Sea Diving Suit
Grateful Dead T-Shirts
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Other Personal Expenses

• Questions to ask
• Is there a reasonable relationship between the
  proposed expenditure and the purpose for which
  the funds were appropriated?
• What is the benefit to the agency?
• What is the benefit to the individual?
• Is there a more cost effective way to achieve the
  agency mission or program goals?
• Examples
• Registered traveler programs
• Health promotion items
• Recruiting items
• Gifts and other giveaway items

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The Ever Popular Trinkets

• Legitimate only
• As part of an approved Awards program
• Items of no intrinsic value designed solely to
  assist in achieving internal agency management
  objectives
• In rare cases, ok where there is a direct
  connection between the expenditure and the
  execution of the agencys mission benefit to the
  government must outweigh the personal nature of
  the item
• (Rule of thumb with the exception of a
  legitimate award, if its something actually
  youd want, its improper)

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Examples of Proper Giveaway items

• Gift Cards for Respondents to the Converter Box
  Coupon Program Survey - National
  Telecommunications and Information
  Administration, B-310981, 25 Jan 2008
• Veterans Benefits Administration Refreshments
  for Focus Groups, B-304718, Nov. 9, 2005
• Lava Rocks Distributed by National Park Service
  at Capulin Mountain National Monument, B-193769,
  Jan. 24, 1979

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Examples of Improper Giveaway Items

• T-shirts with the CFC logo given to employees who
  contributed a certain amount
• Ice scrapers imprinted with the logo Dont Drink
  and Drive
• Novelty plastic garbage cans containing candy in
  the shape of solid waste, given by EPA to
  attendees at an exposition
• Decorative ashtrays given to conference attendees

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Commanders Coins

• Three sources of funding
• OM for awards pursuant to a properly
  established awards program or pursuant to 10 USC
  2261 authority for recognition items
• ORF IAW SECNAVINST 7042.7K
• OWN for all others
• Caveats
• Be wary of bona fide need
• Personalization increases risk of obsolete stock
  upon departure

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Recognition Items for Recruitment/Retention10
USC 2261

• Allows appropriated funds to be used to procure
  items of nominal or modest value for
  recruitment/retention
• to members of the armed forces, their families,
  and other individuals recognized as providing
  support that substantially facilitates service in
  the armed forces
• nominal or modest value defined as a
  commemorative coin, medal, trophy, badge, flag,
  poster, painting, or similar item valued less
  than 50
• B-307892, October 11, 2006
• OASN(FMC) memos dated November 9, 2006 and
  December 14, 2006

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Traditional Ceremonies(i.e., Retirement, Change
of Command)

• Traditional ceremonies are considered official
  events
• Authorized to use appropriated funds,
  government personnel, and other resources
• Includes cost of printing/addressing/sending
  reasonable number of invitations, as appropriate
• Does not include cost of food, beverages, or
  other entertainment
• Presentation of award during a traditional
  ceremony does not permit use of appropriated
  funds to purchase food at follow-on reception or
  ceremony

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Agency Sponsored Conferences

• NIH, B-300826, March 3, 2005
• The Honorable Barbara A. Mikulski, B-306663,
  January 4, 2006
• Conference must involve topical matters of
  interest to, and the participation of, multiple
  agencies and/or nongovernmental participants.
• May pay for meals and light refreshments in
  accordance with established GAO case law
• May not charge a conference fee absent specific
  statutory authority

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Conference Fees 10 USC 2262

• SECDEF may collect conference fees to offset the
  cost of a conference
• Any collections exceeding actual costs deposited
  as miscellaneous receipts
• DoD memorandum dated February 12, 2007
• Requires reimbursable authority
• OASN (FMC) memorandum dated March 2, 2007
• Requires written request to FMB-5 for approval
• Plan for accounting receipts, reporting

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No-Cost Contracts for Event Planning Services

• B-308968, 27 November 2007
• agencies may enter into no cost contracts for
  conference planning services
• must look at real cost/benefits
• does not change any rules regarding conferences

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Use of Government Resources

• B-277678, 4 January 1999
• Joint Ethic Regulation, DoD 5500.7-R 3-201

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Use of Official Government Vehicles

• 31 USC 1344
• 31 USC 1349 penalty for violating 1344 is a
  suspension of at least one month

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For the Vast Majority of Us . . .

• Official Purpose
• TAD Status

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Domicile to Duty Transportation

• Only as authorized by 31 U.S.C. 1344, e.g.
  Secretaries and Chiefs of Staff, certain others
  as justified by command control or security
  issues

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Ground Travel and Transportation

• Ground Transportation of Spouses
• Spouses may ride in government vehicles to
  official events with their sponsors
• Spouses may not ride by themselves in government
  vehicles to official events unless
• the sponsor is authorized domicile-to-duty
  transportation and
• it is impractical or impossible for the sponsor
  to accompany the spouse Duty-to-Duty
  Transportation 

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Air Travel and Transportation

• Funded Travel of Spouses Family Members
• Rare Exception authorized only if
• The family member actually participates in an
  unquestionably official function or capacity,
  or
• Such travel is in the best interests of the
  United States because of a diplomatic or public
  relations benefit to the United States
• DoDD 4500.56, DoD 4515.13-R

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Air Travel and Transportation

• Unofficial travel of Spouses and Family Members
  of Senior Official on MilAir also a rare
  exception
• Spouse/family member may accompany General
  Officer, SES and equivalents on official business
  if -

• Travel is reimbursed at full coach fare
• MilAir already scheduled for official trip
• Spouse/family member cannot displace official
  travelers
• Larger aircraft not required to accommodate
  spouse/family member travel